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LEGAL LANGUAGE AND LEGAL WRITING

(INCLUDING GENERAL ENGLISH) FOR STUDENTS

G.M. WAGH
R.L. Law College Belgaum

2002

For Private Circulation Only

Please Write Your Views To: G.M. Wagh Lecturer, R.L. Law College Tilakwadi BELGAUM 590006.

TABLE OF CONTENTS
PART ONE LANGUAGE AND THE LAW
1 4 20 26 29 32 36 45 53 58 58 60 62 64 66 69 71 73 76 81 85

Language General Idea of Meaning Definitions Concepts and Conceptualisation Logical Positivism Reality of Universals Obscurities of Meaning Functions of Words Emotive Function of Words Some Selected Writings on Language and Law 1. Law 2. Importance of language in Law by Ishtiaq Abidi 3. Law and Language by Lord Macmillan 4. Language: Legal and Literary by John Mason Brown 5. The Advocate by Charles P. Curtis 6. The Manner of Cross Examination by Francis L. Wellman 7. Art in Direct Examination by Francis L. Wellman 8. Impeachment of Warren Hastings 9. The Seddon Case 10. Somavati Case 11. Which Bullet Killed Mrs. Knowles?

PART TWO
Legal Drafting Nature of Legal Drafting General Drafting Strategy and Attitude Style in Legal Drafting Simplification of Style

LEGAL WRITING
93 96 100 104 117

PART THREE
Common Errors Homonyms Modern English Usage Choice of Words Prepositions Phrasal Verbs Some Special Verbs Voice Common Legal Terms Legal Maxims

USE OF LANGUAGE
135 139 140 149 158 160 163 169 172 188

PART FOUR
Description and Narration Essay Writing Prcis Writing Letter Writing

WRITING IN GENERAL
202 205 208 215

PART FIVE
Conveyancings Forms of Conveyancing Pleadings Forms of Pleadings

LEGAL WRITING
224 231 275 284

PART SIX
Prescribed Cases

PRESCRIBED CASES
238

Note: This book covers both Old and New Syllabi of Karnatak University. Following Table shows the parts to be studied by students appearing for examination under different syllabi. OLD SYLLABUS Part One Part Two Part Five - Page Nos. 1-57 - Complete - Complete Part One Part Three Part Four Part Five Part Six NEW SYLLABUS - Page Nos. 58-89 - Complete - Complete - Complete - Complete

PART ONE LANGUAGE AND THE LAW

LANGUAGE
Language is the chief means of communication. Language is also necessary for us to create our ideas. We cannot think without language. Therefore language is necessary for us to create and communicate our ideas. Ideas can be communicated without the use of verbal language. Our body language or any other sign language may be used to communicate our ideas. But still, majority of our communication depends upon written or spoken language. When we are speaking to one another directly, that is, without the use of telephone, radio or any other non-visual distant communication system, we use verbal and non-verbal languages together. But then we are using written communication we usually depend upon verbal language only (except when we are indicating certain things using symbols, graphs, pictures, etc.). DEFINITION OF LANGUAGE Many definitions of language have been proposed by linguists and language scholars. Two of them may be mentioned here as examples. Language is the expression of ideas by means of speech-sounds combined into words. Words are combined into sentences, this combination answering to that of ideas into thoughts. - Henry Sweet English Phonetician and Language Scholar A language is a system of arbitrary vocal symbols by means of which a social group cooperates. - Bernard Bloch and George L. Trager American Linguists These definitions concentrate on particular aspects of language. As they are given by linguists and language scholars, they are confined to the linguistic aspect of the language. The first one puts excessive weight on thought and the second one uses arbitrary in a specialised though legitimate way. They do not pretend to cover all the aspects of language. It is difficult to give a complete definition of language. A succinct definition of language makes a number of presuppositions and begs a number of questions. FUNCTIONS OF LANGUAGE We think of language merely as the chief means of communication. But language has more functions than that. Ogden and Richards classify the functions of language into two categories, which they call the scientific functions and the emotive functions. Glanville Williams agrees with this classification, but prefers to call them symbolic functions and non-symbolic functions, respectively. Use of words as symbols is well explained by Ogden and Richards. They are not the first ones to talk about this theory. Locke had already anticipated it much before Ogden and Richards. We can refer to Ogden and Richards to know the modern theory of the subject. According to this theory, words, in themselves, are nothing. They are as Saunders put it, no other than the vibration of the air. Their importance consists in the fact that they are a kind of symbols. Symbols, in turn, are a kind of signs. Sign is genus, symbol is species and word is sub-species.

LANGUAGE AND THE LAW

Suppose a person sees smoke. He promptly thinks, there is no smoke without fire. Therefore, he thinks that there must be fire somewhere. Here smoke is the sign of fire. The ability of any particular person to interpret a sign that comes to his consciousness - i.e., to find meaning in it depends on his past experience - in this case, that smoke is a consequence of fire. Symbols are a special class of signs. There are other signs than symbols. Thus smoke is a sign, but it is not a symbol. A symbol is a conventional sign. It is a sign that is consciously designed to stand for something. Words are a special class of symbols. There are other symbols than words, such as a traffic sign, a wink, a number. But words are much the most important kinds of signs use in ordinary thinking and communication. A word or other symbol is generally used to refer to an object or situation in the real world. It is convenient to have a technical term for this object or situation, and Ogden and Richards coin the term referent to indicate it. Words and phrases are the symbols that stimulate mental references to referents. The referent is that which is signified. The relation between a symbol and its referent is always indirect: between them there always intervenes the thought of some person. If there were no minds there would be no symbols and so no words. There is no doubt that communication is the most important function of language. As a means of communication, language is used to convey information, ideas and emotions. But language is not merely a means of communication. Language is also the chief medium of thought. Almost all thinking, above a very primitive level, is in words. A person congenitally deaf, who of course cannot think in vocals, can hardly think or reason at all, at least by civilised standards, until he is taught to speak or read, after which he is able to think in manual or oral gestures or in symbolic pictures. Exactly how far there can be thought without words, or without symbols of some sort, is a controversy beyond the scope of the present work. Study of symbolic functions of language, or study of symbolism, is called semantics. Semantics is an important prolegomenon to the study of philosophy and of he so-called inexact sciences, such as psychology and the social sciences. It is found to be of immense use in clarifying disputes which arise out of the use of words, which are called verbal disputes. In jurisprudence there are many disputes which are disputes not as to the matters of fact or of value judgements, but purely as to the use of words. Study of semantics helps to clarify these verbal disputes. Thus communication and thinking are the two important uses of language. For natural scientists, such as physicists, chemists, etc., they are the only uses. When a scientist says that the specific heat of air at constant pressure is 0.2734:, he is simply expressing what he believes to be true. He would call it a fact. For this, science finds it necessary to device a terminology, i.e., a set of technical terms which aim at precision, i.e., uniqueness of reference. A scientific statement is, qua scientific, precise. Many statements are made, however, not for the sake of conveying information, but in order to arouse in the listener a certain response, to create an emotion in the mind of the hearer. Anybody capable of responding to literature will agree that this is an important, as well as a proper, function of language. Poets use language not mainly to express statements which are true or false, but to express what is neither true nor false. When Shelly says, Life, like a dome of many coloured glass, Stains the white radiance of eternity. Until death tramples it to fragments, he is neither talking nonsense, nor making an assertion that must be accepted or rejected as true, or false. The question of truth or falsity does not arise.

LEGAL LANGUAGE AND LEGAL WRITING

Thus, it is clear that a scientist uses language for an entirely different purpose from that of a poet. The difference between these two uses is not difficult to apprehend, yet they are seldom distinguished. I.A. Richards suggested the convenient terminology the scientific use of language and the emotive use of language. When language is simply used to refer to a referent, its use is scientific. When it is used to arouse an emotional attitude in the hearer, to influence him in any way other than by giving him information, then its use is emotive. A word is made of one or more letters. The arrangement of these letters gives the word a meaning. For example, R, A, and T may be arranged in different combinations to get different words. R-A-T, T-A-R, A-R-T are three different words. Thus, we can distinguish between two different words not only from their constituent letters, but also from the order in which these letters are arranged. Some words like DOG, HORSE, MAN, etc. bring a picture of a dog, horse, man, etc. before our mind, depending upon our past experiences. If we are told a name of a person, an animal or an object which we have never seen, we do not get any such picture. To get a picture in this case sufficient explanation of the appearance and characteristics of that thing is necessary. Thus these words have more than a mere form. They have a meaning. They are the symbol for those things. Thus the word D-O-G is a symbol for dog. But some words do not bring any picture before our mind. Thus A, An, The, Is, Was, etc. are words which do not represent any person, animal or object. They have only a form. No doubt these words are quite essential for building sentences, but by themselves they are nothing more than a form. Therefore, Margaret Bryant classifies words into two categories: 1. 2. Content Words Form Words

Thus, in the sentence A bird has wings, bird and wing are content words, whereas, a and has are form words. A bird has wings is a statement of fact. It conveys some information to the listener. Therefore, Ogden and Richards call it a scientific statement. Here the words bird and wing both stand for things for which they are symbols. Therefore, Glanville Williams calls it a symbolic use of language. The sentence My thoughts had wings is not a statement of fact. Here the word wing does not represent a wing, but something else. We cannot say that the sentence is either true or false. In fact, it is neither true, nor false. Ogden and Richards call this an emotive statement. Here the word wing is used in a metaphorical sense. It does not stand for the thing for which it is a symbol. Therefore, Glanville Williams calls it a non-symbolic use of language. For lawyers language has a special interest because it is a greatest instrument of social control. Lawyers are perhaps apt to regard law as the sole, or chief means of social control. But, in fact, law is only a special department of language, and whereas the application of law is limited, language is all pervasive. From nursery days words like coward, decency, manners, fairness help to simulate conduct considered socially desirable and to repress conduct considered undesirable. In later life words like success, honesty, patriotism perform the same function. Law, with its verbal apparatus rights, duties, wrongs is merely a particular application of language as a means of social control. Of course, it has special features. Reed Dickerson wonders how language so full of imperatives can be classed with pure exposition. Although all definite legal instruments are intended ultimately to influence conduct, they do not ordinarily serve as their own instruments of persuasion (outside special inducement giving clauses such as penalty provisions). As an example of an instrument of persuasion, when a young man writes a young woman to say that he wants to marry her, the latter not only conveys

LANGUAGE AND THE LAW

information but seeks to persuade. On the other hand, it is rare that a contract, will, lease or statute materially relies on the form of the document itself to persuade the parties affected to comply with its terms. The usual legal instrument is like the warden who merely points out to the new inmate where the prison barriers are located. Despite its from, it remains almost entirely a source of information. But Glanville Williams sees legal rules as emotive statements. According to him, a rule of law is not a referential statement. It is not meant to be a statement about what has actually happened or happening in the world, nor is it meant exactly as a prophecy. Legal rules are value judgements. Just as all ethics consists ultimately of value judgements, so does all law. Every legal proposition is reducible in the last analysis to the affirmation or denial of an ought; that is to say, it is reducible either to the statement that there is or duty or no duty (a hypostasised ought) that A shall do or refrain from doing something. Thus whole law consists of emotive statements. As with the most other emotive statements there is a referential element, but not such as to make the statement a proposition of fact.

GENERAL IDEA OF MEANING


The Meaning of Language Language is, above all, meaning. Meanings are attached to pieces of words, to words, or to groups of words. Meanings are attached to the spoken signals of language. Meanings are attached to the shifts and changes of grammar. The sounds of words have no meaning to begin with. People attach a meaning to them. Word meanings are not fixed for all time in any one language. Semantic changes take place all along, and at any moment the semantic area covered by a word is indeterminately bordered and differs from context to context. This is a further aspect and condition of the inherent and necessary flexibility of language. Meaning of Meaning The whole object and purpose of language is to be meaningful. Languages have developed and are constituted in their present forms in order to meet the needs of communication in all its aspects. It is because the needs of human communication are so various and so multifarious that the study of meaning is probably the most difficult and baffling part of the serious study of language. Philosophers of language find uncertainties in the meaning of word meaning itself. Ogden and Richards have written a book entitled The Meaning of Meaning which discusses this problem at length. C. Morris in his article Introduction to the Theory of Science avoided the term because it fails to take into account distinctions necessary for analysing language and communication. For our discussion we may consider here two types of language. 1. 2. Metalanguage (Language used to talk about language) Object Language (Language used to talk about matters other than language).

In metalanguage the word meaning or means may relate to the concept of reference, that is, to what the specific language denotes, or connotes or both. In such a connection, it may relate 1. 2. 3. to what the author intended the communication to refer to to what a particular author believed it referred to, or to what the hypothetical typical member of the audience to which the language was addressed would believe it referred to.

LEGAL LANGUAGE AND LEGAL WRITING In the object language the word meaning or means may relate 1. 2. 3. 4. 5. to importance or worth (Her father means a lot to her); to evidentiary value (Smoke often means fire) to the portent (This means war!) to wanted explanation (What is the meaning of this correction?) to simple intent (I did not mean to hurt you)

There may be other senses in which the term is used. But they are not relevant here (e.g. When you feel mean, remember what Dr. Mean said about the golden mean). The term interpretation has a cluster of meanings that generally correspond. Though there are several lexicographical difficulties, fortunately they do not cause difficulties of use. Just because a word can be used in so many senses it does not mean that it is ambiguous. The context in which such words are used suggests the sense in which they are used. This is the difference between a bundle of homonyms and ambiguity. The discussion of the meaning at a statutory provision takes place in the metalanguage, we may summarily exclude the senses in which the meaning or means is used in the object language. Thus, we have to discuss mainly the referential senses involving denotation or connotation. Therefore, in the typical question What does the Statute mean?, the word mean normally relates to the problem of ascertaining the combined effect of a congeries of connotations. We must pay more attention to the question From whose point of view the meaning is to be ascertained? The authors, the particular readers or the typical readers?, rather than What is the general meaning of the word mean?. Even these alternatives can be reduced as statutes are not written for any particular reader. They are for the general audience. Therefore the question is whether the statute is to be interpreted from the point of view of the Legislator or the general audience to which it is addressed. We cannot simplify the problem further. On the other hand, we are interested in the intended meaning of the author in the sense that without any intention on his part the whole process of communication would be meaningless. Therefore it is imperative to know his intention but no method exists to know it directly. We have to rely upon indirect means as the inference drawn from his use of external signs. Communication by use of external signs is possible only by virtue of established conventions. Therefore the actual intention of the author may be inferred from those conventions as conditioned by the text. The convention of language depends upon the cultural patterns of the author and his audience. We may generally assume that the author has not performed any futile act of trying to communicate to his audience using signs not known to them. Then the only reliable general key to meaning lies in the language habits of that audience. Thus we must take the member of the general audience in to account while interpreting a statute, though like the reasonable man he is also, in a sense, fictional, he is nonetheless useful. Once we have established the sense in which the term meaning or means is used in the question What does the statute mean?, the next question is whether that the term is precise in this single sense. The answer is again no. We can speak at three types of meanings in this one simple sense. Proper Meaning Locke laid it down that the significance of all words is perfectly arbitrary, and that every man has an inviolable liberty to make words stand for what ideas he pleases. However, few took this statement seriously, and Ogden and Richardson had to restate it by saying that people have the

LANGUAGE AND THE LAW

curious instinctive tendency to believe that a word has its own and proper use. Glanville Williams agrees and states that words have no true or proper meaning except in two senses: 1. They have an ordinary - commonly accepted - meaning. Ordinary meaning need not be current among the community as a whole. It may be confined to a particular section of the community, such as educated persons, business men, scientists or lawyers. 2. The user of the word may assign to it a special meaning. The proper meaning of that word for his purpose is then his assigned meaning. According to Glanville Williams these are the only categories of meaning and all other adjectives used to describe meaning fall under either of these two categories. Thus actual, correct, essential, grammatical, legitimate, literal, natural, necessary, rational or reasonable meanings are not additional categories of meaning. Similarly historical, etymological, wide, narrow, strict, metaphorical, technical, scientific and legal are all varieties of ordinary or assigned meaning. o Historical or etymological meaning is simply the ordinary meaning of the word at some period of the past. It is unreliable guide to the present meaning of a word because its meanings change. o Technical meaning (including scientific or legal meaning) is that meaning which is current among a class of persons. Legal meaning may also indicate a determination on the part of the lawyers to read words in a particular way although they know that the user did not intend them to bear that meaning. o Strict, narrow and wide refer to the denotation of ambiguous words, again as a matter of use. o Proper as contrasted with metaphorical means the original meaning of a word as opposed to its transferred meaning. The expressions are acceptable provided that it is remembered that the metaphorical meaning may overshadow or even wholly oust proper meaning and so become the main or the only meaning. For example, many words for non-empirical facts or for values began words for empirical facts. It would be pedantic to assert that the proper meaning of all such words is an empirical one (e.g., that right means straight and wrong means twisted). Glanville Williams further asserts that if anybody uses the word proper meaning in any other sense than ordinary or assigned meaning, it is not scientific but emotive use of the phrase proper meaning. He is only trying to express what ought to be the ordinary meaning of the word according to him. Thus if a lawyer writes, The proper meaning of implied contract is contract implied in fact and not a quasi contract, he does not express what is now the invariable usage of lawyers, but states what should be the usage of the term according to him. But by using the word is instead of ought he dresses up this emotive expression to make it look like a factual expression. Though everybody at one time or the other uses this technique, Glanville Williams observes that it is fertile source of controversy, because it provokes others to dispute the suggested proper meaning. Further, we may sometimes stigmatise a phrase as improper because it seems to indicate that the species denoted by it belongs to a genus to which the species is not in fact regarded as belonging. Thus, void contract is not a species of contract. We can call such phrases improper or misnomers without implying that words have inherently proper meanings.

LEGAL LANGUAGE AND LEGAL WRITING

The worst form of error in respect of the use of the term proper meaning is the supposition that words have not merely proper meanings but single proper meanings. This view suggests that every ambiguous word has one of its meanings proper while other improper, and the task of science is to find out which is which. An example can be quoted from Salmonds discussion of ownership. As Salmond rightly points out, we speak sometimes of owning a thing (e.g., building) and sometimes of owning a right (e.g., copyright). To distinguish these uses Salmond uses the terms corporeal ownership and incorporeal ownership. Salmond feels that it is logically absurd to say that ownership refers either to the ownership of a right or the ownership of a thing. It can be either of the two - not both at a time. Glanville Williams points out that the difficulty arises from the assumption that there is some single entity in the universe, ownership which cannot be used in two ways. This is an error. Ownership is a word symbolising an idea. This idea is the meaning of the word, and it may and does vary with context. Thus there is no absurdity in using the word ownership in two different ways. Because of this self-made difficulty it seems to suggest that incorporeal ownership is the original idea and corporeal ownership is the extension of it. But the fact is otherwise. It is of great importance for a student of jurisprudence to know that words have no inherently proper meanings. It enables him to write off almost all of the vast and futile controversy concerning the proper meaning of the word law and other similar terms. In the realm of constitutional law it helps to rid of the controversies such as whether India is a federal country or not. This is true for other branches of law also. In Liversidge vs. Anderson, the question before the court was whether the words If the Secretary of State has mean the same thing as If the Secretary of State thinks he has. Lord Atkin held that they did not. In some cases the meanings of two different phrases may be the same. What Lord Atkin meant was that one phrase did not normally meant the same as the other, and that there was nothing in the regulation to lead to the conclusion that their meaning was intended to be the same. The denial that there is no other proper meaning of words than ordinary or assigned meanings is subject to certain qualifications. It is not denied that generally a writer ought to take meanings as he finds them. Language can serve as a means of communication only if there is a general measure of agreement upon the meanings of words. Even when some change in established usage is called for, it is not desirable to give a word a new meaning so different from its old meaning that its use may not be agreeable to many. Still less justifiable will be the use of words of precise meaning as a mere synonyms for other words. For example, the schoolgirls use of the word chronic. ASPECTS OF MEANING According to Charles Morris, semiotic, the broad subject of meaning can be divided into three aspects: 1. Semantic: The relation between words and their referents. Vaguely this refers to the meaning of the words including their dictionary meaning. 2. Syntactic: The relations among words. This refers to the meanings of phrases and sentences. 3. Pragmatic: The relation between words and their users or listeners. This is the meaning of the message or communication. According to Reed Dickerson there is a fourth aspect - context. He points out that no document can convey any meaning in isolation. The true meaning of a document can be revealed only by context. Therefore, it is very much important that the author and the audience must share the general cultural environment, and within that environment, the same relevant habits, knowledge,

LANGUAGE AND THE LAW

values and purposes. A circuit diagram can be interpreted only by a person who knows the conventions of electrical or electronic engineering. Therefore, an author must take into consideration this necessary aspect, otherwise he may be misunderstood by the audience. Further, in the absence of context the literal meaning of a message can point to several alternatives. For example, if one says, Close the window in a room having several windows, the audience may not understand which window should be closed. The sentence becomes either overgeneral or ambiguous. But if one window is noisy or in any other way causing trouble, or if only one window is open and others are already closed, then in that context, there will not be any problem and the meaning of the statement becomes clear. Similarly, context helps us choose appropriate alternative from a bundle of homonyms. The meaning of the word run is clear in the sentence He runs the shop. Without context almost all of our communications would be either ambiguous or over-general. To avoid this, we would have to include much explanation which would make the communication intolerably long. Thus, context allows us to avoid many specifications which would be otherwise necessary. e.g. suppose that a house wife tells his servant, Get some vegetables from the market and gives him money. The servant cannot execute this order without interpreting it. The process of interpretation in this case may be very and very fast. It may be subconsciously done by the servant. The servant may not even know that he is interpreting the order. Common-sense and good faith tell the servant that the meaning of the order is: 1. (a) He should go to the market immediately. (b) He should go to the market after finishing the other works assigned to him. (c) Everyday if he goes to the market at a usual time, he should go to the market at that time. (d) If he is directed to go to the market for some other work, he should get vegetables when he goes to market for that purpose. 2. The money is given to him for purchasing the vegetables and not as a present to him. 3. He should buy the vegetables from the usual place or the nearest place, and should not go unnecessarily to a distant place. 4. He should buy only such vegetables as are usually used in the house, and should take into account the preferences of the members of the family. 5. He should buy the best vegetables available at a fair price. 6. He should bring the vegetables to the house in good faith, without spoiling them or adding any disagreeable or injurious thing to it. 7. He should deliver the vegetables to the housewife and return the remaining amount to her. 8. He should buy the vegetables on behalf of the family and not for himself. It is not necessary for the housewife to specify all these things to the servant. If they are told, some of them may need further explanation and the instructions will become too long. The servant may be confused and may either bring the vegetables according to his own wisdom, disregarding the instructions or he may refuse to bring the vegetables saying that he cannot remember all those instructions.

LEGAL LANGUAGE AND LEGAL WRITING

Any statement can be interpreted in the cultural background in which it is made. The culture consists of the entire fund of knowledge which belongs to the community. It is the common experience of the speech community. A speech community is usually defined not by a group of specific people, but by the activities or fields of interests. Thus, it is also called the relevant language system. There may be: 1. Major Speech Communities: They are identified with radically differing cultures. 2. Secondary Speech Communities, Special Languages and Technical Dialects: These exist within highly complicated cultures such as our own. The same person may participate in more than one speech community or be the user of more than one language. For example, a botanist may call a tomato a fruit while talking with a colleague, but a vegetable when talking to his wife. In short, any communication must be interpreted in the external environment in which it is made. Checking the external contest can tell us what relevant facts can be left out as being already shared with the audiences to which the statement is addressed. On the other hand, they can be supplied through a preamble or a statement of factual background. The external environment consists of two parts: 1. Established patterns of ideas and values immediately underlying a language. It is the primary meaning of the word. Glanville Williams calls it the Literal Meaning of the word (Reed Dikersons use of the term Literal Meaning differs from Glanville Williams use of the term Literal Meaning). 2. The relevant collateral and usually tacit assumptions that are shared and taken into consideration by the speech community. It conditions or colours the primary meaning and provides the basis for meanings known as implications. Glanville Williams calls it the Ulterior Meaning of the word. Hall calls it the silent language. It is the necessary part of the message. For example, if a telephone rings at 3 a.m. it implies that it is an emergency call or urgent call, but a similar ring at 3 p.m. does not carry any such implication. Wyclif calls it ghostly understandynge. It has given rise to a distinct literary form, namely, parable or allegory. Classification of Meanings by Reed Dickerson Reed Dickerson suggests that meaning of a communication may belong to one of the following three classes: 1. 2. 3. The Literal Meaning The Actual Meaning The True Meaning

Literal meaning is the meaning carried by the communication, when it is read in its dictionary sense without any consideration of particular context. Where context does not modify the meaning of the communication true and literal meanings coincide. But this does not happen often. When context modifies the meaning, literal meaning is almost always useless. Actual meaning is the meaning of the communication read in a particular context. The difference between actual and true meaning is that the former is the meaning revealed in a particular context

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while the latter is the meaning revealed in the proper context. These two may, therefore, coincide if the particular context is the proper context. Again this does not always happen. Unqualified use at the term meaning normally refers to true meaning. It is the total impact that is made by a communication when it is read in its proper context by a typical member of the audience to which it is addressed. By true meaning we do not mean that the language has inherent or natural meaning. Further even when read in the proper context a communication may not necessarily have a single ascertained meaning. The communication presupposes the context shared by the author and audience. If this is not present, the communication fails. It conveys a meaning to the audience which is at v ariance with the meaning intended by the author. Therefore interpretation of statutes refers to its true meaning of the statute and not to its actual meaning, much less to its true meaning. A communication sometimes effectively orients the reader to it's proper context. Then the reader cannot normally read it out of its proper context. Here actual, literal and true meaning tend to be the same. Only in such case, the plain meaning rule which equates true and literal meanings make sense. But the difficulty is again that we cannot definitely tell when such a situation really exits without knowing the context in which it was written. In case of a statute, this makes us to know the legislation history. In case of a statute we have another type of meaning - Legal meaning. It is the meaning declared by a court with respect to a problem of meaning that is responsible for the judgement. Presumably legal and true meanings coincide. Otherwise the legal meaning is to be changed so that it does not coincide. This is done by overruling the previous interpretation. Classification of Meanings by Glanville Williams A similar classification of meanings is suggested by Glanville Williams: 1. 2. 3. The Intended Meaning The Ordinary Meaning The Comprehended Meaning

The intended meaning is the meaning intended by the speaker or writer. It is similar to the true meaning described by Reed Dickerson, because it is in the proper context. The ordinary meaning is the meaning attached to the communication by an ordinary hearer or reader. Because the ordinary hearer or reader to whom the communication is not addressed cannot read it in any context, it is similar to the literal meaning described by Reed Dickerson. The comprehended meaning is the meaning attached to the communication by a particular hearer or reader to whom the communication is particularly addressed. This is similar to the particular meaning described by Reed Dickerson because it is read in a particular context. When the communication is read in proper context the intended and comprehended meanings coincide and there is no misunderstanding. Otherwise the intended meaning and comprehended meaning will differ and there will be misunderstanding. Glanville Williams makes following 3 observations in respect of meaning: 1. Law rarely addresses itself to the intended meaning. e.g., in law of deceit intended meaning is taken into consideration because there mens rea is to be proved. It is also rare to consider ordinary meaning, i.e., meaning which is reasonable. In cases of mistake, the parties may show that they relied upon the reasonable meaning of the communication.

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Though in case of wills, written agreements and other deeds the court is concerned with the intended meaning, the Courts refuse to go into external evidence for the purpose of ascertaining the intention of the author. This is the limit set by the law of evidence. But it is always the duty of the Courts, within this limit set by the law of evidence, to go behind the dictionary meaning of the words. The Courts realise pretty well the dangers of blind adherence to the dictionaries. Therefore, Courts do not read the words in isolation, but try to read them in the context revealed by the document. 2. In some cases Courts are concerned solely with ordinary meaning of the words and refuse to look into the intention of the author or the understanding of the reader or hearer. Illustrations occur in the law of defamation. On several occasions the comprehended meaning is very much important in law. The question whether an offer was made or acceptance was given depends on what the other party understood by the offer or by the acceptance. However, in such cases there are two matters to be considered: (a) what the hearer or reader understood by the communication; and (b) whether this understanding is reasonable. Thus, this type of meaning is a compound of ordinary meaning and the comprehended meaning. When the Court takes into consideration the ordinary meaning of the words, the Court may have to choose between several ordinary meanings which may be attributed to the communication. In some cases it may have to select between the meaning built up from the words separately and the meaning of the phrase as a whole. A Good Illustration is supplied by the following two cases decided under the Merchandise Marks Act, 1887. Under sec. 2(1)(d) of this English Act it is an offence to apply any false trade description to the goods. Under sec. 2(2) it is an offence to sell goods to which a false description has been applied. Before a description can be pronounced to be true or false, its meaning must be ascertained. The meaning depends upon the group of the people whom one takes as interpreting the words. Lemy vs. Watson: The Court had to choose between a meaning current among the vendors and a meaning current among the purchasers. A small fish caught off the coast of Norway was sold in tins under the description of Norwegian sardines. A French fish by name pilchard were also sold in England. The young pilchards were called sardines in England. In Norwegian waters there are no pilchards. The so-called Norwegian sardines were in fact, brisling. This was known to the sellers, but not to the purchasers. Therefore, it was held that the description was a false description and hence it was an offence. Fowler vs. Cripps: The substance sold possessed the qualities indicated by the descriptive words taken separately, but the description was nevertheless misleading to the ordinary purchaser. Glaubers salt was sold under the name soda crystals. It was proved that both Galubers salt and washing soda are salts of soda in crystalline form. But the description soda crystals was by the usage of the trade of manufacturing chemists applied only to washing soda. Therefore it was held that an offence had been committed by false description. Particularly interesting illustrations of the linguistic difficulty are the cordial cases of the Second World war. The word cordial originally meant a type of alcoholic drink. But in the course of time it came to be applied to non-alcoholic drinks containing substantial quantity of sugar. Sugar worked in place of alcohol to give a similar stimulating effect and the name was justified. During World War II sugar became scarce and in place of sugar, saccharin came to

3.

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LANGUAGE AND THE LAW be used. Now, the question is what is meant by cordial? This question illustrates 3 of the perennial problems of interpretation. (a) The difficulty of choosing between essence and accident in definition: It was open to the vendors of the so-called cordials to admit that a very large proportion of the drinks sold as cordials before the war did contain sugar, and yet to argue that this fact was a logical accident, the essence of cordials being that they were sweet. Therefore, a drink sweetened with saccharin is a cordial. (b) The difficulty caused by incipient change of meaning: The original meaning of the word cordial was an alcoholic drink. At the outbreak of the W.W. II a drink containing a large percentage of sugar was clearly a cordial. Thus, there was a change in the meaning of the word. Later during the W.W. II in place of sugar saccharin came to be used. After a long time one could have argued that there is yet another change of meaning. But before that the suit came to be filed. The difficulty arose from the fact that the attempt to change the meaning came to be nipped in the bud. (c) Difficulty of evidence: A judge is entitled to use his own knowledge of meaning of the word, and also, he is entitled to refer to dictionaries. But, in addition, it is also open to the parties to give evidence of the meaning of the words. The crux of difficulty is what kind of evidence can be tendered in such cases? In such cases as the present one, it is the evidence as to what the hypothetical purchaser who demands cordial expects to receive? It is not what a particular purchaser expected to receive, because his expectation may be an unreasonable one, or he might not have realised the full implications to the ordinary person of the word he was using. But the hypothetical purchaser is an abstraction who cannot be put in the witness box. Therefore, scientifically, the proper method will be to conduct a research and find out the meaning. But this is not a method followed by a law court. The court has to record evidence. In this case it will have to record evidence of hundreds of people to know the meaning of the word as understood by hundreds of people. But the courts use a shortcut and record the expert evidence. Sometimes the evidence of the representative members of the community may also be recorded. Neither of these persons can be called the ordinary member of the buying public. Therefore, unfortunately the type of evidence adduced in such cases frequently fails to provide the right answer.

IMPLICATIONS OF MESSAGE The implications of a message may be either non-logical (psychological) or logical. NON-LOGICAL (PSYCHOLOGICAL) IMPLICATIONS Glanville Williams classifies meaning into literal and ulterior meaning and also into ordinary, comprehended and intended meaning. The interaction of these classifications can give rise to the following 6 combinations: 1. 2. 3. 4. 5. 6. Ordinary Literal Ordinary Ulterior Comprehended Literal Comprehended Ulterior Intended Literal Intended Ulterior

When a tactless host looks out of the window and says to his guest, It has stopped raining, the guest may mistakenly take this to be an oblique hint that he is desired to leave. While the meaning

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of the words to the host is It has stopped raining 5, for the guest it has two meanings: It has stopped raining 3 and You may leave now 4. If the host really meant the gust to leave, then the statement has a fourth meaning 6. If an onlooker can make the same implication, then it has a fifth meaning 2 otherwise it has only the ordinary literal meaning 1 as far as the onlooker is concerned. It may be contended that the so-called ulterior meaning is no meaning at all. It may be said that: 1. For the guest to read the mind of the host, the words It has stopped raining are not necessary. The same may be read from the non-verbal acts of the host - his body language. This kind of meaning is not, therefore, confined to symbols. 2. The sentence It has stopped raining does not mean the same thing as You may leave now. In reply Glanville Williams says that though the contentions are true in a way, they do not affect the proposition that the intention of the host, i.e., the state of affairs he wanted to bring when he says It has stopped raining may be the same as when he says, You may leave now. Whether ulterior meaning may be called meaning at all is only a question of words. Ulterior Meaning and the Law In legal matters ulterior meaning figures prominently in the defamatory innuendo and the construction of documents. Courts generally enforce consequences logically implied in the language of contracts, wills, statutes and other legal documents and transactions. The legal doctrine of implied terms goes much farther than this. Judges are accustomed to read into documents terms that are not logically implied in them. Academically speaking, these non-logical implications may be classified into 3 kinds: 1. Type 1: of terms that the parties probably had in mind, but did not trouble to express - an effort to arrive at actual intention. 2. Type 2: of terms that the parties, whether or not they had them actually in mind, would probably have expressed if the question had been brought to their attention - an effort to arrive at hypothetical or conditional intention - the intention that the parties would have had if they had foreseen the difficulty. 3. Type 3: of terms that the parties, whether or not they had them in mind or would have expressed them had they foreseen the difficulty, are implied by the court because of the court's view of fairness or policy or in consequence of rules of law - an effort to arrive at a just conclusion - not concerned with the intention of the parties - terms implied by the court may be excluded by an expression of positive intention to the contrary. In respect of non-logical implications, Glanville Williams makes the following remarks: 1. The name non-logical implication is used to indicate that this sort of implication has no necessary connection with logic. In any particular case a term may be implied both logically and through non-logical implication. Though theoretically the three classes mentioned above are totally different from each other, in practice they merge imperceptibly into each other. The distinguishing factor, the probable intent, is only a matter of degree. Only in the first case the court declares the ulterior meaning of the statement. In other two cases the court is actually addressing to the meaning of the parties.

2.

3.

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Non-Logical Implications of Type 1: generally speaking, whenever the Court comes to a conclusion that: 1. 2. the meaning of the parties has been incompletely expressed, and the unexpressed meaning can be gathered from what has been expressed,

the omitted words will be supplied. These are the circumstances which render it improbable that the parties meant their words to be complete statement. But there are few cases where the courts may refuse to make this form of implication. For example, it may be excluded by a presumption. An important exclusion of it in the law of wills is in the rule that a will confers no interest by mere implication. Scal vs. Rawlins: A testator devised his property to his niece during her life, and after her death (she leaving no child or children) he left the property to his nephews. The niece died leaving children. It was argued that the intention of the testator was that if the niece had children at the time of her death, they should have the property otherwise the property would go to nephews. But the House of Lords refused to add any such term to the will. Since no gift to the children was expressed in the will, the nephews took the property after the death of the niece. Non-Logical Implications of Types 2 and 3: Courts frequently import into a document terms that are not logically implied in it, and that the parties probably did not think about. There are many examples of such terms: In Sale of Goods - implied conditions of reasonable fitness and merchantable quality, etc. In Law of Banking - implied promise by a banker not to disclose the state of his client's account, etc. These terms might better be called constructive than implied, because this particular process is not really an interpretation of pre-existing and expressed intent, but legislation amending or supplementing to the expressed intent. In any case, this is only a question of nomenclature and it does not have any practical or legal significance. Courts normally try to avoid adding terms of these classes to the documents. Implications of class 3 are not added to wills and courts disclaim any jurisdiction to reform wills except where statute expressly empowers them to. Implications of class 3 are normally added to bilateral or multilateral private transactions such as contracts. Doctrine of separation of powers prevents the courts from adding them to statutory provisions. There are certain rules of construction of wills and statutes which may be called implied (or constructive) terms. For example, the term children does not include illegitimate children. Though ordinary lawyers may not like them being called implied terms, there is no difference between them and the implied terms of types 2 and 3. In fact, the implied terms of types 2 and 3 are merely rules of law that will apply in the absence of express terms of the contrary intention. Again it is a matter of terminology whether we like to call them implied terms or rules of interpretation. Some of them are called rules of interpretation though they may be excluded by express terms of agreement. Striking example are those of law of frustration and the duty to disclose in contracts uberrimae fidie. Law of Frustration: suppose a contract contains a clause referring to arbitration all disputes arising under the contract, and suppose that a dispute arises over the question whether the contract has been frustrated. Is that a dispute arising under the contract within the meaning of his arbitration clause?

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In Hirji Mulji vs. Cheong Yue S.S. Company, Privy Council held that it was not, but this decision was doubted by House of Lords in Hayman vs. Darwins. Viscount Simon, L.C. held that the discharge of contract for frustration rested upon an implied term in the contract and therefore, it is a dispute arising under the contract. Lord Wright came to the same conclusion on a different ground. He held that the dispute as to frustration is a dispute arising under the contract, but it is not because frustration is an implied term under the contract. Glanville Williams agrees with the view of Lord Wright. He observers that a dispute as the frustration is a dispute arising under the contract, because it is a dispute concerning the application of law of frustration to the contractual situation. Theres no need to bring in the implied term theory, for the following reasons: 1. The rubric implied term is a convenient heading for some comparatively minor rules of law such as implied conditions and warranties on a contract of sale of goods. But it is not convenient as a matter of classification to include under it such a large subject as frustration. 2. To speak of discharge of both parties on account of reservation as resting on an implied term or condition conceal the fact that their discharge is the worldwide different principles of law. The discharge of the party was that becomes impossible rests on the law impossibility of performance or undue delay, whereas that of the other party rests on the law failure of consideration. This difference is apparent from the fact that sometimes one party is discharged and not the other. 3. The phase implied term has threefold signification. As applied to the law of frustration, it refers to implication of type 3, but some older dicta make it seem to refer to implication of type 1, thereby causing doubt and confusion in the law. Duty to Disclose in Contracts Uberrimae Fidie: In Pickersgill vs. London etc. Insurance Company, the question arose whether any insurers defence of nondisclosure by the assured was a defence arising out of contract within sec. 50 (2) of Marine Insurance Act, 1906. Hamilton, J. held that it was, on the ground that the duty to disclose arose out of an implied condition in the contract. Glanville Williams disagrees with the reason though he agrees with the decision. He says that the defence is one arising out of contract but it is not because it arose out of an implied condition. Even if it arose out of implied condition, that implied condition is of type 3, i.e., a rule of law. The proper reason is that it is a defence arising out of the combined effect of the contract and the rules of law relating to the contract. In Merchants' and Manufacturers' Insurance Company vs. Hunt, it was argued that the duty to disclose being an implied term might be suppressed by an express term. Scott, L.J. did not agree with this argument, though the court did not finally pronounce upon this argument. Glanville Williams opines that the argument has no bearing upon the conclusion sought to be deduced from it. Irrespective of whether it is an implied term parties can contract out of it. Whether they have so contacted out of it is a matter of construction which is not affected by the terminological question whether or not the law is stated as an implied term. LOGICAL IMPLICATIONS If a puzzle is properly worked out from a correct premises we can get proper solution which can be verified by the facts of experience. For example, the interior of a box measures 6 x 6 x 6. It is a desired to fit 1 wooden cubes into this box. A mathematician predicts from these facts that a maximum of 216 cubes fit into this box. Upon experiment being performed this prediction is invariably found to be correct. The

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mathematician is not surprised. He asserts that given the accuracy of the premises, there is no possibility of this prediction going wrong. The mathematician's prediction, if his reasoning has been accurate, is invariably correct because it was already contained in the premises from which he started. As long as the premises remain constant, the conclusion must follow, because the conclusion is merely a restatement, complete or partial, of the premises. This is not only true for all mathematical deductions but for all logical deductions in general. Statements of deductive logic are necessarily true for the simple reason that they are tautologies. A person may be aware of certain premises and may understand their immediate meaning. But he may not realise their logical implications that is necessarily contained in them. Thus a man may know the dimensions of the blocks and dimensions of the cubes, but he may not know how many cubes fit into the box. In some cases logical implications yield quite remarkable consequences. Glanville Williams quotes illustrations from geometry, where the acceptance of few simple axioms involves acceptance of a complicated logical structure. For example, a circle is defined as being bounded by line, every point is equidistant from a certain point within the circle. It is not an obvious consequence of this definition that the length of the circumference bears a constant ratio to the length of the diameter of 3.1419 to 1. Still this is true. In such cases the consequences follow from the premises, and cannot be rejected without self-contradiction. The consequences are not psychologically obvious to an ignorant person from a bare statement of the premises. The element of psychological surprise in logical implication is capable of presenting some awkward legal problems, especially in the field of contracts where the courts are accustomed to reject the defence of unilateral mistake. For example, A offers to employ B for a term of five years. His starting salary is Rs 1 lakh per year. This salary will rise by Rs 10,000 every year. B goes through the agreement and makes a counter offer. Accordingly his starting salary will be Rs 47,500 for half-year and rise by Rs 5,000 every half-year. A accepts thinking that it means the same as his own offer. But by a freak of arithmetic the rise of Rs 5,000 every half-year turns out to be equivalent to rise of Rs 20,000 every year. At the end of five years, B pocketed Rs 1 lakh more under his counter offer than under the original offer. Will the Court hold the contract void for the mistake on the part of A?
Offer First Year Second Year Third Year Fourth Year Fifth Year Total Rs. 1,00,000 Rs. 1,10,000 Rs. 1,20,000 Rs. 1,30,000 Rs. 1,40,000 Rs. 6,00,000 Counter Offer Rs. 1,00,000 Rs. 1,20,000 Rs. 1,40,000 Rs. 1,60,000 Rs. 1,80,000 Rs. 7,00,000

An even more serious question arises in case of a trick played with geometric progression. In James vs. Morgan, a horse was delivered in return for promise to pay a barleycorn for the first nail of the horse's shoes, doubling it for every nail to the total of 32 nails. This amounted to 500 quarters of barley, which was doubtless much more than the promisor had expected. On an action for non-delivery of barley, Hyde, J. held the contract to be good, but directed the jury to give only the value of horse as damages. This means that the contract was undone and the value of the horse as damages amounted merely to the relief quasi-contractual in nature. Glanville Williams observed that this is the desirable result. According to him mistake as to the logical implications of the contract ought to have the same effect as slip of pen or slip of tongue

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and ought to render the contract void, especially when the logical implication is substantially different from what was expected by the party under mistake. In normal cases courts will enforce the logically implied consequences in the terms expressed in contracts, statutes and other legal documents and transactions, as though they had been expressed totidem verbis. Consequences may also be logically implied not only from the terms of the contract taken alone, but from these terms taken in connection with propositions of fact or rules of law. Thus in case of wills, it was observed by Lord Westbury that implication may be founded upon a direction to do something which cannot be carried into effect without, of necessity, involving something else in order to give effect to that direction, or something else which is the consequence necessarily resulting from that direction. In some cases ulterior meaning may coincide with logical implication. But the meanings of the two phrases are different. Ulterior meaning is a matter of psychology, not of logic. On the one hand the logical implication of a statement may lie hidden for years. The mathematical truths lay hidden until they were discovered. On the other hand, ulterior meaning of a statement need not be logically entailed in its literal meaning. Thus when the host says It has stopped raining the logical implication is not You may leave now. THE STATIC ASPECTS OF MEANING A word refers some referent which may be an object, a person, an animal, an event, some quality, quantity, relation, time or some such thing. To clarify the relationship between a word and its referent Ogden and Richards constructed the following diagram. This diagram is called Ogden and Richards Triangle or Static Meaning Diagram. Static Meaning Diagram: This diagram indicates that the relationship between words and referent is neither God-given nor inherent in nature. Rather it is conventional. It exists only because the members of the speech community habitually used the word to refer to that referent. When we see a thing (referent) a thought (reference) occurs in our mind. Thus there is a direct connection between thing and the thought of the thing. The thing is the cause and the thought is the effect. The relationship between thing and thought is, therefore, a causal relation. Similarly, when we hear a word (symbol) a thought (reference) occurs in our mind. Thus there is a direct connection between word and the thought of the thing. The word is the cause and the thought is the effect. The relationship between word and thought is, therefore, a causal relation. Thus, the solid connection between a thing and the word which denotes that thing is made only through the thought of that thing, which is indicated by the apex of the triangle. Though this diagram appears convincing, Reed Dickerson points out that it suffers from at least 5 infirmities. 1. It suggests that the relationship between the word and the thing is as significant as the relationship between the thing and the thought.

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LANGUAGE AND THE LAW If the word is viewed as ultimately designating a thing, the meaning would be affected whenever the thing corresponding to the particular thought did not exist at all. But in fact whether the thing exists or not, the meaning is not affected in any manner. e.g., the meaning of there is a car outside does not depend upon whether or not there is a car outside. Therefore, a word does not refer to the thing. It refers to the thought of the thing.

2.

The left line of the triangle has to do a double duty. (a) It indicates a causal relationship indicated above. When the word is heard the thought of the thing occurs. The word is cause and thought is the effect. (b) It also indicates a non-causal relationship. When the thought arises the word is used to express it. But unfortunately, the diagram does not differentiate between the two.

3. The diagram indicates that the relationship between word and thought (left side of triangle) is similar to the relationship between the thing and the thought (right side of the triangle). But the relationship between the word and the thing is a two-way relation. The thought may be expressed by the word or the word may stimulate the thought. On the other hand, the relationship between the thing and the thought is usually only one way. The thing stimulates its thought, but the thought does not create the thing. 4. The relationship between the thing and the thought is a relation which falls within the field of epistemology. This relationship is outside the field of meaning in the referential sense, and therefore, beyond the reach of metalanguage. The relationship between symbol and thought is a referential one. By using the two relationships as two sides of a symmetrical triangle Ogden and Richards seem to treat them as coordinate with each other. 5. The diagram does not take into account the relationship between symbols. Static Meaning Diagram (Revised Version): Having pointed out the defects of the Static Meaning Diagram suggested by Ogden and Richards, Reed Dickerson suggests an alternative diagram. In this diagram, he has marked different items with numbers 1 to 11. These numbers indicate the following things:
TOTAL MESSAGE A 1 B Symbol 3 B Symbol 2 TOTAL THOUGHT A 6 Concept 10 8 Concept 10

5 4

A 7

Thing 11 9

1. Relation Between Symbols: Normally our message or speech B Thing 11 consists of more than one word. REAL WORLD Except for some messages which can be given using a single word such as go, come, see, sit, yes, no, etc., all our speech consists of more than one word. Thus, our message may be a sentence or a group of sentences.

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In two sentences, we may be using the same words. e.g., Dog, Cat and Chased. But just like in case of a word, the meanings will be quite different. Thus, dog chased cat gives quite a different meaning from cat chased dog, though both sentences use the same words. In English, this difference in meaning is because of the order in which the words are used. When the order is changed, the relation between the words change, and therefore, the meaning of the sentence changes. Thus, the meaning of a sentence depends upon the order in which the words are used in a sentence, or the arrangement of words in a sentence. This is the syntactical meaning of the sentence. Similarly, there is also a relation between words in different sentences. In I read the book and It was good, there is a relation between Book and It because of which, in the second sentence It refers to Book. 2. Relation Between Symbols and Concepts: This is a subjective two-way causal relation. It is subjective because it is the tendency of minds to use symbols or to react to symbols in a particular way. When a word, for instance fire is heard by several persons, their reactions will be different because their thoughts provoked by this word will be different. This depends upon several aspects. The position of the hearer, the position of the speaker, the surrounding circumstances, relation between speaker and the hearer, the past experiences of the hearer, the knowledge of the hearer, etc. Thus the reaction changes from person to person. It is a two-way relation because when the word is heard, the hearer reacts or gets a particular thought. When the speaker gets a thought he uses a word or words to express it. Thus from word(s) to thought and from thought to word(s) we have a two-way relation. It is causal because when a word is heard the thought arises. Word is the cause and the thought is the effect. There is, thus, a cause and effect relation between symbol and the thought. Thus, when a message is heard, its meaning is not only dependant on the words used in it, but also on other factors enumerated above. This is the pragmatic meaning of the message. 3. Another Relation Between Symbols and Concepts: This is an objective non-causal relation. It is objective because words have some ordinary meaning also. These meanings do not depend on any external factors mentioned above. Under any circumstance, they remain constant. Thus the dictionary meaning of the word book is constant. It is non-causal because, words are used to express thoughts. When the speaker uses a word to express his thoughts, there is no cause and effect relation between words and thought, because we cannot say that the word came into existence because of the thought. This refers to the dictionary meaning of the word. It is the semantic meaning of the word. 4. Purported Relation Between Symbols and Things: This is not a significant relation. It does not depend upon the existence or non-existence of the thing. Thus we may use a word to express an imaginary thing like ghost. The meaning of the word depends upon our conception of ghost and not on the existence or non-existence of ghost. If the concept changes, the meaning also changes. Thus meaning depends not on the thing, but on our concepts. Therefore, this relation has no significance in semiotic and is beyond its reach. 5. Relation Between Things and Concepts: This is a one way causal relationship. It is one-way because when we see a thing, its concept or thought occurs in our mind. The other way does not happen.

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LANGUAGE AND THE LAW It is causal because the thing is the cause which gives rise to the thought in our mind, which is the effect. Thus there is a cause and effect relation between thing and the thought. This relationship is described in epistemology (the languages of psychology and philosophy). It is beyond the reach of semiotic.

6. Relation Between Concepts: Some concepts are closely related. e.g.: book and knowledge. This is a mental relationship and is described in the language of psychology. It is beyond the reach of semiotic. 7. Relation Between Things: Some things are also closely related. e.g., smoke and fire. This relation is described in object language. It is beyond the reach of semiotic. 8. The Range of Characteristics That Define the Class of Concepts: Where concept A and concept B belong to the same class, it is because they have some characteristics in common. This class is described in metalanguage. 9. The Range of Characteristics That Define the Class of Things: Where thing A and thing B belong to the same class, it is because they have some characteristics in common. This is the objective description of the class. 10. The Particular Concepts That Comprise the Total Thought Expressed By the Communication: They are described in the language of psychology. 11. The Particular Things That Correspond to The Particular Concepts Mentioned In Item 10 Above: They are described in object language. They have no significance for semiotic and are beyond its reach.

DEFINITIONS
The main function of definitions is to explain the meaning of the words. Definitions presuppose existence and knowledge of a language. Therefore, we cannot learn meanings of all words by definitions. In the childhood we learn the meaning of words like "red" by being shown the objects to which these words are applicable. Many words cannot be defined in terms of other words. But majority of words admits of being replaced by a group of other words. This process is called definition. Ogden and Richards define definition as "the substitution for the symbol to be defined of a symbol or symbols that can be better understood." It involves the selection of known referents as starting points and the identification of referent of definiendum by its connection with these. Thus, a referent may be located by its similarity to another referent, by its relation in space or time to another referent, or by its being the cause or effect of another referent. Every definition of a word is a definition of: 1. 2. 3. its ordinary meaning, or of its specially-assigned meaning, or of its desired meaning.

The only scientific dispute over definitions is the dispute as to the ordinary meaning of the word. Normally there is no dispute as to the specially-assigned meanings. The dispute over the desired meaning is a conflict of value-judgments and not a scientific dispute. It is frequently possible to settle the dispute as to the ordinary meaning of a word by taking a number of admitted referents of the word and abstracting from them enough of their common features to explain the use of te word. But the following three things must be remembered:

LEGAL LANGUAGE AND LEGAL WRITING 1. 2. 3. The number of features abstracted is often a matter of choice. The word may have two or more ordinary meanings. Every word is of doubtful application in marginal cases.

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Those who dispute about the definitions of words and forget these points are wasting their time. Many questions and disputes which appear to be in respect of the world are, in fact, only with respect to the definitions. For example, "What is ...?", "What is the nature of ...?", and similar questions are nothing more than requests for definitions. They do not call for the information in respect of the empirical world. However, in the course of definition such information may happen to be furnished. Similarly, every enquiry into the nature of a class, quality or relation is a search for definition, and every dispute over such nature of class, quality or relation is a dispute over its definition. It is not an enquiry into, or dispute about, the facts, except to the extent that it relates to the ordinary meaning of the word. However, where the word is independently defined, there will be no dispute over its application. Uses of Definitions There are many reasons for using a definition. We may list the following four as the main reasons: 1. To announce the meaning of a new term: The writer may coin a new term to describe a new situation. The meaning of this new term and the situation to which it is applicable are described by his through a definition. 2. To clarify the meaning of a term: (a) Confusion as to convention: We have already seen that no word has an inherent meaning. The meaning of a term is assigned by the people who use it, and therefore, it is conventional. Thus, the meaning of term may differ from place to place depending upon the conventions. Thus a "billion" is 1012 according to British usage but 109 according to American usage. To clarify according to which convention the term is used, definition is necessary. Convention also differs from user to user. Thus, some words have ordinary and technical meanings. For example, "salt" ordinarily means sodium chloride (NaCl). But for a chemist there are many chemicals which he calls by name "salt". (b) Complicated, archaic, rare, foreign, less popular terms: some terms may be complicated, rare, archaic, foreign words or less popular. They are defined by giving their synonyms which are known to the readers, or by explaining their usage, etc. (c) Ambiguity: Some words may be ambiguous. Definitions will clarify in what sense the word is used by the author. 3. To modify the meaning of an existing term: The ordinary meaning of a term may be too narrow or too wide for the purpose of communicating the idea in the mind of the author. If the term is too narrow, it omits some of the things which the author wants to cover. If it is too wide, it includes some of the things which the author does not want to cover. Therefore, the author may want to redefine the word to give it an expanded or a restricted meaning. 4. To achieve brevity: Some terms are defined in order to avoid repeated descriptions. This not only helps to achieve brevity, but also makes the document more convenient to read.

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LANGUAGE AND THE LAW For example "seller" may be defined to mean "the seller himself and also his legal heirs, legatees, executors, administrators, assigns, agents, servants and successors-in-interest". But for this definition, the entire description would have to be used repeatedly throughout the document, making it difficult and inconvenient to read, and at the same time increasing the length of the document.

5. Diminishing errors: According to Ellen Piesse, definitions can be used to reduce the errors in a document. In many documents we have to use a particular name, figure, amount or date repeatedly. Thus we may want to use a date in a document and the same may appear at several places in the document. Suppose after drafting the document, we want to change this date, we will have to change it wherever it occurs in the document. This is not only laborious, but also prone to errors. If we overlook one or two instances and the date remains unchanged in those places, it may not only cause confusion, but also may result into unnecessary litigation. Therefore, it is better to define a term to stand for this date, and use the term wherever this date occurs in the document. Thus if we want to change the date later, we will have change it only in the definition clause. This is not only easy, but also avoids unnecessary confusion and litigations. Freedom of Stipulation and Author's Duty According to Port Royal Logic the definition of names cannot be contested because we cannot deny that a man has given a meaning to a word which he says he has given to it. The greatest justification of the doctrine that stipulation is free is that it includes the claim for the right to that redefinition of concepts which is essential to a science. The lexical definitions which merely describe the common usage in all its unscientific nature. Therefore, Richard Robinson says that we must be released from such lexical definitions and allowed to stipulate simpler, more precise and more univocal words and ideas, if we are to have science. James Mackay maintains that John Locke had a perfect right to stipulate that the word "idea" in his Essay was to mean "whatever is the object of a man's thought when he thinks". The word "idea" normally meant in those days, as it does today, "something essentially part of the thinker or perceiver" and not "of the object he surveys". "Idea" is "an event in the thinker's mind" and not "the object of someone's thinking". Thus, Locke's definition made a violent departure from usage. As Richard Robinson observes, such definitions are not useful. Indeed they are dangerous. They cannot free a reader from the influence of the normal meaning of the word. Many times the reader may, under the influence of the normal meaning, misunderstand the author. Not only the reader, but frequently the author himself may be misled by the natural meaning of the word. This his what happened to Locke without his knowledge. He could not succeed in ridding himself from the customary sense of the term idea. The result was the characteristic defect of Locke's Theory of Knowledge. It is not possible to cancel the ingrained emotion of a word merely by an announcement. In stipulating a meaning for a word, an author demands that his reader shall understand the word in that sense whenever it occurs in that work. The author thereby imposes upon himself a duty of using the word only in that sense. He tacitly promises and tacitly prophesies that he will do so. But it is not always that the author uses the word in that sense alone. Sometimes he may use the same word in a different sense also. Then his stipulation implied a false promise and a false prediction. When uses the word only in the sense he stipulated, his stipulation implies a true promise and a true prediction. If an author uses the word in a sense other than the sense he stipulated earlier in his work, it is not necessarily a case of dishonesty. The survival of the old sense of a word after its supposes

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replacement may occur entirely apart from the author's purposes and to their detriment as illustrated by the case of John Locke. The supreme rule of stipulation, according to Richard Robinson, is, therefore, to "stipulate as little as possible". Reed Dickerson is also of the same opinion when he states that one should not define a word in a sense significantly different from the way it is normally understood by the persons to whom the document is primarily addressed. He observes that it is a fundamental principle of communication and one of the most important things in the whole field of legal drafting. But, as Reed Dickerson laments, it is one of the shames of the legal profession that draftsmen so flagrantly violate it. Reed Dickerson acknowledges the freedom of stipulation, but observes that the communicant who ignores established usage is setting up unnecessary barriers between himself and the audience. This is true even where he gives advance warning in the form of a specific definition that he is using the word in a special sense. A lawyer who defines "wheat" to include "rice" is laying a trap not only for his readers but also for himself. This is because of the psychological law that even a legislature is powerless to repeal. Like ghosts returning to a haunted house, established connotations return to the user who attempts to banish them. The author who gives a special meaning to the word, later forgets it and reverts unconsciously to the established meaning, thereby introduces either an unintended result or an intended result disguised as something else. Methods of Definition In his book, Definition, Richard Robinson lists the following seven methods of definition: 1. The Method of Synonyms: Here, the term is defined by equating it to a term with which the audience is presumably familiar. For example, "Rex" means "King". 2. The Method of Analysis: This method is also known as the Aristotelian Method. This method involves two steps: 1. 2. Finding the class or category to which the term belongs, and treating the term as a species of that class or category. Describing the aspects of that species which differentiates it from other species of the same class or category.

For example, we have to define square. We can treat "square" as a member of the class "polygons". But there are other polygons such as pentagon, hexagon, heptagon, octagon, etc. The factor which differentiates square from other polygons is the number of its sides. A square has four sides while pentagon has five, hexagon has six, heptagon has seven, octagon has eight sides, and so on and so forth. Thus we can define square as a polygon with four sides. But there are other polygons with four sides. For example, rectangle, trapezium, etc. are all polygons with four sides. The factor which differentiates square from these others is that square has equal sides. Therefore, we can define square as a polygon with four equal sides. Again rhombus is also a polygon with four equal sides. Therefore, we have to find out the factors which differentiates between a square and a rhombus. The factor that differentiates between a square and a rhombus is that square has its sides joined at right angle. In this way, square can be defined as a polygon with four equal sides which are joined at right angles.

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LANGUAGE AND THE LAW Thus we have come to this definition of square through a method of analysis, hence the name. This method is based on the theory initiated by Aristotle and widely accepted after his day. This theory supposes that there is only one true definition of every unambiguous word, and that definition is per genus et differentium (by class and differentiation). This theory is, in turn, based on the Aristotle's "Doctrine of Essences". Aristotle taught that essences are fixed in nature, and that a definition is a phrase specifying this essence. Therefore, he thought that it is possible to dispute about "true" definitions as though they are matters of fact. But, according to the present view words have no "true" definition and, therefore, it is possible and permissible to define words variously. One definition may be proper for one purpose, while for another purpose another definition may be proper. Genera (class) and species are no longer regarded as an abjective and rigid ordering of nature. They are seen to be no more than subjective conveniences of classification. Being man-made, they are mutable, and it is possible to regard the same thing as belonging to different genera. We also know that "essence" simply means "important feature" and that what is important is a subjective and emotional matter. No definition ever states the sum total of the qualities that seem to go to the being of a thing. It always involves a selection from those qualities. The exact selection made very much depends upon the purpose of the definition. Thus, man may be defined as rational animal (the classical definition), and also as a talking animal, an imaginative, an artistic animal, a moral animal, a laughing animal, a weeping animal, or a superstitious animal. None of these definitions explains perfectly all uses of the word "man", because the word "man" may be applied to a lunatic, a deaf mute, a pauper, a philistine, an egoist, a hypochondriac, and so on. Conversely, these definitions may, to some extent, fit some of the lower animals. We have already observed this trouble with words. There is always a possibility of dispute as to the limits of their application, and no definition can get rid of this possibility. Thus, Aristotles Doctrine of Essences is rejected today.

3.

The Method of Synthesis: A term is stated by stating what it means in terms of relation of the thing designated to something else. For example, the word "red" means the colour a normal person sees when confronted with light with a wavelength of 7,000-6,500 .

4.

The Method of Implication: The term is defined by the implication of the term's meaning by the context in which the term is used. For example, a square has two diagonals, each of which divides the square into two right angled isosceles triangles". A reader who knows the meanings of other terms can readily infer the meaning of a diagonal.

5.

The Denotative Method: It is the method of defining a term by listing examples to what it applies to. For example, the word "vehicle" refers to such things as bicycles, scooters, motorcycles, auto rickshaws, cars, trucks, and buses. James Mackay calls it exemplification method because it yields information about meanings by the citation of examples. Denotative defining is a process which results is denotative definitions, which in turn yield connotative ones. It seeks the connotation of a word through its denotation.

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The denotative understanding of the meaning of a term means the capacity to recognise the denotation, and to recognise it as that of the class of which the term is the name. The connotative understanding of the meaning of a term means the capacity to recognise it as that the class of which the term is the name. The mental association between a name and the specimens of which it is the sign constitutes the denotative understanding. In the above example, between "vehicle" and "bicycles, scooters, motorcycles, auto rickshaws, cars, trucks, and busses". The mental association between a name and the attributes of which it is the sign constitutes the connotative understanding. In the above example, between "vehicle" and "modes of transportation of people and goods". In serious thinking, connotative understanding is in most cases essential. Mere denotative understanding will not serve the purpose. Substitution of denotative understanding for connotative understanding leads to failure of the reasoning process. Denotative understanding implies conscious connotative understanding because to be able to classify specimens together under a common name requires that their common characteristics shall in some way be recognised. But, many times this does not happen. A person may encounter many terms whose denotations can be recognised by him yet he cannot give their connotations. We may call this an unconscious knowledge of connotations, because, he could not have given the denotations without the knowledge of connotative understanding of those things. 6. The Ostensive Method: This is the method of defining the term by pointing at or showing what that term refers to. This method of definition is normally used in oral communication. In written communication also it can be used by showing the drawing, pictures and photos. It has no use in legal documents. The Rule-giving Method: This method defines a word by describing the kind of situation in which it is used. For example, if on any occasion you want to refer to the next preceding day, say "yesterday". Some Special Kinds of Definitions 1. Unnecessary Definitions: Definitions are used for different reasons, some of which are mentioned above. A definition which does not serve any such purpose is an unnecessary definition. For Example, a "form" is a piece of paper containing blank spaces, boxes or lines for the entry of dates, names, descriptive details or other items. 2. Degenerate Definitions: It is a definition which stipulates degenerate meanings for the words. A redefinition of a word degenerates it if it leaves us bereft of any means of indicating an important distinction that could be indicated by the word in its previous sense. Such a definition robs the word of its special meaning and makes it do forced labour as mere synonym of some other word. Richard Robinson warns us against the use of such definitions. For example, the term "Department of the Army" means the executive part of the Army Establishment at the seat of the government. 3. Stuffed Definitions: The purpose of a definition is to identify or clarify the term defined. Giving the full history of he term defined, or to give a full list of its ingredients, or to tell how

7.

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LANGUAGE AND THE LAW to bring it into existence is not the purpose of the definition. Therefore, Reed Dickerson warns us against stuffing the definitions with substantive rules of law. For example, the word "peanuts" for the purpose of this Act shall mean all peanuts produced, excluding any peanuts which it is established by the producer or otherwise, in accordance with regulations of the Secretary, were not picked or thrashed either before or after marketing from the farm, or were marketed by the producer before drying or removal of moisture from such peanuts either by natural or artificial means for consumption exclusively as boiled peanuts."

4.

One Shot Definitions: It is a definition which defines the meaning of the term and uses it once only. For example "This is Parking Space for Two Wheelers". "Definition of Two Wheelers: Two Wheelers means, for the present purpose, only scooters and motorcycles, but not carts, bicycles, mopeds, etc." Here twenty one words are used to state what can be better stated by three words, and these three words are included in those twenty one. Though such definitions are not unnecessary in the sense that they do not serve any purpose, we can still call them unnecessary in the sense that they could have been avoided easily.

5.

Partial Definitions: A definition does not necessarily have to set forth everything which is included and everything which is excluded by use of a particular word. Frequently it may be desirable to state what are excluded without stating what is included by the use of the word. In some other cases it may be desirable to state only some of the things which are included within a certain term. The draftsman can avoid most of the pitfalls of defining by staying with the partial definition and using the definition only to resolve the marginal uncertainties of meaning. For example, the term "house" includes the plot on which the house stands. Partial definitions are mostly worded as extensive definitions and use the connecting word "includes". They do not purport to change the ordinary meaning of the word entirely, but either clarify its meaning or modify its meaning only to the extent given by the definition. Thus, if we define the word "vehicle" as to include carts and lifts, we do not mean that the word "vehicle" is used in a sense substantially different from its ordinary meaning. The ordinary meaning continues to hold good. If the reader has any doubt about whether "cart" is a "vehicle", it is removed by this definition. Ordinarily a "lift" is not treated as a "vehicle". This definition modifies the ordinary meaning to that extent by including "lift" within the meaning of "vehicle".

CONCEPTS AND CONCEPTUALISATION


Concepts Language as a Conversion of the Nonverbal World into a Verbal World. In a hypothetical world where there is no language, behaviour would consist of response to stimuli of the senses: sight, hearing, touch, taste and smell. The language tries to reproduce all these varieties of experience through the stimulus of only one of the senses, that of the sound. This is called the symbolic function of words. We perceive five different types of nonverbal experiences through five different sense organs:

LEGAL LANGUAGE AND LEGAL WRITING 1. Sight (Vision) 2. Sound (Audio) 3. Smell - Eyes - Ears - Nose 4. Taste - Tongue 5. Touch - Skin

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All these experiences are registered by our brain. If we want to convey these experiences to another person, we have to convert them into nonverbal expression using language. We use words to symbolise each of our nonverbal experience. Thus a word is a symbol of our experience and the function of the word is symbolic function. When the person to whom we speak hears the word, the word reproduces the nonverbal experience in his mind. Thus, when a person touches a piece of metal, he may feel that it is hot. This is a nonverbal experience which he perceived through his skin. He converts it into verbal expression by the use of language and says the piece of metal is "hot". The word "hot" reproduces the feeling of heat in the mind of the listener and thus the listener understands what is experienced by the speaker. But there are two requirements for this: 1. The listener should understand the word. The listener must understand the language and its conventions.

2. The listener should have undergone a similar nonverbal experience in the past. If the listener has not experienced a similar nonverbal experience before, the word cannot reproduce it in the mind of the listener. Thus the word "red" cannot reproduce anything in the mind of the listener who is congenitally blind. The effect of a word in "reproducing" the perceptions, such as visual perception, is its "meaning". Thus meaning is the relationship of language to the non-verbal experience. Therefore, language has to depend, ultimately, upon nonverbal experience for its meaning. Now, the speaker and the listener both have the knowledge that the piece of metal is hot. The knowledge of the speaker is the result of his experience which he perceived through his sense organ, i.e., skin in this case. But the knowledge of the listener is from the information which he gathered from the speaker. Single words do not produce the complete "picture" of any nonverbal experience. Actually a word is a selection of a limited number of characteristics of nonverbal experience which are common to a number of similar experiences. This process is called abstraction. To the extent that language selects only a limited part of the nonverbal experience, it is abstract. As a word is only a selection of a limited number of characteristics of a nonverbal experience, it is evident that different selections can be made from any one experience. The selection of characteristics depends upon the purpose for which it is made. When the speaker touched the piece of metal, he not only experienced that it is hot, but also that it is hard, smooth, cubical, etc. But the word "hot" does not convey his other experiences than the temperature of the piece of metal. Thus the speaker has selected one of the several aspects of his nonverbal experience. This selection is based upon the purpose of his communication. On this basis, we can say that language has two aspects: selective and purposive. Therefore, we can also say that language is not simply a "picture" of nonverbal experience, but is an "interpretation and analysis" of nonverbal experience. It is an "organisation" of what may be called a "chaos" of experience. The result is the concepts. This interpretation, analysis and organisation is made by different language cultures in different ways. A person brought up in any particular culture learns the interpretation of experience, or concepts, in learning his language.

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Thus, the essence of a language is to reflect, express and perhaps even to affect the conceptual matrix of established ideas the culture to which it belongs. That is the reason why language is called a "conceptual map of human experience". At more abstract levels language has no counterpart in direct sense experience. Therefore, it is impossible to think the language concepts without the use of language. The entire process of analysis and organisation of experience by the mechanism of language is a "thinking" process. We can recognise the way in which language is related to experience and its relationship to "thinking" in many different applications. One such thing is the analysis and application of rules of law. All rules of law are generalisations. The degree of generalisation may, however, vary from rule to rule. In any case, rules do not describe unique facts of any particular case. hey are applicable to a whole class of cases. Unless there is such a generalisation, we cannot call it a rule, and it cannot function as a rule. Facts of any case are unique and unrepeatable, and a description limited to that case will never find another case that it fits. The facts of a rule are "type" facts whereas the facts of a case are "unique" facts. Thus, we speak of factual advocacy which is quite different from oratory. Factual advocacy involves the same kind of selective process as abstraction, but at a more elementary stage. Here the advocate selects elements of a total factual situation and achieves factual persuasiveness by getting the hearer to "see" what the advocate wants to see him. His selection is determined by the standard of justice, and the specific situations. Guidance in making the selection is provided by the rules of law. Rules of law reflect legal concepts which are more complex compared to linguistic concepts. Conceptual Clarity An advocate should have conceptual clarity, without which he cannot be successful. It is necessary at every stage of his profession. When a client approaches an advocate, he comes with some problem and seeking some relief. He tells many facts, some of which are relevant to his case and others irrelevant. The advocate has to find out the nature of the case. This is possible only if the advocate has conceptual clarity. Only after determining the nature of the case, the advocate can select relevant facts and ignore irrelevant ones. Only then he can find out whether the facts at hand satisfy the requirements of law and what are the chances of his client's success in the litigation. In short, the advocate's function is to refine these general objectives and then to develop a practical means for carrying them out. This mainly involves selecting most appropriate classes and entities necessary for the job. Conceptual clarity is also necessary for good drafting, for development of sound substantive policy and for its communication. Conceptual Problems In many cases the advocate can use established concepts. The problem is with selection. The advocate should not select too broad or too narrow a concept. In this process of search for right concepts, the advocate does not search for objective fact or "truth". He is only concerned with searching for useful concepts. Utility and clarity depend largely upon the conceptual simplicity inherent in an economy of ideas. This economy of ideas depends, in turn, on achieving the greatest degree of generality which is not inconsistent with the objectives to be expressed. This process involves consideration of the particulars of the case to see whether they form or tend to form a class. If it is the former, reference to the class merely avoids over-precision. If it is the latter, and if the purpose of the case is to cover the entire class, a significant omission is disclosed. This

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omission is repaired by substituting class names for particulars, when the client points to the omission. The uncritical acceptance of established concepts often results in the advocate's failure to adequately tailor the case to his client's substantive needs. Rise and Decline of Concepts Everybody is conscious of the fact that words come and go according to the vagaries of usage. But that the same thing happens to the concept is not known to many. Rise and fall of concepts or the change in concepts depends upon social standards. For example, when ordeal by bread, a medieval test of guilt went out, the name and concept "corsned" went with it. Some concepts of continuing conditions have disappeared simply because their importance lessened with the incidence of their use. A good example is the burnt part of a candle wick, a recurrent significance of which once produced a continuing concept called "snot". Today, although candle wicks still burn, the occasional wick problem no longer supports a continuing concept identified by its own name. Today, if such a concept becomes useful in a specific situation, we simply recognise it ad hoc and describe it in general language, such as, "the burnt part of the candle wick". When a new fact is born, it always has, at first, a low value. Then, depending upon the potential quality of the fact, its value increases, either slowly or rapidly, or the value wanes and disappears. Values give rise to structures and structures lead to reality. Therefore, our structured reality is preselected on the basis of value, and to understand structured reality one has to understand its value source. One's rational understanding of a concept is modified as he experiences it and sees that a new and different rational understanding has more quality. When he finds a rational basis for rejecting old idea, he rejects it. Reality is not static, but is partly made of ideas expected to grow as one grows and as the society grows, century after century. Improvement of a Concept Analysis of a concept sometimes means to improve it. Improvement of a concept means substitution of the concept by a very similar but superior concept. Concepts are improved, other things being equal, when they are altered so as to fit into a better or a larger system. Often when we try to analyse things, we come out with an analytical concept of a new thing rather than the thing we started with, because our analysis reveals that our concepts are defective. Improvement of a concept is a very difficult and groping operation. As Frege put is, "It often requires great intellectual work, which may take several centuries, to apprehend a concept in its purity, to extract it from extraneous coverings that hid it from the eye of the mind." Every improvement of a concept carries along with it a simulative redefinition of the word expressing the concept. Changes in insight lead to change in nomenclature.

LOGICAL POSITIVISM
Syntactical meaning is the meaning of the words taken together, as in phrases, propositions and questions. It is possible to refer to the same referent in two phrases or sentences composed of quite different words, e.g., the King of England and the owner of Buckingham Palace. Whether the meaning of these two phrases is same cannot be answered in one word. For a hearer who knows the relevant facts and therefore is able to make the desired reference in each case, it may be said that

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they have the same meaning, though the thought process is different in each case. But for a hearer who does not know these facts, they are different sentences. This illustrates that it is possible to refer to the same referent through different phrases or sentences. Thus a testator may give his gold ring or all his gold ornaments. Both may mean the same thing if he has no other gold ornaments than the gold ring. The difference is in the mode of reference and not in the referent. In law, however, the first legacy is a specific legacy while the latter is a general legacy. Ogden and Richards direct their main attention to the semantic meaning or the meaning of the individual words. It appears that they regard syntactical meaning as a product or synthesis of the meaning of the separate words employed, when interpreted in the light of rules of grammar. In most of the cases this may be an adequate explanation, but there are difficulties. One of the difficulties to which Glanville Williams draws our attention is that some words used in a sentence have no referents, or, if they have any, refer only to language itself. Examples are is, than, not, true and false. Therefore some writers take a different approach towards the problem. They consider the meaning of the complete sentences or questions, rather than the meanings of individual words. One such group is called the Vienna Circle or the Logical Positivists. An American physicist, P.W. Bridgman wrote a book, The Logic of Modern Physics in 1928 and urged that for a scientist a question has a meaning only if it can be verified in sense experience, i.e., only if a physical operation can be performed which will give an answer to it. If they cannot be tested by an experiment, the question is meaningless. Many questions asked about social and philosophical subjects including law will be found to be meaningless from this point of view. This may have certain practical merit in saving us from bothering our heads over questions that in the present state of knowledge are insoluble. But otherwise most of us may not agree that a question has a meaning only if it can be experimentally tested. For example, whether there is life beyond earth is significant even though the answer may not be available today. Logical Positivists say that it is enough if a statement is, in principle, verifiable in senseexperience, even though it cannot factually be so verified, and even though it may be empirically false. Thus they weaken Bridgman's theory. But at the same time they strengthen this theory in another count by saying that this is true not only for scientists, but for everyone else. Thus, no sentence, by whomsoever uttered, says anything unless it is empirically verifiable, if, and only if, we know the conditions under which it is true, and the conditions under which it is false. This simple theory has become a weapon of tremendous destructive power in the hands of Logical Positivists. One of its consequences is that metaphysical discussion becomes regarded as nonsense, because it is beyond our senses of perception. Metaphysics claims to communicate knowledge about something that is beyond experience. Thus they cannot avoid being called meaningless as per Logical Positivists. If this theory be accepted, it offers a means of escape from the perennial problems of philosophy, because it shows: 1. 2. that many statements of a philosophical or metaphysical character are neither true nor false but literally senseless, and also that many statements that seem to be opposed to each other are identical in meaning and differ only in vocabulary.

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Thus it is the principle task of Logical Positivists to expose the pseudo problems of philosophy and many of their specific criticisms of these problems are extremely effective. Against these advantages, there is one consequence of the theory of Logical Positivism that is not likely to be accepted by the average lawyer, namely, its demolition of religion and ethics. religion is a branch of metaphysics. All propositions regarding God, reincarnation, life after death are not acceptable to Logical Positivists. Similarly moralists statements of what is good, right or just, etc. are either statements of moral feelings of the members of a particular society, or else devoid of factual content being only expressions of emotion, devoid of what Carnap calls theoretical sense. Though Logical Positivism is attractive in some respects, it is open to several objections. Even in the realm of physics it is somewhat defeatist to pronounce a question meaningless merely because at that moment one cannot think of a way of answering it. For example, at one time physicists considered it meaningless to ask for the weight of a single atom. Today, the weight of an atom can be stated to within its ten-thousandth part. Similarly, when A tells B, You ought to be honest, it seems to be using words in a most unusual sense to say that this statement is meaningless noise. Even if we can call the statement an emotive statement, it is not meaningless in the usual of the word meaning. After listening to A, B who was a criminal may change into an honest man. A sentence designed to have a specific effect on the conduct of the other, and actually having that effect cannot be called meaningless in normal and usual sense. To explain this, Logical Positivists have to adopt a different meaning for the word meaning. According to them meaning is equivalent to what determines truth of a statement. Like any other definition, this definition must be taken as postulate and cannot be proved. It is somewhat odd in two respects: 1. Logical positivists who take delight in unmasking the verbal controversies of philosophy, themselves raise an issue as to the meaning of meaning, which is itself a verbal controversy. 2. The empirical criterion of the Logical Positivists is itself by its own rule meaningless. Law, like the rules of ethics or religion, is a statement of ought, and therefore, the meaning of a rule of law stands or falls with the meaning of a rule of ethics or religion. Since for every lawyer a rule of law is meaningful within the ordinary and usual sense of the term meaning, it follows that the lawyers must reject the definition of meaning advanced by Logical Positivists. Glanville Williams, however, opines that with only a slight modification of Logical Positivism a theory coinciding with a value judgement and therefore with a rule of law can be produced. We have already observed that a rule of law has two elements: referential and emotive. Referential element indicates the state of affairs desired or not desired. The emotive element indicates this desire or aversion. The two elements may be separated. Thus, the rule Do not steal can be expressed as false proposition of the fact that people do not steal. If this rule is followed by all, the proposition will be true. Thus the proposition of the fact derived from value judgement is empirically verifiable, and therefore is meaningful even as per Logical Positivism. Similarly when a person writes a book describing Utopia or Ram Rajya, we may say that the facts stated in the book are all false. Thus, they are meaningful, because their truth is tested. Now, after writing the book, the author expresses his wish that India was like that, it would be an emotive statement. If the book were written with an ought throughout, instead of in the indicative mood, the expression of emotion would have been put into the book; but otherwise the analysis would be the same.

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REALITY OF UNIVERSALS
A famous medieval controversy concerning meaning was the dispute over the reality of universals. Plato classified things into two categories: 1. Objects of knowledge 2. Objects of opinion Certain objects exist in real world. We can perceive them and, therefore, know them. Therefore, they are called objects of knowledge. These are things and events. Other objects do not exist in real world. They exist only in our minds or in our opinions. Therefore, they are called objects of opinion. They are relations and qualities. Plato called objects of knowledge "noumena" and objects of opinions "phenomena". Objects of knowledge do not depend upon anything else for their existence while objects of opinion depend upon objects of knowledge and on our minds for their existence. Thus a flower (a substance) exists in real world. Its existence does not depend on anything else. We can see it; we can smell its fragrance; we can touch it; we can also taste it. Thus we can know it. Therefore, flower is an object of knowledge. But beauty (a quality) does not exist in real world. It exists only in our opinion. Its existence depends upon the flower and on our opinion. Thus, if the flower does not exist, its beauty cannot exist. Also, the beauty of flower depends upon our opinions. Therefore, beauty is an object of opinion. The following can be listed as the differences between objects of knowledge and objects of opinion: 1. Objects of knowledge exist in real world, objects of opinion do not. Objects of opinion exist only in our minds. 2. Objects of knowledge do not depend on any other thing for their existence. Objects of opinion depend upon objects of knowledge or on our minds for their existence. 3. The existence of objects of knowledge is continuous. But, as the objects of opinion depend upon our minds for their existence, their existence is not continuous, because we do not think of anything continuously. Objects of opinion have existence only as long as they are in our minds. AS soon as we stop thinking about them, their existence ceases. 4. Objects of knowledge are objective. They do not defer from person to person. Objects of opinion are subjective. They differ from person to person. Thus a flower is a flower for all. But whether it is beautiful and if beautiful, how beautiful, depends upon the beholder. 5. Object of knowledge are genuine, whereas objects of opinion are deceptive. Objects of opinion have only appearance. 6. Object of knowledge are intelligible, while objects of opinion are opaque. Objects of opinion make no sense when taken at their own level. Thus, there cannot beauty if there is no flower. Though the controversy regarding the reality of universals was started by Plato, it is believed that a question asked by Prophyry is the starting point of the controversy. Prophyry asked whether classes exist in our minds or outside it. We observe that many things in the nature are so very similar to each other that we can call them by the same name. We, for example, notice that several flowers are so similar to each other that we can give them a common name, say "rose". One such common character of roses is their colour which we call "red". Similarly we give names "man", "book", etc. to different things having similar characteristics.

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The question is whether there are any such objects as "rose", "redness", "man" and "book", etc. in this universe or are there only individual roses, individual red things, individual men and individual books, etc. In other words, is there any objective reality corresponding to these concepts? In the language of semantics, do these words have any referents, and therefore, any meaning? This question gave rise to two groups of philosophers. The first group was the followers of Plato and they were called "realists" and the other group was called "nominalists". Realists argued that the concepts of quality and relation are real. These concepts were called "universals". Realists used the following logic to prove that universals are real. Socrates is real. Socrates is man. Man is real. This is similar to saying A=B and A=C therefore B=C. They further stated, Man is real. Man is rational. Rationality is real. Nominalists argued that only individuals with certain attributes were real. Thus we have heavy things, but no heaviness. There are intelligent men, but no intelligence. There are just acts, but no justice. Heaviness, intelligence and justice are all names given to certain qualities. They do not have any existence in reality. This controversy attracted a lot of attention and nominalists were supported by the majority. The controversy still continues. According to semantists all universals are arrived at by a process of abstraction. Abstraction is a process of imaginative selection of some one characteristic of a complex situation so that it may be attended to in isolation. This is a familiar process in everybody's life. For example, imagine a baby in whose house there is a dog called "tiger". The child cannot call it "tiger" and therefore calls it "bow-wow". The child sees another dog and calls that dog also "bow-wow". For the child all the dogs are the same. The child cannot differentiate between two dogs. When the child grows up, it acquires the ability to differentiate between different dogs. Now it knows that all dogs are not same but they are different individual dogs. But, it still continues to call then by the same name, "dog". Thus, now the same name is used to refer to all dogs though they are different. This is the process of abstraction. Abstraction is, thus, the perception of similarity in spite of differences. Without abstraction, there can be no recognition of similarities. Without recognition of similarities there can be no advancement of knowledge. But the process of abstraction has its own dangers. The danger is more pronounced particularly when we hypostasise (objectify) abstractions. We hypostasise abstractions as a matter of linguistic convenience. We normally hypostasise words expressing qualities and properties. Thus, we speak of "justice" and "redness" as though these things were the part of the stuff of nature. Semantically there is no difference between "just" and "red", and "justice" and "redness". The difference is only in grammatical form. Qualities like these cannot be found by themselves in

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nature. In real life there are only people, things, conduct or events to which qualities are applicable. Without people, things, conduct or events there can be no qualities. When we appear to speak of relations we are merely using the words as tools which do not have any particular referents. All these words are mere symbolic accessories. They are invaluable and indispensable words, but they are also dangerous in that they are impediments to straight thinking. Virtue, liberty, democracy, peace, India, religion, glory are all such invaluable words and they are indispensable. But if they are uncontrolled, they can confuse clearest thoughts. They are fought and died for. Yet, we do not always have a clear realisation of what we mean by them. If they mean anything, it can only be a meaning in relation to the actual lives of individuals. By themselves many of them are abstractions, on the meaning of which there is little agreement. To control them we have to discipline ourselves to find the lower order referent in the world of real life, i.e., to find an object in which the quality is conceived as inhering. Unless the speaker and the listener agree on some such concrete referent for the word in question, a proposition relating to that word cannot be intelligently discussed. Law and Reality Abstraction is very important in jurisprudence. It is also of some value in administration of justice. The consequences of failure to reduce an abstract word to its lower order referent can perhaps be illustrated from the following case. Re Nottage: A bequest was made in this case, for providing a cup to "encourage the sport of yachtracing". Court of Appeal held that the purpose of bequest is charitable. Lindley, L.J. observed that "a gift for the encouragement of a mere sport could not be charitable". We can interpret this statement to mean any one of the following two things: 1. No gift for the encouragement of a sport is charitable. 2. No gift for the encouragement of a sport "as such" is charitable, but a gift to encourage human beings to take part in the sport is charitable. If we say that Lord Lindley's statement can be given the second meaning, the distinction is only a verbal distinction. The referent "sport" or "yacht-racing" is not an abstract term, but is a number of real yacht-races by actual human beings. However, Lord Lindley had the first meaning in his mind. He said that "a gift, the object of which is the encouragement of a mere sport or game primarily calculated to amuse individuals apart from the community at large, cannot be ... charitable". Again, here the phrase "individuals apart from community" means "some people rather than all". Then again, a sport cannot amuse all. Therefore, what Lord Lindley meant by "individuals apart from the community" is that they formed "a minority of the community". If this is the case then to encourage some of the sports may be charitable. In Re Gray, Romer, J. held that a gift to provide sport for a regiment was charitable. He observed that it was in the public interest that soldiers be physically fit. He distinguished Re Nottage from the instant case on the ground that in Re Nottage the gift was for encouragement of a sport, while in the instant case it was for the benefit of a regiment. The distinction is not between "sport" and "regiment" but between "those who take part in sport of yacht-racing" and "the members of a regiment". Apparently, the distinction means that the health of those who take part in yacht-racing is unimportant to the community, while the health of the members of the regiment is important to the community. This distinction will be found to be unsatisfactory as soon as we note that the participants of yacht-racing form a section of the community.

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The denial of independent reality of universals is important for jurisprudence chiefly because it necessitates a theory of law that will not assume law to be some entity mysteriously existing on its own account, independently of the external world and of the world of mind. We talk of rules of law as if they are real entities. But this is not true. We cannot ascribe a permanent existence to a rule of law. A rule exists only as the content of a notion in a human being. No notion of this kind is permanently present in the mind of anyone. The imperative appears in the mind only intermittently. The position does not become different just because these rules are reduced into writing. This writing is only a figure on the paper and has the function of calling up certain notions in the mind of the reader. But all the philosophers do not give such common-sense solutions. They try to make some independent reality out of the universals, and are ready to go to any extent for that purpose. Dr. Joad, for example, argues that Hamlet is in some way a subsistent object with an independent being. He rejects the argument of some who say that Hamlet consists of ideas in our own minds, and in the minds of all those who are performing, or seeing, or reading the play, or at any time have performed, or seen, or read it and remember what they have performed, saw or read. This is quite similar to our observation of the existence of law, and therefore, is of interest to us. Joad gives four grounds in support of his argument, and for rejecting the argument of the opponents who claim that Hamlet is not real: 1. When we say that "Hamlet is a great play", we are not referring to these minds and experiences, the most of which are unknown to us. 2. If we are referring to our minds and experiences, we are giving a totally undeserved compliments to ourselves. 3. If the view of the opponents were true, then if all these persons who hav performed, seen or read Hamlet are dead, Hamlet should cease to be a great play. 4. When we speak about Hamlet, it seems that we are not speaking about our experience but about the cause of our experience. Glanville Williams observes that all these difficulties disappear if we say that "Hamlet" means either or both of the following: 1. A collection of symbols capable of evoking ideas and emotions. 2. The ideas and emotions themselves. He observes that there is no reason to conclude, as Joad does, that Hamlet is "a member of a class of subsistent objects which are neither mental or material, but are, nevertheless constituent of factors of the universe possessing being in their own right". Glanville Williams then proceeds to answer the four contentions of Dr. Joad as under: 1. We are not referring to other peoples ideas, but to the symbols and their meaning to us. 2. We are not paying compliment to ourselves, but to the man who had the genius to put those symbols together by that way. 3. If all those who have performed, seen or read Hamlet would cease to have meaning. It will only be some symbols on paper. Whether Hamlet itself will cease to have existence is a complicated question which cannot be answered as "yes" or "no". It would exist only as a number of marks on paper. 4. We are in fact speaking in part of something that is the cause of our experiences, viz., the marks on the paper or the general effect performed on the stage.

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Similarly, law is a collection of symbols capable of evoking ideas and emotions, and the ideas and emotions so evoked. Glanville Williams observes that it is futile to dispute whether law is primarily emotion. The three are inseparably connected and at different times different things will be predominant.

OBSCURITIES OF MEANING
Language is not only subject to inherent limitations, but also to serious defects which cannot be easily rectified. Fringe Meaning Some words have no specific meaning. They are vague in their meaning, as for example about, near, more or less. Such words give considerable trouble when they occur in legal documents. Therefore we must try to avoid them as far as possible. According to Glanville Williams there are 5 types of such vague words. 1. 2. 3. 4. 5. Words indicating qualities of continuous variation Class-names Names suggesting unity Mathematical terms Words uncertain in their time-reference.

Words Indicating Qualities of Continuous Variation Certain pairs of words indicate opposites, e.g., head and tail, black and white, etc. In cases like head and tail these meanings may be comparatively clear. But consider words like white and black, night and day, open and shut, good and bad. At first sight opposites like these may seem to be mutually exclusive. According to a French proverb, A door must be either open or shut. Similarly we may think that it must always be night or day, and cannot be both at the same time. So obvious did this seem to the founders of logic that they erected it into one of the three laws of thought and said, A thing cannot be both A and not-A. But this rule can be equally false. A door can be, in a sense, both open and shut, or neither open nor shut, for it may be ajar. White is a colour which reflects all light and black is a colour which reflects no light. Nothing can be totally black or white. A white thing may not reflect all colours. Thus we have more white and less white things. Similarly there are more black and less black things. White and black are thus only matters of degree. Thus all opposites are the extremities of a series, i.e., its first and last members. These extremities may be purely notional and in the real world they may not exist at all. We may not have anything which is a perfect white or perfect black. It is very difficult to say at what point of time day changes into night or night changes into day. This situation is well exposed by sophism. The sophism consisted in propounding the question, Does one stone make a heap? - No. Do hundred stones make a heap? - Yes. Then questions are asked for two stones, ninety nine stones, three stones, ninety eight stones and so on, until the victim is pinned down to some absurd prposition as that eight stones do not make a heap but nine stones do. This illustrates that there is an area of uncertainty between the number of units that certainly do and those that certainly do not make an aggregate in question. This kind of opposite polarities may give rise to two types of fallacies:

LEGAL LANGUAGE AND LEGAL WRITING 1. The fallacy of black or white - though common, less dangerous 2. The fallacy of black is white - though rare, quite dangerous

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Fallacy of Black or White: This is a fallacy of supposing that every object must be either black or white, without allowing the possibility of its being something in between. This is obvious in case of black and white because we know that there is a grey shade in between. But as applied to the words like good and bad, honest and dishonest, intelligent and un-intelligent this fallacy causes needless controversy. Fallacy of Black Is White: This fallacy consists in arguing that black is white because there is a range of half-tones in between. Thus, in a tin of white colour one drops of black colour is added, that will not become a tin of black colour. If we go on adding one drop of black colour at a time, we will reach a point when we cannot call that a tin of white colour. But exactly at what point of time this will happen is nearly impossible to say. This fallacy is very much dangerous in law and ethics. It will make every exception swallow up the rule. For a common man this is not a very significant problem. Whether a collection of stones is to be called heap or not is not a matter of concern for him. When a recipe tells the housewife that a pinch of mustard is to be used, she cannot tell how many grains make a pinch, but she can guess the meaning of the statement. But with law this is different. Whether a man should be left in freedom or detained in a mental institution depends upon whether he is judicially classified as sane or insane. To make a person liable in tort, there must be proximity of cause and effect. There are so many such cases where it is difficult to draw a line separating the two extremities. Judges refuse to be frightened by these difficulties. They do not hesitate to say that the case falls on plaintiff's side or on defendant's side just because the line is difficult to draw. Different judges have expressed this in different ways: It hath been urged at the bar, where will you stop if you do not stop at Child and Baylys Case? I answer, I will stop everywhere when any inconvenience appears, nowhere before. - Lord Nottingham in Duke of Northfolk's Case It is something like having to draw a line between night and day; there is a great duration of twilight when it is neither night nor day; but on the question now before the Court, though you cannot draw the precise line, you can say on which side of the line the case is. - Blackburn, J. in Hobbs vs. L and SW Railway Courts of justice ought not to be puzzled by such old scholastic questions as to where a horses tail begins and where it ceases. You are obliged to say, This is a horses tail, at some time. - Chitty, J. in Lavery vs. Pursell The Attorney General has asked where we are to draw the line. The answer is that it is not necessary to draw it at any precise point. It is enough for us to say that the present case is on the right side of any reasonable line that could be drawn. - Lord Coleridge, C.J. in Mayor of Southport vs. Morris It is urged that it is difficult to draw the line. I admit that it is extremely difficult. ... It is always a question of degree. It may be asked, What is the difference between one cart and two, and so on? You cannot draw the line in that way. Nothing is more common in

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To conclude, we can say that the difficulty of drawing line depends upon the breadth of the line. A judge, when he has to draw a thinner line, draws it more or less arbitrarily and in due course of time when he decides more and more cases of similar nature, the line becomes fixed by doctrine of precedent. But this rule would be arbitrary as no rule at all, but the arbitrariness would be announced before hand, which would facilitate the settling of cases without litigation. Certain distinctions in law as well as outside it are both misty and unnecessary. One such distinction is between contract of sale of goods and contract for work and materials. We, thus, speak of buying a bottle of medicine from a chemist, but not from a doctor. Similarly, we purchase papers from stationery shop and not from a Xerox shop. Many times statutes lay down such arbitrary lines in the form of rules. A good example is that of age of majority. Though such rules are arbitrary, they help us in avoiding speculations. Other examples are from law of crimes where a child below the age of 7 years is considered to be doli incapex (incapable of committing crime), in law of evidence where a person whose whereabouts are not known for 7 years is presumed to be dead. In some cases the difficulty of drawing line gives wide discretion to the judge in awarding damages or in giving punishment. In Kiddell vs. Bernard it was argued that a horse was not unsound within the meaning of the warranty if the unsoundness were slight. Parke, B. said, An argument has been adduced from the slightness of the disease and facility to cure; but once we left in considerations of that kind, where are we to draw a line? A horse may have a cold, which may be cured in a day; or a fever, which may be cured in a week or month; and it would be difficult to say where to stop. Of course, if the disease be slight, the unsoundness is proportionably so, and so also ought to be the damages. Where perfect elasticity of legal consequences is impossible, something can be done to mirror nature by multiplying categories. Thus, the Mental Deficiency Act, 1927, subdivides the class of mental defectives into idiots, imbeciles, feeble minded persons and moral defectives. Class Names Classes are sometimes divided into two sorts, natural and artificial. It is quite difficult to determine what falls in the different classes of artificial things. In Stevens vs. Gourley, Byles, J. observed that the imperfection of human language renders it not only difficult, but also impossible, to define the word building with any approach of accuracy. One may say of this or that structure, this or that is not a building; but no general definition can be given; and our lexicographers do not attempt it. Though lawyers are quite familiar with these difficulties in respect of artificial things, it may come as surprise to learn that much the same puzzles are found in dealing with the so-called natural cases. At one time it was supposed that the natural classes exist in nature, ready made, with clear-cut edges. But modern scientists and modern philosophers reject this view, on two counts. The first one is a logical argument while the second one is an evolutionary argument. Logical Argument: Class names are result of abstraction, and hence agreement upon class-names requires agreement upon the qualities that are regarded as essential to the class. Thus, there may be an agreement that a class is having qualities A, B, C and D. Later if a new thing is found having

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qualities A, B and C, but not D, there will be a confusion as to whether or not the thing belongs to this class. Thus there was confusion as to whether a black swan is a swan at all. The question is only a verbal one. But the fact that it can be raised at all shows the artificiality of classdistinctions. Evolutionary Argument: Scientists believe that reality is in a state of flux. The classes that now seem to be so fixed in nature can be traced in large measure to an undifferentiated origin. Further we cannot be confident that the process of change has stopped. This is very clear in biology. Man has developed from lower animals. There is no serious break between man and amoeba. At what point backwards do we stop calling man a man? Clearly this point has to be arbitrary. This type of difficulty arises frequently in nature. It is not that similarities and differences do not exist in nature. They are abounding in nature. The difficulty is in drawing firm lines around or between them. In some cases this difficulty may be insignificant. These classes may be fixed and may not need any revision in future. But this is true only in exceptional cases. In case of both natural and artificial classes there are certain other special difficulties. 1. Difficulty of deciding when a thing begins and ends as a member of a class. (When an egg becomes a chick, when coal becomes cinder.) 2. Difficulty arising from impurity. (Chemist may define water rigidly, but for a layman seawater is also water.) 3. Difficulty of saying whether a part of an individual thing is entitled to the class-name enjoyed by the thing as a whole. (Whether anchor is a part of a vessel, so as to make a collision with an anchor a collision with the vessel to which the anchor is attached.) 4. Difficulty of distinguishing between movable and immovable properties in law. (Which of the heavy articles screwed down to land becomes part of the land and which one does not?) Most of the words have 5. a central or core meaning which is fixed and does not cause any difficulty, and 6. marginal or peripheral meanings where the meaning is doubtful and causes a lot of confusion. Normally ordinary people are not perplexed by these troubles. A seaman is not concerned with the problem whether anchor is or is not called part of the vessel. But for a lawyer this distinction is very much significant, especially in case of documents because in most of the cases there is no chance for consulting the author. Classes and Rules of Law: There are many rules of law which refer explicitly to classes. There are two important issues arising out of such rules: 7. Kind-degree difference 8. Quality-quantity difference Kind-Degree Difference: One of the rules referring to classes is found in law of damages. Prior to Re Polemis Case, the general principle was that the defendant was not responsible for a consequence of a particular kind which was not foreseeable by him, and he was not liable in tort or contract. But when it was shown that a man ought to have foreseen in a general way consequences of a certain kind, he will be liable even though he could not foresee the precise course or the full extent of the consequences of that particular kind. Thus, if one pushes another, he can foresee that that man may be hurt, but cannot foresee that he will die. If it is held that hurt and death are the consequences of the same kind, the defendant will be liable even though he could not have foreseen the consequence. But, on the other hand, if it is held that hurt and death are consequences of two different kinds, he will not be liable unless he could have foreseen the death.

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Sometimes the kind-degree difference is applied not to the ultimate consequence, but to the way in which the harm is brought about. Thus, if a quiet horse strays and kicks a child, the owner is not liable, because the consequence was not foreseeable. But if the same strayed horse kicks the same child after being frightened by a boy, the owner will be liable, because the consequences are foreseeable. The damage is the same, but there is a causal difference. Similar rules can be quoted from different fields of law, such as transferred malice in criminal law, the law of non est factum. The difference between difference of degree and difference of kind is itself a difference of degree. Difference of kind is merely a violent difference of degree. Quality-Quantity Difference: Classic example of this difference is found in specificatio. Specifocatio is a rule of Roman law which was largely a product of erroneous Greek philosophy. According to the Greek every tangible thing is a combination of matter and form. This concept gave rise to two schools of philosophy. One, represented by Aristotle and his followers, is called Proculian School. The other one, represented by the stoics, is called the Sabinian School. Proculians attributed more importance to the form while Sabinians attributed more importance to the matter. In reality, these differences are merely verbal differences. But Roman lawyers took them more seriously and thought that they have important legal consequences. Preculians argued that a person who gave a thing a new form created a new thing and thereby acquired ownership over that new thing, even though he did not have any ownership over the original thing. But Sabinians denied this theory. The Proculian view gave rise to some subtlety on the question what was a change of form, i.e., of species. In majority of cases the change involved mere alteration of a thing in such a way as to alter its name. English lawyers impressed by this theory adopted a similar rule of law in that ownership is lost when the marks of ownership are lost, i.e., when the chattel became unrecognisable as the same chattel. Later the rule was restated in a slightly philosophical form by saying that notice (the means of recognition) is not lost as long as that which remains is the principle part of the substance - major pars substantiae. Thus, the rule now resembled that of stoics than that of Aristotle; if pushed far enough, it would result in a denial of change of ownership in case of specificatio. According to Doderidge, if a man seals barley and converts it into malt, it cannot be recovered because it cannot be distinguished. Similarly if an ox is killed, its flesh cannot be distinguished, and therefore, cannot be recovered, but, if the ox is found hanging by the skin, whereby it can be recognised, it can be recovered. We can detect 3 different strands in Doderidge's statement of law: 9. The medieval English rule that ownership is lost when thing itself cannot be recognised. 10. The Proculian rule that a thing that has been so altered as to deserve a new name becomes a new thing capable of new ownership. 11. Some very slight tinge of an idea of fairness or public policy. A person who has worked upon another's chattel ought to be recompensed, especially if he has acted in good faith. Another rule that may let in the subtleties of specificatio is the rule that the destruction of a thing can be a ground for trover, but damage to a thing is not. According to Salmond, the test of destruction, as opposed to mere damage, is presumably the disappearance of the identity of the article. Grapes are presumably lost when they are turned into wine, cotton when it is woven into cloth, corn when it is ground into flour. But Glanville Williams does not agree with this view and points out that the test of destruction is whether the defendants act has made the thing practically worthless. He observes that to admit Salmonds suggestion would be to introduce the subtleties of classification into the law.

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A similar rule in the law carriage of goods by sea is that the shipowner cannot claim freight if he does not deliver the goods contracted to be carried, but he can claim it if he does deliver them, notwithstanding that they are in damaged condition (in both cases is liable in damages). The question is whether the shipowner can claim freight where the goods have, in the correct phrase, lost their identity. The test suggested by Willes, C.J. in Dakin vs. Oxley was to ascertain from the terms of the contract, construed by mercantile usage, if any, what was thing for the carriage of which freight was agreed, and by the aid of the jury to determine whether that thing, or any and how much of it, has substantially arrived. Similarly in the law of sale of goods, if there is a contract to sell peas and seller delivers beans, it is a non-performance of contract, and there is a failure of consideration on the part of the seller. But if the seller supplies peas, though of an inferior quality, there is no failure of consideration. This distinction can give rise to difficult questions of law such as on a contract to sell Singar car with sliding roof, is the delivery of Singar car with fixed roof a delivery of a different thing, and so a quantitative failure in performance, or is a mere failure in the mode or quality of performance? This type of questions show that the distinction between quality and quantity, like distinction between kind and degree is one of degree. Names Suggesting Unity Just as classes are artificial, singleness is also artificial. There is no single factor in the nature, and singleness is always singleness for the particular purpose we have on hand. This is shown in three ways: 1. Every fact that we used to regard as the unity can be treated either as made up of smaller unities or as being part of a larger unity. 2. Many such facts have uncertain boundaries and we cannot tell how much will be added or removed without affecting the notional unity. 3. Every empirical fact that we regarded as a single fact is also, if regarded temporally, a changing process. For example, Nelson is a person, but: (a) Nelson is a society of individual living cells. (b) Nelson may lose his hand or eye, without losing his individuality. (c) Nelson is a process. He was born by the union of two cells belonging to two other individuals; he became a baby, a boy, a youth and a man: the physical constitution of his body changed several times, without affecting his individuality. This does not deny or dispute individuality of Nelson in the sense that he is different from others. What is asserted is simply that individuality is always individuality for a purpose, or individuality in a context. Individuality arises from abstraction. It results from our perception of similarities of relationships between the parts causing the individual notwithstanding differences between those parts, and of similarities between the manifestations of the individual at the two points of time notwithstanding differences between those manifestations. The changes in the things do not affect our notion of the unity, and therefore, do not affect our names for them. But some changes may be so striking that individuality, and therefore, the name changes. This gives rise to pseudo-philosophical problem of continuation of identity, to the Roman law of specificatio, to the English law trover, etc. This is the reason of difficulty experienced by courts in applying rules that presuppose unity, e.g., fixing precise temporal limits of an operation, work, or transaction; or the precise spatial limits of a house, etc.; or in deciding when a contract is altered by a later agreement, whether it is mere variation in terms of the previous contract, or whether it amounts to rescission of old

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contract and substitution of the new one in its place; or in deciding where the repair of a building stops and renewal or reconstruction begins. Decisions on questions of this sort are often unpredictable, because the court is not determining facts but it is simply deciding upon the attitude that it wishes to adopt towards facts. Mathematical Terms We normally think that in mathematics we find precision. In Wakefield Local Board vs. Lele, Grover, J. said, Except in mathematics it is difficult to frame exhaustive definitions of words; they must be construed with reference to the subject matter to which they are applied. Though it is true that in mathematics words are sharply defined, it does not mean that they are easily applied to the words of experience, or the need not be construed with reference to the subject matter. In applying mathematical terms it is just as necessary to decide distance of degree as in applying other words. In geometry point is a thing which has no size, a line is a row of points, therefore a line does not have thickness. Thus they are not objects of sense and the figures constructed from these notions are also not objects of sense. Even if we modify these decisions to suit nature and say that points have some size and lines have some breadth, still we will have difficulty. We cannot find a perfect straight line or perfect circle in nature, no lines can be perfectly parallel. Similarly a metre of cloth will not be exactly one metre. When the parties enter into an agreement not to carry on a trade within a mile of a specified place, litigation may arise on the question whether the mile means a mile as the crow flies or a mile by the nearest practicable road. Words Uncertain In Their Time Reference This is an uncertainty in the time to which words are to be applied. In interpreting a statute it is frequently difficult to know whether the words are to be applied to a situation existing at the passing of the Act, or a situation that arises afterwards. Similarly when an Act says that the authority shall resell any land not required for the purposes for which it was acquired, does it mean not immediately required, or not required in the future? There can be many more such illustrations. OTHER DISEASES OF LANGUAGE Apart from fringe meaning described by Glanville Williams, there are five more defects of language, which are called diseases of language by Reed Dickerson. They are, 1. 2. 3. 4. 5. ambiguity, overvagueness, overprecision, overgenerality, and undergenerality.

Ambiguity When a single communication has more than one alternative meaning and each meaning is equally appropriate, there is ambiguity. In other words, an ambiguous communication is capable of double interpretation.

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Usually, every word has more than one meaning. But the existence of more than one dictionary meaning does not make the word ambiguous. Difference between a group of homonyms and an ambiguous word must be carefully noted. Though both have more than one alternative meaning, they are not the same. In case of homonyms, the appropriate meaning is always revealed by context. The capacity of homonyms for sense sifting is built in and automatic. E.g. If the bear causes any loss, the owner shall bear the cost., Can you return the can? This kind of multiplicity of meanings which is often considered as defect is useful in as much as it makes possible economy of symbols. In case of ambiguity, context does not reveal the correct meaning. E.g. Residence may mean a person's home or his domicile. Homonyms do not present any serious and significant danger. But an ambiguous word carries the thereat of competitive meanings which may never be desired or justified. Therefore, always care must be taken to avoid ambiguous words like residence, and unambiguous words like domicile must be preferred in drafting a statute. Line of separation between homonyms and ambiguity is very thin and depends upon their respective potentials for deception and confusion in use. Therefore it is very difficult to tell on which side of the line a word falls. But we are not very much interested in distinguishing a word as either a homonym or an ambiguous word. We are interested only in seeing that a word does not cause any confusion in use. If it is likely to do so, then it is up to the draftsman 1. 2. 3. to use a different word, to adjust the context, or to add explanatory words

in order to do away with the ambiguity. Lon Fuller illustrates how even a very simple-looking provision may have a great potential for causing confusion in use. Let us suppose that there is a provision: It is an offence to sleep on any railway platform. One passenger is sitting on a bench on the railway platform waiting for a delayed train. He was heard snoring by a police officer and he as arrested. Another person had made preparations for settling down for the night on the platform. He was arrested as soon as he lied down but before he could go to sleep. Which of the two is guilty? Does the word sleep refer to a single concept as is implied by the above question, or does it represent a family of separately discernible use-patterns (a set of homonyms) such as 1. 2. to be in an unconscious state of natural repose; to spend night with the necessary arrangement for being in such a state.

If so, the question cannot be answered until it is determined which sense was intended in the statute. Here we can choose the sense no. 2 without any difficulty, and say that the upright snorer is not guilty under the provision. Therefore, according to Fuller recognition or selection of the appropriate sense necessarily precedes any consideration of its standard instances or marginal uncertainties. In these cases we see that ambiguity arises due to multiple meanings of a word. This is called semantic ambiguity. It is easily resolved by context. There is also another type of ambiguity called syntactic ambiguity. It is ambiguity of modification or reference within a particular statute. Simple instances include: 1. Squinting Modifiers The trustees shall require him promptly to repay the loan Here does promptly apply to require or to repay?

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LANGUAGE AND THE LAW 2. Modifiers preceding or following a series Charitable corporations or institutions performing educational functions Here is charitable applicable to corporations or institutions or both? So also, is performing educational function applicable to either or both of them?

The third type of ambiguity is contextual ambiguity. Even when the words and syntax of the statute are unequivocal, it may still be uncertain which of the two or more alternatives was intended. Often such ambiguity results from the conflict within the statute. When two provisions plainly contradict each other which one is intended to prevail? Contextual ambiguities may also be external. Provision of one statute may contradict the provision of another. Most difficult type of contextual ambiguity and also the most frequent one is the uncertainty whether a particular implication arises. Often this is found in case of negative implications covered by the maxim expressio unius est exclusio alterius (expression of one thing amounts to exclusion of others). This maxim is applicable in some cases and it is not applicable in some others. Whether it is applicable or not depends upon context. As contexts are unique in their particulars, it is very difficult to give a clear answer. When we read a statute we see its details first, and then we realise its total impact. When we see the total impact most of the ambiguities which appeared while first reading disappear automatically. These ambiguities are apparent ambiguities rather than actual ambiguities. Apparent ambiguities disappear by themselves whereas Actual ambiguities are resolved by judges only, i.e. by an act of judicial law-making. Ambiguity And Fringe Meaning Fringe meaning and ambiguity are two quite different difficulties for the following reasons: 1. Difficulties caused by ambiguity can be normally cleared by definitions, but the difficulties caused by fringe meaning cannot be so easily cleared. Definition can clear the difficulties caused by fringe meaning only if it makes an express provision for the particular difficulty that has arisen. 2. Difficulties caused by fringe meaning cannot be cured by adoption of the technical language. Shakespeare remarked that words have grown so false that to prove a reason with them is quite difficult. But however imperfect our symbolism may be, we must use words in reasoning, because in general we cannot reason otherwise. In any case, words in contexts are usually clear enough for practical purposes. Otherwise language would be useless. One way in which context helps to give meaning to a word is in indicating the particular meaning of the word out of its several meanings. Failure to recognise that words changed meaning according to context leads to much idle controversy. Overvagueness and Overprecision Ambiguity refers to equivocation, while vagueness is uncertainty of language which arises out of the confusion with reference to its respective application to a number of particulars. Ambiguity is the central uncertainty, while vagueness is marginal uncertainty. A communication may be ambiguous without being vague, and vice versa. Most words denoting classes or categories are usually vague to some extent or more. For example near. When do you say that a thing is near and when do you say that it is far? Further, near means how near?

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As with ambiguity, vagueness may be semantic or it may be contextual. Again, contextual vagueness may be internal or external. Internally it arises when we know that a provision prevails over the other, but cannot say to what extent. Ambiguity is always undesirable. But vagueness is not always undesirable. On the contrary, it is often desirable as it provides leeway to the judge deciding a case under a vague provision. It is overvagueness which is undesirable. Through careful choice of terms and definitions and a partial control of context the draftsman can control vagueness to the extent it is desirable, or even he can eliminate it totally. First day of a calendar month, the present President of India are the examples of nonvague terms. Overgenerality and Undergenerality A term is general when it is not limited to the unique referent but denotes more than one. Almost every statute contains at least one general term. Sometimes it is confused with ambiguity and more often with vagueness. It is confused with ambiguity because of the heterogeneous classes that include different referents that need not be distinguished. E.g. grandmother includes paternal grandmother as well as maternal grandmother. But it is not ambiguous. It is heterogeneral. It refers to two things simultaneously (X and Y). Ambiguity refers to two things alternatively (X or Y). Whether a term is general or ambiguous again depends upon context. For example, A grandmother is very affectionate The term grandmother is general. His grandmother is very affectionate. The term grandmother is ambiguous if both of his grandmothers are living. Generality is not a defect of language. It is a useful and indispensable tool of communication. It is overgenerality and undergenerality which are defects. The classes denoted by statutes should neither be broader nor narrower than necessary. Generality is often confused with vagueness than with ambiguity. Some terms are general as well as vague. For example, automobile. It covers all types of cars, hence general. It is uncertain whether it covers three and two wheelers, hence vague. Thus ambiguity and vagueness constitute uncertainties of meaning, but generality does not. Generality serves useful purpose of granting the judges required leeway which is different from the leeway provided by vagueness. When a word is capable of several meanings, and selection of one or the other has impact on the result, for an interpreter there can be only one meaning, and that is the one which gives the most desired result.

FUNCTIONS OF WORDS
A successful lawyer must know how words work and what can be done with them. As observed by Daniel Webster, "The power of clear statement is the great power at the bar." According to Frank Cooper, words have three important functions: 1. Identification 2. Factual statement 3. Persuasion

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The prime function of words is identification, that is, to convey the author's thought as it is. Finding a word which identifies the author's thought is not very easy. As William Cobbett observed about two centuries ago, one does not succeed unless the word he chooses not only expresses his meaning fully and clearly, but so expresses it as to defy the ingenuity of man to give the word any other meaning than that which the author intended to express. Some words are too narrow and they cover less things than what the author wanted to express. They do not cover all things about which the author wanted to write. Some words are too wide and cover more things than the author wished to express. They cover even those things about which the author wanted to write. Therefore, the author will have to, sometimes, redefine the word to give exactly that meaning, or to cover exactly that much of area, as he needs for the purpose of his writing. Cooper gives an example of an English Act which is said to have provided: "Whenever the word "cow" occurs in this Act it shall be construed to include horses, mules, asses, sheep and goats." But this freedom of making the words mean what he wants them to mean is not always available to a writer. Therefore, he has to be careful not only in selecting the words, but he must also be careful about the meanings which may be attributed to his words by someone else. Common Pitfalls to be Avoided In Sweatt vs Painter, the United States Supreme Court observed that "law being an 'intensively practical' profession, 'although higly learned', the lawyer-draftsman cannot worry long over the impossibility of ever determining definitely and precisely the exact meaning of any word. The lawyer can do no better than strive so to marshal his phrases that the Court will say they mean what he wishes the Court to find as their true meaning." If the lawyer is to achieve this goal he has to avoid certain common pitfalls. Cooper mentions three such pitfalls. 1. Multiple meaning words. 2. Context affecting meaning. 3. Abstracts defying definitions. 1. Multiple Meaning Words: The most common example of uncertain identification is that where a word of multiple meaning is used, the author intends one meaning, but fails to make it clear that he intended only that one meaning. In Norman vs. Century Athletic Club, Inc., a lease provided that the lessee should enjoy "the privilege of broadcasting the boxing bouts" staged in a gymnasium which he had rented. The lease was executed in 1943. Five years later, the lessee got an attractive opportunity to televise the boxing shows. The lessor insisted that the lessee's contractual right to "broadcast" the boxing shows did not include broadcasting by television. Was it the mistake of the advocates who drafted the contract? Should they have foreseen that within a few years there will be broadcasting on television? Even otherwise, should they have used clear words such as: (a) "A.M. radio broadcasting" (restrictive language), or (b) "any type of broadcasting, by radio or otherwise" (expansive language)? Similar situations arise in interpretation of laws. In Otto Milk Co. vs. Washington, the definition of "bottle" was at issue. The ordinance in question required that milk be sold in bottles. The Milk Company sold milk in fibre-board containers, which were not bottles according to the City. In over-ruling this contention, the court observed, "The fact that to most people nowadays the word 'bottle' may convey the idea of a container made of glass is not decisive of the question before us.

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Bottles were among the first things used by primitive man. They were in common use long before men knew how to make glass bottles." The contention of the City was that fibre-board containers could not be sterilised as thoroughly as glass bottles. Therefore, it insisted that ,ilk should be sold in bottles made either of glass or some other substance equally capable of sterilization by methods similar to those used in sterilizing glass bottles. How should the ordinance have been drafted? Should it have referred to "glass bottles"? or "glass or plastic bottles"? or "sterile containers"? or "bottles made of glass or other material which will withstand sterilization by hot steam"? Another common problem of definition involves the use of synonyms "between" and "among". Where a testator leaves his property to be divided equally between a child and the several children of a deceased child. For example, "the estate shall be divided equally between my daughter and the four children of my deceased son." In such a case, does the daughter get a half share, and each of the grand children an eighth? Or do the daughter and the four grand children get an equal onefifth? To avoid the confusion how should the will be drafted? Should the advocate use the legalistic "per capita" or "per stirpes"? Or should it be written that "My daughter to receive ..., and the four children of my deceased son to receive ...."? 2. Context Affects Meaning: I.A. Richards long ago suggested that the meaning of a word is the missing part of its context. A good example is provided by F.A. Philbrick in his book Language and the Law: When a boy first reads in an advertisement that something is the acme of perfection, it is easy for him to guess that acme means summit, since that meaning is the only one that makes sense of the context. The reverse is also true. Context affects meaning. Context may be either internal to the message or it may be external. Internal context is the context created by the message itself. This context normally helps us to choose the appropriate meaning from amongst the multiple meanings of a word. For example, the meaning of the word affair may not be clear in isolation. But when it is used in the following sentences, it becomes clear: (a) He is a man of affairs. (b) The divorcee had an affair. (c) Affairs of State. Similarly, the meaning of the word is affected by the context in which it is read. This context is external to the message. Thus, the word "commerce" may refer simply to trade and business. But in certain contexts, the word will be taken as refering to interstate commerce, the adjective "interstate" being supplied or suggested by the context The author has a control over the internal context, but he cannot control the external context. He can only take the note of the external context and use words which may be properly understood in that context. If the document is read in some other context, there is still a possibility of misunderstanding the meaning of the words. Frequently, it is possible to create a strong internal context to guard the meaning of the message against the influence of the external context. 3. Abstractions Defy Definitions: Lawyers cannot avoid abstract terms such as good, sufficient, justice, freedom, law, right, duty, due process, unreasonable, unfair, diligent, etc. They are a necessary part of legal drafting. They are useful in some cases. But in legal drafting they cause more problems than relief. Abstract terms do not have a definite meaning. As F.A. Philbrick observed, "an abstract word has no correct meaning, never had one, and in the nature of the things never can have one."

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Therefore, it is always possible that when the lawyer uses an abstract term in one sense, the reader may understand it in a different sense. Therefore, the best way is to try to avoid the use of abstract terms. But it may not be always possible to avoid the use of abstract terms. However, it is certainly possible to minimise their use. Fallacies in Relation to the Function of Words In additions to the above three pitfalls, there are two fallacies in relation to the function of words: 1. That words by themselves are important. 2. That real distinctions exist between two forms of words. 1. Words Themselves Are Important: One of the errors in relation to the function of words is the idea that words are somehow important of themselves, and irrespective of their symbolic function. This tendency to attach importance to words as such is not recent one. In the beginning the fallacy took the form of word superstition, and later the form of word fetishism. Word superstition was prevalent even in prehistoric days. It was the tendency to identify words with things, and suppose that words are in some way parts of things or always imply things corresponding to them. Another similar supposition is that words have immediate power over things. Among primitive peoples these ideas resulted in many forms of word-magic and wordtaboos. Names, for example, are regarded as part of the personality. Hence among some primitives a child is not regarded as complete until he has got a name. The name of a deceased ancestor is given to the child, and the name is regarded as the soul of that ancestor. In some other communities, however, the name of a dead man is a taboo, and they refrain from applying it to any person out of fear of death. Another widely held belief is that by means of the name injury may be done to a man. What is true of the names of the human beings is equally true of the names of animals and things. One avoids speaking of snakes and leopards, etc., because of the fear that by pronouncing their names their presence can be invoked. The same superstitions continued to some extent in the earlier civilizations. This was found, for example, in the elaborate curses pronounced by the priests in Deuteronomy upon anyone who committed breach of law. Glanville Williams quotes an even more recent example. In 1521 the title of Fidei Defensor was conferred by Pope Leo X upon King Henry VIII. But when the quarrel with Rome was in full swing, Pope Leo's successor deprived Henry of the title. Henry retaliated by procuring the passing of the "Act for the Ratification of the King's Majesty's Stile". This Act was repealed by a statute passed under Philip and Mary, but was restored under Elizabeth. All this controversy centred on a mere empty form of words. Whether King Henry was a Defender of Faith depended upon what one meant by "Faith". If he was a Defender of Faith, no amount of denial by Pope could alter the fact, and if he was not, no Act of Parliament could make him one. But the parties to this dispute were not using words to convey the meaning; they were using them as if they were of importance in themselves. Even the recent statutes fostered word fetishism. The imaginary offence of witchcraft, for example, was at one time a felony punishable with death. The belief in the existence of witchcraft was partly due to the belief that evil effects could be produced by words. The crime of blasphemy was also originally based on the same kind of logo-phobia as the primitive taboo, and the God was supposed to be personally offended by the desecration of his name. Today, we can quote the example of bigamy for the law based on word fetishism. According to Kenny, the reason for punishing bigamy is "its involving an outrage upon public decency by the profanation of a solemn ceremony". Let us suppose that A deserts his wife and lives with an unmarried lady, he is not committing any offence. But if he tries to make the position appear more

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regular by going through a form of marriage with his mistress, then, even though the law is totally null and void, he is liable for offence. Thus even though the law does not recognise this marriage, law punishes the parties for celebrating it. The crime of bigamy, as it stands now, does not make any sense except on the supposition that the marriage ceremony is a magic form of words that has to be protected from profanation at almost any cost in human suffering. 2. Real Distinctions Exist Between Two Forms of Words: The second error in relation to the function of words is the supposition that real distinctions exist where in fact the only distinction is between two forms of words. Judges have said more than once that "there is no magic in words". But unfortunately this is not the case. In Dean vs. Dean, Chitty, J. admitted that "a difference in the mere form of words does in several cases make a difference in law." Glanville Williams gives six examples. 1. A gives a loan to B which is to be repaid in equal monthly instalments. The agreed rate of interest is 15% p.a. Each instalment must be paid on or before 10th of every month, failing which, the rate of interest for that month will be calculated at 18% p.a. This amounts to a penalty and therefore bad in the eye of law. Therefore, even if B pays the instalment after 10th the rate of interest for that month will be 15% p.a. only. Therefore, A's advocate drafts the agreement in a slightly different fashion. Accordingly, A gives a loan to B which is to be repaid in equal monthly instalments. The agreed rate of interest is 16% p.a. Each instalment must be paid at any time during the month. But, if the instalment is paid on or before 10th of every month, the rate of interest for that month will be calculated at 15% p.a. This amounts to an incentive and therefore not bad in the eye of law. Thus it can be seen that in both cases the situation is the same. B has to pay the instalment on or before 10th of every month. If he does, the rate of interest for that month will be 15% p.a., If he delays the payment of the instalment beyond the 10th of the month, for that month the rate of interest will be calculated at 18%n p.a. The difference between the tow agreements is only a verbal difference, but it makes a lot of difference as far as the legal consequences are concerned. 2. Distinction between "but if" and "until" is well known. A gives a property to B, an unmarried man. B can enjoy the property free of any rent, but if B marries the property will go to C. The condition subsequent is invalid as it is a restraint on marriage., which is against public policy. Therefore, B accepts the property absolutely. Therefore, A's Advocate drafts the agreement in a slightly different form again. A gives the property to B to be enjoyed by him free of rent until he is unmarried, and after his marriage the property goes to C. Here the condition subsequent does not put any restrain on marriage, and therefore, is not against public policy. Therefore, it is valid. Again it can be seen that the difference between the two agreements is only a verbal difference. There is no difference as far as the situation is concerned. Still the legal consequences of the two agreements are different. 3. A covenant to pay an annuity of 1,000 free of income tax is illegal by the terms of English Income Tax Act, but a covenant to pay such a sum as, after deducting income tax would leave 1,000, is perfectly good. If A agrees to give whole of his time to the service of B, this necessarily means that he will not serve anybody else during the period of his employment with B. But if A enters into service of anybody else, no injunction will be granted against him to prevent him from doing so.

4.

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LANGUAGE AND THE LAW If, however, A had expressly agreed totidem verbis not to serve anybody else, an injunction will be granted to prevent him from doing so. 5. It would appear at the first sight that there is no difference between a tenancy at Rs. 6,000 a year payable monthly and a tenancy at Rs. Rs. 500 per month. But the period of notice required to be given in the first case is at least 6 months, while in the second case it is only 15 days. If A makes a gift of two things to B, one of which is beneficial to B and the other onerous, B should either accept both or reject both. But if A makes two gifts of the same things, B may accept the one which is beneficial to him and reject the other which is onerous.

6.

James Mackay mentions a third fallacy, that there is an intimate association between words and their meanings, and he calls this fallacy of meaning. The idea that there is an intimate association between words and their meanings is useful, but leads to unconscious habits of mind which seriously interfere with reasoning process. Evidence indicates that it engenders a tacit assumption that the connection between words and their meanings is more important than the connection between an arbitrary symbol and the thing which it symbolises. Words do not have inherent meanings. Words are entirely arbitrary marks of meanings. They are conventions adopted by men for convenience, and have no "natural" or "proper" meanings. Glanville Williams agrees with this statement and says that scientifically speaking, words have no true or proper meaning, except in two senses: 1. Words have an ordinary, i.e., commonly accepted, meaning. 2. The particular person who uses the word may assign it a special meaning. The proper meaning of the word for this purpose is then his assigned meaning. The assumption of natural meanings leads to the assumption that a definition which is not natural is not right, that is is incorrect or untrue, and therefore, must be rejected. For example, consider the proposition, "A circle is a rectangle". Anyone who is acquainted with the customary meanings of the terms in this proposition would not hesitate to pronounce it untrue. This is because, he interprets it as a material proposition instead of interpreting it as a definitive proposition. In other words, he interprets it as a statement about the customary meanings of the words "rectangle" and "circle". It is assumed as a statement that "the customary meanings of 'rectangle' and 'circle' are the same". Thus interpreted, the proposition is untrue. But if it is a stipulated definitive proposition, a proposition involving not two, but only one meaning, and expressible as "a circle means a rectangle". Reed Dickerson observes that an inadequate grasp of the semantic aspect of semiotic may encourage reliance on word peeling or on word history or source to get at meaning. Although these approaches are often helpful, they are seldom determinative. Composite terms tend to confuse persons who know only the respective meanings of their constituent words. This often lures the reader into "word peeling". For example, "Havana cigars" does not refer to cigars from Havana. In some cases, disregarding this fact leads to the mistaken conclusion that because the constituent words seem to refer to something that we know does not exist, the term taken as a whole refers to something that does not exist. Dickerson calls this "thereis-no-such-thing-as" fallacy. Wade argues that negligence per se, which is often negligence in fact and sometimes negligence in law, is always negligence. Dickerson abserves that Wade has apparently fallen into the verbal trap unintentionally laid by Ehrenzweig, who recognised negligence without fault as a risk distribution device amounting to strict liability. This exposition makes us feel that Ehrenzweig classifies no fault liability as negligence. But, in fact, Ehrenzweig is careful to enclose the word negligence in

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quotation marks when using it to denote strict liability masquerading as negligence, thus making it clear that in his judgment usage still identifies negligence with culpability. In any case, negligence without fault and negligence per se are not necessarily kinds of negligence in the normal culpability sense. Similar mistake is committed in respect of single words such as "peanuts". Peanut is not a nut but a vegetable. Likewise paying too casual attention to prefixes and suffixes leads easily the false assumption that "inflammable" is an antonym of "flammable", whereas, common usage has made them synonyms. It is equally risky to get current meanings relying on etymology. Thus, though "matriel" used to be merely the French equivalent of "material", American military usage of "matriel" has identified it with equipment for military use. Therefore, it is not translated in military law not as "material" but as "war material". William P. Alston discusses about the linguistic phenomenon which he calls "dead metaphor". This is the capacity of language for figurative uses. The language is full of senses of terms which have developed out of metaphorical uses of words. For example, "fork in the road", "leg of table", "leaf of a book", "stem of a glass" and "eye lids". In the present state of language, the word "fork" has a meaning in this phrase which is as established as its meaning in the phrase "knife and fork". But we can all imagine that at an earlier time when the word was regularly applied to the eating and cooking implement, people would use the word metaphorically in speaking of a place in which a road is divided into two parts, each of which continues in roughly same direction but making an acute angle with the line of direction of the original road. This use then caught on and the later generations learnt the meaning of the term "fork in the road" directly without having to go through the older use of the term "fork". Thus the sense became established and autonomous. 2. Factual Statement It is often assumed that it is easy to write a "plain statement" of the "simple facts" of a case, so as to give unvarnished truth concerning a given situation. Even if we disregard the difficulty in ascertaining the true facts of a case, there is always the difficulty of language of choosing words which will create in the reader's mind the same mental image which exists in the mind of the draftsman. Otherwise, the reader will be thinking about quite different facts than the draftsman has in mind. Schopenhauer observed in his Essay On Style that thought observes law of gravity in that it travels from head to paper much more easily than from paper to head. The "facts" an advocate deals with most often are not scientific facts. They involve human relationships, abstractions and subjective concepts. In such cases the meaning intended by the author and the meaning comprehended by the reader will often be different. The thought loses a part of its vitality in the process of being reduced into writing. To make up for this loss, the author must slightly overstate his concept. But how should the author judge what "margin of misstatement" is necessary to achieve a truly accurate statement? Frank Cooper suggests that the successful draftsman must steer a course between the "overemphasis on details" which defeats the author's purpose and the overstatement which "disguises matters", if he is to succeed in his purpose of creating in the mind of the reader a clear picture of the actual factual situation, seen in the true perspective. This requires not only familiarity with language techniques, but also some artistic ability. The author should choose between "factual language" and "emotive language". Factual language is concrete, exact, precise, specific, particular, expressed in quantitative statements rather than in value judgments. Emotive language is abstract, vague, general, and expressed in value judgments rather than quantitative statements.

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The purpose of the factual language is to create a mood that is precise, cold, realistic, critical, and perhaps, cynical. On the their hand, the purpose of emotive language is to create feelings of warmth, optimism, elation, hope or despair. A legal draftsman can with benefit employ words and phrases which serve an emotive purpose. Cooper illustrates this with three statements of the same fact made by three different authors: 1. "Delegation of virtually unlimited discretionary powers to administrative agencies renders it substantially impossible to ascertain in advance precisely what ruling will be made in any particular situation". This statement carries but little meaning to the reader. It is overqualified, too precise, utterly cold. 2. "The growth of administrative absolutism threatens a renewal of the terrors of the star chamber." This style is highly emotional and creates a mood. But it is so fuzzy that it does not create any definite mental image. 3. "Suppose all business were subject, not to definite laws but to government supervision! Suppose every businessman had a policeman at his elbow." This concrete imagery, this blending of precision and emotion, is the technique to be mastered in preparing a statement of facts which will serve its intended purpose of creating in the mind of the reader the same picture which the writer in his mind. The secret of drafting a statement of facts successfully has to do with making a wise choice between cold, precise terminology and language which carries some warmth of human emotion. 3. Persuasion Advocates speak most often to persuade. In such situation logic will not serve the purpose. Logic is scientific, law is not. As observed by Curtis Bok, "Nothing is a science that has to depend on words." Justice Holmes long ago declared that "the life of the law has not been logic." Cold, mechanical, heartless logic does not persuade the courts quite often. The successful argument must be one which makes the reader want to believe. Cold logic cannot do this. Logic is a means of showing the reader that his preconceived ideas have been wrong. But this is not enough. The man convinced against his will not change his opinion. Persuasion must create a desire to believe. One of the tools of persuasion involves the use of bias words. They are used by all, but advocates have special use for bias words. Instead of saying that "He did not answer the letter", they say "He failed to answer the letter". The former statement carries no suggestion of doing wrong, whereas the latter suggests that he should have answered the letter. Similarly instead of saying that one said something, they say one admitted something or one confessed something. A combination of these two may result in saying the "He admitted that he failed to answer the letter." Even the draftsman of a statute can effectively employ bias words. Thus the draftsman of the Clayton Act chose to write that "the labor of a human being is not a commodity or article of commerce". We can also refer to pairs of terms, one of which is an eulogistic term, while the other a dyslogistic term. A conservative may be described as a reactionary. A liberal man may be described as a reformist or radical. An executive officer may be either a politician or a statesman.

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Spies are intelligence officers. A reason may be an excuse. To be effective, this device must be used with caution and restraint, otherwise, it will not yield the expected results. Even greater care must be utilised in the use of adjectives to achieve an emotional mood. Adjectives are less subtle than nouns. The author's purpose is more obvious. Still adjectives have their uses. They can be used to create unfavourable opinions. Thus a generous person may be called spendthrift. Similarly, they may be used to soften the harsh realities. A drafty room may be called well ventilated. The draftsman has a wide choice between verbs. He may say that an automobile sped, raced, roared or hurtled down the road. Defendants have not colluded, but only co-operated. Averred is a neutral word while alleged suggests that the facts are false. The use of metaphors and similes to create a mood is particularly dangerous. Cooper gives the example of the politician who warned that the workingman was being squeezed flat by inflation.

EMOTIVE FUNCTION OF WORDS


Emotive Words and Statements The term "emotive" as used here covers not only affective but also the conative aspects of mind. It is a blanket term for every sort of pleasure-discomfort, will and desire; for every degree of instinct, sentiment and passion. It includes love, joy, hope, wonder, desire, reverence, obedience, amusement, sympathy, social, moral and religious feeling, rage, fear, grief, horror, disgust, and every other affective-volitional state. A word is said to perform emotive function when it either expresses an affective or volitional attitude or arouses such attitude in others. Thus an emotive word may be either an expression or an excitant of feeling or desire. Some specialised linguistic activities such as poetry, oratory, advertising, religion make particularly pronounced use of emotive function of words. Emotive use of words is also found in ordinary speech and writing. All action is ultimately inspired by emotion. Therefore, it is inevitable that in our speech we should both express our own emotion and attempt to satisfy our emotions by working upon the emotions of others. One result of this aspect of language is that every statement of fact can be put in such a way as to excite a feeling either of attraction or of repulsion, so far as language can do it. We have already referred to bias words and to eulogistic and dyslogistic words. In addition to these there are certain constructions particularly designed for emotive purposes. The imperative and operative moods, and the auxiliaries "must", "may" and "ought". A distinction must be drawn between emotive function of words and the emotive functions of the sentences as a whole. An emotive sentence consists of both emotive words as well as words which are not emotive. Thus, in the sentence "You are a good boy", the words "you" and "boy" are purely referential, yet the sentence as a whole is emotive. Therefore, when we say that a sentence is emotive sentence, it does not mean that it does not contain referential words. But, a referential statement does not contain emotive words. Thus, an emotive sentence is both emotive as well as referential. Thus the sentence "You are a good boy" is referential in so far as it asserts that the person addressed is a boy, and emotive insofar as it asserts that he is good. The statement "You are a boy" is a statement of fact, and hence referential, and the statement "You are good" is an expression of emotion, and hence emotive. "You are a good boy" combines these two statements. But, because the emotive element is predominant, we say that as a whole it is an emotive statement.

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Most common type of emotive statement is the value-judgment. This is a statement of approval or disapproval, usually in the form of a generalisation. There are three important differences between referential statements and value-judgments. 1. Referential statements are objective, value-judgements are subjective. Therefore, valuejudgments differ from person to person while referential statements do not. Thus, as to whether A is a boy or girl, there will not be two opinions. But as to whether A is good or bad, there will be many opinions. 2. Referential statements purport to state past, present or future reality, while value-judgments merely express emotional reaction to this reality. 3. The criterion of truth and falsity is applicable only to referential statements, but not to emotive statements. Emotions are necessary for human development and advancement. Without emotions there cannot be desire to achieve. Similarly emotions are of the highest social importance. People should have favourable emotions towards social conduct and should react in words as well as in action against anti-social conduct. Emotive statements are quite useful as tools of social control. Emotive statements may be abused in several ways. We can cite three such possibilities: 1. Emotive statements may be used in such a way as to hinder thought. Our value-judgments should proceed in the light of knowledge of relevant facts, though they may be ultimately governed by our particular temperament. If the use of emotive language in presenting facts prevents the hearer or reader from examining the alleged facts, it amounts to the abuse of emotive language. 2. Language that is highly emotive, but symbolically blank may be used as a substitute for presentation of facts. Normally advertisements and political statements use such language. They use what are known as "bogey words" and "catch phrases". They are imprecise in meaning but have an important influence upon mind of the average voter. Instead of suggesting specific remedies for specific problems, they use terms of broad generality. 3. Emotive use of words can be strategically disguised as a referential statement. We often find that to express our emotions or value-judgments using the terminology of referential statements is more effective than using emotive words. This tendency is endemic in works of philosophy, sociology and jurisprudence. The most common way to disguise an emotive statement as a referential one is to hypostatisation of values. Thus, if a moralist says that all wrongdoers should be punished, he is only expressing his personal opinion and he may find it difficult to persuade others. But if he asserts that "Justice requires all wrongdoers should be punished", he may appear to be stating a fact and may be readily accepted by others. As mentioned above, the criterion of truth and falsity is applicable only to referential statements. Thus, if one says, "Do not steal", it is nonsense to ask whether his command is true or false. Value-judgments do not express observable facts, and it is impossible to deduce them from observation of facts. However, this proposition is often denied owing to some confusion. Glanville Williams mentions three sources of such confusion: 1. A value judgment may be true in the sense that it is a genuine expression of the feeling of the person expressing it. We have already noted that an emotive statement is not only emotive but also symbolic. Laughter expresses happiness and is non-symbolic, but the sentence "Now I feel happy" expresses happiness and also symbolises the mental state. The second part may be true or false. 2. A says the B is a good boy. C who hears this agrees and says that what A said is perfectly true. C is expressing emotional agreement with A. This is not verification of A's statement,

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in the ordinary sense of the word "verification". It will not be verification even if ten thousand others agree with A. 3. E. Benoit-Smullyan divides judgements into three types: (a) Value-judgments: A value-judgment asserts that "A is good or valuable in itself". This is without specific reference to its consequences. Other examples are "A ought to be done" (for its own sake), "A is (intrinsically) better than B". (b) Existential judgments: An existential judgment is of the form "A exists, did exist and will exist", "A has property B", "A causes B". (c) Instrumental judgments: An instrumental judgment may take the verbal form of a value-judgment (e.g., "A is good", or "A ought to be done"), but its actual meaning is that "A is good for B", or "A is good or valuable in that it produces B", or "A is more likely than C to produce B". Such a judgment is the conclusion of an argument in which one of the premises is a value-judgment and another an existential judgment. Thus, B is good (as an end). A causes B. Therefore A is good (as a means). Here, the second premise is capable of being true or false in respect of the element of causation, and therefore, in the same respect, is the conclusion. This dual character of instrumental judgment may lead to the misunderstanding that they can be true or false. Emotive Function and the Law The emotive function of words has a three-fold importance for the lawyer. They may be described as under: 1. Legal Euphemisms. 2. Insult. 3. Use of Words as a Stimulus. 1. Legal Euphemisms: Human nature is a curious mixture of the inflammable and the sensitive. Words can arouse feelings of grief, repentance, insult, happiness, pride, etc. Therefore, there is a need for moderation of language, politeness and euphemism. We are all familiar with the verbal delicacy that has been maintained in lunacy matters. Lunacy Act, 1890 of England is always referred to as 53 Vict. c. 5. Different laws refer to different aspect of the law in different ways. Thus, the office of the Master of Lunacy is referred to as "The Management and Administration Department", a lunatic is called a "patient", an asylum is "Institute for Mental Health", a criminal lunatic is a "state mental patient", a pauper lunatic is "rate-aided patient", etc. In criminal law, the effort to destigmatise the probation order has been carried so far that it may cause difficulty in working of legal concepts. Sec. 1(1) of the Probation of Offenders Act (of England) provides that "where any person is charged ... and the Court thinks that the charge is proved, ... the Court may, without proceeding to conviction, make an order either (i) dismissing the information or charge, or (ii) discharging the offender conditionally on his entering into a recognizance". Thus, the provision seeks to protect the offender from being called a "convict" even though the charge is proved against him. In Oaten vs. Auty the question was whether an appeal can be preferred against an order of dismissal of information or charge passed under this section. Under sec. 33 of the Summary Jurisdiction Act, 1879 an appeal may be preferred against "conviction, order, determination or other proceeding of a Court of summary jurisdiction". As the

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order does not amount to conviction, it was held that appeal may be preferred under the concluding words of the section, "or other proceedings". Darling, J. criticised the wordings of the Probation of Offenders Act as "unscientific, thoroughly illogical, and merely a concession to the modern passion for calling things what they are not". Glanville Williams observes that this criticism is unfounded because, a deviation from established usage is itself not unscientific or illogical. The only difficulty that was caused by the deviation in this case was in altering the established legal concept the draftsman ran the risk of causing difficulty in applying other rules of law that made the use of that concept. Luckily, in this case there were alternative words to "conviction" in the Summary Jurisdiction Act which helped to avoid injustice. If the Act was skilfully drafted, it would read that the word "conviction" in any other Act would include an order passed under this provision. 2. Insult: The irritant quality of words is recognised in certain rules relating to insulting language. The prohibition of blasphemy is based on that ground. Insulting words or behaviour with intent to provoke a breach of peace or where breach of peace is likely, are offences. On the other hand, it is now settled law that mere words are not sufficient to reduce a charge of murder to one of culpable homicide, except in cases of most extreme or exceptional character. A distinction is drawn between defamation and insult or abuse. The former is a legal wrong, the latter is not. Although this distinction seems clearly to be based on the difference between referential and emotive language, the exact correlation is a matter of more complexity. 3. The Use of Words as a Stimulus: The emotive function of words is of vast importance in social control. The marriage ceremony is one of the most powerfully emotive forms of words in the society. There are titles of honour which constitute a stimulus to the socially desirable effort. National days, ceremonies and emblems stimulate the emotion of loyalty to the established order of the community. This kind of use of emotional stimuli for the purpose of social control is not confined to particular institutions. It is a characteristic of the legal system as a whole. We have already seen that Glanville Williams maintains that legal rules are emotive statements. The Uncertainty in the Application of Laws Due to the Use of Emotive Words The words "right", "duty" and "wrong" have an emotive function, but since they are merely auxiliaries for indicating that a standard of conduct is involved they do not themselves blur the meaning of a sentence. But there are other emotive terms which express the legal standard itself, and thus introduce an unusual amount of subjectivity into the interpretation of the rule. Examples of such words are "just", "justice", "public policy", "necessity", etc. The rule that a contract which is against public policy is void, tells almost nothing. Its application depends upon what is public policy, and what is public policy and what is against public policy depends upon the opinion of individual judge. As there are sufficient precedents now, we can, to some extent, predict the judgments in cases involving public policy. Similarly in case of defence of necessity in law of torts and crime, what is necessity depends upon the facts of the case and the opinion of the judge. Again, here also we have precedents to guide us. In the same way, the difference between some word pairs, such as, "arbitrary" and "discretionary", "important" and "unimportant", etc. is based upon emotive aspects. In questions of causation lawyers distinguish one cause as "the" cause of an occurrence and call it the "direct" or "immediate" cause. These adjectives cannot be taken in their usual meanings. They appear to mean "important". Scientifically, it is impossible to distinguish between causes merely

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in terms of importance. Every event has several causes, and no one cause is more important than another. However, there are a few relatively definite legal rules for determining the legal cause. Where these rules are applicable, the question is not emotive nature but of objective fact. The legal distinction between principal and accessory is similar to the above distinction. We may say that a button is accessory to the shirt, because we feel that shirt is more important than button. But, if the button is very expensive, we may regard shirt as accessory to the button. In Yousoupoff vs. Metro-Goldwyn-Mayer (1934) Slesser L.J. held that in a sound film sound is ancillary to vision. This may be because the silent film was invented first. Glanville Williams feels that in case of television vision may be held as ancillary to sound. We can quote many more such examples. "Reasonable", "unreasonable", "question of fact", "question of law" are few of them. It is not surprising to find that these rules involving emotional attitudes are often uncertain and difficult to apply. This is because the emotional reaction of the lawyer who advises on their application is not necessarily the same as that of the judge or jury who finally determines the matter. Emotions of judge or jury are not always predictable. Still, to some extent the emotional reactions of human beings are similar. To that extent we can predict the emotions of judges and juries.

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SOME SELECTED WRITINGS ON LANGUAGE AND LAW


1. LAW Law is difficult to define. It has many facets and many functions. Different people looking at law from different angles have found it in different ways. Hence there are several schools of law, such as the natural law school, the imperative law school, the realists, etc. The proponents of the natural law school claim that law is the dictate of reason. According to the natural lawyers, unreasonable law, i.e., law opposed to the nature is no law at all. According to them, law which is against the nature is no law at all. The nature of fire is to burn. If a law is made saying that fire shall not burn, it cannot be followed. Similarly, law which is unreasonable is no law at all. The proponents of analytical school of law or imparative school of law, who are also called positivists claim that law is the command of a sovereign, backed by sanctions. According to them the commands of soveriegn are law whether they are reasonable or not is immaterial. If these commands are not followed, the person committing the breach will be punished. The realists claim that whatever may be the law made by the sovereign or any other person or body of persons, ultimately it is to be interpreted and applied by the Courts. Therefore whatever the Courts say law is, is the law. All these theories have their own merits and demerits. Instead of falling in the debate about these merits and demerits we may examine different forms of law by which we are practically governed. There are mainly three such forms: 1. 2. 3. Statutory law and rules made thereunder; Precedents; and Customs.

Statutory law, usually called Act and sometimes Code, is made by the legislature which is the law-making body. The law-making powers of State are given to it by the Constitution. Therefore, its law-making powers are supreme and laws made by it are the supreme legislation. However, the legislature being busy cannot make all the laws in detail. Therefore, many times it makes the broad law and delegates the powers to fill in the details to the executive or judiciary. Then laws are made by the executive or judiciary as agent of the legislature. Usually they are called Rules. They are subordinate legislation. Judgments of higher judiciary, i.e., High Courts and Supreme Court are binding on themselves as well as Courts subordinate to them. Therefore, they cannot deviate from them. If a case with similar facts come before them they have to give a similar decision. This is necessary for the certainty in law and also to give impartial justice. It is based on the principle that like cases should be decided alike. Such judgments of the Courts are called precedents. They fill in the gaps left by the statutory law and also interpret the statutory law wherever the statutory law is clear. Customs are prolonged usages of the community or of a family or of even an individual. It is a rule which in a particular family or in a particular district, has from long usage obtained the force of law. A custom to be recognised by a Court should be: 1. 2. 3. 4. 5. 6. 7. ancient continuous and uniform reasonable certain compulsory and not optional peaceable not immoral.

LEGAL LANGUAGE AND LEGAL WRITING A custom may be 1. 2. 3.

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general custom, i.e., custom common to a class of people living in a particular locality or belonging to a particular caste or community, or public custom, i.e., custom which is a matter of public interest, or private custom, e.g., family customs and usages.

The statutory law being the supreme law is applied first. The rules made by the executive or judiciary come next. Precedents of the Courts are applied in the absence of the other two types of law or to explain the other two types of law. Wherever customs are applicable they are also applied as if they are law. In the absence of all the above even treatises written by eminent jurists can be cited as law. The difficulty of defining law is beautifully put by W.H. Auden in the following piece of poem. Law? Law, says the judge as he looks down his nose, Speaking clearly and most severely, Law is as Ive told you before, Law is as you know I suppose, Law is but let me explain it once more, Law is The Law. Yet law-abiding scholars write; Law is neither wrong nor right, Law is only crimes Punished by places and by times, Law is the clothes men wear Anything, anywhere, Law is Good-morning and Good-night. Others say, Law is our Fate Others say, Law is our State Others say, others say Law is no more Law has gone away. And always the loud angry crowd Very angry and very loud Law is WE And always the other idiot softly ME. Like love I say. Like love we dont know where or why Like love we cant compel or fly Like love we often weep Like love we seldom keep. - W.H. Auden

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2. IMPORTANCE OF LANGUAGE IN LAW by ISHTIAQ ABIDI According to the author, words, spoken and written are the raw materials of the lawyers trade, and the possession of a good linguistic style which enables him to make effective use of that material is one of the most valuable of all his professional equipments. There is no doubt that this is not an understatement. Several authors have, time and again, expressed this same view in different manners. Dr. V.S. Rekhi, in his preface to Abidis book observes that language is the life of law, as law is based upon inter-personal relations, the essence of which is communication. Law is expressed through language and it is practised through language. Frank Cooper says that language is lawyers sole tool. In every profession there is use of one tool or the other, and persons belonging to different professions acquire skill and expertise in the use of the tools of their profession. Language is the sole tool used in the legal profession. But, Frank Cooper laments, few lawyers attempt to achieve mastery over language. Abidi expresses his confidence that even where such a style is not a natural gift, it may be acquired by study and by practice. The author further states that there are few higher intellectual pleasures than success in the task of expressing an argument or a conclusion in just precisely the right language, so that the thought is caught and poised exactly as we would have it. But the question is which language should we master? This is especially an important questions in countries like India where there are many languages, several of which are officially recognised and used. In lower Courts Kannada is the language in which cases may be conducted, but still English is being used commonly. At higher levels of judiciary the cases are conducted invariably in English. Thus, those who wish to practise before High Courts and the Supreme Court, must gain expertise in English language. However, this does not mean that those who wish to practice before the mofussil courts can ignore English. There are at least two reasons for them to master English. One, if their English is weak, the opponent lawyer may take advantage of it by conducting the case in English. The other reason is that the law reporters are published in English, and reading reported cases and understanding them is the essential part of an advocates profession, in whichever courts he may practise. There are certain components of study of language which are common for all languages. Certain other components differ from language to language. Language has not only linguistic, but also psychological, logical and philosophical aspects. These aspects are more or less the same for all languages. Similarly, the meaning of a statement depends upon not only the words used in that statement and the order in which the words are used, but also on the context in which the statement is made. This aspect is also the same for all languages. If we master these aspects for one language, we have mastered them for all. But there may be other aspects of language, like vocabulary and grammar, which are language specific. They are to be studied separately for different languages. Therefore, in the opinion of the author, a student of law must acquire mastery over English. The next question is what are the requirements of the profession and what aspects of the study of language should be stressed upon? Abidi advises the students to have a firm grip over the English language, i.e., its vocabulary and grammar, with an aroused concern for the likely constructions that can be put upon by their adversaries if they attempt expressions other than the established ones. Therefore, the author advises the students to have: 1. 2. 3. a special, fairly wide vocabulary; a good command over structures and syntactical patterns, an awareness of likely implications emanating from different expressions for conveying the same intent.

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Certain words are commonly used by all, lawyers and laymen alike. These words are to be learnt from a professor of English. Certain other words are technical in nature. They are to be explained in depth by the professors of different branches of law with reference to the definitions given in concerned statutes and to the interpretations made by different Courts in different cases. Sometimes common words carry special meanings in law. Though we cannot not call them technical terms still their use is technical in nature. They are to be learnt by the students of law with special care while studying different laws from different professors, and now, from the professor of Legal Language. Abidi has suggested a vocabulary of such words which he hopes to serve as a lawyers stock-in-trade. He suggests that this vocabulary must be firmly rooted in the minds of the students and practitioners of law, as it is by far their greatest need. According to Abidi, as for the tense structures, the laws may be divided into two broad categories: 1. 2. those which create rights and also provide a remedy in case those rights are injured, i.e., substantive laws; and those which state fundamental principles or lay down procedures, i.e., procedural laws.

In the case of the former, by the time matter comes up for hearing, it becomes an event of the past. Consequently, most of the things connected with it have to be presented in the past tense forms. So, simple past, past perfect, past continuous and used + infinitive forms become the most important and most frequently used ones. With the latter, the simple present, neutral present and passive forms are the most common ones. Future forms are least frequent; the most common in this category is the jussive (commanding) future with shall. In addition to these, according to Abidi, a thorough command over the uses of may, shall, can, could, will, would and should is also necessary. Abidi reminds us that most of the legal communication constrains, of necessity, sentences with many conditions. Further, in law, choice of words is very important. A lawyer is a trafficker in words. A slight negligence or error in the construction of clauses or in the use of appropriate words may lead him and his clients into difficulties. Hair-splitting controversies about such simple words as may, shall, and, or, family, accident, etc. or, for that matter, legal wrangling about any crucial word or phrase used in any statute should, instead of frightening a beginner in legal studies, stir up in him a desire to master the tool of the language. A comparative study of quite a few synonyms which are frequently used in legal contexts is a good exercise. A comparative study of words given in the Law Lexicons is a useful guide in this regard. Such a study will show us how even very simple words can be extended to mean something very different. One cannot give a complete and exhaustive list of such words. With the hair-splitting advocate ever ready to challenge and twist the interpretation or the meaning advanced by the opposite party, drawing such a comprehensive list is not possible. A student of law also needs, a lot of practice in such skills as prcis-writing, preparation of briefs, writing of reports and drafting of various types of formal applications and petitions. To acquire these skills, a student of law should read pieces of good writing, both legal and otherwise. Reading articles of law and reports of judgments of superior courts is very useful. This helps one to have mastery both on law as well as language. Abidi admits that despite our best efforts and intentions, some of the ambiguities and uncertainties in the domain of legal language itself is an ever-changing medium. There is hardly any word in any dictionary which carries a single, precise and definite meaning. On the other hand, there are not enough words in any dictionary which can answer the infinite diversities of the human situations with which law has to deal. However, as Abidi points out, much of the ambiguities can

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be avoided if the slipshodness in the use of language is avoided, and if proper emphasis is laid on precision in expression and clarity of intent. Abidi says that it is a challenge and it should be taken up. 3. LAW AND LANGUAGE by LORD MACMILLAN Lord Macmillan describes a lawyer as a trafficker in words, because, to the legal profession above all others, words and their meanings are a matter of supreme concern. They are his staple, his stock-in-trade, and the annual turn-over of the profession must far outstrip the almost astronomical figures of the bankers Clearing House. Lawyer is using words all day and every day. In all aspects of his practice, whether he is drafting a deed or agreement, or a pleading, or whether he is advising a client about his affairs, whether he is arguing a case, or whether he is writing a judgment or opinion, a lawyer is constantly making use of words, written or spoken, and thereby constantly endeavouring by the use of words to convey their meaning to others. The question is not whether the service rendered to the community by dealers in words is as valuable as that which is rendered by those who follow the more creative callings like engineering, architecture, etc. He reminds that words are the daughters of earth, things are sons of heaven. Nature created the things, and to refer to them man created the words. A lawyer is not concerned with the words themselves or their origin, because, as Vice-Chancellor Kindersley points out that such a study does not help in the administration of justice. Such a study is the concern of etymologists, and to some extent of literary artists. What is of utmost importance for the lawyer, if he is to perform adequately his duty to his clients and to the public, is that he should possess a special skill in the use of language. For the lawyer the importance of words lies in the fact that they are the vehicles of the law. Whether it be statutes, reports, and text books where the law is in static form, or the pleadings, arguments or judgments where the law is in dynamic form, it is the words which must be used to express the law. For the formulation, the exposition and the application of law, the only medium is language, and success or failure in these endeavours is dependent on the skill and precision with which the lawyer handles his medium. However, as Lord Macmillan observes, so little conscious and systematic study is made by the lawyers in respect of the right use of language in the modern times. He points out that it was otherwise in the classical times. In Greece and Rome much time and much thought were devoted to the technique of words, and the schools of the grammarians were the training grounds of the lawyer. Lord Macmillan observes that we can still learn much from the precepts of the Attic orators and the treatises of Cicero and Quintilian. Lord Macmillan states that the art of words is a difficult art and a fine art, and that the practice of it brings pleasure as well as profit. For a lawyer, the aesthetic aspect of language is not of primary interest, though as Sir Frederick Pollock rightly points out that not even the draftsman of an ordinary lease can produce really good work unless he has a share of artistic feeling in the eminent sense, and takes a certain artistic pride in the quality of his workmanship apart from the reward he will get for it. It is rather the utilitarian and practical side of the art which is important for a lawyer. It is not just a theoretical matter, but one of business. No experienced lawyer can ignore the importance of accuracy and precision in the record of his transactions, and the expression of his arguments, or fail to recognise how indispensable it is to appreciate the exact meaning of the words he uses. The greatest difficulty a lawyer experiences in the use of words arises from the fact that of all the things words are the most uncertain and ambiguous. Indeed, such is the imperfection of the human vocabulary that hardly any word has a precise and definite meaning except the terms used in

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mathematics and physical sciences. The difficulty is even more pronounced in case of law because of the nature of the subject matter. Law is mainly concerned with the human relationships, which are themselves highly complex and infinitely diverse. On the other hand, the resources of language are very much limited. Hence, as Lord Macmillan points out, the paradox presents itself that the science whose main object is the achievement of order is most open to the accusation of indefiniteness and uncertainty in its pronouncements. Lord Macmillan further observes that an inefficient craftsman quarrels with his tools, while an efficient craftsman tries to master them. As Locke says in his Epistle to the Reader, I know that there are not words enough in any language to answer all the variety of ideas that enter into mens discourse and reasoning. But this hinders not but that when anyone uses any term he may have in his mind a determined idea which he makes in the sign of and to which he should keep it steadily annexed during that present discourse. Where he does not or cannot do this he in vain pretends to clear or distinct ideas; it is plain his are not so; and, therefore, there can be expected nothing but obscurity and confusion where such terms are made use of which have not such a precise determination. Though this statement is made in respect of mankind in general, it has a very special application to the lawyer. One can see that at least half the litigations in the Courts originate from the ambiguous use of language. Many of these controversies over words are due to the inherent defects of the instruments some of which cannot be entirely eliminated even by the most skilful, while many others which arise from perfectly avoidable slipshoddiness and want of precision in thought and expression. Lord Macmillan makes a cursory reference to the word fetishism among the lawyers, as he feels that a detailed discussion is out of the scope of his article. Among the primitives this fallacy takes the form of word superstition. It is believed that words have magical powers. In case of law word fetishism takes the form of words of style. To illustrate this, Lord Macmillan quotes the example of a Scottish case, viz., the case of Kirkpatricks Trustees vs. Kirkpatrick. In that case Mrs. Kirkpatrick executed a trust on 4-3-1867. The trust deed had a dispositive clause which read, ... I give, grant, assign, convey and make over ... but did not mention I dispone. Because of the absence of the words I dispone the Court held that the deed was ineffectual to convey her heritable property. Thereafter the Parliament enacted the Conveyancing (Scotland) Act of 1874, in which sec. 27 provides, It shall not be competent to object coming into operation after the passing of this Act on the ground that it does not contain the word dispone, provided it contains any other word or words importing conveyance or transference or present intention to convey or transfer. In India, the Courts take into consideration the effect of the words and do not go by the particular words used in a deed or document. However, one should remember that though for normal purposes we consider many words as synonyms to each other, meanings of different words are always different. In fact, according to a renowned authority on English language, there are only two pairs of synonyms in English. Therefore, substitution of one word by another may result in difference in meaning. Substituting one standard word by another word without ascertaining the difference in meaning and the legal effect thereof is always dangerous. As Lord Macmillan observes, the requirement that prescribed words and formulas must be used to achieve certain legal results cannot be dismissed as mere word fetishism. He says that it had a purpose. If one uses the established words and formulas, no dispute can normally arise in respect of their meaning and therefore of their legal effect. As observed by Lord Cockburn, Words acquire the character of being words of style solely because, from their expressing a thought necessary or usual for the occasion they can never be safely omitted. It is commonplace among the lawyers that most of the litigations arise from words. The great part of a lawyers daily business is to give opinions, to argue or to decide as to the meanings of words. These disputes are by no means always barren logomachies. Great questions of principle may turn upon a word and valuable rights and interests depend upon the meaning assigned to it. The difficulty of interpretation arises, as I have said, form the imperfection and inexactitude of language as vehicles of ideas. If words are the currency of our business, they suffer from the defects which have always affected human currency.

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Their value in exchange is unstable, and they not only undergo changes in time and place, but at any one moment and place their precise content is often undeterminable. To illustrate this, Lord Macmillan quotes the example of the famous case of Powell vs. Kempton Park Race Course Co. Ltd. where the controversy related to the meaning of a place opened, kept or used for the purposes prohibited by the Betting Act, 1853. The locality (not place) under discussion was a railed-in-enclosure adjoining a race course, to which enclosure public were admitted on payment of an entrance fee and to which bookmakers resorted for the purpose of their business. Lord James of Hereford said, There must be a definite area so marked out that it can be found and recognised as the place where the business is carried on and wherein the better can be found. Thus, if a person betted on the Salisbury Plain there would be no place within the Act. The whole of the Epsom Downs or any other race course where betting takes place would not constitute a place; but directly a definite localisation of the business of betting is affected. Be it under a tent or even movable umbrella, it may be well held that a place exists for the purposes of conviction under the Act. Therefore, according to Lord James, the enclosure in question might, physically speaking, under certain conditions constitute a place, but even if so, he held that it was not opened, kept or used for the purpose of owners, occupiers, or users of it betting with persons resorting thereto. Many such examples of uncertainties in the meaning of words can be given. Indiscriminate use of and and or or may and shall have almost legal literatures of their own. Thus, every day we see the courts engaged in elucidating the meaning of the English language. As the ambit of legislature is increasing, we may expect such problems to increase, rather than to diminish in number. Lord Macmillan says that the increasing intervention of Parliament in the lives of the people by means of imperfectly framed statutes will, at any rate, save many lawyers from swelling the ranks of the unemployed. Though the task of drafting statutes is entrusted these days to the skilled draftsmen, Lord Macmillan feels that the burden upon them is so much more than they can take, and therefore, they fail quite often to use appropriate words to express their ideas. Further, the task of a legislative draftsman in itself is a highly complicated one. Lord Macmillan gives example of a simple Club Rule which is applicable to the members family. What is the meaning of family? Does it include only the wife and children of the member or does it include every person who resided with him under the same roof? Does it include his brothers and sisters and also his grand parents? As Justice Stephen has observed, It is not enough to attain a degree of precision which a person reading in good faith can understand; but it is necessary to attain, if possible, to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it. Performing the task in a very much limited time makes it much more difficult. Lord Macmillan says that one of the chief functions of our Courts is to act as an animated and authoritative dictionary. It is the Courts who have to interpret a statute or a contract and tell us what they mean. In other words, words used by one set of persons have to be interpreted by another set of persons. This is another very difficult task. A testator who has left his books to a public library cannot be asked what he meant by the word books. It is much more difficult in case of a statute. First, because the legislators who enacted it cannot be found easily. Even if they can be found, they being a group of persons, cannot have a common intent. The author makes an attempt to impress upon the minds of the students of law the importance of using proper language and also tries to warn them about the difficulties and pitfalls. 4. LANGUAGE: LEGAL AND LITERARY by JOHN MASON BROWN The author compares the two professions which are based upon the use of words, namely, law and literature. The persons belonging to these professions are called word-men by the author.

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In the course of this article, the author asserts the importance of originality in writing. He makes reference to ghost-writers, the persons who write on behalf of others. He quotes A. Whitney Griswold who in a speech at the National Booksellers Association expressed shock and dismay at the news that in Washington a University was about to open a course for ghost-writers to teach them to write in such a way that orators will understand at all times what they are saying. He points out that at the time of writing of this article there were about 150 top level ghost writers in Washington alone and that most of them had a hard time adjusting their talents to fit the mental and oratoral capacities of the men for whom they write. The author observes that speaking words that others have written, having a voice but no style of ones own may be a necessary practice for over-worked officials. But one thing it is not - and that is authorship. An authors style is his written voice; his spirit and mind caught in ink. The author quotes the example of Sir Winston Churchill, who despite the immense pressure of work never failed to make himself heard in print. Though he might have derived most of the information from his officials, the author points out that what was suggested to Sir Churchill was possessed by him, and that as possession is ninetenths of ownership, possession in terms of ones own very personal usage of language is tentenths of authorship. The author, himself an acclaimed critic, then compares lawyers with critics, and finds that they have more things in common than their addiction to words. He says that they both have detractors, if not enemies, men and women who, oddly enough, do not dote on them and have attacked them with eloquence. By way of example, the author cites one or two criticisms against the lawyers. He says that some of the critics feel the gift of lawyers for obfuscation is such that Prince Hal must have had lawyers, rather than Falstaff, in mind when he said, How now, my sweet creature of bombast? He also quotes Sir Richard Burton in The Anatomy of Melancholy where he says, Our wrangling lawyers ... are so litigious and busy here on earth that I think they will plead their clients hereafter, - some of them in hell. The author regrets to say that the picture of the law most securely hung in the minds of many people is a faltering likeness. The author painfully refers to the symbols Charles Dickens chose for law and its processes - fog and gas. Fog everywhere, fog up the river fog down the river - gas looming through the fog in diverse streets - never can there come fog too thick, never can there come mud and mire to deep as some score of members of the High Court of Chancery are mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities and making a pretence of equity with serious faces, as players might. The author says that that is a popular conception of the law held both by the laws victims and the clients of lawyers, if a distinction from the laymans point of view can be made between the two. Like the reputation of Shakespeare and Shaw, this notion of law is built fast and solid, as Shaw describes his own reputation. Dr. Johnson thinks otherwise and says to Boswell, It is unjust Sir, to censure lawyers for multiplying words when they argue; it is often necessary for them to multiply words. The author observes that even the authors have been guilty of the same indulgence, especially when paid space and rates, when they are tempted to set down thousands of words which could easily have been omitted. The author points out that words are used by everyone, but all cannot be called word-men. A letter written by a businessman cannot be called a piece of literature. The same is true of the hundreds of notice boards and sign boards we everyday see. The author distinguishes between the communication on the law level of utility and communication which is raised to literature. He hastens to state that one should not conclude that the communication on the low level of utility is insignificant. Only things is that they have only utility but no creativity. Most of what we read in newspapers, magazines or books is such mere hackwork, and most of the legal writing is of the same nature, as can be seen that writing an agreement cannot be called creative. Their object is to pass on information. They are not fashioned to delight. Lawyers do face certain dangers unknown to professional authors. They need not entertain their readers, nor have they to create any interest in them. The author observes that sometimes the

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lawyers take a cruel advantage of this exemption. However, at the same time, we have to note that some of the best creative writing has come from the pens of lawyers, especially, the judges. The author attributes this achievement on the part of the lawyers to the immense experience their profession gives them and their ability to respond to this experience and translate it into words. As pointed out by Dr. Johnson, Lawyers know life practically. Lawyers have what the writers need. Although every exposure to life helps, according to the author some profession, even if followed briefly, make their unique contribution to a writers training. He gives the examples of painting and medicine. Practice of law is another such profession. Arguing a case, preparing a brief, writing a judgment provide the best exercise in creative writing. At the same time there are professional hazards which are to be guarded against, the main of which is the heavy-footed jargon which so many lawyers are persuaded by the pressure of their duties. The author observes that all great writing is the result of more than a great gift. If all the writers in the world could write as well as they wish to, the world would be cluttered with masterpieces. The same disparity between hope and ability is experienced by the lawyers also. Some of the best judges have been amongst the most maladroit of writers. Those who have contributed to literature as well law belong to an over-privileged breed. They happen to be fine writers in addition to being fine jurists. The author quotes George Orwell to describe the inequality, All men are born equal, but some are more equal than others. Though the best of the authors and the best-writing judges share more than a command over words, the reasons for their writing are different. They have different preferences and their minds are preoccupied with different concerns. Their purposes have a little in common. Therefore, the ways in which they use language are different. Lawyers have their own responsibilities and there are limits and restrictions upon them as writers. Coleridge, a colossus among literary critics was wise to point out that there cannot be a rule of uniformity against the poets. But as critics of human behaviour, lawyers have to have a rule of uniformity in the interest of the society. Otherwise every judge will be deciding the same case in a different manner; every lawyer will advise the client in a different manner on the same facts and that will result in confusion as to what is the law on a particular point. Legal uniformity and legal certainty are two important things which are to be jealously guarded. 5. THE ADVOCATE by CHARLES P. CURTIS According to the author, justice is a chilly virtue, and one needs to be introduced into the inhospitable halls of justice by a friend, and our best in this reagrd friend is none other than an advocate. Therefore, the first duty of an advocate towards his clients is overcoming this feeling of unfriendliness. In the opinion of the author, our demand upon the advocates is more than that. They must not only be our friends, but also our champions, because our way of administration of justice is adversarial method. In other words we set our parties fighting. According to Max Radin, since about the fourth or the fifth century B.C. in Rome, the judges task changed from determining the truth to the umpiring of a competition. In the beginning the cases were decided in favour of the party winning a duel. In criminal cases parties had to fight personally, while in civil cases the fighting was between the champions of the parties. Modern suit is a substitute for ordeal by battle. The physical fight is replaced by legal battle. The author feels that the justification of the adversarial proceeding is the satisfaction of the parties, not the satisfaction of others, except that others are also prospective parties. Therefore, the author observes that the law tries to do justice between the parties for the parties. The author, therefore, says that the practice of law is a special case of vicarious conduct. An advocate devotes his life and career acting for other people. Though there are other people who also do the same, for example, the banker who handles other peoples money, the author points out

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that there is a difference between their profession and that of the advocate. The banker owes his duty to his bank, not to the customers, but a lawyers loyalty runs to his client. But at the same time an advocate owes duties towards the Court also, because he is an officer of the Court. So the question is, if there is a conflict between the two duties, which should prevail? The author feels that the duty to clients will have to prevail. The advocates official duty to court also requires him to devote himself to the client. Only then the Courts will be in a position to satisfactorily discharge their function of dispensing justice. The Canons of Ethics of the American Bar Association lay down, The lawyer owes entire devotion to the interest of the client, warm zeal in the maintenance and defence of his rights and the exertion of his utmost learning and ability to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. But, the author cautions, the duties of the advocate are to be discharged within the bounds of law, and not by committing breach of law or by committing fraud on law. Though the advocate is the representative of his client, he is not his clients mouthpiece. The advocate must listen to his own conscience and not to his clients. But, as the author points out, this is easier said than done. Acting for others is in an entirely different category than acting for oneself. The person for whom one is acting expects that he should be treated better than others, or, in other words, he expects a higher standard of conduct be owed towards him than towards others. Therefore, an advocate insensibly finds himself treating his client better than other; and therefore, others worse than his client. After saying this, the author proceeds to examine if it may ever become the duty of an advocate to tell a lie for his client. Does the duty of an advocate towards his client which is enjoined upon him by law and by the obligations of his profession include telling a lie in his clients behalf? Though many of the advocates may vehemently protest, the author asserts that there are occasions, though rare, when it does become an advocates duty to lie for his client, in this extreme case of his devotion to his client. Suppose, during a Lok Adalat the conciliators should ask an advocate if he had authority to settle the case for a lesser amount than what he just demanded and the opponent advocate just refused. Can the advocate just decline to answer? The client has, in fact, authorised him to settle the matter at a much lesser amount if the advocate thinks that he cannot get more. But the advocate thought that he can get more, and that was what he was trying to do. If he declines to answer, that sends a message to the other advocate that he would settle for a lesser amount if he cannot get more. Therefore, according to the author, the advocate should flatly deny and say that he is not authorised to settle for a lesser amount. Though, this would be something less than candid, it would still be a truth so long as the advocate really thought that he could get more, because he is authorised by his client to settle for a lesser amount only if he thought that he could not get more. But, the advocates duty towards his client cannot rise higher than its source, which is the Court. The author gives another example where the advocate is contacted on telephone by his former client who unfortunately at the time a fugitive from law. The police want him and he needs the advocates advice. The advocate goes where the client is and after hearing the whole story advises him to surrender. The client needs some time to settle his family affairs, and they decide that the client will surrender after two days. When the advocate returns to his office he finds that a police inspector is waiting for him to know the whereabouts of the client. The police have the right to know the whereabouts of the wanted criminals, but the criminals also have their rights, especially those guaranteed by the Constitution. The advocate could say, Even if I knew, my duty as an advocate would forbid my telling you. It is very different from saying, I do not know. It it not really advocates duty to disclose his clients whereabouts. Drinkers Committee of the US on Professional Ethics was definite about it and expressed, It is in the public interest that even the worst criminal should have counsel, and counsels cannot properly perform their duties without knowing the truth. To hold that an attorney should reveal confidential information which he has obtained, by virtue of his professional employment from members of the family of the criminal,

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would prevent such frank disclosure as might be necessary to a proper protection of the clients interest. Similarly, suppose an advocate is in Court with his client who has been convicted, for a hearing on sentence. The clerk tells the judge that the convict does not have a record, and the judge gives a lineant punishment. But, in fact, the client has a record. The advocate knows it. Is it his duty to disclose it to the Court? The answer is no, because he is not under an obligation to disclose it unless he is asked. Therefore, the author emphatically states that if there was no other way of his clients secret, the lawyer had better be false to the truth than false to his client. Therefore, one of the functions of an advocate is the disagreeable duty of choosing between being false to his client and being false to the truth. On rare occasions, it is his duty to prefer his client to the truth, and if need be to tell a lie. However, happily, such occasions are very rare and normally an advocate can be as truthful as anyone else. Contrary to the popular conception that an advocates functions involve telling lies, they involve telling truth skillfully. An advocate may not lie to the Court. But it may be his duty not to speak. An advocate who unnecessarily discloses his clients case to the opponent is as much a traitor as a traitor General who discloses his battle plan to the enemy. Therefore, the author advises that an advocate must play his cards from close to the vest, never volunteering damaging information unless there is an obligation to disclose. If there is a reasonable doubt that the opponent will get dangerous information, the advocate should maintain silence. Similarly, an advocate should not take any favours from his opponent, because that may put the advocate under his obligation and prompt him to commit breach of duty towards his own client. The author quotes Hamlet who said, I must be cruel, only to be kind, on his way to his mother. Similarly an advocate has to tell himself strange things on his way to the Court. But, the author says that they are strange only to those who do not distinguish between truth and justice. He says that justice is something larger and more intimate than truth. Truth is only one of the ingredients of justice. Law has other things than success to think about. It must give the losing party, his family and friends, as well as his sympathisers, as much satisfaction as any loser can expect. The administration of justice is no more designed to elicit truth than the scientific approach is designed to extract justice from an atom. Another issue that is addressed by the article is about the advocates method of finding reasons to reach the conclusion rather than arriving at conclusion from reason. He fixes the conclusion which will best serve his clients interest and then sets out to persuade others to agree. The author says that sometimes even the judges do the same, but not on purpose. They find themselves reaching a decision before they know how they got there, and then try to justify it. The author describes an advocate as one peculiar thinker about problems whose conclusion is always given, while other thinkers seek for the conclusion. For an advocates thinking the emphasis is and must always be given by conclusion, and he must find and develop a persuasive line of premise and a way to persuade the Court to accept it. The author says that an advocates only choice is whether he will refuse to take the case, either because he does not like the case, or because he cannot find premises to support it. If he takes it, even to work on, he starts his thinking by trade necessity with his conclusion. However, In India, an advocate does not have even this choice. An advocate cannot refuse a brief except on certain grounds. Lastly, the author tries to examine whether it is ethical on the part of an advocate to defend a guilty person. The laymen think that it is not. But the principle duty of the bar is to see that no accused lacks counsel just because his person is infamous or his cause detested. He quotes the answer given by Dr. Johnson to Boswell when Boswell asked him whether as a moralist he did not think that the practice of law, in some degree, hurt the nice feeling of honesty, and further about his opinion of supporting a case which he knew to be bad. Dr. Johnson answered, Sir, you do not

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know it to be good or bad till the judge determines it. The author opines that it is the law, and not the lawyer, that does not know whether his case is good or bad. The law is trying to find out, and so wants everyone to be defended and every debatable case tried. Therefore, there is nothing unethical in taking a bad case or defending the guilty or advocating what one does not believe in. It is ethically neutral. The author says that it is a free choice. But, as we have already noted, in India, the advocate has no choice. He cannot refuse a brief just because he does not find that the client has a good case. According to the author the practice of law is like free speech. It defends what we hate as well as what we most love. Every case has two sides, and for every advocate on the wrong side there is an advocate on the right side. There is no other career that offers an ampler opportunity for both the enjoyment of virtue and the exercise of vice, or, if you please, the exercise of virtue and the enjoyment of the vice. 6. THE MANNER OF CROSS EXAMINATION by FRANCIS L. WELLMAN Cross-examination is not only the most important part of an adversarial legal proceeding, but also the most difficult part of the advocates profession. Therefore, there is a plethora of literature on the art of cross-examination. In this article the author has stressed upon the linguistic aspects of the skill of cross-examination. The author states that cross-examination is necessary to find out the truth of the testimony offered by the witnesses. In an adversarial proceeding, evidence is led by both the sides, and almost invariably there is a direct conflict between the evidence given by the witnesses on both the sides. That shows that witnesses on one of the sides are giving false evidence. That does not necessarily mean that they are guilty of perjury, but they may be honestly mistaken or ignorant or prejudiced. In any case, to give the findings on facts, the Court has to know who is telling truth or whose testimony is correct. Cross-examination helps the Court in this regard. After examining the importance of cross-examination from the point of view of the Court, the author proceeds to examine the same from the point of view of the advocate who has to conduct the cross-examination. According to the author, the advocate has to ask the following questions before conducting cross-examination: 1. Has the witness testified anything that is materially against us? 2. Has his testimony injured our side of the case? 3. Has he made an impression with the Court against us? 4. Is it necessary for us to cross-examine him at all? Even if the witness has not testified anything damaging the case of the advocates side, he may still want to cross-examine the witness to elicit some points in his favour. If the witness is truthful, this can be done by asking some straightforward questions. But not very often the witnesses will be ready and willing to reveal facts damaging the side on which they are deposing. In such cases the advocate has to proceed with utmost caution and lead the witness to a point where it appears to the Court that the witness could have told much more than what he has told, and then stop. This will lead the Court to draw an adverse inference that the witness did not tell more because had he told more that would have weakened or destroyed case of his side. Where the witness has testified to material facts against the advocates case, it becomes necessary to break the force of his testimony if he wants to win the case. As already observed, where the witness has given false evidence, there are two possibilities: either he is deliberately telling lies or he is telling lies believing them to be true. The author observes that cross-examination in the two cases is different because there is a difference between discrediting a witness and discrediting the testimony of a witness. Only experience can teach and advocate how to proceed in each case. As

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the author rightly observes a skillful cross-examiner seldom takes his eye from an important witness who is being examined by his adversary. Every expression of his face, especially mouth, every movement of his hands, his manner of expressing himself, his whole bearing - all help the cross-examiner to estimate his integrity. If the advocate feels that the witness is giving false evidence due to honest mistake on his part, the advocate will be trying to reveal this to the Court during the course of his cross-examination. The author observes that people as rule do not use their meager opportunities for observing facts and rarely suspect the defects of their own observations. If anybody tries to tell them that their observation is wrong, they mistake it to saying that they are liars. Therefore, the advocate who conducts the cross-examination should be very cautious. If he bluntly tries to prove that the statement made by the witness is false, the witness feels that the advocate is trying to prove that the witness is a lier, and he will immediately resent and defy the advocate at once. Therefore, the advocate must proceed in a manner which is courteous and conciliatory, the witness will feel that he is not unfairly being attacked by the cross-examiner and will imperceptibly be induced to state the facts with open mind. Once the prejudice of the witness is removed, the truth comes out easily. The author points out that by his shouting, brow-beating style the advocate may often be successful in confusing the witnesses, but he fails to discredit him. The author quotes the example of Benjamin F. Butler and states that he is the only advocate whom the author has ever heard to employ the roaring method successfully. But he prefers to admire Rufus Chaote, whose art and graceful qualities of mind put him on the fore front among the American advocates. In the crossexamination Chaote never aroused opposition on the part of the witnesses by attacking them, but disarmed them by the quite and courteous manner in which he pursued his examination. He was quite sure, before giving up, to expose the weak parts of his testimony or bias, if any, which detracted from the confidence to be given to it. One of Chaotes bon mots was that a lawyers vacation consisted of the space between the question put to a witness and his answer. The author also quotes the example of the celebrated English lawyer Sir James Scarlett, who was known as the best of the cross-examiners, only to demonstrate how even an advocate of Sir Jamess standing can meet with the undesired result by losing his self control. The author states that a good advocate should be a good actor. Even when the advocate is utmost cautious in his cross-examination, he may be encountered by a damaging answer. The author points out that this is the time for the greatest self-control. If he shows by his face how the answer hurt, that point alone will cause him to lose his case. An experienced advocate will take such situations as a matter of course and proceed with the next question as if nothing had happened, or else perhaps give the witness an incredulous smile, as if to say, who do you suppose would believe that for a minute? The Courts are impressed by an advocate who has a pleasant personality; who speaks with apparent frankness; who appears to be earnest searcher after truth; who is courteous to those who testify against him; who avoids delaying constantly the progress of the trial by innumerable objections and exceptions to perhaps incompetent but harmless evidence; who seems to know what he is about and sits down when he has accomplished it, exhibiting a spirit of fair play on all occasions. It is he who creates an atmosphere favourable to the side which he represents. On the other hand, the advocate who wearies the Court with endless and pointless cross-examinations; who is constantly losing his temper and showing his teeth to witnesses; who wears a sour, anxious expression; who possesses a monotonous, rasping, penetrating voice; who presents a slovenly, unkempt personal appearance; who is prone to take unfair advantage of witness or counsel, and seems determined to win at all hazards - soon prejudices the Court against himself and the client he represents, entirely irrespective of the sworn testimony in the case. The author observes that there is eloquence to be displayed in the examination of witnesses as well as in the argument. Therefore, he says, There is matter in manner. The very intonations of voice

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and the expression of face of the cross-examiner can be made to produce a marked effect on the Court enabling it to appreciate fully a point it might otherwise lose altogether. The author concludes his article with an advice to the cross-examiners: Speak distinctly yourself, and compel your witnesses to do so. Bring out your points so clearly that men of the most ordinary intelligence can understand them. Keep your audience, the Court, always interested and on the alert. Remember, it is the mind of the judge you are addressing, even though your question is put to the witness. He reminds us that it pays to be a gentleman, especially in Courts. 7. ART IN DIRECT EXAMINATION by FRANCIS L. WELLMAN The author points out that the impression prevalant among the professionals as well as nonprofessionals that examination-in-chief does not require as much skill as cross examination does is wrong. He observes that this misconception is the reason behind the numerous books written on the art of cross-examination while there are no books written on the examination-in-chief. The author feels that the reason behind this misconception is owing to the fact that cross-examination is so much more engaging to the spectators and its results are so much more quickly perceived by them. On the other hand, the subtle arts and consummate skill of examination-in-chief cannot be appreciated by the common spectators. Even the other advocates who are not engaged in the case may fail to appreciate the same. They are apparent only to the advocates who are engaged in the case. During the examination-in-chief the witness is put to an advantageous position by asking a good question while in cross-examination the witness is put to a disadvantageous position and exposed before the spectators. Therefore, the author feela that preparing for cross examination is, in fact, much easier than preparing for examination-in-chief. If the examination-in-chief is properly conducted, the impression created by the honest witness is more lasting than the argument of the counsel. The author gives two examples, one of an old iliterate woman and the other of a German barber. The old woman had given a contract to a builder to build her house. The builder had sued her for charges for extra work done by him on the house. According to the defendant she was not liable to pay for the extra work done because the contractor had not carried out the work as per the terms of the agreement. The expert witness gave evidence in technical jargon which was not understood by the jury and the jury was put to confusion. They were unable to decide whether or not the work was done as per the terms of the agreement. Then the defendant herself gave the evidence in the most practical terms. She said that she had told the plaintiff that the windows should reach clear to the floor. This graphic description helped the jury to arrive at a proper conclusion. The barber had spent huge money on interior decoration of his shop. A tenant just above his shop let his water basin run all through the night and the water caused damage to the furniture in the barber's shop. The barber brought this to the notice of the tenant and asked him to pay compensation for the same, the tenant told him to go to hell. The barber filed a suit against the tenant. In his evidence he told this. He was asked by his advocate about the reply given by him. The plaintiff said that he told the defendant that he will not go to hell but he will will go to court. He remarked that going to court was as bad as going to hell. The planitiff won a fine verdict for saying the right thing in the right way. The author gives the following six advices to the advocates in conducting examination-if-chief. 1. Both examination-in-chief as well as cross examination should be brief. The examinations should adhere as closely to facts in issue as possible. In a modern trial which is conducted as a matter of business and its object is to ascertain the truth of the matter in controversy in the shortest possible time. Its object is not to find out the talents of the advocates.

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LANGUAGE AND THE LAW The advocate should select and arrange his evidence in such a manner that the development of his case is interesting to the hearers. A well planned trial that leads them to constant discovery of new facts is always impressive. It should be made to feel that at least the advocate believes in his own case. If the advocate himself has no confidence in the merits of his case, there is no reason why others should have a reason to believe that he should win. He should speak clearly and distinctly, always conscious that he is engaged in an important matter, and let his art conceal art. He should always use the simplest possible language. He should be easily understood by his audience. He should preserve a calm, cool, deliberate, self-possessed, dignified demeanour. Calmness is shown by not growing petulant over little defects, in a kindly and courteous behaviour towards witnesses, and in a quiet dignity which gives the idea of reserved force. Any show of loss of confidence on the part of the advocate will result in loss of confidence on the part of his witnesses. Therefore, the advocate should convey to the witness the impression that he is strong enough to prevent him from stumbling or falling. This confidence is created by the advocate by his manner and demeanour, by the form in which he frames his questions, and the manner in which he asks them. The first thing an advocate has to do is to put his witness at ease. They are very much sensitive to embarrassment, trepidation and prone to confusion and forgetfulness. If they are not properly handled they can easily make contradictory statements. If a witness makes a contradictory statement in cross examination, it may be taken less seriously than when he makes a contradictory statements in his examination-in-chief. Therefore, the advocate should not do anything which will put the witness under pressure or to upset him. Therefore, it is necessary for the advocate to train himself to handle his own witnesses of various kinds, such as the stupid witness, the diffident witness, and, the most difficult of all, the over-zealous witness, the witness who insists upon proving too much. He should never be allowed to tell his own story, for that will be preparing him for slaughter at the hands of the cross-examiner. He should be made to answer the questions to the point and not to answer questions which are not asked to him. The author quotes an old lawyer's advice in regard to this kind of witness that he should be got rid of as soon as possible. A stupid witness requires to be handled patiently and with good temper. Some of them are not capable of a train of thought on any subject. They cannot observe any order of the events and are always confused. They should be asked short questions and made to give short answers. The advocate should refrain from becoming angry as becoming angry will put them to more confusion. They should be encouraged by looks and expressions of approval. Dealing with hostile witnesses needs a different approach. as quickly as possible the advocate should show that the witness is biased and hostile. That will minimise the adverse effect that can be caused by the hostile answers given by this witness.

3.

4. 5. 6.

7.

It is often a clever move to interrogate a party to a suit on matters which the advocate knows him to be uncertain, rather than allowing the cross-examiner to expose this. This will create a good impression about the honesty of the witness and the advocate as well as about their confidence in the merits of their case.

The most elementary rule of evidence is that leading questions cannot be to the witnesses in examination-in-chief. Unless the questions are properly framed and sequenced, it will be extremely difficult to observe this rule.

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The author mentions two common practices prevalent among many of the advocates, which he finds to be wrong: 1. 2. The first one is that of pressing the witness too far. They become so enamoured with a favourable answer that they want to hear it again and again. The second and one of the most pernicious habits is that of making constant objection to evidence on trivial matters. Such practice can only affect his case adversely. The advocate may feel that by raising objections he is displaying his knowledge of the Evidence Act, while the observers feel that he is trying to avoid some evidence which is damaging to his case.

8. IMPEACHMENT OF WARREN HASTINGS Warren Hastings was the first Governor-General of British India. The East India Company had begun as a trading enterprise but by degrees had added to its commercial pursuits the attributes of sovereignty. Supremacy in India had been won by the triumphs of Clive, and common expectation in England had settled down to an enjoyment of the fabled wealth of the East. The British Government exacted tributes, the shareholders demanded increased dividends, with the result that the local administrators found their position impossible. In a few years the Company was reduced to hopeless insolvency, and was forced to come to the State for assistance. That assistance was given, but at the price of a measure of control. Two Acts were passed in 1773, one to provide finance and the other to regulate administration. The latter was imperfect. The Act was couched in vague terms and did not afford effective and definite rules for the vital matters upon which good government alone could be based. The relations between the Governor-General and the Council were left uncertain. As he was only one of five, with a casting vote in case of equal division, he might and did find himself in a minority, though bearing, all the responsibility for failure. The spheres in which the Council and the Court were to exercise their respective powers were not marked out, nor was any care taken to state or define the system of jurisprudence which the Court was to adopt. As if these Problems were not enough, the Company's position was dual in two respects. It was at once the Government and a trading concern. As Government, its powers were derived from the British Parliament, and from grants and appointments from native rulers, whose position as sovereigns or as subordinates of the Grand Mogul would have defied any lawyer to state with precision. As a youth he had been left an orphan and thereby deprived of the hopes of an Oxford career by his guardian, who had procured him a writership under the East India Company. In India he had pursued the normal career of a subordinate official, but when troubles came he rose rapidly. Clive, a great genius, soon recognised Hastings merits and appointed him as Resident at the Court of Meer Jaffer, the successor of Sarajah Dowlah in the rule of Bengal. In the period of misrule that followed, Hastings kept free from the prevailing scramble for wealth, and on reaching England in 1764, he was not, according to the standards of the Nabob, a man of any great means. For several years he lived there in retirement, but in 1768 he was appointed one of the Council of Madras, where his reform of the Companys business and finances earned him promotion to be Governor of Calcutta, an office conferred upon him in 1772, which he held when appointed as Governor-General. The first important step of policy that Hastings adopted was to come to an arrangement in 1774 with the Nawab of Oudh, with a view to use Oudh as a bulwark against the Mahrattas. This policy had been suggested by Clive. The Nawab demanded the assistance of English troops to overcome the Rohillas. These were lent him, and the victory was followed by more than the usual atrocities on the part of the ruler and his followers.

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Soon afterwards an accusation was made by Nundkumar against Hastings. Hastings had in former years fallen out with him. He now said that Hastings had accepted bribes. The Council voted for an enquiry. Soon afterwards Nundkumar was charged with conspiracy and then with forgery. He was tried by Sir Elijah Impey, the Chief justice, convicted and hanged. Hastings said on oath that he did not promote the prosecution, and it was not charged against him at his trial. By this time the American Revolution was also absorbing the energies of England. France was about to declare war and French agents were stirring the Indian princes, who were watching their chances. In 1777 the Bombay Government became embroiled with the Mahrattas. Hastings planned to crush them, but Hyder Ali, the ruler of Mysore, began hostilities against Madras. Once again his forces swept over the Karnataka, the British forces were defeated and it seemed with the advent of French forces that the work of Clive would be destroyed. Hastings threw himself into the struggle. He realised that Hyder Ali was the main danger and he strained every nerve to oppose him. Soon afterwards the Maharattas made peace, the French withdrew after the Treaty of Paris, Hyder Ali died and his son made his peace. The struggle was over, and British rule remained. One of the main problems had been to raise money, and this led to two famous incidents. The Raja of Benaras was a dependent of the Company and was asked for a contribution He refused and was fined 500,000. Hastings went in person to arrest the Raja and was besieged in Benaras with a small force by the subjects of the Raja who rose in his defence. The Governor-General was equal to the occasion. The Rajas forces were defeated and he was deposed. The administrators appointed to govern the territory after the Rajas deposition proved ruthless in subduing and plundering their new subjects. The position was not clear. As in the case of the Rohillas, the demand on the Raja related to matters outside the Presidency territory, and it was doubtful how far Hastings had or had not power to act. After Benaras came Oudh. The Nawab had died and was succeeded by his son. The new rulers mother and grandmother, the Begums of Oudh, had retained the late Nawabs treasures and lands. Rightly or no it was believed that the treasures amounted to 3,000,000. In 1782 the Nawab presented Hast.ings with 100,000. He asked leave to retain this money. Leave was refused and he paid it into the Companys funds. It had been the custom for the Company's servants to accept large presents. The Act of 1773 forbade the practice, but, Hastings appears to have found it more convenient to take the money in order to pay them over to the Company than to refuse. A third incident was the appointment of Debi Singh to administer Dinajpur in 1780, when the Raja of that place died, leaving a disputed succession. It was alleged that Debi Singh was guilty of fraud and oppression. There was undoubtedly unrest. The Compays resident reported adversely of Debi Singh, who was summoned to Calcutta. There a new enquiry was held and he was absolved. The course of events in England must now be described. After 1775, England had become absorbed in the American troubles. Meanwhile, in 1781the Companys charter was about to expire and Indian affairs became important. The Commons appointed two Committees in 1781, a Select Committee of which Burke was a member, and a Secret Committee over which Dundas presided. The reports were adverse to Hastings. In March, 1781 the Marquis of Rockingham, an old patron of him became Prime Minister. Burke was now in the Government and he threatened to resign if nothing were done. Accordingly in a Committee of the whole House, Dundas carried a resolution condemning Hastings schemes of conquest. On 30th May, 1782, the Commons resolved that Hastings should be recalled. The Directors obeyed, but their decision was overruled by the Court of Proprietors. Next year Dundas again demanded his recall, and Burke denounced him as the grand delinquent of all. India. The Coalition proposed Foxs India Bill of 1783, but its defeat, in the Commons caused George III to dismiss the Ministry and make Pitt Prime Minister. Dundas joined Pitt.

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On 30th July, 1784, Burke moved for papers relating to the case of the Begums, but Pitt opposed in a speech which eulogisted Hastings. In 1785 Hastings finally retired, and arrived in Englanc where he was enthusiastically received. 0n 25th June, 1785, Burke gave notice of motion to discuss his conduct, but the session ended too soon to pursue the matter. Next year, with singular imprudence, Major Scott, who looked after Hastings interests in the Commons, recalled the fact that the motion had not been proposed Burke at once took up the challenge. 0n 4th April, he tabled nine articles of accusation and produced twenty-two more. Hastings petitioned for leave to reply, and was called to the Bar of the House. He was not skilled as an orator, and he bored the members with an extremely long statement read from a document. On 1st June, 1786, Burkes motion as to the First Article condemning the loan of troops against the Rohillas was negatived. On 13th June came the motion of the Second Article concerning Benaras. The Government whips were out against the motion but, to everyone's surprise, Pitt supported, and the motion was carried. This change of attitude is attributed to Dundas, who, in the former debate, been faced with the fact that the had reported against Hastings and could make no adequate reply. Next year the matter was revived, when Sheridan made a speech, celebrated in the annals of Parliament. In April, 1787, Committee was appointed to draw up Articles of impeachment. On 10th May, 1787, impeachment was voted and the Commons appointed their Managers, of whom the leaders were Burke and Sheridan. Their counsel was headed by Dr. Scott (afterwards Lord Stowell). Hastings retained Law (afterrwards Lord Ellenborough), Plumer (afterwards Master of the Rolls), and Dallas (afterwards Chief Justice of the Court of Common Pleas.) The trial opened in Westminster Hall, on 13th January, 1788. The Lord Chancellor (Lord Barlow) presided over 170 peers. The trial lasted April 1795, coming on at irregular intervals on many days. Ultimately, after many changes the Chance0or having resigned and no less than 70 peers having died, Hastings was acquitted. He left the Court absolved but well nigh ruined. It was a stately scene in Westminster Hall, when the Lords arrived in a long procession, headed by the junior peers and followed by the Royal Family, to begin the hearing. With in a few weeks Louis XVI was to convoke the States-General. Before the trial ended he and his consort had been guillotined, and the Terror had spent its fury. Proceedings opened by Hastings surrender. He knelt before the Lords. Two days were spent in reading the Articles of Impeachment and the Answers. There were twenty long wordy Articles. The first dealt with Benaras; the second with the Begums of Oudh; the sixth, part of the seventh, and the fourteenth accused Hastings of taking bribes and presents set out in thirteen paragraphs. As to the others, it does not matter; nothing was done to prosecute them. On 15th February, 1788, Burke rose to open the general case. For four days, in matchless eloquence, he described the history, constitution and conditions of India. On the fourth day he ended: I charge Mr. Hastings with having destroyed for private purposes the whole system of government by the six provincial councils which he had no right to destroy. I charge him with having delegated away from himself that power which the Act of Parliament had directed him to preserve inalienably within himself. I charge him with having formed a committee to be mere instruments and tools at the enormous expense of 62,000 per-annum. I charge him with havihg appointed a person their diwan to whom these Englishmen were to be subservient tools; whose name was abhorred and detested, stamped with infamy; and I charge him with giving him the whole power which he had thus separated from the Council General and from the Provincial Council.

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I charge him with taking bribes of Ganga Govind Singh. I charge him with having robbed those people of whom he took the bribes. I charge him with having fraudulently alienated the fortunes of widows. I charge him with having, without right or title or purchase, taken the lands of orphans and given them to wicked persons under him. I charge him with having removed, the natural guardians of a minor Raja and given his zamindari to that wicked person Debi Singh. I charge him his wickedness being known to himself and all the world with having committed to Debi Singh the management of three great provinces; and with having thereby wasted the country, destroyed the landed interest, cruelly harassed the peasants, burned their houses, seized their crops, tortured and degraded their persons, and destroyed the honour of the whole female race of that country. In the name of the Commons of England, I charge with all this villainy on Warren Hastings, in the fast moment of my application to you. And then, after references to victims, the prosecutors and the judg, he concluded: There fore, it is with confidence that, ordered by the Commons. I impeach Warren Hastings, Esquire, of high crimes and misdemeanours. I impeach him in the name of the Commons of Great Britain in Paliament assembled, whose Parliamentary trust has been betrayed. I impeach him in the name of all the Commons of Great Britain, whose national character he has dishonoured. I impeach him in the name of the people of India, whose laws, rights and liberties he has subverted, whose properties he has destroyed, whose country he has laid waste and desolate, I impeach him in the name and by virtue of those eternal laws of justice which he has violated. I impeach hirn in the name of human nature itself which he has cruelly outraged, injured and oppressed in both sexes, in every age, rank, situation and condition of life. The tremendous speech was often interrupted by the applause even of the Lords themselves. But it is one thing to deliver a philippic, another to manage a prosecution. Hair-splitting procedural wranglings and ever so many political developments delayed the final decision. On 16th June, 1794, Burke made his final great speech. Four days later Pitt proposed and carried a vote of thanks to the Managers. Next day Burke left Parliment for ever. The Lords then discussed the question who was entitled to vote, and finally decided to leave it to the conscience of each Peer whether he should vote. A committee was appointed to consider and report. Next year the report was considered. Each charge was voted on separately and on each Hastings was pronounced Not Guilty, and on 23rd April, 1795, after eight years trial, he was formally discharged. 9. THE SEDDON CASE Marshal had reached a unique position at the Bar. As a defender of prisoners on the capital charges, it was now recognised that he was second to none. In this case, at any rate, no better choice could have been made. For he had a knowledge of scientific medicine unequalled by any

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other member of the Bar and it was a store of knowledge upon which he had had, as yet, no occasion to draw in a capital case. On the scientific side, of the case Marshal was enthralled, but, after reading the papers he came very unhappy and depressed about the personal aspect of the case. This is the blackest case Ive ever been in, he observed at the first consultation. This pessimism and lack of faith in his client at the very outset was almost unique in the history of the great defender. He would have to conduct his case without that passionate personal belief in his man's innocence which had carried him through so many of his trials. But this did not affect his devotion to the great task before him. He returned all other work, and could think of nothing but the Seddon case. He went into training like an athlete for a race or a student for a fellowship examination, going to bed early and saturating his mind with works on the scientific questions involved in the case. If Seddon was guilty, the case was certainly exceedingly black one. For there was no great overrnastering passion, no sudden, mad impulse, long, harrowing tragedy, no bitter provocation to excuse this sordid crime, if crime there had been. Mere greed of gold had driven the man to it. The accused was now forty years old, and had for twenty years served his insurance company with efficiency and credit, rising from the very lowest rung to his present post of trust and responsibility, He was quite a licht in the Masonic world. Owing to great thrift, he had a I ittle money put away: his income amounted to about 400 a year. So nothing was known against. Seddon, except, perhaps, an excessive devotion to money-making, and much to his crerdit. In his little world he was no doubt regarded as a pillar ef society, and a coming man. In response to his advertisement during July 1910, a middle-aged spinster of forty-eight years, named Eliza Barrow, came to lodge on the top floor of his house at 63 Tollington Park. She brought with her a little boy named Ernest Grant, whom she had practically adopted. At the best of times she was an extraordinary woman of quarrelsome and offensive habits. Her chief characteristics were slovenliness, parsimony, and love of gold. She was a real miser: she loved to keep bank-notes and gold coins in her possession, and hoarded hundreds of pounds in this way. Her chief interest in life was her little inherited fortune of about 3,000 capital value; but what little natural affection was left in her she gave to little Ernest Grant. Her money was invested in India Stock, and'in the lease of a public house. The India Stock had, lately depreciated considerably, and the liberal policy of licensing and taxation threatened her public house. Seddon discovered that these worries were preying upon the old maids mind, and she soon found him a very plausible and efficient rnan of business as indeed he was. Seddon, as a n insurance monger, considered that Miss Barrows 1ife was not a good one to insure; but, conversely an excellent one on which to grant an annuity, and after she had lived with him for twelve months, he persuaded her to make over her entire fortune to him in return for an annuity of 150 A year or thereabouts. Miss Barrow, as her relatives said, was a hardnut to crack, and no doubt considered that she had made a good bargain, as she thus obtained about 30 more a year from Seddon than she could have wrung from an insurance company or the PostOffice, Seddon paid her the annuity punctually until September 1911, usually in gold. On September 1st, Miss Barrow was taken ill, and Dr. Sworn, the Seddons family physician, found her to be suffring from acute diarrhoea and sickness. As the next few days went by, Miss Barrow became worse, and admittedly certain chemical fly-papers, soaked in water, were used in her sickroom to destroy the flies that buzzed in extraordinary numbers round the bed of the invalid. Her selfishness and eccentricity were shown by the fact that she insisted on the little boy, Ernest, sleeping in the same bed with her during her illness. She was a troublesome patient, and refused to take her medicine. A new one was prescribed, which Seddon on one occasion induced her to take. Mrs. Seddon nursed her attentively, and Miss Barrow told the doctor that she would far rather be, looked after by the Seddons than go to hospital; but, though she dictated a will to

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Seddon which she signed, leaving her personal effects to Ernest Grant and his little sister, with Seddon as executor, the Seddons did not take her illness very seriously, for on September 13th, Seddons sister and his niece came to stay in the house, and he himself went to the Marlborough Theatre. He came back with story that he had been cheated of sixpence by the boxoffice clerk. This was very typical of the man. At about 11.30, the little boy said that Chickie, by which name he knew Miss Barrow, wanted Mrs. Seddon. The wretched woman had crawled out of bed, and was sitting on the floor in agony I am dying, she said. At 6.30, Miss Barrow began to breathe heavily and died. Seddon, as executor, immediately began to searth for her money, but, according to his own account, he found only 4 in her cash-box and 5 10s 0d, hidden in a drawer. In the morning, Seddon advised Dr. Sworn of her death, and, without a visit, the latter gave him a certificate, that Miss Barrow had died of epidernic diarrhoea. Seddon paid a visit to the undertakers, and, although in Miss Barrows papers was a document showing that she had a right to be buried in a fannily vault at Kensal Green, he arranged for her to be buried for an inclusive fee of 4 in a common grave. Indeed, he accepted a commission of 12s 6d from the undertaker for introducing the business. Meanwhile, Ernest had been packed off to Southend, and no relatives of Miss Barrow received any notifications from Seddon, although the Vonderahes, her first cousins, lived, to Seddons knowledge, in the near neighbourhood. Seddon afterwards claimed to have written to them, and certainly kept a carbon copy of such a letter. The corpse was removed from the' house. Mrs. Seddon ordered a wreath of her own design and kissed the poor dead womans face. Seddon took round to a jewellers a watch which Miss Barrow had presented to Mrs. Seddon, to have the name of rnother removed from it. Moreover, he attended to his business on the day of Miss Barrows death, was seen by two of his subordinate canvassers to be counting gold. He took a bag of gold, said to one of them, as a joke, Smith, heres your wages. However, the strain of Miss Barrows death and of overwork had told on him, and, at the end of September, Seddon and his family joined Ernest Grant at Southend for a fortnights holiday. Meanwhile, the Vonderahes had begun to talk, and, when they discovered in a personal interview that all their cousins money had been made over to Seddon in return for an annuity, they drew the most unfavourable conclusions. The body was exhurned, and Sir William Willcox, the Public Analyst, found. on a careful scientific analysis, that the corpse contained 2.5grains of arsenic. An inquest was held, and Seddon was required to give evidence. It was then that he consulted Mr. Saint, and, to1d him that the old girl must have drunk some of the water in which the fly-papers had been soa.ked., 0h, said Mr. Saint, you cant buy poisonous things like that, can you, at an ordinary chernists? (in fact, each fly-paper contained enough arsenic at least to kill one person) Cant you? said Seddon. You can get them at any chemists. Seddon was arrested on December 4th, and on his arrest he made a very curious statement which did not at all help him. Absurd, he said, What a terrible charge, wilful murder? It is the first of our family that have ever een accused of such a crime. Are you going to arrest my wife as well? Have they found arsenic in the body? The trial started at the Old Bailey on March 4th, 1912. In accordance with the custom in poison trials at the Old Bailey, the Attorney General himself came down to lead for the Crown. The holder of that office was Marshalls old friend Sir Rufus Isaacs. The Crown had indeed brought down their heavy guns against the two wretched people in the dock, and in truth they had not miscalculated. Seddon himself was a man of great ability, and all the Attbrney-Generals powers of penetrating enquiry were needed to break down his facile fending. This trial, the longest capital case in which Marshall was ever engaged, tasted for ten days, and was remarkable for two great forensic duels, in which the combatants were well matched. It was a hard, dogged f ight question and answer, argument for argument, day after day. The first great duel was a scientific one. The theory of the prosecution, supported by the expert evidence of Sir William Willcox, was that Miss Barrow had died of acute arsenical poisoning, that is, a fatal dose administered within twenty-four hours of death; and that the only people who

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had the opportunity of administering such a dose were the Seddons. For this contention evidence of motive was obviously relevant. The defence was twofold: negative and positive. The negative defence, which had great cogency, was that the prosecution rested entirely on indirect evidence; the second, that Miss Barrow had died of epidemic diarrhoea, as the doctor had certified, perhaps aggravated by chronic arsenical poisoning, or arsenic taken for a long period of time before death. The defence also kept in the background, as a possibility, the alternative theory of suicide. Now, if Marshall Hall could prove that Miss Barrow died, not of acute, but of chronic arsenical poisoning, Seddon was as good as saved, as it was admitted that such taking of arsenic over a prolonged period might reasonably aggravate the effects of a violent attack of epidemic diarrhoea. The evidence by which the prosecution stood or fell on this point was that of Sir William Willcox. Now, calculation of the total quantity of arsenic found in the body was based upon the results of scientific experiment, which had never before been brought forward as evidence in a court of law. Whereas in two component parts of the body, viz., the liver, and the intestines, it was practicable to weigh the arsenic found in the body, it was not practicable to weigh that found in the other more widely distributed parts. In the liver and the intestines, by a process of weighing .63 grain of arsenic was found. Now, two grains of arsenic make a fatal dose, and it was therefore necessary to make further researches to bring home the case against the prisoner. Arsenic is a poison. which very rapidly spreads throughout the whole body, and it necessarily follows, to any mind conversant with medicine, that, if so much arsenic was present in the liver and the intestines, it was present elsewhere. But it was not practicable to ascertain by weighing, a substance so widely distributed and Sir William had recourse to Marshs test, a chemical experiment by which arsenic is extracted from a minute specimen of a part of the body in the form of a gas, and deposited on the surface of a tube, technically called a mirror. Tiny quantities were found in the skin, the nails, and the hair, but these were not counted. Now 2.01 grains were enough for a fatal dose, but arsenic being a poison which is very quickly expelled from the system, Dr. Willcox estimated that at least 5 grains of arsenic had been administered to Miss Barrow within a short time before her death, to leave 2.01 grains therein after death, the latter quantity being the total of weighed and calculated quantities of arsenic. This experiment was no doubt sound, and even conservative, in its solution; but it is one thing for a scientist to prove to his own satisfaction that, for obvious scientific reasons and by an elaborate scientific experiment, 5 grains must have been administered to the dead woman shortly before death, and another thing to convince a sensible British jury as to the truth of this theory, when only .63 of a grain, or less than a third of a fatal dose, was actually weighed and produced. None knew this better than Marshall Hall, and he attacked the whole experiment. He first made Sir Williarn admit that any initial error made in the experiment itself would be multiplied hundreds, or, in the case of some parts of the body, thousands of times in the calculation which followed it. The vital question was then put. And I am sure it was an oversight I mean I may be wrong-but in making this calculation you have made no allowance whatever for the lossof water? (No, I have not). Marshall had thus established a great deal he had successfully exposed the scientific experiment in an important particular, and Englishmen always appreciate the spectacle of science confounded on its own ground. Much had already been achieved when he passed to a simpler point, a stronger one and more easily comprehended. Among the abundant literature which he had been perusing for the purposes of this case was the report of the Royal Commission on Arsenic. Now Marshall Hall had in the forefront of his mind every detail of the conclusions of this commission; Sir Williarn Willcox, on the other hand, had them in the back of his memory, but had not read the report for sometirne. From a wide examination cases the commission had reported that arsenic does not penetrate even into the proximal hair (that is, hair nearest the scalp) unless taken by the person affected some weeks

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before, and does not penetrate to the distal hair (the hair away from the roots) unless the person affected has taken arsenic at a considerably distant period months, perhaps years, ago. For arsenic remains in the hair it grows; and, the hair growing about five or six inches a year, it is possible to compute how long ago arsenic was taken by the distance it is away from the scalp in the case of a woman with long hair. Now, Sir, Williarn Willcox had examined a portion of Miss Barrows hair of about twelve inches in length. Very innocently, Marshall asked him first about the proximal, then about the distal, ends of the hair. In the proximal end of the hair you found one-eightieth of a milligram? Yes. What did you find in the distal end of the hair? One three-thousandth about a quarter as much, replied Sir William, with a smile at being asked about so small a quantity. But the questions were not innocent. If arsenic was found in the ends of the hair, as Marshall went on to prove slowly, question by question, then Miss Barrow must have taken arsenic weeks ago, months ago, even years ago, before she even went to live with the Seddons, and if this was so, the defence had as good as won, as the jury, with Willcoxs admissions in their ears, would certainly prefer the theory of the defence that the poor lady had died of epidemic diarrhoea, aggravated by chronic arsenical poisoning, rather than the theory of the prosecution that she had died of acute arsenical poisoning, administered by the Seddons. When everything was prepared, Marshall obtained these answers from Dr. Willcox, which were indeed a triumph for his painstaking advocacy. Is the finding of the arsenic in the hair corroborative of acute arsenical poisoning, or of chronic arsenic takings? If arsenic is found in the hair it indicates that probably the arsenic had been taken for some period. I am sure you will give me a fair answer. Apart from all other symptoms, or, any other questions, if you only find arsenic in the hair, you would take that as being a symptom of a prolonged course of arsenic? Of a course of arsenic over some period. And the minimum period would be something about three months? I think that In the proximal portion, but you would not expect to find it in the distal ends in three months, would you? Not in large amounts. Not in the amount you have got here? This minute quantity in the distal end might possibly mean some arsenic might have been taken, perhaps a year or more ago? More than a year ago. Here Marshall Hall should have sat down. If he had, Seddon might well have gone free, and Marshall by sheer scholarship and skill in using it, would have achieved a marvellous forensic triumph. But, unfortunately or, rather, fortunately for the ends of justice Marshall went on driving the point home so that the jury could not possibly mistake the importance of the admissions, and all this time his learned and brilliant antagonist was thinking hard. Could the arsenic have got into the hair by any other means?. Before Marshall had finished giving the famaous scientist a lesson in science, Wilcox had thought of the true explanation. Miss Barrows long hair had become contaminated by the blood-stained fluid which was dispersed all over the coffin, and in this way had become tainted with arsenic. Before he left the box he made a discreet suggestion that this the true explanation. Marshall poured scorn on this as an afterthought, as indeed it was. Did you not wash the hair with all care, before making the experiment? he asked. That was late on the Thursday afternoon. The case now literally hung by a hair. Willcox quietly went home and thought more about the matter. Then he paid a visit to his hospital, and begged a long length hair from one of his fair patients. This lovely strand of hair was then soaked in the

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blood-stained fluid from Miss Barrows Coffin, in which the latters hair had been found matted at her exhumation. The experiment was then entrusted to another medical man, Dr. Webster; the hair was washed just as Miss Barrows had been, and it was found to contain arsenic just.,as Miss Barrows had done. On the following Tuesday, Sir william was recalled to give evidence as to this experiment. The experiment was a simple one with a successful result, which any juryman could appreciate, and the effect of Marshalls brilliant cross-examination was gone. Eight days of this trial had punishgd Marrshall cruelly; he had felt the responsibility of two human lives on his shoulders, one of whom, the woman, he was sure was innocent. For this paramount reason he kept an iron grip on his self control, and, knowing his own weakness, studiously avoided any kind of friction with the Bench. Undoubtedly his was the commanding personality, in that great court, even with the Attorney-General there against him. In no way did Marshall Hall show an inferiority, throughout this memorable trial, to the leader of the Bar. Those who consider that Marshall Hall was a superficial man, who won his fame and victories by an overbearing, masterful personality and flamboyant rhetoric, would do well to study his cross-examination of Sir William Willcox, which was a profound, scholarly, and patient effort, and an intellectual achievement of which any man could be proud. When Marshall Hall rose to address the jury on the ninth day he looked tired and haggard. The strain had been so great that he expressed the hope that this would be the last capital case of his career. Gentlemen, he said at the commencement, nobody can attempt to deny that this is one of the most interesting cases that probably have even been tried in this building or in the building of which it is the successor. At great length, and with exhaustive detail, he repeated his arguments as to the scientific evidence, and referred with contempt to Sir William Willcoxs further experiments, made simply because his primary evidence was self-destructive. Gentlemen, he said, the great scientists who have been here have told us much of the marvels of science and of the deductions that can be made from them. But there is one thing all scientists have never been able to find, never yet able to discover, and with all their research, and with all their study, and this is, how to replace the little vital spark we call life. Upon your verdict there depends, so far as I am concerned, the life of this man. If your verdict is against him, that vital spark will be extinguished, and no science known the world can ever replace it. When he sat down, Richard Muir scribbled a note and sent it to him. My dear Marshall! A truly great speech. Of many good things I have heard you do, quite the best. Yours always, R. D. Muir. The great battle had been both won and lost. 10. SOMAVATI CASE It was during the turbulent times of the World War II that Commander Somavati joined the Indian Navy as a Cadet Officer and was sent to England for training with the Royal Navy. Cadet Somavati after reaching England was attached to a coastguarding frigate with its head-quarters at Portsmouth, where it used to return after a fortnight of the most dangerous and exacting active duty and Somavati got off-shore leave for a fortnight. During this period, he and his fellow English Cadets used to study in the attached Naval College and also go out on short sightseeing trips in Great Britain. In the naval establishment at Portsmouth, there was a steno-typist of the name of Sybil, a girl of Anglo-Spanish descent. She was a dark-haired, wide-eyed lissom girl of extraordinary beauty, and she combined the lithe and vivacious grace of the English flapper with the languorous charm of the Spanish Senora. Even a wink from her gleaming eyes would stir a mans heart, and a wishful glance from those large windows ot the soul would be like a broadside from a battleship, too devastating to resist. Sybil was known as hot-stuff throughout the naval establishment, and the

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English boys steered clear of her. Somavati, entirely unaccustomed to such feminine liberties at home, fell an - easy prey to her irresistable charms and brazen advances. Whenever he got the chance, he talked to her in office, took her out for evening walks or to the picture houses, and even went out with her on long hikes in the Countryside. Before long, he started visiting her home and the infatuation drove hirn reckless so much so that he could scarcely visualise the snare that was being cast around him by the wily girl. One lonesome evening she softly whispered into his car that she was in a certain condition and that he was directly responsible for that predicament of hers. There was no way out for them but to marry and over the social stigma that would otherwise engulf them. Sybil and Somavati were quietly married at the Registrars Office at Portsmouth,and within three months a son was born to Sybil, Somavati dared not question whether the baby was actually his or not, as legally it could not belong to anyone else after his marriage to Sybil. That was the English law. The War ended in August, 1945. Somavati returned to India after the completion of his training and was posted at, Bombay Naval Head-quarters as a Quarter-Master incharge of a Mine-Sweeper. His family also came to India after a few months, and despite the orthodosk views of Somavatis aged parents, they were liberal enough to recelve Sybil with a warmth of, welcome that even surprised Somavati. Sybil was treated just like a daughter of the family despite her foreign antecedents and her divergent nature, habits, ideas and customs. Somavati was an exceptionally clever and efficient officer and his rise in the Indian Navy was equally spectacular. Within 10 years of his return from England, he rose from a Quarter-Master to a Captain, and from a Captain to a Commander. He was even slated to be a Vice-Admira1 within two years, and incharge of a Naval flotilla. His duty, however kept him away from his home and family for Months together. But he was such an ambitious person and so bent upon making a name for himself in his line, that he did not mind these periodic long separations. His youthful ardour and passion for Sybil had almost died down with age and the years that rolled by, and his coldness for her had, by now, come to such a stage that he did not even care to write to or communicate with her during the long periods of absence from home. He took it as a matter of course. Not so with Sybil. Although mother of two children, wife of an important Naval Officer and daughter-in-law of a sedate and orthodox Hindu household, she could not curb her ebullient femininity and passionate womanhood. With the hot Spanish gipsy blood in her veins, she was always on the look-out for her neve ending sensual pleasures. The smouldering fire of her desire, disillusionment and despair was consuming her soul like a canker inside a flower-bud. Pran Ahuja was an old and intimate friend of Commander Somavati. He was now a well-known contractor and businessman, dealing with motor vehicles of all descriptions and their spare parts. After the partition of the country, when Lahore became a part of Pakistan, Ahuja shifted his business to Bombay, and before long his firm established itself as a big commercial house of that city. His business flourished and soon he was rolling in wealth. With wealth came wine, and with wine entered woman. Ahuja was a bachelor living in his large and luxurious mansion in a Bombay suburb with his oniy sister Nisha, a school mistress and a spinster. She was a quiet little woman who did offer the least resistence to the nightly orgies of her brother in their own house. Prostitutes and notorious Bombay call girls freely visited the house and hovered around like bees droning over an overripe mango. It was all roses for Ahuja when something happened and changed the entire spectacle. Somavati was generally so intensely engrossed in his official duties that he never had the time to know or find out that his great friend and former class-fellow Ahuja was also in Bombay and was a rich and influential figure there. One day by sheer chance he met Ahuja in a picture house where

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he had gone with Sybil. He introduced her to Ahuja and invited him to come and visit them in their house at Bandra. This Ahuja readily accepted, and soon he was a daily caller at the house of Somavbti where he remained till late in the night, often dining with them before returning to his own house. The former daily boozing orgies in Ahujas house began to thin out and the women of the town finding that the bird had flown, began to look out for fresh fields and pastures new. A miraculous transformation had come over Ahuja. In place of the former boisterous boozer and reckless womaniser, he was now quiet and soft-spoken partaking only sparingly of the food and drink generously offered to him at Somavatis house. His furtive glances towards Sybil soon changed into a lingering gaze as Sybils large and dark eyes also beckoned a passionate response. The two needed opportunities to fulfil their hearts desire. These were not long to come. Somavati had cooled so much that he did not even take any notice of the advances that Ahuja was making towards Sybil. In fact, whenever he went away on a long off-shore duty he requested Ahuja to look after Sybil in his absence. This Ahuja promised to do. He also said that if Sybil so desired, she could come to his house as often as she liked and talk with Nisha and even stay with her occasionally to relieve herself from the loneliness and boredom resulting from her husbands absence. One morning in late October 1958, however, the house of Ahuja was the scene of a gruesome tragedy. Ahuja was found lying dead on the floor of his bedroom in a pool of blood, with multiple gunshot injuries on his person. The servant who had heard the sound of gunshots coming from his bedroom, rushed towards the room only to see the glimpse of a burly man in white bush-shirt and trousers rushing out of the room, flourishing a large pistol in his hand. He threatened that anybody trying to stop him would be shot dead. He quietly walked down the stairs, boarded a small car, started the engine and was soon out of sight. None of the servants could recognize the murderer as he had never been in the house before. The police soon, arrived on the spot and removed the dead body for a postmortem examination. They questioned Nisha and the servants, but none of them could say who the assassin was and,where he had come from. The postmortem examination revealed that Ahuja had been killed by three gunshots, one of which grazed, the three fingers of his left hand, the other penetrated the edge of his right lung from the back and passed out in front, but the fatal wound was caused by a shot which struck the back of his neck in an upward direction, fractured the skull and was lodged inside the left frontal lobe of his brain (cerebrum.) The bullet inside the brain was recovered practically intact, but the other two bullets that had strayed out were ccnsiderably flattened and deformed after hitting the walls of the room. Physical examination of the bullets showed that they were of .38 calibre elongated lead slugs. Each bullet weighed about 200 grains and had seven groove markings with a left hand twist. Apparently the bullets must have been fired from an automatic (self-loading) pistol, and from the details revealed in the examination, it seemed almost certain that the weapon used in the murder was a .38 bore military service pistol commonly used in the navy as a personal weapon. It has a nine inch barrel and holds six catridges in the magazinehandle and one in the chamber. The operation is semi-automatic like that of all self-loading weapons. Such a revolver is prohibited for the general public and is meant exclusively for use of military personnel. The three empty shells thrown out by the ejector mechanism of the pistol were also recovered by the police from the room of themurder. The milled base of the undeformed bullet extracted from the dead body fitted exactly into the corresponding, grooves at the opening of the empty shells. In the meantime, however, an extraordinary thing had happehed. Commander Somavati had surrendered himself at a police station in a Bombay suburb with a Remington (U.S.A.) .38 bore six-shot military service pistol in his hand with two live catridges in the magazine and one in the chamber. He, made a confession that he had killed his old friend Ahuja by f iring three shots from his pistol, as he had seduced his wife Sybil during his long absence and she had become pregnant by him. On the strength of this confession and the circumstantial evidence of his possession of the

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pistol firing the shots that actually killed Ahuja, Commander Somavati was arrested and sent up for trial on charge of intentional murder. The tria created a sensation throughout India on account of this unprecedented murder in high society. Here, surprisingly enough, Somavati retracted his confession made at the police station, and stated before the Court that he had a cause of grave provocation against his friend, as the latter had seduced his wife. When he went to the house of Ahuja on that fateful morning, he had no intention of killing him at all, but wanted to iron out the matter with him and to find out if he would marry Sybil if Somavati divorced her on account of her infidelity towards him. Ahuja scoffed at the idea and said, should I marry every woman I sleep with? Ahuja sarcastically told him also that Sybil had come on her own accord and enjoyed his embraces and there was no question of seduction. On seeing, however, the pistol on his dressing table where Somavati had placed it for intimidating him into submission, Ahuja grabbed it and was aiming the weapon at Somavati, when the latter also gripped it. In the struggle that followed, three shots accidently rang out from the pistol and they killed Ahuja on the spot. This grim spectacle so unnerved Sornavati that he went to the nearest police station and surrendered himself to the police. His mind however was in such terrific confusion and dismay at the ghastly tragedy that he did not know or remember a word of what he had said at the police station by way of what was alleged to be his confession. Unfortunately for Sornavati, his retracted confession and his new version of the grim episode before the Session Court did not help him much. Evidence was available that on the tragic day avatihad issued for himself a .38 bore automatic service pistol together with six rounds of ammunition from the ships arsenal where he was on duty, and had signed the weapon register indicating that this was for private and not for service requirements.for, which no such endorsement was necessary. It was further found that Somavati did make the confession at the police station imrnediately after the murder as claimed by him, but did so two full days after, when it was almost certain that Sornavati had been recognized as the killer of Ahuja and the issue of a warrant of arrest ainst him was imminent.. It was also established that on the day of occurence Somavati was very grim. The talk he had with his wife while driving back after dropping the children at a theatre for a matinee show and his plain speaking her, that he would shoot Ahuja dead if he proved false to her as well and did not accept her as his wife, also bared his ghastly purpose. Sybil in her deposition before the court said that she was infatuated with Ahuja, and would surely have married him after obtaining divorce from Somavati who had neglected her continuously and had become cold and indifferent towards her. She said that there was no question of her seduction as she had gone to Ahuja of her own accord, and she was at perfect liberty to do so, being a free woman. The story of a struggle between Ahuja and Somavati was also disproved by the evidence at all the gunshots on the body of Ahuja were from the back, including the fatal one at the rear of the neck which travelled in an, upward and forward direction, the bullet having lodged in the left forward lobe of the cerebrum after fracturing the skull and grazing the inside of the cranium. There was no scorching, burning or, tattooing at the site of the wounds which certaihiy would have resulted if the weapon had been fired from a close range. At the time of death, Ahuja was wearing only a big towel as he had just come out after taking a bath. The towel was attached to the dead body in the same position and had not fallen off, which would have been impossible had there been any struggle between these hefty men. From all appearances, therefore, it appeared to be a case of cold-blooded and premeditated murder. The most surprinsing thing, however, was that the jury returned an unanimous verdict of not guilty of murder. They would not even agree to a verdict of culpable homicide not amounting to murder. (Sec. 304 I.P.C.). Apparently the jury had been worked up or manipulated by the defence which had engaged eminent and influential lawyers with considerable amounts of money flowing in from various quarters. The Session Judge disagreed with the Jury; held their verdict as perverse and referred the case to the High Court which found the evidence against Somavati to be overwhelming and clear with hardly any extenuating circumstances except that Somavati had a reasonable gro'use against

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his friend for having enticed his wife. The capital sentence of murder was thereforenot awarded and the High Court sentenced Somavati to imprisonment for life. The once farnous, and greatly admired officer of the Indian Navy passed into oblivion. 11. WHICH BULLET KILLED MRS. KNOWLES? After Mrs. Knowles, wife of Dr. Benjamin knowles of Bekawi, Ashanti, on the West Coast of Africa, suffered a wound from a .455 revolver bullet on October 20, 1928, from which she died three days later, two .455 calibre bullets were found in their bungalow. One was on the bedroom floor, the other inside a wardrobe. Yet only one bullet had been fired that day. One of them was the fatal bullet, but which? Behind the question lies one of the strangest shooting dramas of this century. The case of Dr. Knowles, the Scottish doctor accused of murduring his wife in a British colony, fulfils many tests. His trial before a judge, sitting without a jury, at which he was denied by Ashanti law the help of counsel or appeal to a higher court within the colony, raised constitutional issues which even the Judicial Committee of the Privy Council, to whom he appealed, were unable to determine. His conviction was quashed on the technical issue of misdirection by the judge. The Knowles case is an unusual and a famous one. It raised not only extraordinary constitutional issues but equally fascinating problems of the behaviour of guns and bullets. Then there is the human angle: love and loyalty, weakness and irritability, and those time-honoured excuses fcr human frailty-heat and drink. The lunch party given by Dr. and Mrs. Knowles on October 20, passed-off well. The host and histess did not drink too much, and they did not quarrel, which was unusual but pleasing. The midday sun beat down on the District Medical Officers bungalow. No cloud obscured the sun or dimmed the happy atmosphere indoors. When the guests left at 2.15 p.m. Dr. and Mrs. Knowles retired for the usual afternoon sleep, necessary in that humid heat. The lazy quiet of the African afternoon descended upon the Knowles residence. It was broken suddenly at 4.30 p.m. Sampson, the native boy, was laying tea in the chop-room. From the bedroom he heard Knowles shout Show me. A few seconds later came a shot and he heard Mrs. Knowles cry out words which he interpreted as Ah, Ah. Sampson ran to Margins house and told the District Commissioner Mr. Margin, what he had heard. Margin got into his car and drove over. Pulling up outside the bungalow, he called Dr. Knowles who came out, naked except for a towel round his waist. Had there been an accident? Margin enquired. No, replied Knowles, everythjng was all right. Nothing further was said and Margin drove off to join a tennis party to which he had been invited. When he returned home later in the evening, he was told that Sampson had called again and he had left a message that Missie cry very much. Margin felt himself in an awkward position. He, however, contented himself with a note in which he wrote; Dear Doctor, your boy has been over three times to see me and has evidently got the wind up. Naturally I cannot butt into what is not my concern, but if I can be of assistance to you know that you just have to say so. Dr. Knowles received this not but did not reply to it. The Deputy Commissioner, however, informed the Provincial Commissioner and Knowless superior Dr. Gush. Knowles told Gush that there had been a domestic fracas. He showed Gush bruises on his leg which he said had had been given him by wife with an Indian club. He said his wife had been nagging at him on the previous afternoon and he told her that if she did not leave the room, he would put a bullet in her.

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Linking this startling information whh the boys story of a shot, Dr. Gush suggested that he sees Mrs. Knowles, whom he found standing by the bed. She said she had been wounded and she allowed Gush to examine the bullet wound in her left hip. Gush saw at once it was serious. The entry hole was the size of a three-penny piece, and the bullet had passed out on the right side of the abdomen, leaving a hole, the size of a sixpence. To Gushs question, how had the accident happened, Mrs. Knowles said that she had been examining her husbands revolver while he slept on the bed; she put it on a chair and shortly afterwards sat down upon it. She tried to remove it, but the openwork sleeve of her dress caught in the trigger and it went off. At this, Dr. Knowles interupted to say, Speak the truth, and his wife replied, Shut up, Benjy. You do not know what you are talking about. Knowles said he had treated the wounds with, iodine and made his wife rest. Dr. Gush ordered Mrs. Knowles to be removed to the hospital at Kumasi. Later in the evening Major Srnith the Acting Commissioner of Police and his assistant Mr. Morris, arrived at the bungalow. They told Knowles that his wife wished to make a dying statement and they persuaded him to accompamy them to the hospital. To the observers he seemed dazed and unwell and had to be helped to a chair. While the Police officers were ecilecting various articles, he said to his native dispenser, Well, Mr. Hansen, if I dont see you again soon and he drew his finger across his throat, looking upwards. Knowles also said several times over, The whole business is very bad. I dont care what happens to me. I am worried about my wife. If my wife rolls up, it, means a murder case. If my wife rolls up I shall be hung by the neck until I am dead. At the hospital he repeated his remark, If she, rolls up, I am afraid I am for it. Knowles was taken to see his wife. She said she would make a statement on oath and a Bible was handed to her. Now my dear, tell the truth, her husband told her. I 'shall tell the real truth. She replied. Mrs. Khowles restated very much, but not quite, what she had told Dr. Gush. She said she sat on the gun and it had got caught in the lace of her dress, whereas to Gush she had stated it got caught in her sleeve. She continued, I did not realise I was shot until I saw the blood running down my leg, adding, I am not in fear of death, words which legally invalidated her statement as evidence. When she told her husband was under arrest she declared he could not have inflicted the wound because he was in bed at the time. Mrs. Knowles died at 1.0 a.m. October 23, and Dr. Knowles was charged with her murder. The Acting Commissioner of police felt himself on safe ground for to hirn it appeared abundantly clear that Mrs. Knowles had been shot in a place and in a manner where it was virtually impossible either for her to have shot hersetfor to have sustained the accident she claimed. Apparently she had been trying to cover up for her husband. Police officers sent to search the bungalow were told by the native boys that they had found two .455 calibre bullets. Yet only one shot had been fired. Sampson and another boy named Kofi said they found bullet No. 1 in a pool of blood on the floor of the bedroom on the evening of the shooting. Next day they found bullet No. 2 under some dresses on a shelf in the wardrobe. The police noticed a jagged hole in the wardrobe door and an identation in its back, which Sampson said were not there before the shooting. The police found also a hole, its edges suspiciously blackened, in the mosquito net which covered the bed, and on the bedside table a mark which might have been caused by a bullet. The native boys said that both the hole and the mark were fresh. The police concluded that Mrs. Knowles had been shot by bullet No.2 and on that bullet the prosecution based its theory of crime. Before they left the bungalow the police officers took posession of a .455 Webley revolver which contained one discharged and five undischarged cartridges.

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Dr. Knowles was brought to trial at Kumasi on November 13, the proceedings lasting nine days. There was no jury, and neither prosecution nor defence were allowed the help of counsel. The Commissioner of Police Mr. Piergroome, who had returned to the colony, conducted the prosecution and Dr. . Knowles was allowed to cross-examine witnesses and to give evidence, h irnself. The prosecution, rested its case on three main planks: Sampsons story of the shout and the shot on the afternoon of October 20; Dr. Knowles suspicious remarks and behaviour; and the medical and police evidence relating to the wounds and the suspected trajectory of the fatal bullet. Mrs. Knowles dying statement was dismissed as a sporting gesture to free her husband from blame. It was pointed out that her version of the shooting was palpably inaccurate since in one version she had said the gun caught her sleeve, and in the other, in the lace of her dress. No lace dress had been found in the bungalow. The accident theory was further weakened by the evidence of the boy, Sampson who testified that he had heard Dr. Knowles shout, Show me before he heard the shot, the significance of this evidence being that it would have been far more creditable to the accident theory if Dr. Knowles had called out, Show me meaning showme the wound, after the shot had been f ired. That, in fact, was Dr. Knowles version of the shooting when he himself gave evidence. He said that he was lying dozing on the bed when he heard a shot and his wife cry out, Oh I have been shot. He then said. Show me. Sampson had got it the wrong way round. Knowles defended himself by saying that his wifes wound had been, as she stated, accidental, and he told the court that No. 2 bullet, the one found in the wardrobe, the bullet on which the prosecution based its theory that he had shot his wife, had been fired by his wife to scare him sevaral months before. The bullet found in the pool of blood on the floor of the bedroom was the fatal bullet. Knowles statement that bullet No. 2 had been fired before the fatality was corroborated by the evidence of Mr. Bradfield, the Inspector of Public Works, who said he had seen the bullet hole in the wardrobe before October 20 and that Dr. Knowles had then told him the same story he stated in the witness-box. Knowles accounted for his strange behaviour and suspicious remarks after the shooting by saying he was upset at his wifes accident and by the drink and drugs he had taken. Thus, the prosecution argued, at one time or another, both Dr. Knowles and his wife had tried to take the blame, in order to shield each other. Mrs. Knowles had not spoken the truth when she accounted for her wound by an accidental shooting, they said, adding that Knowles remarks to her at the house, and at the hospital, Now tell the truth sounded very much as if she was lying on his behalf. Seldom had a court faced such a dilemma. Confronted with this impase, the court turned to the study of the bullet theories. The two policemen, Major Smith and Mr. Morris, put forward the theory that the bullet found in the wardrobe was the fatal bullet. Reconstructing the crime, the experts traced the alleged course of the bullet by connecting with a piece of string, 11 feet long, the points through which it was eged to have passed. According to this theory, Knowles fired the shot, the bullet passed ugh the mosquito net, leaving a blackened hole, struck the table, continued on, its course haing been slightly deflected by the resistance her body, but with sufficient momentum to penetrate the door of the ward robe, to strike its back and fall amongst the dresses. The strength of the theory lay in the evidence of the house boys that the hole in the mosquito net and themarks on the wardrobe had not been there before the shooting. Ingenious though this was, the theory contained flaws not the least of which was the policemens failure to account for the other bullet found in the pool of blood on the floor, the presence of which in the bedroom seemed such striking corroboration for the accident theory. If the wardrobe bullet was the fatal bullet, how had the floor bullet got there? Had it been dropped by accident? Or had it

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been planted by Dr. and Mrs. Knowles to support the accident story? Only one shot had been heared, and the revolver contained only one discharged shell. The evidence of facts and the inferences which could be drawn from them were beginning to look as suspect as the doubts about Sampsons memory and the question of who had tried to cover up for the other. Moreover, the police theory raised other conflicting issues! For the bullet to have been fired from the bed and finish in the wardrobe, it must have been fired from right to left, whereas the wounds.in Mrs. Knowles body ran from left to right. Then the angle of such a shot was almost impossible to imagine. If it passed upwards through her body as the wound indicated, to land in the wardrobe, where the relative position of the hole in the door and the mark at the back proved it had been rising steeply, from where had it been fired ? Either Mrs. Knowles had been standing on the chair, which was unlikely, or Dr. Knowles must have been lying on the floor, which was just as unlikely. That she had been bending over was the only remaining Possibility. The prosecution fought hard to explain these difficulties. The evidence turned to the wound itself, and witnesses clashed on the question of the obstruction caused by a bullet passing through a human body. Major Smith, who had been a musketry instructor, gave his opinion that the failure of the bullet to penetrate the back of the wardrobe showed that its penetrating power had been lessened by passing first through some other obstruction. Dr. Gush who had considerable experience of firearm wounds in the World War, stated his opinion that the bullet after passing through Mrs. Knowles would have had sufficient energy left only to trickle from the wound and fail to the floor. It certainly could not have continued on for another fifteen feet and penetraied the wardrobe. The fatal shot, said Dr. Gush, had been fired from within a few feet while Mrs. Knowles was stooping or semi-sitting. Thus while he had given his opinion against the prosecution theory in the matter of bullets, he did not go so far as to support the accident theory. The long delay before the shooting as disclosed, and Dr. Knowles treatment of his wifes wound, ruled out the possibility of determining, by scorching or blackening, the distance the gun had been from the Wound. Could Mrs. Knowles death have been an accident, as she herself declared? Knowles said it was his practice to place his revolver, fully loaded, by his bed-side each night, as there had been a burglar scare. It was there that afternoon also and his wife could have picked it up and placed it on the chair. With the theory of bullet No. 2 wide open to doubt, the question now was: Could the Webley revolver have been discharged accidently, as Mrs. Knowles had said? The Police experts doubted that. The revolver had, they said, a double action safety which made it necessary first to pu11 back the hammer and then press the trigger right back before it could be fired. Asked by the judge, if the trigger had got caught up in Mrs. Knowles dress, would the weight of the revolver have been sufficient to fire it? The experts said they thought not. Bloodstains found on the chair, on which both Dr. and Mrs. Knowles had said the revolver had been lying, were used to both support and discredit the accident theory. The defence claimed they corroborated Mrs. Knowles story of being shot when she sat on the revolver; the presecution pointed out that she must have been hit while she was rising. The large pool of blood by the chair, the experts suggested, corroborated this conclusion. There was yet another flaw. Dr. Knowles had stressed in his own defence that there was no evidence of intent. As the law stood then, if malice or intention to cause death were lacking, the crime could not be construed as murder.

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But the judge found the evidence against Dr. Knowles overwhelming and he sentenced him to death by hanging. Sufficient money was, however, collected by his friends to enable him to appeal to the Judicial Committee of the Privy Council, and Dr. Knowles was taken to London in March 1929. Dr. Knowles appealed on four grounds: That the Ashanti court had no jurisdiction to try him without a jury; that the case should have been transferred to the Gold Coast where a jury of unbiased Whites Would have been available; that a grave miscarriage of justice had resulted because there was no reliable evidence on which a jury could have convicted; and that the judge had to throw the onus of proof on to the prosecution and, as a result, Knowles had found himself in the position of having to prove his innocence. The Privy Council quashed Dr. Knowles conviction, curiously enough on a ground that had not been clairned in his petition. A substantial injustice bed occurred, the judges found, because the trial judge had rnisdirected himself in that having set aside the possibility of an accident, he had assumed the only alternative was murder. Not the slightest enquiry had been made, stated the judges of appeal, into whether, assuming the shot had been fired by the accused, the act arnounted to manslaughter and not murder. The case did, however, show human nature in more favourable light than do most murder trials. Though Dr. and Mrs. Knowles had been accustomed to quarrel bitterly during their married life, when it came to the final show-down she loyally exonerated him of all blame if, indeed, any blame in fact attached to him.

PART TWO LEGAL WRITING

LEGAL DRAFTING
Drafting is one of the most important parts of the legal profession. A lawyer has to draft different types of documents. 1. A legislative draftsman drafts statutes and rules. 2. An advocate drafts (a) Notices (b) Pleadings (c) Coveyancing (d) Reports (e) Bylaws of Institutions (f) Arbitration awards 3. A judge drafts judgments. For an advocate drafting is of great importance because it forms the foundation of his cases. Any error committed in drafting of notices, pleadings or conveyancing will have far reaching effects. Therefore, a lawyer has to take extra care while drafting a document. He should not only see that his drafting is correct, but also that it is effective. To achieve this, the lawyer should be properly trained not only in the effective use of language, but also in the proper ways of drafting. IMPORTANCE OF LEGAL DRAFTING Intellectually, the draftsman's skills are the highest in the practice of law. Judges have to reach decisions and record them in their judgments. Negotiators and advocates have to understand the situation and record it in the pleadings or conveyancing. These documents survive and to draw them up well requires an extraordinary understanding of everything they are supposed to accomplish. The "practice of law", as the term is now commonly used, embraces much more than the conduct of litigation. The greater, more responsible, and delicate part of an advocate's work is in other directions. Drafting instruments, creating trusts, formulating contracts, drawing wills and negotiations, all require legal knowledge and power of adaptation of the highest order. Beside these employments, mere skill in trying lawsuits, where ready wit and natural resources often prevail against profound knowledge of law, is a relatively unimportant part of an advocate's work. At a meeting held in London in January 1973, the Law Ministers of the British Commonwealth noted the widespread shortage of expert legislative and legal draftsmen and the importance of taking early steps to overcome this shortage. Additional evidence from other countries, including the developed countries, indicates not only that this shortage is world-wide, but also that it extends to the entire field of legal drafting. The importance of legal drafting reflects two things that have been happening to the practice of law: 1. The professional emphasis has been shifting from after-the-fact litigation to before-the-fact planning. 2. The increasing complexity of modern life has been accompanied by an increase in volume of legal problems and, more important, the proliferation of factual contingencies to which the legal planner must address himself.

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The effect is the increasing need to specialise. The need for specialists in drafting derives from the almost inevitable complexity of the subject-matter, especially when: 1. the instrument must be integrated into a system of instruments; 2. the technological, financial, social or political importance of the subject matter; and 3. the not always visible inadequacy of most lawyers as draftsmen. Superior drafting requires a special type of temperament and training. As Coode observes, The most determined will in the lawgiver, the most benevolent and sagacious policy, and the most happy choice and adaptation of means, may all, in the process of drawing up the law, be easily sacrificed to the incompetence of a draftsman. Poor draftsmanship can cause confusion in many areas. It may cloud the purpose and intent of the proposed legislation before enactment; it may encourage misinterpretation and misapplication by the bar; and, it may affect both judicial and executive implementation of the law at national, state and local levels. QUALITY OF LEGAL DRAFTING Our professional concern with language assumes a normal competence in the traditional skills of grammar and composition (and spelling), despite occasional evidence to the contrary. But we give considerable attention to the legalese seeking some documentation of those vestigial excrescences found in the stilted structure, meaningless anachronisms, multiplication of near-synonyms, and the rest, most intensely illustrated in the form books. Almost all legal sentences, whether they appear in judges' opinions, written statutes, or ordinary deeds of sale, have a way of reading as though they had been translated from German by someone who has a rather meagre knowledge of English. Invariably they are long. Invariably they are awkward. The language of The Law seems almost designed to confuse and muddle the ideas it purports to convey. That quality of legal language can be useful only if the ideas themselves are so confused and muddled and empty that an attempt to express those ideas in clear, precise language would betray their true nature. In that case muddiness of expression can serve very nicely to conceal muddiness of thought. Today no other type of drafting is so muddy, so confusing, so hard to pin down to its supposed meaning as the language of The Law. It ranges from the ambiguous to the completely incomprehensible. Our laws are spoken of as disgraceful, unworkmanlike, defective, unintelligible, abounding in errors, ill-penned, inadequate, loosely worded, depraved in style, full of peculiar absurdities, mischievous, baneful in influence. The technical skill of drafting is often below the mark. They are uncertain, confusing, obscure, ill-expressed, ambiguous, over bulky, redundant, entangled, unsteady, disorderly and complex. Therefore, many solicitor firms abroad are trying to improve the quality of legal drafting. Shearman and Sterling may be the first firm to have hired a writing teacher. Others have followed the suit and hired English professors from the local Universities to teach the associates, Pulitzer Prize-winning journalists to edit and rewrite briefs, motions and letters to lay clients. Spence, the writing teacher hired by Shearman and Sterling agreed that the standard of legal drafting is poor. What surprised him was that the advocates with whom he was working were one of the brightest groups he ever had, and one of the most challenging, but their drafting was so poor. He was optimistic that if the lawyers co-operate and take interest, they can easily improve. But he observed that poor writing by lawyers is deeply ingrained.

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One of the important talents that a draftsman must develop is foresight - an ability to visualise people when they are doing the things that are spoken in a statute, or regulation, or private document. Maurice B. Kirk suggests that one way of doing this is to suppose from time to time that somebody has come to the draftsman, as a client, for advice after the document has become effective. Here, the advice means what the client can or cannot do under specific circumstances. The draftsman can test the practicability of his document by attempting to apply his tentative language to a variety of hypothetical activities or situations. To illustrate this Kirk gives an example of a provision in an ordinance containing the following provision: Trucks and Buses, Prohibited: Trucks and buses are prohibited from entering into any county park unless specific permission for the same is obtained from the Commissioner. Trucks and buses having secured permission must park in areas so designated by the Park Keeper or Park Police. From the point of view of good drafting, this section contains several mistakes. 1. The section is written in inanimate terms. (a) Persons can be "prohibited from entering", trucks and buses cannot be. (b) A person can park a truck or bus, a truck or bus cannot park itself. 2. The section also says impracticable things. (a) Once the permission is granted, the truck or bus must be parked in the designated area for at least some time. Therefore, a student revised the section as under: Trucks and Buses, Prohibited: A driver of a truck or bus shall obtain a permit from the Commissioner before driving the truck or bus into a park. A driver shall park the bus or truck in areas designated in the permit. This is a substantial improvement. The provision regulates people, not trucks and buses. Further, in general, the provision is drafted in singular. However, the revised provision does not answer, among others, the following questions: 1. Is the principal duty "to obtain a permit" or a duty "not to enter a park without a permit"? 2. When does the driver realise that he needs a permit: before he drives a truck or bus, or before he enters the park? 3. Must every person who drives a truck or bus into a park stop and park the vehicle for some unspecified period? 4. If so, whether the driver must park the truck or bus in any one designated place for some time, or must he park the bus or truck in each area so designated? 5. Does the word "areas" indicate that the Commissioner has a duty to designate at least two areas for parking of trucks and buses? 6. Does the permit apply to any truck or bus that the driver operates, or does it apply only to a specific bus or truck? 7. Does the permit apply to any park under the jurisdiction of the Commissioner, or does it apply to a specific park? 8. Why did the draftsman turn around and the phrase "truck and bus" in the first sentence, so that it reads "bus or truck" in the second sentence? 9. Should the Commissioner seek out the driver to issue permit, or should the driver seek out the Commissioner to get the permit? 10. Is the permit intended to control entering a park or parking in a park or both?

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To correct these errors would require a redraft that is elaborate and long. As observed by Conard, there are definite and positive goals to be attained by simpler statutewriting. There are definite techniques which will help in attaining these goals. When the goals and techniques are known to the profession, better laws will be written. But, as observed by Stason legal drafting is like weather: often talked about, but seldom reformed. Many lawyers seem only dimly aware that the profession is falling far short of its potential. As Austin observes, what is commonly called technical part of legislation is incomparably more difficult than what may be styled the ethical. In other words, it is far easier to conceive justly what would be useful law, than to construct that same law that it may accomplish the design of the lawgiver. Legal drafting must have the accuracy of engineering, because it is law engineering; it must have the detail and consistency of architecture, because it is law architecture.

NATURE OF LEGAL DRAFTING


Drafting as Communication Many draftsmen apparently do not realise that a legal instrument is both: 1. a crystallisation and declaration of rights, privileges, duties and legal relationships; and 2. a communication. That a legal instrument is a communication is seen most clearly in statutes, rules, and regulations and such dispositive instruments as wills. In these, the client plainly addresses instructions to others. To be effective according to the client's intent, such an instrument must carry the same meaning to those who will execute it as to the draftsman. This also seems to be true of bilateral and multilateral instruments such as contracts. For all these instruments the ultimate audience includes the courts and other agencies that may be called on to enforce them. Therefore, the draftsman should respect and adhere to the principles of communication. Basic Elements of Communication: The principles of communication are not a matter of legal fiat, to be changed at the will of the draftsman. Common to all human efforts, they exist independently of the law. Communication is based on the language habits of particular speech communities. Language is founded on usage and, although in particular cases usage can be violated or changed, to dispense with it altogether would make communication impossible. In the written communication process there are four main elements: 1. 2. 3. 4. the author, the audience, the written utterance, the relevant context or environment.

An adequate scientific description of a comprehensible written language must take the audience into account. More specifically, what the audience knows determines how explicit the language must be to communicate the information effectively. Some writings can have relatively more implicit language because the readers in that audience have the necessary knowledge base to make inference from what is actually said to what meaning is intended, i.e., they can "read between the lines". If, on the other hand, intended readers do not have such background knowledge, the writing must be relatively more explicit to be comprehensible. This often means more words, longer sentences and more content. This explains why it is sometimes necessary to increase the length of a piece of writing in order to make it more comprehensible.

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The "audience" for a legal document is the "user" of the document. We tend to think far too much about the role of the legal document in prospective litigation, and therefore, tend to think too much about the Court as the user of the document. For most documents, however, the initial user is a layman. Therefore, the document must be drafted in a language understandable to the layman. Drafting as Thinking We have already seen that language is not only the chief means of communication, but also the chief medium of thought. Almost all thinking, above a primitive level, is in words. This intimate relationship between thought and its verbalisation is not always grasped. As Pierce wrote, "the woof and warp of all thought and research is symbols, and the life of thought and science is the life inherent in symbols; so that it is wrong to say that a good language is important to good thought, merely; for it is of the essence of it." Language is functionally inseparable from the patterns of thought that help to shape the relevant culture. Every language thus presupposes a conceptual "grid" or "map" through all experience is received. To adjust the one is inevitably to affect the other. The reasoning process is largely a process of thinking to one's self, not audibly to be sure, but by means of mental activities which are essentially the same as those which accompany speech. For a long time past, thinking men have tended to adopt a somewhat patronising attitude towards the words they use in communicating with their fellows and formulating their own ideas. This is a most unfortunate attitude. Words play an enormous part in our lives and therefore, deserve the closest study. The old idea that words possess magical powers is false. But its falsity is the distortion of a very important truth. Words do have a magical effect - but not in the way that the magicians supposed, and not on the objects they were trying to influence. Words are magical in the way they affect the minds of those who use them. We sometimes say contemptuously, "A mere matter of words", forgetting that words have power to mould men's thinking, to canalise their feeling, to direct their willing and acting. Conduct and character are largely determined by the nature of the words we currently use to discuss and the world around us. This nature of language is of intensely practical importance to us as lawyers and quite directly implicated in our vaunted objective of education to "think as a lawyer". A conscious, analytical awareness of some of the fundamentals of the structure and functioning of language provides a foundation for enhanced sophistication and effectiveness in the professional operations of the practicing advocate, judge, legislative draftsman, legal scholar and law teacher. Our interest goes beyond effectiveness of communication, reaching to the process of precise analysis. The structure of language, mostly its abstractness and consequent indigenous vagueness, is such as to create a world of its own, interposing a gap between itself and the underlying world of behaviour, setting up barriers against effective handling of the problems of this real world of persons, things and their interaction. We seek to achieve not merely a post-analysis of the process, but a foundation for positive enhancement of the effectiveness of what we do as lawyers. We apply this approach to the specific problems of legal drafting, with further examples as presented in areas such as the structure of rules of law, the concept of property, the nature of legal entities, legal fictions, pleading, problems of evidence, the process of examination and cross examination, and what we call "factual advocacy". Thus, for example, after recognition of language as more an analysis, interpretation and organisation than a picture of experience, we perceive our rules of law as learned patterns of analysis, the products sometimes of centuries of struggle in the resolution of competing social values. The idea of "black letter law" become not merely pedestrian, but absurd and meaningless. Therefore, ideally our study requires a full scale preliminary course in linguistics and some of its philosophical and psychological ramifications. It may be superfluous to add that there is no area of

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the law to which this approach is not equally applicable. Nor, for that matter, to any are beyond the law. Further, there is a paradox in the matter of knowing and telling. For a reason hard to understand, we do not seem to have a full grasp on the experience itself until we have symbolised it in some fashion. We do not know until we have told. The telling may be done by many types of symbols spoken words, written words, musical notes, paints brushed on a canvas, and so on. But whatever may be the kind of the symbols, it appears to be true that we do not really know our experiences until we have expressed them. Yet, it is true that when we express, we express something. We do not use words at random when we begin to write about an experience but instead seem to be directed by our unexpressed consciousness of the experience to choose certain words and ignore others. Usually we say that "we know what we mean, but we cannot find the words to express it". But this is not really true. What is true is that we know vaguely what we want to say, but we know it so vaguely that we do not find words to express it". This brings the paradox close to resolution. If we begin to describe the idea by testing one series of words after another, rejecting and altering as we do so, gradually the vagueness of our understanding diminishes as "wrong" words are eliminated, and as "right" or "nearly right" words are accepted. Thus we come to know the shape of our experience through the process of using the words to describe it. Thus, we have had the experience before we begin to express it; we know or understand it only when we find means to transform it, internally or externally into some symbolic pattern. The act of writing is composed of two gestures: 1. thinking-writing; and 2. writing-editing. Thinking-Writing Gesture: It is working out of what the writer wants to say. This can be done either in the mind or on the paper, though it is better to use paper for this. In either case, you find out what you want to say in the process of saying it. How the process occurs depends upon the individual style. It is not done with the awareness of an immediate audience. There are no rules for making this first writing gesture. Each new writing task is unique, so that the writer must struggle to find what he wishes to say again, again and again. This struggle is a distressing business. Writing-Editing Gesture: The editing gesture comes between writing as a gesture and the committing of the result to the public. The editing must occur because the results of the thinking gesture will seldom be in clearly written language. The words have been shaped to help the thinking not to help the reading. Since the word "editing" has so many different meaning, we may put the proposition in another way. The editing-writing gesture involves our thinking about our thinking from a potential reader's point of view. Editing requires a phenomenological abstraction of self from the original writing gesture and then a shaping of that gesture guided by our awareness of how people read. Drafting as Research The task of the legislative draftsman is to help resolve a problem by legislative means. To resolve a problem it is necessary to understand it, to know as much as possible about the condition or situation that gives rise to it. It is also necessary to know as much as possible about existing law that has addressed or failed to address the issue. Although the draftsman will produce a draft of legislation, he is more than a well-trained scrivener, he is the craftsman who shapes public policies and ideas into a textually rigid form that can be enforced and given legal effect.

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It is the theme of this paper that research and analysis are an integral part of legislative drafting, that drafting is primarily a task of legal problem solving, and that the compositional aspects of drafting, though of great importance, must be based not only on sound policy instructions, but also on a sound understanding of the issues to be resolved. Drafting as Learning Writing also helps research. Research is inefficient unless we know what we are looking for, and trying to express and systematise a fuzzy question helps us sharpen it. Writing a draft at an early stage of the project helps sharpen the writer's sense of the relevant in time. The writer who tries to do all his research before he starts to write often finds out later that he has researched many irrelevant or insignificant things, thus wasting precious time, while he failed to research things that came to light too late to handle adequately. It is good to find out the basic defects, and the earlier the better. Besides, if he over-researches before starting to write, he risks snuffing out potentially valuable insights of his own before they have had a chance to germinate in the delicate air of intellectual innocence. He also risks creating a formidable psychological hazard by inundating himself with detailed materials, distracting in their wide irrelevance, to the point of sapping his will to write. John Platt points out that some branches of science have moved forward very much faster than others, because they have been using a method of scientific research called the "accumulative method of inductive inference". Its gist is to exploit the indirect method of proof by developing a range of alternative hypotheses and seeing which ones can be eliminated, through critical experiment, as demonstrably false. Thus, no hypothesis is entertained unless it is potentially refutable. This method provides for future testing, the sharpest possible hypothesis. This means that the supportive research will be highly relevant, highly focused, and highly efficient. The result is quicker and more useful results. The lesson for legal drafting is clear. Do not try to do all your research first. Instead, begin to write, or at least systematically organise your material, as soon as you have a fairly good idea of what your problem is and a generous inkling of the answer. Indeed, the writer should repeat the process whenever his later research accumulates enough material that it starts becoming indigestible or hard to cope with. These phases correspond to the scientist's periodic switches from hypothesis to verification to modified hypothesis. While writing, the writer should use every chance to encourage talk-back. Thus, while writing a document if the writer finds a big gap in his information, he does not stop writing and rush to the library to find the needed material. Instead, he fills the gap with statements that blend logically with his current information or argumentation. his gives him important, specific hypotheses that he can test later. Most important, it heads off what could be a serious interruption. If the writer takes the other approach, the insights that are perched precariously on the tip of his mind may be gone by the time he comes back to his writing table. The same applies to minor imperfections of spelling, grammar, or form. While the draft is talking to the writer, the writer should not fuss with details; he should get the gist of its message on paper. Besides allowing the talk-back to continue, careful interpolation or extrapolation will produce not only relatively not only relatively specific hypotheses but ones that have the best chance of being verified. If the legal writer follows this general approach, some of the talk-back will relate to the matters of substantive policy that will make the final product a better instrument of the client's will. Recognition of this contribution is likely to earn the writer an opportunity to participate earlier in the development of substantive policy. Ultimately, good performance will elevate him to a more effective position as a supportive participant in making policy.

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Until both draftsman and his client have a fuller appreciation of what a draftsman could do beyond manipulating language, many an otherwise able draftsman will continue to be called in only at the last minute to put an otherwise crystallised document into good "legal English". But getting in early, by itself, is not enough. The draftsman should make sure that he ascertains full scope of his client's problem and that he digs out and perfects the concepts implicit in it. The most basic step is to develop at an appropriately early stage a severely hierarchical topical structure called an "outline". Almost all books on composition advise this method, but none tell how to conceptualise it. An attempt is made by Reed Dickerson in Chapter 5 of his book "The Fundamentals of Legal Drafting". Prisig in his book "Zen and the Art of Motorcycle Repairing" has also tried the same by diagramming and summarising the structure of a motorcycle. Reed Dickerson considers Prisig's approach a better one than his own, and suggests that until a better approach is found one should follow Priig's way of developing an outline. Therefore, he advices that a student writer should practice the art by developing a hierarchical arrangement of the parts of some complicated physical object. Another similar exercise would be to preare an organisation chart of any local institution. But, as Dickerson observes, these exercises fall short of full effectiveness, because, here we are concerned with observably discrete parts whose affinities are already established. On the other hand, the concepts implicit in a problem are neither clearly defined nor already sorted. Therefore, the conceptualisation of the relevant components and determining the most significant affinities are much more difficult.

GENERAL DRAFTING STRATEGY AND ATTITUDE


RESEARCH Research as a Drafting Tool Only if the draftsman has the knowledge and understanding of the subject he is trying to resolve, he can turn the general and sometimes vague policies into effective legislative language. This knowledge halps the draftsman to anticipate the many situations in which the document may be applied, and will help him to foresee questions of interpretation and construction. This knowledge and information is acquired by the draftsman through research, both legal and substantive. Some use of library, some use of special consultants, and some use of telephone to obtain information from persons knowledgeable in the field. Each one has its own advantages and disadvantages. The use of library takes more time. The use of telephone is likely to give more superficial results. However, time is of less importance than accuracy. But some drafts are prepared under intense pressure. Such drafts are often inaccurate and cause lot of trouble to the parties at a later stage. The starting point of an advocate-draftsman must be the purpose of the parties. The parties will join in a common purpose of attaining a specific factual or legal result which each regards necessary to the attinment of his ultimate purposes. The ultimate purposes of each party may be unrelated to the ulterior purposes of the other. The advocate-draftsman's ultimate obligation in each case is to realise the common immediate purpose of the parties, neither of whom ordinarily contemplates litigation. His job is to do what he can to get the parties from agreement to full performance with the least risk of frustrating their common purpose. To that end, he has to take the following three precautions: 1. Because the common purpose of the parties is usually a business one, the advocate-draftsman must focus also on the factual situation. He must understand (a) where each party is, (b) where each party expects to be, and (c) the process by which each party expects to get from where he now is to where he expects to be.

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2. He needs to know how each party came to be where he is with respect to the transaction. Information on whether either party previously participated in a similar transaction is especially important. 3. He must understand the factors which tend to foster or frustrate the transaction. A body of transactional case law must be viewed from two perspectives: 1. Each case fills a gap by solving a problem the parties had not dealt with. 2. It represents an event or sequence of events that threatened the transaction on which the parties pinned their respective hopes. Because every threat cannot be identified, the advocate-draftsman cannot guarantee results. Nevertheless, he, being an advocate, has a normal amount of skill in fulfilling transactional purposes. Therefore, he must record that he presented each of these potentials for frustration even though the transaction fails to reveal any response to each issue by the parties. In this way he shows that he did what he could, as a professional, to get the parties from agreement to performance with the least risk of failure. Types of Research Problems: A statutory draftsman should keep in mind from the very beginning that he cannot get all things for all persons. He must realise that there are some basic limitations. He must immediately recognise these limitations and obtain appropriate assistance in each case. Fred J. Carman lists following eight problems as an illustration: 1. Extremely complex and age-old problem subjects: Here draftsman always requires expert guidance. A team of experts are necessary for drafting this type of law. The draftsman should never attempt to tamper the existing law on such subjects without consulting these experts. He has a responsibility to badger information from other team members until he is positive about each provision or change made is known, explainable and rational. 2. Legislations that require a creation or change of an existing mathematical or statistical formula: Here also, the draftsman needs expert help. 3. Legislations that establish or recreate the ethical environment in which government operates: These are the extremely sensitive areas where the draftsman may incur the highly emotional fury of powerful political interests if he commits the following mistakes: (a) Attributes a result to a particular provision which turns out to be even marginally erroneous. (b) Fails to maintain a thoroughly objective view in analysing proposed provisions. (c) In offering solutions, fails to present all viable alternatives. In such cases it is highly recommended that each problem perceived be carefully discussed with another colleague, preferably one from the research staff. The research must consist of careful analysis of all possible results and then be presented in a most tactful manner. 4. Appropriation Bills: Normally these are not drafted by the draftsmen. But wherever a draftsman is invited to draft them, he must be (a) schooled in fund accounting, (b) familiar with the system of accounts involved, (c) knowledgeable of the constitutional limitations of the government applicable to the money matters, and (d) specialised in fiscal matters to the extent possible.

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5. Criminal laws, revenue measures and other major subjects: They should receive specialised attention. The practical considerations of available time vary from case to case. The demand for man power is unlimited. 6. Confidential matters: In such cases, the draftsman does not get any assistance from a research team or from experts. He, therefore, should warn the requester that the effect of the law is unknown or in doubt. He must gather the material from the books, think about it continuously, discuss it repeatedly with the requester. Once the Bill is introduced, he can get the assistance of the experts or research team, and then he may effect the changes necessary to carry out the intent of the requester. 7. Typical trivial request: The research warranted, if any, will be trivial. 8. Legislation intended to reorganise or recodify an area of law: For this purpose assistance of computer may be taken. Types of Research: The following are the types of research made for the above purposes: 1. Exploratory Research: Where the intended legislation intrudes into a field of extraordinary policy complication. In such cases it is advisable to make preliminary search of the applicable law with the purpose of marshalling the probable problems the request will entail. Then these should be discussed with the requester. If the requester never intended such complications, he may abandon the law. 2. In Depth Research: When extensive legal research is needed to carry out a particular request, the requester should, at the first opportunity, be given a time estimate of when the research can be completed. The impossible should not be attempted. If the projected research time frame is unacceptable to the requester, alternative means of satisfying the requester may be sought. ATTITUDE It is sometimes said that every definitive legal instrument must be drafted so that no one reading it in bad faith could possibly misunderstand it. Dickerson observes that this made a good sense so long as courts were generally unfriendly to draftsmen. But now, the climate in which legal instruments are judicially examined has greatly changed. Today, the Courts make an honest, generally unprejudiced attempt to extract the meaning of an instrument as it would be understood by a typical member of the audience to which it is addressed. The draftsman's main problem is to say what he means according to the standards of communication in the relevant speech community. A draftsman no longer needs to go to abnormal lengths to reduce the risk that his instrument will be misread. He may rely on the normal ways of reading language, even in the face of minority, competing usages. The law now accepts, for the most part, the normal presupposition of communication that language has been used in its usual sense. This presupposition is usually valid, in and out of law, because usage is what makes language. If there is a doubt in the mid of the draftsman as to how the reader will understand the draft, the draftsman should be sure to tip the scale towards the meaning that he intends to convey. As long as there is any significant possibility that his language will be misread by the typical reader, he should try to remove the uncertainty or reduce it to relative insignificance. In such matters there are few rules of thumb. There is no substitute for the judgment of an experienced draftsman sensitive to nuances of text and context. He must have feeing for how specific language hits the eye of a typical reader who has no access to the subjective intent except through the instrument and its shared environment.

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It is also said sometimes that the draftsman should leave nothing to implication. Dickerson dismisses this also as nonsense. No communication can operate without leaving part of the total communication to implication. Implication is merely the meaning that context adds to the literal meaning. The draftsman may rely on any normal implication that attaches to the more significant features of the message that he has made express. Draftsman cannot escape the burdens of normal implications. The only problem is that implications, like express language, vary in clarity and should be made as clear as reasonably possible without prolixity. Implications can be ambiguous or vague. Thus, they suffer from the same diseases as language and, therefore, respond to the most of the same cure. Although context is a powerful tool for controlling meaning, the draftsman should not rely on it to the point of being careless in the choice of words and specific syntax. Context should not be used to resolve needless uncertainty or to correct needless error. The elements of communication should support rather than contradict each other. The draftsman should not seek the unattainable goal of clarity. He seeks the highest practicable degree of clarity that gets the message across to the typical member of his audience and to the sceptical reader in those situations in which courts want to be doubly sure that a probable result of some severity was actually intended. If he can do this, he has sufficiently overcome the diseases and other inadequacies of language. Pride of Authorship Editorial of American Bar Association Journal [1951 (37) ABAJ 209] used the phrase "pride of authorship" in the more literal sense of legitimate pride in a job well done. More often, it is used in the sense of overweening pride that prevents an author from accepting even constructive criticism. A draftsman normally faces a lot of criticism when his work is published. People come up with many alternative ways of writing what the draftsman has written. There are more suggestions and advices than there are sentences in his drafting. Only some of them are constructive and useful. The author should have an open mind to accept such criticisms and he should improve his drafting and skills of drafting from these criticisms. A lawyer can only become wise by keeping his mind open to criticism, by listening to all that can be said against his own views. It is only by patiently hearing what can be said against his proposed draft by persons of all variety of opinion, that his document ever begins to approach the superlative. If his work is good, it will stand on its own merits. if bad, a wise author will listen and improve it. An examination of early drafts of historic documents indicates that the final product was seldom written at the first sitting. A jurist observed that before he finishes a law review article, he sweats blood for a month. Pride of authorship requires a patient consideration and comparison of constructive suggestions for improvement from every source. only when the finished product meets the test of expert criticism can the author feel justly proud. Pride of authorship will always mean sweating blood. A legal draftsman usually sheds the disability of "pride of authorship" when he fully realises the benefits of cross-checking with others. As Dickerson observes, it is certainly far better to receive criticism before issuance or execution than to receive it afterwards. He suggests several ways to generate needed criticism. One is the "buddy" system, in which the person responsible for the instrument has it reviewed by a colleague. A supplementary rather than alternative method is to submit the tentative result to a small panel of knowledgeable persons assembled to discuss the instrument. However, Dickerson opines that drafting by committee should be avoided. In case of a legislative drafting, as a final check, it is often desirable to circulate the draft to a carefully selected sample of the kinds of persons most likely to be affected by the legislation.

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STYLE IN LEGAL DRAFTING


The words used in a legal writing and the way in which they are used express the lawyer's personality and capability and give the writing what is called its style. Style, in writing as in other walks of life, is a quality peculiar to the individual, for no two persons write alike. It is determined by background, training, experience and the way the person thinks. Being so much a personal matter, it cannot be copied, nor are there any set of rules for acquiring it. Nevertheless, there are certain characteristics common to all good writing. Just as there is style in literary writing, there is style in legal writing, and in any summary of its desirable elements correctness, propriety, clarity, simplicity, courtesy and sincerity must certainly have a place. To these must be added an adequate vocabulary. Without a competent knowledge of words and a sufficient mastery over their use, it is not possible to weave the desirable elements of style into the fabric of a good document. 1. Correctness: The writer must use correct words to express the thoughts. His grammar must be correct. Use of wrong words or wrong sentence construction will make the communication a failure. We have already discussed how important it is to achieve identification of thoughts and words. In the next few paragraphs we can see how wrong words or grammar causes problems of meaning. 2. Propriety: It is not sufficient if the words used by the writer are correct. Further, they must be proper. We have already discussed about eulogistic and dyslogistic terms, and about bias words. 3. Clarity: When we write a document we owe it to the reader to write clearly and make his task of comprehension as easy as possible. We fail in this if we abandon simplicity. We must first be clear about what we want to say, and then say it in a simple and straightforward way. Clear writing and clear thinking go hand in hand, and a person who thinks straight is usually able to write straight. It is an excellent idea to jot down the points to be written and to place them in order. Planning helps to produce the orderly kind of writing that creates a good impression because its message is clear. If the reader has to read the document for the second time before understanding it, probably it is not a good drafting. 4. Simplicity: If it is appropriate the short word is preferable to the long. It draws less attention to itself as a word and enables the reader to concentrate attention on the idea denoted by it. It is in this sense that vocabulary is an important element in style. High sounding words and phrases are to writing what ostentation to dress - merely means of attracting attention and showing off. They reveal the writer for what he is - superficial, conceited and certainly lacking in good taste. One cause of bad legal writing is the mistaken notion that long words and roundabout phrases are a mark of education. Another is the idea that brevity is a form of rudeness and that courtesy requires simple facts to be dressed in fancy language. Legal writing calls in fact for a plain style - a style that is simple, clear and easily understood. One that makes use for the most part of short and familiar words. Such is the style of much of our greatest literature and the works of our best authors. 5. Courtesy: Not only must the writing be correct, simple and clear, it must also be courteous. In the rush of modern life this is sometimes forgotten. There are people who regard bluntness as a token of strength, when it is in fact a sign of bad breeding. Courtesy gets the works done. Courtesy of an advocate puts the reader in a more reasonable and even in a favourable frame of mind, which is very important for an advocate. 6. Sincerity: Whether a person is writing a piece of literary composition or a legal document, he needs to write with sincerity. In other words, he must be himself and not the imitation of

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someone else. One may find little scope for originality in legal writing, as there are rules and forms to be followed. Even so, it must have originality of the sort that expresses the thoughts of its writer in his own words in his own way. If all legal documents were modelled to a set style they would make a dreary reading. IMPORTANCE OF STYLE IN LEGAL WRITING A lawyer writes for much smaller group of readers than any other professional author. His "editions" are limited. Consciousness of the restricted circulation of his works sometimes begets a costly carelessness in matters of rhetorical style. So long as the instrument appears to express the lawyer's thoughts, there is a temptation to release it without rewriting, condensation and polishing. But the outstanding legal writers have preferred to revise, and revise, and then revise again. Justice Cordozo found that phrases, like diamonds, required laborious polishing to achieve a brilliant lustre. Justice Brandis often rewrote a judgment a dozen times. Frankfurter is known for revising his judgements. In one occasion there were fifty-three revisions. As Schopenhauer observed, law of gravity is applicable to written communication. Ideas flow very easily from head to paper, but not so easily from paper to head. Too often, a document written with careless ease can be read only with painstaking difficulty. If the advocate's brief is to impress the court and incline the court to his views, it is important to take time and pains to assure that your documents will have certain style. We do not expect the lawyers to produce great literary pieces. But their writing must be lucid. each paragraph should persuasively invite further perusal. THINGS ONE SHOULD LEARN IN LEGAL WRITING Ronald Goldfarb lists eighteen things one should learn in legal writing. While he mentions each point, he illustrates the point in the same sentence. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. Don't use no double negatives. Make each pronoun agree with their antecedent. Join clauses good, like a conjunction should. When dangling, watch your participles. Verbs has to agree with their subjects. Don's use commas, which aren't necessary. Try not to ever split your infinitives. Its important to use your apostrophe's correctly. Don't write run-on sentences they are hard to read. It behoves the writer to avoid archaic expressions. Don't use hyperbole; not one writer in a million can use it effectively. Avoid clichs like the plague. Mixed metaphors are a pain in the neck and should be thrown out the window. A truly good writer is always especially careful to practically eliminate too-frequent use of adverbs. Placing a comma between subject and predicate, is not correct. Parenthetical words however should be enclosed in commas. Correct spelling is esential. Always proofread your copy to see if you any words out.

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The most important single principle in legal drafting is consistency. Consistency means uniformity. The writer must remember two rules in respect of consistency: 1. Same words should be used to describe the same fact or to express the same idea. 2. Different words should be used to describe the different facts or to express the different ideas. Conversely, 1. Different words should not be used to describe the same fact or to express the same idea. 2. Same words should not be used to describe the different facts or to express the different ideas. The breach of these rules are described by H.W. Fowler in his acclaimed work Modern English Usage as under: Elegant Variation: Some writers who give more importance to prettiness than to clarity and some writers whose notions are based on a few misleading rules of thumb, are those who are chiefly open to the allurement of elegant variations. They are at first terrorised by a misunderstood taboo. They are, at a young age, advised not to use the same word twice in the same sentence - or within next twenty lines or other limit. Therefore, they start hunting for different words to express the same idea in the same sentence or so. After some time, they are fascinated by their newly discovered ingenuity. Ingenuity of expressing the same idea in so many different ways. By the time when they come to know that what they are doing is not particularly right, they are addicted to the incurable vice. Legerdemain with Two Senses: It is the using of a word twice without observing that the sense required the second time is different from that already in possession. Fowler gives the following example to show the point: The inhabitants of the independent lands greatly desire our direct government has, however, for years refused to take any strong measures. In this example, the first "government" means governance or administration, and the second "government" means governing body. No doubt, either word is a synonym for "government", but not both to be represented by it in the same sentence. Such shiftings from one sense to another naturally occur sometimes in reasoning, whether used by the disingenuous for the purpose of deceiving others, or by the over ingenuous for the purpose of deceiving themselves. When the same word signifies two ideas which are close to each other or overlap, confusion and obscurity are probable. Ogden and Richards call this fault "utraquitic subturfuge". In law sometimes its effect is remarkable. Zechariah Chaffee, gives the following example: A case involves a serious misstatement of fact. But it is not clear that the speaker knew of the falsehood or intended to deceive. The advocate begins by calling innocent misrepresentation "constructive fraud". After a while the word "constructive" drops out. Later on he cites a number of cases of intentional misrepresentation which stress the wickedness of "fraud". "Fraud" is an emotive as well as a communicative word. The effect is the speaker's knowledge of falsehood is treated as irrelevant, and the judge is lead to conclude that an innocent misstatement should be heavily penalised because "fraud" is a vicious quality. Apart from such bad practical effects, the breach of above rules is a fault of style.

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Being brief is a virtue. Siegel observes that wordiness is the natural enemy of clarity. Language simplification process often leads to shorter ways of saying things. Brevity is a virtue for the following reasons. 1. It saves the time and patience of the reader. Many people will be reluctant to read lengthy documents. 2. When we say things in roundabout ways the meaning will become unclear. The author himself many times found to write contradictory things. Thus lengthy explanations end up in many mistakes. Brevity reduces some such mistakes. 3. When we write more things that are already familiar to the reader, the reader normally loses interest in the matter he is reading. He may stop reading. Even if he continues reading, the reading becomes more mechanical and the reader less receptive. At this stage if reads something which is important, he may not be able to grasp it. Wordiness takes many forms. The following are the usual ones. 1. Use of synonyms and tautological expressions: Normally in law the following phrases are used. "Alter and change", "authorise and empower", "sole and exclusive", "null and void", etc. Dickerson suggests the choice of the more familiar one and to stay with it. In some cases, it would be advisable to choose the more appropriate one rather than a more familiar one. Examples of tautological expressions are, "The provision affords women the same equality as men." ("same" and "equality"); "The application of the provision is not limited only to the motor vehicles." ("limited" and "only"); "It is wrong to assume that speed and speed alone is the only relevant factor." ("and speed alone" and "only"); "The new amendment adds three additional provisions." ("adds" and "additional"). Tautology often arises from the mistaken notion that forcibility and emphasis are thereby attained, oftener perhaps from a faulty appreciation of the true and full significance of words. 2. Use of pairs of words or expressions one of which includes the other: For example, "authorise and direct". When one is directed to do some thing, naturally he is authorised to do that thing. Thus when the owner directs his agent to sell his property, the agent need not be separately authorised. Therefore, the words "and authorise" are mere surplusage, and therefore should be deleted. Such writings are not only unnecessarily wordy but may create uncertainty as to which term is intended to be controlling and which, consequently, is surplusage. The best guide here is simply to exclude words or expressions that contribute nothing to the legal message. For example, "It is herein provided that, ..." 3. Repetition of numbers in figures and words: For example, 60 (sixty); Rs. 100.20 (Rupees one hundred and paise twenty only). Edward Vanneman finds this an unnecessary practice in the modern times. According to him, it shows the inference that the reader does not understand Indo-Arabic number syste. He sarcastically observes that we do not repeat numbers in figures and words when we write them in Roman system. Thus we do not write IV (fourth). 4. Overspeciality: In law again, we tend to write too many details which are not really necessary. However, we must remember two things: 1. As observed by David Cavers, brevity is a virtue when it saves the reader's time and patience. Many times longer passages are understood quickly than shorter ones. 2. In many cases it may prove vital to explain compels legal concepts fully and precisely. The objective is to provide clients with as complete a picture as possible of their rights and obligations.

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Another common defect in legal writing is over-speciality or giving too many details, unnecessarily. Plain Wayne illustrates this through a 'gift of an orange'. When an ordinary man wants to give an orange to another, he would merely say, "I give you this orange". But when a lawyer does it, he says as under:
Know all men by these presents that I, Shri __________, s/o __________, __________, Aged about __________ years, occupation __________, resident of __________, hereby give, grant, bargain, sell, release, convey, transfer, and quitclaim all my rights, title, interest, benefit, and use whatever in, of, and concerning this movable property, otherwise known as an orange, or citrus orantium, together with all the appurtenances thereto of skin, pulp, pip, rind, seeds, and juice, to have and to hold the said orange together with its skin, pulp, pip, rind, seeds, and juice for his own use and behalf, to himself and his legal heirs, legatees, administrator, executor, assigns, agents, servants, forever, free from all liens, encumbrances, easements, limitations, restrains, or conditions whatsoever, any and all prior deeds, transfers or other documents whatsoever, now and anywhere made to the contrary notwithstanding, with full power to bite, cut, suck, or otherwise eat the said orange or to give away the same, with or without its skin, pulp, pip, rind, seeds, or juice.

COMMANDING, AUTHORISING, FORBIDDING, NEGATING George Coode in his celebrated work "Coode on Legislative Expression" observes that in English the words 'may' and 'shall', with their negatives, are exclusively the proper auxiliaries of the enacting verb. 1. If a right, privilege or power is to be conferred, the appropriate copula is 'may' or 'may not'. 2. If a right, privilege or power is to be abridges, the appropriate copula would be 'may not'. 3. If an obligation is imposed to render any duty, the appropriate copula is 'shall'. 4. If the obligation is to abstain, the appropriate copula is 'shall not'. 5. If the purpose is to affect the legal subject with a liability or sanction, the appropriate copula would still be 'shall'. When the subject is to be active, the whole enacting verb will be active, 'shall forfeit', etc., and where the subject is to submit, or to be passive, the whole enacting verb will be passive, as 'shall be imprisoned', etc. Reed Dickerson observes that the problems of 'shall', 'may' and 'must' are best seen against the broad spectrum of creating or negating rights, legal authority, duties, or conditions precedent. For these basic legal contingencies Dickerson finds the following conventions to be lexicographically sound: 1. 2. 3. 4. 5. 6. 7. 8. To create a right, say "is entitled to". To create discretionary authority, say "may". To create a duty, say "shall". To create a mere condition precedent, say "must". To negate a right, say "is not entitled to". To negate discretionary authority, say "may not". To negate a duty or a mere condition precedent, say "is not required to". To create a duty not to act (i.e., a prohibition), say "shall not".

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The tense in which a document plays an important role in its interpretation. Because the provisions of continuing effect speak as of the time when they are read, they should be written in present tense. But, when it is necessary to express time relationship, facts precedent to the operation of the instrument should be recited as past facts. Lawyers draft the following types of documents: 1. Statutes: Statutes tell us the present law. Therefore, they are drafted in present tense. 2. Notices and Pleadings: In notices and plaints, the facts which have already taken place are mentioned. Therefore, they are narrated in past tense. But the facts which lead to the cause of action are written in present tense to show that the cause of action is surviving. 3. Conveyancing: Deeds are written in present tense, as they effect the transaction between the parties. But in case of memoranda such as Memorandum of Oral Gift or Memorandum of Oral Partition must be written in past tense, failing which they will be construed as deeds. Thus a Memorandum of Oral Gift will become a Gift Deed and Memorandum of Oral Partition will become Partition Deed. Whereas the memoranda need not be registered, the deeds must be compulsorily registered if the fall within the purview of sec. 17 of the Registration Act. MOOD The words 'shall' and 'shall not' normally imply that to accomplish the purpose of the provision someone must act or refrain from acting. Draftsmen often use these words merely to declare a legal result, rather than to prescribe a rule or conduct. In this usage the words 'shall' is not only unnecessary but involves circumlocution in thought (false imperative). The purpose of the provision is achieved in the very act of declaring the result. Still worse, the use of false imperative may create a doubt in particular cases whether the result is self-executing, as it is in a declaratory provision, or is effective only when the required action is taken. The draftsman should, therefore, use indicative mood in declaratory provisions. Thus, 1. 2. 3. He should not say "The term 'person' shall mean ... ", he should say "The term 'person' means ...". He should not say "The equipment shall remain the property of the lessor", he should say "The equipment remains the property of the lessor". He should not say "No person shall be entitled ...", he should say "No person is entitled ...".

Similarly, draftsman should avoid subjunctive mood and use indicative mood for putting conditions. Thus, he should not say, "If it be determined that ...", but should say "If it is determined that ...". VOICE Experts on readability normally agree that language in which passive voice is predominant is harder to read than language in which active voice is predominant. Therefore, active voice is preferred to passive voice. Active voice also helps to avoid ambiguity by forcing the draftsman to name the person, if identifiable, who has relevant duty, right, power or privilege.

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But that does not mean that one should not use passive voice at all. If there is good reason for using passive voice, there is nothing wrong if one uses it. Sometimes it is not feasible or desirable to identify the person charged with a duty, the recipient of a right or discretionary authority, or the person from whom a right or discretionary authority is withheld or withdrawn. In such a case normally passive voice is preferred to active voice. For example, 1. "The by-stander shall be treated as if he were consumer." (to create a duty in an unnamed person). 2. "The applicant may not be required to pay the fee." (to negate authority in an unnamed person). 3. "A mobile home shall not be moved on a public highway, unless ..." (to create a duty not to act in the unnamed person). GENDER There are two views regarding the use of gender-specific terms in legal drafting. The persons belonging to the first group argue for avoiding the gender-specific terms. They advise the use of following forms, among others: 1. Do not say: "The administrator or his designee shall complete the evaluation form" Say: "The administrator or the administrator's designee shall complete the evaluation form" (Somehow, the author has forgotten that the term "administrator" itself is a masculine term). If it is not possible to adopt the above form, then use: (a) "She or he", "she/he" instead of "he" (b) "Him or her", "him/her" instead of "him"; or (c) "His or her", "his/her" instead of "his". Avoid gender specific titles such as "Chairman" or "Chairwoman", use gender neutral titles such as "Chairperson".

2.

3.

The other group argues that this is an unnecessary exercise. Their argument is based on the following grounds: 1. The word "man" has two meanings. (a) a humanbeing, a person, a member of the human species of either sex; and (b) a male adult humanbeing. Most of the times we use the word in the first sense. "Mankind" means "humankind". "Womankind" is not such a wide term. "Mankind" includes "womankind". The consistent use of the terms like man, he, him, his, etc. have made the terms gender-neutral. Therefore, we should not construe these terms as applicable to masculine gender only. Nothing is so opposed as "day" and "night". Yet there is a sense, as when we speak of "three days' journey", in which "day" includes night. "Man" is used in contrast to woman, but occasionally as a term including woman. A similar shift of sense is perceptible in "he" and "she" - as an arguer also woman is "he". We say a child is two years old (not young), just as we inquire how long (not short) one will stay, or how far (not near) is the station, etc. 2. In many words such as "swordsman", "penman", "policeman", "chairman", the unstressed form 'man' is no longer a word at all, but, in effect, a derivational suffix with meanings of, roughly, "one

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who is skilled in the use of something" (a sword, a pen) or "one who is connected with some act" (policing, chairing). 3. It is better if one can avoid gender-specific terms without contorting the sentences. But the lawyer must not forget that his overriding objective is to express an idea as clearly and simply as possible, not to pursue a social ideology, no matter how lofty it may be. NUMBER So far as substantive meaning permits, it is desirable to use the singular rather than plural. This will avoid the question whether the predicate applies to each member of the subject class or jointly to the subject class taken as a whole. For example, "Certificates will be issued to the members of the teams securing first three places". Whether there will be three certificates to the three teams or will there be one certificate each to every member of the three teams? To avoid such ambiguities we should write either "One certificate each will be given to the teams securing first three places" or "One certificate each will be granted to every member of the teams securing first three places". If it is necessary to use plural, the draftsman can change to the singular, whenever desirable, using the following device. For example, "Employees who have earned 15 or more point credits are eligible for positions under sec. 9. Such an employee... When the number is a matter of indifference, the simplest form that makes this clear is neither singular nor plural, but the generic. For example, "Proof of hardship may be by affidavit, i.e., by one or more affidavits" PROVISOS Coode calls a proviso a bane of all correct composition. According to Coode, it is most desirable that the use of provisos should be kept within some reasonable bounds. He lements that the abuse of provisos has become universal. Formerly provisos were used in an intelligible manner. Where a general enactment was preceded, but a special case occurred for which a distinct and special enactment was to be made, different from the general enactment, this latter enactment was made by way of proviso. The courts, therefore, try to construe a proviso in the same manner, that a proviso is a mode of enactment by which the general operation of a statute was excluded in favour of some case. But when the draftsman does not use the proviso in the same sense, the confusion arises. Therefore, it is advisable to express exception in the part of the sentence to which it relates rather than as a proviso at the end of the sentence. Traditional Use of Provisos: Many traditional forms of documents use provisos. No doubt, we can avoid the use of provisos in them. But Cood's objections do not apply to a proviso in a clause if its purpose is to state circumstances in which the operation of the clause is terminated or modified and something else substituted. Provisos Open to Objection: In some agreements, provisos are used unnecessarily. They are used where a normal form of agreement would do. In some cases provisos are used to confer powers, etc. Such uses are obectionable as that is not the function of a proviso.

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WORDS AND PHRASES TO AVOID The legal draftsman, like any other author, should avoid the use of clichs, weakeners, and needless circumlocutions. Following are some of the words and phrases which Frank Cooper mentions as dangerous for they may cause needless litigations. Weakeners In legal drafting, the lawyer has to state many facts. Because of professional cautiousness about making any flat and dogmatic statements, many legal draftsmen sprinkle their prose with so many qualifying safeguards that convince the reader of the writer's uncertainty. Among such weakeners are: 1. Very: Often one calls something "very good" only because he cannot think of something better to say about it. When an orator says he will speak for a few minutes, it is often a signal that his speech will be long. 2. I am sure that : This is often said when the speaker is uncertain about the matter. 3. As a matter of fact: The reader immediately wonders whether it is really a fact at all. 4. To tell the truth : This indicates that the writer fears he is suspected of falsehood. 5. It is obvious, or It is clear, or It is plain, or Of course : Such phrases have associations of guilt. Many times advocates use them in attempts to gain credence for assumptions of fact which are not supported by evidence, or rules of law which are not supported by precedent. 6. Nearly, Practically, Substantially, In effect : These label the statement as being at least a least a little bit false. 7. We hope to prove : This indicates doubt. It is ordinarily better to say "We shall prove". Weasel Words Weasel is a small, fierce animal with red-brown fur which sucks the blood of rats, rabbits, birds' eggs, etc. on which it lives. A weasel word is a word which sucks the meaning of the words which are near it. American Bar Association Journal defines it as a "word which sucks the very life and content out of those near it, leaving only an empty shell." The most obvious examples are if practicable, all reasonable means, or as soon thereafter as may be. And/Or "And" gives a conjunctive while "or" gives a disjunctive meaning. A combination of the two in the form of and/or is often confusing. It is criticised as devoid of meaning as it is incapable of classification by the rules of grammar and syntax (American General Insurance Co. vs. Webster). In Employer's Mutual Liability Insurance Co. vs. Tollefsen, Justice Fowler called it "Janus-faced verbal monstrosity", while in Minor vs. Thomasson, it was called "interloping disjunctiveconjunctive-conjunctive-disjunctive-conjunction". But there are also supporters of its usage. They are called "andoreans". Andorians support the use of and/or for it helps to achieve brevity. Thus A and/or B means either A or B or both. But the antiandoreans do not find this small reward sufficient to counter balance the confusion that can be created by its use. Meaning of "A and/or B": In Millen vs. Grove, a notice to quit under the National Security (Landlord and Tenant) regulations gave as ground that the premises were reasonably required by the lessor "for her personal occupation and/or for the occupation of some person who ordinarily

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resides with and is wholly or partly dependent upon her". Gavan Duffy, J. deplored the use of and/or, but held that the notice substantially stated the two grounds provided for in the Regulations, viz., the premises being required for her personal occupation and for the occupation of some person, etc. Meaning of "A and (or) B": Though very rarely, sometimes "A and/or B" is expressed as "A and (or) B." In Furness vs. Tennant, the obligation to load "a full and complete cargo of sugar in hogsheads and (or) bags, or other lawful merchandise" was held to be discharged by loading a cargo of sugar either in hogsheads or in bags, or partly in hogsheads and partly in bags. Meaning of "of A, B and/or C": The confusion caused by the use of and/or is evident in such cases. In Cuthbert vs. Cumming it was held that it meant any one of the following 1. "A, B and C" or 2. "A and B" or 3. " C alone", but not "A or B alone". The logic behind it seems to be that the court read "A, B and/or C" as "(A, B) and/or C". In that case the contract was "to load a full and complete cargo of sugar, molasses and/or other lawful produce". Alderson, B. held that the parties were to load a full and complete cargo either 1. of sugar and molasses and other lawful produce, or 2. of sugar and molasses or 3. of other lawful produce. But in Stanton vs Richardson, the Court gave a different meaning to the same phrase. In this case the Court held that "A, B and/or C" included "A alone". Accordingly, "A, B and/or C" meant any one of the following: 1. "A, B and C" or 2. "A alone" or 3. "B alone" or 4. "C alone". The logic behind this construction seems to be that the court read "A, B and/or C" as either "A, B and C" or "A, B or C". Thus, on a charterparty by which a ship was to load a cargo of "sugar in bags, hemp in compressed bales and/or measurement goods", it was held that a cargo made up only of sugar in bags was within the contract. Use of Multiple And/Or: Many documents make use of more than one and/or in a series of terms. For example, A and/or B and/or C. This type of expression would be presumably intended to mean: 1. "A", "B" and "C" or 2. "A alone" or 3. "B alone" or 4. "C alone" or 5. "A and B" or 6. "B and C" or 7. "A and C".

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However, this is not free from difficulty. As in the case of "A, B and/or C", here also there is possibility of diverse opinions. We cannot be very much certain that the Courts will arrive at "A and C" as one of the interpretations of the term. More difficulties are caused by more and/or's in the series. An instance of such case can be quoted from an article which appeared in the February 1933 issue of ABAJ. The article used a phrase "controversies between a State and/or its citizens and another State and/or its citizens". This is in the form "A and/or B and C and/or D". Can a court extract "A and D" as one of the meanings? Objections to the Use of And/Or: Apart from the confusion caused by the use of and/or in such cases, the following are the other grounds of objections to the use of and/or: 1. And/or disturbs run of sentence: The objections to and/or, even when its meaning is not in doubt, are twofold. First is its representation with the sloping sign and its pronunciation. This objection would disappear if it became both in writing and speech "andor". The second objection is to the jolt it gives the reader. To use one word as a conjunction and a disjunction at the same time does not make for clearness. "And/or" may be a much less simple formula to fit into the meaning of a sentence than such a phrase as "with or without". To pass and repass "with horses, and/or cattle and/or sheep" are words not quite so easily understood as to pass and repass "with horses, cattle and sheep or any of them". So it is that a sentence that otherwise runs smoothly may suddenly hold up its reader even by one "and/or", and if there are several he may make a long pause before he can take in all the possible meanings. It is the draftsman's duty to be clear as well as to be brief. Anything that takes his reader's attention from the straightforward run of the sentence is against a ready impression of clearness. 2. It is easy to commit mistakes while using and/or: The use of and/or not only confuses the reader, but quite often it confuses the writer himself. Thus it is easy to commit mistakes with the use of and/or as the following instances illustrate: (a) And/or alters meaning: A definition was worded as follows: "Service of the company, in the case of an employee who became engaged in war service before the commencing date, includes the period in which he was engaged in war service before and/or after that date." It was intended to exclude a period of service wholly after the commencing date, but the "and/or" brought in such service. In place of the words "before and/or after that date" it should have been written "whether wholly before that date or both before and after that date". (b) And/or does not add to the meaning: A Managing Director of a company wrote, "any further increase in costs of land materials and/or taxation will reduce the net return". He needed to say no more than that an increase in the costs of land materials or taxation to have the same result. The and has no significance. (c) And/or implies an impossibility: An insurance policy read: "If the ship is totally destroyed by fire in the Pacific Ocean and/or Mediterranean ...". A ship which is totally destroyed in the Pacific Ocean cannot again be destroyed in the Mediterranean, and vice versa. Therefore, and shows an impossibility. It is sufficient to say "Pacific Ocean or the Mediterranean". The above illustrations are sufficient examples of the doubts and difficulties, and often absurdities, that arise from the use of the expression "and/or". In some contexts it causes no doubt and is quite in place. It is then shorter than any of its alternatives, and makes the statement brief. But before

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using it, the writer should consider all its possible meanings in the given context, and see whether all of them fit the facts. Similarly, a careful reader is also put to the trouble of making sure that he has taken in all the meanings that are implied. With its liability to doubt and absurdity, it is a phrase best left unemployed by anyone who is responsible to his client for the accuracy of what he writes. Legalese Non-lawyers, however educated they may be, frequently complain that they do not understand "lawyer's language". Often, the language is not understandable to other lawyers also. This is mainly because of the use of highly technical terms. It is sometimes tempting to use long words and to parade one's legal learning. About half a century ago, an English lawyer stated that Utopia will come into existence when "an educated man will be able to understand the language of his own deeds and of the laws by which he is governed. An unaccountable characteristic of legal drafting is the gratuitous and wholly unnecessary interpolation of "such" and "said". It is strange that lawyers use these words too frequently in their writing, but not in their normal conversation. Other writers than lawyers do not use these words. The use of these words are sometimes wrongly made. Thus, 'such' means 'that kind of' and connotes class or quality, but it is carelessly used as a synonym for 'said' even by highly intellectual lawyers. Another instance of legalese is the use of words which declare faith. Some such terms are "I believe", "I think", "it seems to me" and "it would seem". These expressions are intended to emphasise sincerity of the lawyer's belief in his argument. Instead of assuring the judge about the sincerity of the lawyer, they rather rub the judicial ermine the wrong way. It is taken for granted that a lawyer would not urge upon the court an argument in which he did not believe. Therefore, as Mortimer Levitan observed , declarations of faith are commendable in their place, but brief is simply not the place. Periphrasis Periphrasis, also called circumlocutions, is the putting of things in a roundabout way. "In Paris there reigns a complete absence of really reliable news." is a periphrasis for "There is no reliable news in Paris". According to the users of periphrasis, the existence of abstract nouns is a proof that abstract thought has occurred. Abstract thought is a mark of civilised man. Therefore, periphrasis and civilisation are inseparable. Signs of nouns depending on one another and the use of compound prepositions are the most conspicuous symptoms of periphrasistic malady. Therefore, writers must be careful to watch for their occurrence in their own writings. Some common examples of compound prepositions are, "inasmuch as", "in connexion with", "in order to", "in relation to", "in so far as", "in the case of", "in the matter of", "with regard to", etc. Some of these are much worse in their effect upon English style than others, but on the whole, they are almost the worst element in modern English, stuffing up what is written with a compost of nouny abstractions. Young writers are often attracted by these and feel that they bring an expansive sense of power to their writing. But later they know better and then understand that it gives feebleness to their writing than power. The commonest periphrases are those formed the aid of colourless abstract nouns; e.g., the plain adjective disagreeable often appears disguised as of a disagreeable cbaracter, nature, description,

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sort or kind; the plain adverb briefly is often expanded unnecessarily into in a brief way or manner, and considerably into to a considerable degree or extent; often and seldom into on many (few) occasions or in many (few) cases or instances; nearly into in the neighbourbood of. Other abstract nouns like regard, respect, reference, connection are responsible for such longwinded expressions as with regard to and in reference to for about, in regard to for in, having regard to the fact that for as, and other compound preposition or conjunction phrases. Here is a monstrosity containing two of these phrases: * The special difficulty in Xs case arises in connection with the fact that he resides so far from his place of work. (22 words.) Compare the following version, which is concise, simple and direct : * X is specially handicapped by living so far from his work. (11 words.) Another common source of circumlocution is the use of meiosis, i.e., understatement used halfapologetically in order to impress; e.g., not an inconsiderable amount of for much, not infrequently for often, possessing an influence by no means to be despised for influential. Gobbledy-Gook Gobbledy-gook is the name given by Maury Maverick to a kind of jargon used by some bureaucrats. It is also used by the lawyers in their writings and speech. Jargon is a talk that is considered both ugly sounding and hard to understand. It is applied to: 1. The sectional vocabulary of a science, art, class, sect, trade, profession, full of technical terms. 2. Hybrid speech of different languages. 3. Loosely the use of long terms, circumlocution, and other clumsiness. It is better if the term jargon is confined to the first sense. In that sense alone it has plenty of work. Barbarisms Barbarism means uncivilised condition, grossly uncultivated taste, an illiterate expression or a word formed in an unorthodox way. Here the word is used in this last sense. This meaning was given to it by the Greeks. It conveys no more pejorative an implication than that it is a sort of thing one might expect from a foreigner. Even so, barbarism may seem a hard word to fling about, apt to hurt feelings, though it may break no bones. It is better to avoid both barbarisms and the word barbarism itself. Cooper states that barbarisms indicate inexact concept of the meaning of common words, or a complete unawareness of the conventions of English style. He draws our attention to the following "atrocities": 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Do not say "claim" when you mean "assert". Do not say "anticipate" when you mean "expect". Do not say "feel" when you mean "think". Do not say "implement" when you mean "carry out" or "fulfil". Do not say "integrate" when you mean "co-ordinate". Do not say "prior" when you mean "before". Do not say "verbal contract" when you mean "oral contract". Do not say "alibi" when you mean "excuse". Do not say "like" when you mean "as". Do not say "infer" when you mean "imply" ("imply" is to make a suggestion; "infer" is to receive it).

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11. Do not say "comprise" when you mean "compose" ("comprise" means "encompass"; "compose" means "form"). 12. Do not say "than" when you mean "from". 13. Do not say "due to" except with reference to a noun. 14. Do not say "if and when" unless both conjunctions are needed. They rarely are. The lovers of any language hate the use of unconventional words. But, Fowler points out that in this era of democracy, it can be hardly expected that the susceptibilities of so small a minority should be preferred to the comfort of the millions. He, therefore, opines that it is easier for the former to dissemble their dislike for barbarisms than for the latter to first find out what they are and then avoid them. There are, however, two serious difficulties: 1. We may lack the information that would enable us to decide whether any particular word is or is not a barbarism. Though a competent philologist can guide us, unfortunately we cannot find a philologist every time we come across a dubious word. 2. A barbarism is like a lie. It has got the start of us before we have found it out, and we cannot catch it. It is in possession, and our offers of other versions come too late. Fowler laments that that barbarisms should exist is a pity. To expend much energy on denouncing those that do exist is a waste. To create them is a grave misdemeanour; and the greater the need of the word, the greater its maker's guilt if he miscreates it.

SIMPLIFICATION OF STYLE
A. PLAIN ENGLISH It is often stated that lay persons cannot understand the law and legal documents, because they are in the "language of the law". Even the well educated mass cannot understand this language of the law. Therefore, they cannot understand the effects of their own deeds. This results in unnecessary litigations. Therefore, naturally, there is a demand for simplification - simplification of language as well as simplification of substance. President Jimmy Carter officially made it clear that the laws and other official drafting should be in plain English. A reading of the law shows that it is not in plain English. It is not properly subdivided and captioned. WAYS TO PLAIN ENGLISH Rudolf Flesch gives us the recipe for simplicity in the form of three rules: 1. Talk about people 2. in short sentences 3. with many root words. He further tells an easy trick for achieving these three things with one simple rule: use of verbs. He observes that nothing is a simple as a brief three-word sentence that follows the pattern: somebody does something. It is the verb that gives life to any sentence; it literally makes the sentence go. Reed Dickerson advises draftsmen to arrange their sentences so as to make the fullest use of finite verbs instead of their corresponding participles, infinitives, gerunds, and other noun and adjective forms denoting action. Thus, one

118 should not say give consideration to give recognition to have knowledge of have need of in the determination of is applicable should say

LANGUAGE AND THE LAW should not say is dependent on is in attendance at make an appointment of make application make payment make provision for should say depends on attends appoint apply pay provide for

consider recognise know need in determining applies

Dickerson also advises the avoidance of the following terms altogether as they are mere gobbledygook: above (as an adjective) above-mentioned afore-granted aforementioned aforesaid before-mentioned henceforward herein hereinafter hereinbefore hereunto premises (in the sentence of matters already referred to) said (as a substitute for "the", "that", or "those") same (as a substitute for "it", "he", "him", etc.) thenceforth thereunto therewith to wit under-mentioned unto whatsoever whensoever wheresoever whereof whosoever within-named witnesseth

Dickerson further suggests the use of easier alternatives in place of some difficult words such as accorded (given), adequate number of (enough), admit of (allow), at the time (when), cause it to be done (have it done), etc. Alan Siegel opines that writing with a personal tone can make for better communication. Using active rather than passive voice, shorter sentences, contractions, and addressing the parties directly instead of in the third person, are among the other suggestions given by Siegel. He also goes to the extent of suggesting that we should use examples in legal drafting as in case of any other drafting, to make the ideas clear. He also quotes an example from an insurance policy: "Your teenage daughter borrows a car belonging to her friend's father with the understanding that she is to drive to the airport. She is covered if she goes to the airport but not if she goes on a 400-mile trip." PLAIN ENGLISH AND THE LAW "Plain English" is in many legal contexts anything but plain. Besides, the concept suggests that there is an ideal way to say things that will fit all legal audiences. Because legal audiences differ, the draftsman should be able to adjust his focus accordingly. On the other hand, no great harm is involved if such a law focuses solely on professionals. Further, readability is not the same as substance clarity. A document can meet Flesch or Gunning test 100 per cent without rising above pure gibberish. What we should try to achieve a general performance standard of decently readable substantive clarity. Our "simplicity" should be such a simplicity that does no material violence to the substantive values that inhere in the subject matter. Moreover, as Dickerson points out, any approach to clarity that is tied only to language misses a least two important aspects of the problem. Functional clarity depends not only on clarity of

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language but also on clarity of concept and clarity of organisation. There may also be fourth: clarity of context. The price of clarity is that the clearer the document the more obvious its substantive deficiencies. For the lazy or dull, this price may be too high. Siegel observes that a careful layout and attractive design are as important as clear language. If the document look terrifying, it does not matter how easy the words are. They will never be read. Good design sets tone for the document. It communicates the document's intent as much as words do. It also makes the document more useful, by guiding the reader's eye to the information he wants to know. Details like type size and type face, length of line, fixed or ragged margins, even the colour of the paper used for printing are all important tools for communication. Carl Felsenfeld also expresses the same opinion, that the design of a document can be as important as its language. Siegel's main emphasis, however, is on the point that language must follow logic, both conceptually and chronologically. SIMPLIFICATION OF SUBSTANCE Simplifying language will be ultimately futile if the underlying thought remains confused. To adequately simplify the substance, we must solve two problems: 1. The draftsman should determine whether any substantive complexities may be prudently dropped. Although it is not the draftsman's responsibility to determine substantive policy, it may be appropriate in some instances to ask the client whether all the contemplated contingencies are worth reflecting. The process of adding legal "protections" to an instrument is generally a fairly relaxed and undisciplined exercise. Contracts generally grow from a "precedent", i.e., a contract that was previously used in a similar transaction. Though many of the provisions in the previous contract are not needed, they tend to remain. New phrases and paragraphs are added because they are "desirable". The plain English movement requires a new drafting approach. Each paragraph, each sentence should be analysed one at a time against the specific transaction and the type of protection necessary. Many of the traditional paragraphs will be found unnecessary. 2. The draftsman should also determine whether, without changing substance, the conceptual structure can be simplified. This involves searching for the lowest common denominator. The problems of remainders over gets more complicated as the number of beneficiaries increases. Remainders over can be simplified by thinking of remaindermen as a class. Otherwise, the draftsman will have to set up separate provisions for each remainderman in identical or nearly identical terms, thereby increasing the length of the document unnecessarily, and imposing an unnecessary and irritating burden on the reader and the burden of at least mechanical checking on the draftsman himself. PLAIN ENGLISH: CLARITY AND READABILITY Frank P. Grad dismisses "plain English" as a false issue. He opines that many problems that need legislative resolution are complex and difficult. To pretend that they are susceptible of "plain statement" is as misleading as to assert that such problems are susceptible to simple, easy solution. We need complex language to state complex problems of law or fact. A simple statement of issue does not itself simplify it. On the contrary, it may mislead the reader to believe that the problem is simple. Form follows function. The language of drafts of legislation should address itself to the

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problem to be resolved. If the complex problems require complex language for their resolution, the draftsman has to use complex language. No trained draftsman uses complex forms unnecessarily. Despite the popular notion to the contrary, a good draftsman does try to write a statute so that it can be understood by those to whom it is directed and those who have to administer it, and to achieve this, he tries to use plain English. But still, many statutes are complicated and difficult to comprehend. This is not the fault of the draftsman. Statutes are laws. They are intended to regulate human relationships. If those relationships are complicated, the laws regulating them will also be complicated. This is true of many scientific theories also. Atomic energy, theory of relativity, astronomy, etc. are all complicated. Scientists cannot explain them so that every schoolboy will understand. These theories can be explained in a popular way so that an intelligent reader can get a general idea of the theory. But to those who have to apply the theory, the theory must be explained exactly and technically. Same is with law. A short and simple description of statute can be easily given so that any literate person can understand in a general way what it is all about, but that description cannot be a substitute for law itself. The requirements for plain English policies and forms are either very general, or in the case of the readability formula requirements, specific but not very useful. Although readability formulas are at best assessment tools, they are often used erroneously as guides for rewriting. Then, what is plain English? A number of guidelines are currently being used for writing of documents in plain English. From them, we might be able to piece together a description of plain English. 1. On the sentence structure: (a) Sentences should be simple and short: But discourse composed of simple, short sentences is not only unnatural, it is incredibly boring. Further, eliminating the surface complexity of discourse only drives the complexity underground. When we remove relative clauses, we remove the logical connectors that give meaning and coherence to a sentence. (b) Avoid gerunds, participles, and infinitives: This will make the sentences difficult to construct and unnatural. (c) Exhortations to avoid passive voice: This is comparatively more rational. But linguistic theory and psycholinguistic research tend to show that full passives are no more difficult than active form where the focus of the sentence requires them. In fact, where the focus requires a passive, the active form will be more difficult to process. (d) Elimination of unnecessary words from sentences: This suggests removal of unnecessary words, particularly the "relative pronoun-plus-copula" in sentences such as "the woman [who was] meditating on the future of human race answered the telephone", or "the places [which are] described in this brochure. Linguists call this "whiz" (wh__ is) deletion, and linguistic theory, supported by some psycholinguistic data indicates that such deletions tend to increase sentence processing difficulties. 2. On the level of vocabulary: (a) Avoid "jargon" and "gobbledygook": However, these terms are not always defined. The general meaning is that one should use short, common and easily understood words. But not all short words are common and easily understood, and not all common and easily understood words are short. Further, what is easily understood by lawyers is not easily understood by engineers or doctors, and vice versa. (b) Personalisation: Instead of "borrower agrees to repay the loan to the creditor", write "I agree to repay the loan to you", or "You agree to repay the loan to me". The problem

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inherent in personalisation is apparent from this example. How does the writer choose who is to be "I" and who is to be "you"? As this decision is arbitrary, the reader may find it difficult to remember who is who. The result may be "plain English", but it may also confuse more than it elucidates, if it is not done carefully. The use of readability formulas has created another set of misconceptions about the nature of "plain English". many readability formulas such as "Flesch Test" and the "Gunning Fog Index" are based on word and sentence length. The shorter the sentences and words, the higher will be the readability score. But if we observe our everyday usage of English, it does not consist of short sentences with short words. Therefore, and also as research shows, the results of readability formulas are not reliable measures of the comprehensibility of written discourse. Sentence length is itself a symptom of complexity, it is not the cause of it. The complexity and difficulty of a sentence depend upon its syntactic and semantic structures. It is very easy to write short sentences with short words that are totally incomprehensible. It is also possible to write long sentences with long words that are very comprehensible. In short, writing to "fit the formula" may seem to produce plain English, but the result is more likely to be disorganised baby talk. B. ARCHITECTURE Drafting of a document is often compared to construction of a building. It requires a lot of planning. James Mackay observed that in the art of legal drafting the whole is antecedent to the parts. This is an important rule in case of all writings, but more so in case of legal composition. The draftsman should have a clear idea of what he is expected to write before he starts writing. Then he should divide the matter into smaller units and sub-divide these units into smaller subunits, and so on. A skilled draftsman can do it mentally, but others will have to lay out a scheme of whole composition on paper before he starts drafting. Such plans suggest omissions which require to be provided for, and if provided for in time prevent further difficulties of construction of the document. The draftsman should then draft each part separately. While drafting each part he should concentrate on that part alone. But at the same time he should not lose sight of the whole document and the relation of the part under consideration with the whole document. Normally the legal documents are divided into parts, chapters, sections, sub-sections, clauses, subclauses, etc. depending upon the length of the document. The nomenclature may also differ from document to document according to the requirement. But the cases are rare where division is not necessary in legal drafting. Even the smallest of the documents is divided into paragraphs. Division is important from at least three points of view: 1. Without division reference to particular points will become very difficult. 2. Division gives the person who has to study or explain the document the relief of natural pause such as the reader of a book gets when he completes a chapter. 3. Probably, the most important use of division is to the writer himself. Each division being in its turn a whole part of the composition, the attention of the writer may be specially directed to its management. The simplest and the best mode of expressing divisions is by numbers, and the distinction of Roman and Arabic enables them to be used for the principal and also for subordinate divisions. When still further division is required, the letters of alphabet become of use. This also depends upon the nature of the composition.

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The document as a whole is designed to achieve some idea. Often, this idea is quite broad and conists of several concepts. The document may be divided according to its components and functions. Thus Contract Act can be divided as under: INDIAN CONTRACT ACT, 1872

CONTRACTS

QUASI CONTRACTS

This may be further sub-divided as under, and thus appear further boxes: INDIAN CONTRACT ACT, 1872

CONTRACTS

QUASI CONTRACTS

Formation

Classification

Discharge

Remedies

As can be seen, every time we make a further division, there appear more and more boxes based on these divisions, until we have a huge pyramid of boxes. Finally one may see that when we were splitting the Contract Act up into finer and finer pieces, we were also building a structure. This structure of concepts is formally called a hierarchy and since ancient times it has been a basic structure for all knowledge. Thus, our country is divided into states, states into districts, districts into taluks, taluks into villages and towns, and so on. In biology also we find this type of division. We divide the living beings into plant kingdom and animal kingdom. Each kingdom is divided into phylum, order, class, genus and species. The whole thing is a system. PRINCIPLES OF ARRANGEMENT The principles of arrangement are too complicated to be adequately presented here. In general, the objective of arrangement is to develop the most useful hierarchy of the concepts that inhere in the problems to which the legal document is addressed. In meeting this objective, the draftsman has to deal with three kinds of problems: 1. Problems of division, 2. Problems of classification, and 3. Problems of sequence. Problems of Division: Problems of division are those involved in determining the bases on which the divisions are made. The draftsman should choose the most fundamental basis of arrangement for his primary breakdowns, the next most fundamental bass of arrangement in descending order of importance.

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The problem of division with respect to each set of elements is, to use an illustration, like that of selecting the most appropriate implement for cutting a cake. The cutting implement may, depending upon the nature of object, be chronology, age, importance, sex, weight, or rank. Whichever is selected for the job, it must be used until the entire cake has been cut. Logical division is the name of the process by which we distinguish the species of which the genus is composed. The basis or the principle of division is called the fundamentum divisionis. James Mackay lays down the following three rules to which a sound and useful division must conform. 1. The constituent species must exclude each other. 2. The sum of the constituent species must be equal to the genus. 3. The division must be founded upon one basis or principle. Mackay gives the example of a wag who divided the genus human beings into men, women and French. This violates the above three rules. 1. The constituent species (men, women and French) do not exclude each other. French includes men and women. 2. The sum of the constituent species does not equal the genus (human beings). It omits children. 3. The division is not founded upon one basis, It is based on sex and nationality. Problems of Classification: Once the draftsman has selected the proper implement for cutting the cake, his next problem is to determine the places at which he has to cut the cake. Thus, once a basis of division has been tentatively selected, its application to the materials at hand leads inevitably to the problem of classification. All classification may be said to be artificial, in the sense that we select the traits upon the basis of which the classification is performed. That is the reason for the controversies as to what is the proper classification of various sciences. Various sciences may be classified in different ways according to the objectives of such classification. Various classifications may differ greatly in their logical or scientific utility. The various traits selected as a basis of classification differ widely in their fruitfulness as principles of organising our knowledge. Thus the old classification of animals into those that live on land, those that live in air (birds) and those that live in water (fish) gives us very little basis for systemising all that we know and can find out about these creatures. The habits and structure of whale are more close to those with hippopotamus or horse than with the fishes. Whales have mammary glands and suckle their young, while fishes lay eggs. This makes a difference which is fundamental for the understanding of the whole life cycle. Thus, some traits have a higher logical value than others in enabling us to attain systematic knowledge or science. Therefore, it is said that the business of science is first to gather the facts and then to classify them. But we do not have a clear or adequate account of the situation. Some classification is involved in determining what facts we should gather. But the most important thing is to pick out the trait in the objects studied which will be the most significant clue to their nature. One important rule of classification is that the draftsman must not dismember a functionally indivisible subject merely because it falls partly within one heading and partly within another. Dickerson gives an example of classification of dogs in which one dog is a white dog with brown ears. If a person is sorting dogs by colours and putting them in separate pens, he would not cut off the brown ears of a white dog and put the dog in pen for white dogs and throw the ears in the pen for brown dogs. He would either put the dog in the pen for white dogs because it is a predominantly white dog. Or else, he will create a separate pen for the dogs of mixed colours. Problems of Sequence: Once a particular cake has been cut, the third step is to arrange the resulting pieces or elements in the most appropriate logical sequence. In mathematical terms, this

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makes the set of elements an "ordered set". There will be as many such sequences as there are bases for division used in the instrument. Except for the sequence of elements in the principal division used in the instrument, each sequence will represent the division of an element that appears in a higher sequence. Dickerson gives a few useful rules of thumb for division of a legal document: 1. 2. 3. 4. 5. General provisions normally come before special provisions. More important provisions normally come before less important provisions. More frequently used provisions normally come before less frequently used provisions. Permanent provisions normally come before temporary provisions. Technical "housekeeping" provisions such as effective date provisions, normally come at the end.

In practice, however, these principles sometimes cause conflicting results. In such a case the draftsman should use his judgment to decide which principle is more important under the given circumstances. OVERREFINEMENT Though division of the matter is necessary for proper presentation of the matter, James Mackay warns against too many and minute subdivisions of the legal composition. Such subdivision, instead of assisting, perplexes memory, creates difficulties instead of removing them in the matter of reference, and does not in the least help to the understanding of the composition as a whole. The divisions of a legal composition should reduce it into visible and tangible parts, and not to atoms. RECURRING MATTERS Some of the difficult problems of arrangement arise due to recurring situations. If a term recurs throughout the instrument, it can be handled once and for all in a single provision. Such a statement should be located at the beginning or at the end of the part involved. Readers normally look for such provisions at the beginning or at the end of the part, because it is customary to put it there. However, this is possible if the situation recurs in one part. If it recurs in many parts, difficulties arise. If we place them at the beginning or end of each part in which they appear, the readers can easily find it, but that requires repetition. This means longer instrument and the chances of unintended differences. If they are given in a single, unified solution, it is hard to place the provision where it can be readily found. Thus there is a risk that some of its important applications may be overlooked, because it may fail to serve as a usable answer to the problem in all the places where it arises. Some times the draftsman can use internal cross references to avoid this difficulty. For example, he may use the phrases such as, subject to the provisions of sec. 4, ). But in Reed Dickersons opinion, it should be kept to the minimum as it costs heavily in readability and clarity. Even more difficulty is caused by the recurrence of problems in more than one document. The desire for contiguity suggests that the statement should be repeated in every place. The price of this will be the multiplicity of statements. Even greater difficulty will be faced while amending the statement whenever necessary. Any mistake in amendment will cause nonuniformity in treatment. The burden of this price should be taken or not depends upon three considerations: 1. 2. 3. the length and complexity of the statement its importance, and the amount of repetition involved.

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While economy, ease of amendment, and the resulting uniformity are the positive aspects, incompleteness, lack of findability, and consequent misunderstanding are the negative aspects. The draftsman, therefore, has the following choices or the combination of these choices. 1. 2. 3. Repeating the provision Placing it where it has more important application Framing it as an independent document

C. MICRO-ARCHITECTURE Whereas architecture means arrangement of the matter in the document, micro-architecture means the arrangement of words in a sentence. In this sense, it means syntax. According to Layman Allen there are two dimensions that affect the meaning of expressed in a sentence. 1. the semantic dimension, and 2. the syntactic dimension. Allan feels that more attention is given to the semantic dimension than to syntactic dimension. Legal education is no exception. SIMPLE MODIFICATION Because English words have few inflections, it is important to put them in right order. We have already noted that the meaning of a sentence depends on the order in which words are arranged. Same words may be arranged in different orders to mean different things. Thus "Cat chased dog" and "Dog chased cat" use the same words in different orders and therefore give different meanings. Thus, wrong arrangement of words can either cause wrong meaning or ambiguity. Ambiguity may be caused by several mistakes of syntax. We can quote five such instances here. There may be more. 1. 2. 2. 3. 4. Squinting modifiers Juxtaposed modifier and modified Pronominal reference Use of successive prepositions Terminal use of 'because'

Squinting Modifiers Modifiers are especially tricky. We have already discussed the ambiguity caused by squinting modifiers. Thus "No person may molest an animal on highway" is an ambiguous sentence. Usually this ambiguity can be cured by placing the modifiers as close as possible to the words they modify. But this is not always possible without repetition in at least the following two cases: 1. When a modifier relates to multiple terms. For example, 'charitable institutions and organisations' is ambiguous because it is hard to tell whether the modifier 'charitable' is applicable only to 'institutions' only or to both 'institutions' as well as 'organisations'. 'charitable institutions and charitable organisations' would be unambiguous. 2. When multiple modifiers are applicable to a term. For example, 'typing and copying charges' is ambiguous because whether only 'copying' modifies 'charges' or both 'typing' as well as 'copying' modify 'charges is hard to tell. 'typing expenses and copying expenses' would be unambiguous.

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One of the most troublesome problems of ambiguity is that of determining the scope of a modifier and the scope of a thing modified. When the two are juxtaposed, it is often hard to tell whether a particular word is a part of the modifier or part of the thing modified. To take a simple example, whether 'mini car plant' means 'a plant manufacturing mini cars' or 'a mini plant manufacturing cars' is difficult to tell. Pronominal Reference Careless use of pronouns causes similar trouble of interpretation. For example, 'Plaintiff and defendant went to his house' may be an ambiguous sentence unless 1. context clarifies the meaning, or 2. either of them is a woman. If both are men, then whether plaintiff and defendant went to plaintiff's house or defendant's house is difficult to say. Even it is possible that they might have gone to the house of a third person. Such ambiguity can be avoided by avoiding pronominal reference. Thus, 'Plaintiff and defendant went to the Defendant's house' is an unambiguous sentence. Thus, when context leaves a significant uncertainty, the pronoun should be replaced by the name of the person or thing to which it refers, or the context should be appropriately changed. This rule is also applicable to the abridged references. A simple reference to 'the Corporation' may be adequate in a document in which there is only one corporation involved. If there are several corporations involved, it is safer and better to use refer to the particular corporation by name unless the context makes it clear which one is meant. Successive Prepositions Ambiguity may also arise when there are two successive prepositional phrases. Thus "Driver of a bus on the road" is ambiguous because it is difficult to tell whether it is the bus is on the road or the driver is on the road. This ambiguity can be easily avoided by rewriting the sentence either as "Driver of a bus who is on the road" or as "Driver of a bus which is on the road", depending upon the necessity of meaning. 'Who' can be applicable only to the 'driver' and 'which' is applicable only to the 'bus'. Another example is "Every shareholder of a company in India". Does the phrase 'in India' relate to 'shareholder' or 'company'? The ambiguity can be resolved by rewriting the phrase either as "Every shareholder of a company who is in India" or as "Every shareholder of a company incorporated in India". Terminal Use of 'Because' A terminal 'because' clause is often ambiguous in that it is not clear whether the clause applies to the entire statement or merely to the phrase immediately preceding. For example, in the sentence, "The union may not rescind the contract because of hardship", it may not be clear whether the draftsman intended to say, "The union may not rescind the contract, because doing so will cause him hardship" or "The union may not rescind the contract using hardship as the justification". The ambiguity lies in the doubt whether the word 'not' negates the broad power to "rescind the contract" or the narrower power to "rescind the contract because of hardship". if the draftsman intends the former, he should at least use a comma after 'contract'. Even better would be to place 'because' at the beginning of the sentence. If he intends the latter, he might say, "The union may not rescind the contract on the ground of hardship".

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Ambiguity may be avoided by using proper context or proper syntax. In some cases we observed that by using the names instead of pronouns, we could avoid ambiguity. In some cases by repeating modifiers we could avoid ambiguity. It is unfortunate that English has so few symbols for showing that specific phrases form a unit. The hyphen has only a limited utility for this purpose. Mathematics has solved the problem largely thorough the use of parentheses and contiguity. To avoid the ambiguity in the expression "x plus y times z", a mathematician would either write "(x + y) z" or "x + yz", depending upon the substantive result intended. Though writing convention permits only a sparing use of parentheses, they are sometimes usable for this purpose. For example, the phrase "active duty other than for training before July" is ambiguous because 'before July' may be applicable either to 'active duty' or to 'training'. But in the phrase "active duty (other than for training) before July" there is no such ambiguity, because 'before July' can be applicable only to 'active duty' and not to 'training'. Sometimes, a pair of commas also perform a similar function. They are useful in setting off a group of words as a verbal unit. But, unfortunately, they are weaker devices than parentheses because, unlike parentheses, commas are non-directional. When used in the vicinity of other commas, it is often uncertain how they are to be paired.

MULTIPLE MODIFICATION Difficult Choice Between "And" and "Or" In a field like legal drafting where high degree of precision is required, to know when to use and and when to use or is one of the most difficult problems. Fortunately for the courts and the other readers of the legal documents, a correct choice between and and or does not always control the result. This is because the basic principle that language is to read in its broadest appropriate context has revealed intended meanings unsupported or denied by a grammatical word-by-word construction of the text. Then why should we bother ourselves with such a question as to when to use and and when to use or? Reed Dickerson gives three reasons for this. 1. The reason is that context, however valuable, does not resolve all doubts and correct all imprecision. 2. A system of communication should be internally consistent. Grammar should support, rather than subvert, the intended meaning. 3. General clarity is usually the cumulative results of attending to many individually insignificant matters. The difference between and and or is usually explained by saying that and stands for conjunctive, connective or additive and or stands for disjunctive or alternative. And connotes togetherness while or connotes choice or option. Beyond this point difficulties arise. Mainly there are two difficulties. 1. One difficulty is that each of these words is on some occasions ambiguous. It is not clear whether the draftsman intends the inclusive or (A or B or both) or exclusive or (A or B, but not both).

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While the above difficulty is notorious, what is less known is the fact that there is a corresponding ambiguity in the use of and. This ambiguity arises out of the difficulty to know whether the draftsman intended several and (A and B, jointly or severally) or joint and (A and B jointly but not severally). This uncertainty also surprises some, because and is normally used as several and. Even so, the draftsmen sometimes intend things to be done jointly or not at all. Thus when one purchases a pair of shoes he purchases left shoe and right shoe jointly but not severally. There will be no uncertainty here. But when one speaks of husbands and wives there may be uncertainty as to the right, privilege or duty extends to only husbands without wife, and vice versa, or whether they should be enjoyed or discharged by husband and wife together. Where such doubt can arise, it is desirable to recognise it and deal with it. Observation of legal usage suggests that in majority of cases or is used in the inclusive rather than exclusive sense, and and is used in several rather than joint sense. This is valuable information for legal writers and readers, because it means that in the absence of special circumstances they can rely on simple ors and ands to carry these respective meanings. Special circumstances in which it is unsafe to rely upon this general usage exist wherever the courts have shown unfriendly attitude in interpreting language. Thus where the courts will apply strict interpretation to a statute such as a criminal statute, it is unsafe to rely on the chance that or will be given its normal inclusive meaning. It is safer to say expressly, shall be fined not more than Rs. 5000, or imprisoned for not more than 3 years, or both. 2. Another and more perplexing difficulty arises due to a possible conflict between grammatical meaning and contextual meaning. In such cases it is uncertain as to whether the draftsman has attempted an enumeration of persons or institutions, or whether he has attempted the enumeration of their characteristics or traits. Take for example, the phrase every husband and father. If this is used for enumeration of two classes of persons, the better way of saying that would be every father and every husband. If on the other hand, it is intended as enumeration of characteristics or traits necessary to identify each member to be covered, the better way of saying that would be every person who is both a husband and a father. Where and is used to enumerate persons or institutions, there are two ways of expressing it. (a) By enumeration of persons, using and, and (b) By enumeration of their identifying characteristics or traits, using or. This is not to say the and means or. It is to say that whether you use and or or in such a case depends upon whether you identify these persons by enumerating several classes into which they fell or by defining them as a single class by enumerating their identifying characteristics. A corollary to the above statement is that shifting from and to or without shifting from a persons approach to a characteristics approach affects the grammatical meaning. Reed Dickerson gives the following example to clarify the above discussion. Provision A The security roll shall include: 1. 2. 3. each person who is 70 years of age or older; each person who is permanently, physically disabled; and each person who has been declared mentally incompetent. Provision A The security roll shall include each person who: 1. 2. 3. is 70 years of age or older; is permanently, physically disabled; or has been incompetent. declared mentally

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Although both the provisions say exactly the same thing, and is necessary to Provision A because it enumerates three separate classes of persons each of which must be included, whereas or is necessary to Provision B because it names a single class of persons by enumerating three alternative qualifications for membership. Use of "And" and "Or" with Modifiers There are four main variations of phrases using "and" and "or". They can be depicted by the following examples. 1. 2. 3. 4. charitable and educational institutions. charitable or educational institutions. charitable institutions and educational institutions. charitable institutions or educational institutions.

"Charitable and educational institutions" may mean either of the following: (a) Institutions which are both charitable and educational. (b) Charitable institutions and educational institutions. Normally adjectives are used cumulatively rather than distributively. Therefore, normally the first meaning is more appropriate. This is true of mandatory as well as permissive sentences. However, sometimes the second meaning may be the meaning intended by the draftsman. If that is the case, the draftsman shall use the word 'institutions' twice to make the meaning clear as it is done above in (b). For example in "copying and typing expenses" the modifiers are mutually exclusive. The same expense cannot be both 'typing' and 'copying'. Therefore only the second meaning is applicable. Though the phrase "typing and copying expenses" is shorter and has the sanction of usage, it would be grammatically preferable to say "typing expenses and copying expenses". "Charitable or educational institutions" may mean any of the following: (a) (b) (c) (d) Institutions that are either charitable or educational, but not both. Institutions that are charitable or educational or both. Charitable institutions or educational institutions, but not both. Charitable institutions or educational institutions or both.

It is believed that the second meaning is the normal meaning. This is true of mandatory as well as permissive sentences. If other meanings are intended then it is better to use the words in (a), (c) or (d) to make the meaning clear. It may also be noticed that though phrases (b) and (d) are differently worded, they are, in most of the cases, substantively the same. It is normally inferred that if you may or must have institutions that are either charitable or educational or both, you may also have both charitable institutions or educational institutions. Conversely, if you may or must have both charitable institutions and educational institutions, you may also have institutions that are both charitable and educational. If we consider the phrase "typing or copying charges", the modifiers are mutually exclusive. Therefore second meaning is not possible. The third meaning may also be excluded if we infer the normal inclusive 'or'. Normally the first meaning is the proper one. Again it may be noticed that in most cases the fourth meaning is the same as this meaning. If you may or must pay expenses that are either typing expenses or copying expenses, it is normally inferred that you may pay both type of expenses. "Charitable institutions and educational institutions" may mean either of the following:

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(a) Both charitable and institutions and educational institutions, which may include institutions which are both charitable and educational. (b) Charitable institutions or educational institutions or both, which may include institutions which are both charitable and educational. In case of mandatory sentences one must have both kinds of institutions. Here 'and' is joint rather than several. The first meaning is, therefore, the normal grammatical reading. If the sentence is permissive, however, one may have either type of institutions. Here, 'and' is several rather than joint. The second meaning is, therefore, the normal grammatical reading. Thus, in 'typing expenses and copying expenses' the modifiers are mutually exclusive. Here the possible meanings are the same as those given in (a) and (b), but the possibility of including an expense which is both typing as well as copying expense is excluded from both the meanings (a) and (b). "Charitable institutions or educational institutions" may mean either of the following: (a) Charitable institutions or educational institutions, but not both, which may not include institutions which are both charitable and educational. (b) Charitable institutions or educational institutions or both, which may include institutions which are both charitable and educational. If we infer the normal inclusive 'or', second meaning is the normal grammatical meaning. This is true in case of both mandatory as well as permissive sentences. In 'typing expenses or copying expenses' the modifiers are mutually exclusive. Here the possible meanings are the same as those given in (a) and (b), but the possibility of including an expense which is both typing as well as copying expense is excluded from the meaning (b). Thus, in case of cumulative modifiers 'charitable' and 'educational', if the sentence is a permissive sentence, the following meanings are the proper grammatical readings of the above phrases: 1. charitable and educational institutions. (a) Institutions which are both charitable and educational. 2. charitable or educational institutions. (b) Institutions that are charitable or educational or both. (d) Charitable institutions or educational institutions or both. 3. charitable institutions and educational institutions. (b) Charitable institutions or educational institutions or both, which may include institutions which are both charitable and educational. 4. charitable institutions or educational institutions. (b) Charitable institutions or educational institutions or both, which may include institutions which are both charitable and educational. Thus if it is intended that the person covered by the statute is to be free to have either, neither or both, the draftsman may use any one of the following three sentences to express the idea: 1. He may contribute to charitable or educational institutions. 2. He may contribute to charitable institutions and educational institutions. (Here 'and' is several, not joint.) 3. He may contribute to charitable institutions or educational institutions. (Here 'or' is inclusive, not exclusive.)

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PART THREE USE OF LANGUAGE

COMMON ERRORS
THINGS ONE SHOULD LEARN IN LEGAL WRITING Ronald Goldfarb lists eighteen things one should learn in legal writing. While he mentions each point, he illustrates the point in the same sentence. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. Dont use no double negatives. Make each pronoun agree with their antecedent. Join clauses good, like a conjunction should. When dangling, watch your participles. Verbs has to agree with their subjects. Dont use commas, which arent necessary. Try not to ever split your infinitives. Its important to use your apostrophes correctly. Dont write run-on sentences they are hard to read. It behoves the writer to avoid archaic expressions. Dont use hyperbole; not one writer in a million can use it effectively. Avoid clichs like the plague. Mixed metaphors are a pain in the neck and should be thrown out the window. A truly good writer is always especially careful to practically eliminate too-frequent use of adverbs. Placing a comma between subject and predicate, is not correct. Parenthetical words however should be enclosed in commas. Correct spelling is esential. Always proofread your copy to see if you any words out.

HOW TO WRITE GOOD Rules similar to the ones given by Goldfarb are available on internet. 1. 2. 3. 4. 5. 6. 7. 8. 9. It is wrong to ever split an infinitive. Contractions arent necessary. The passive voice is to be avoided. Prepositions are not the words to end sentences with. Be more or less specific. Dont use commas, which arent necessary. One word sentences? Eliminate.. Who needs rhetorical questions? Exaggeration is a billion times worse than understatement.

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Exercises in avoidance of common errors: 1. A huge pile of books were lying there. (was) 2. There were five boys; they were hustling each other. (one another) 3. Either of the.three books will do. (any one) 4. Neither of the two accused persons were found guilty. (was) 5. It is better than all. (better than many-best of all) 6. He said that he will succeed this time. (would) 7. He is one of those people who is always getting into trouble. (are) 8. Let Dhawan and I do the work for you. (me) 9. This law comprises of 42 sections. (no of, consists of is correct) 10. A killed B due to old enmity. (on account of) 11 RULES OF WRITING 1. To join two independent clauses, use a comma followed by a conjunction, a semicolon alone, or a semicolon followed by a sentence modifier. The delivery boy knew he carried strange cargo, but still ventured off unafraid. The delivery boy knew he carried strange cargo, but he still ventured off unafraid. My math teacher doesn't know how to lecture, she should have remained a student. My math teacher doesn't know how to lecture; she should have remained a student. Gregor has not changed physically; but has given himself an excuse to separate himself from the pain of previous experiences. Gregor has not changed physically; however, he has given himself an excuse to hide from the pain of previous experiences. 2. Use commas to bracket nonrestrictive phrases, which are not essential to the sentence's meaning. The bus driver with her ears tuned to the roar decided to take the grumbling bus on a detour across the football field. The bus driver, her ears tuned to the roar, decided to take the grumbling bus on a detour across the football field. My window as dirty as it is reveals the beauty of nature on a snowy morning. My window, as dirty as it is, reveals the beauty of nature on a snowy morning. King and Lucille, his customized black Gibson have electrified audiences all over the world. King and Lucille, his customized black Gibson, have electrified audiences all over the world.

LEGAL LANGUAGE AND LEGAL WRITING 3. Do not use commas to bracket phrases that are essential to a sentence's meaning. The man, who has too many ties, has too few necks. The man who has too many ties has too few necks. The cats, with six toes, are a unique attraction of the tour of Hemingway's house. The cats with six toes are a unique attraction of the tour of Hemingway's house.

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4. When beginning a sentence with an introductory phrase or an introductory (dependent) clause, include a comma. After buying the five pound jar of marshmallow spread he set off in search of a bulk portion of peanut butter. After buying the five pound jar of marshmallow spread, he set off in search of a bulk portion of peanut butter. With this he bestows the responsibility of his own happiness on his mother and father. With this, he bestows the responsibility of his own happiness on his mother and father. As she begins to gain independence it is natural for Grete to regard the idea of dependency as repugnant. As she begins to gain independence, it is natural for Grete to regard the idea of dependency as repugnant. 5. To indicate possession, end a singular noun with an apostrophe followed by an "s". Otherwise, the noun's form seems plural. Though the lobsters claws were bound, the creature made a threatening gesture as they dropped it in the pot. Though the lobster's claws were bound, the creature made a threatening gesture as they dropped it in the pot. In a democracy, anyones vote counts as much as mine. In a democracy, anyone's vote counts as much as mine. There is a vast age difference between Victors mother and father. There is a vast age difference between Victor's mother and father. 6. Use proper punctuation to integrate a quotation into a sentence. If the introductory material is an independent clause, add the quotation after a colon. If the introductory material ends in "thinks," "saying," or some other verb indicating expression, use a comma. Tumbling down the hill, Jack yelled: "Gosh, I'm sick of this." Tumbling down the hill, Jack yelled, "Gosh, I'm sick of this." Her letter spoke to him in harsh tones, "You never fail to repulse me." Her letter spoke to him in harsh tones: "You never fail to repulse me." He views the problem as a slight delay or a sickness that will eventually disappear, "I will go back to sleep for a few minutes and forget all this nonsense." He views the problem as a slight delay or a sickness that will eventually disappear: "I will go back to sleep for a few minutes and forget all this nonsense."

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7. Make the subject and verb agree with each other, not with a word that comes between them. The Thanksgiving dinner, right down to the beautiful centerpiece, were devoured by the escaped grizzly. The Thanksgiving dinner, right down to the beautiful centerpiece, was devoured by the escaped grizzly. The cart, as well as its contents, were gone. The cart, as well as its contents, was gone. The girl, along with her classmates, like the new teacher. The girl, along with her classmates, likes the new teacher. 8. Be sure that a pronoun, a participial phrase, or an appositive refers clearly to the proper subject. Its hump decorated in strings of flowers, the programmer rode the camel through the food court. The programmer rode the camel, its hump decorated in strings of flowers, through the food court. Filled with bad gas, he drove his car to Tucson despite the knocking. Although it was filled with bad gas, he drove his car to Tucson despite the knocking. 9. Use parallel construction to make a strong point and create a smooth flow. I was glad to be departing for Australia but I was nervous when I left my apartment. I was glad to be departing for Australia but nervous to be leaving my apartment. The system excels at tasks such as communicating with other computers, processing records, and mathematical calculations. The system excels at tasks such as communicating with other computers, processing records, and calculating mathematical equations. 10. Use the active voice unless you specifically need to use the passive. A refund was given to him by the hair regeneration company. The hair regeneration company gave him a refund. A good score was achieved by the team. The team achieved a good score. A box of chocolates and a dozen roses were presented to the girl by her boyfriend. The boyfriend presented a box of chocolates and a dozen roses to the girl. 11. Omit unnecessary words. I would like to assert that the author should be considered to be a buffoon. The author is a buffoon. It would be safe to say that Gregor Samsa is not the only character in Franz Kafka's The Metamorphosis to undergo drastic changes. Gregor Samsa is not the only character in Franz Kafka's The Metamorphosis to undergo drastic change. Before going to the supermarket, we made a list of the groceries we needed in order to make the food that we intended to eat for dinner. Before going to the supermarket, we made a list of groceries that we needed to prepare dinner.

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HOMONYMS
altar, alter ascent, assent bail, bale bare, bear beach, beech bell, belle berth, birth beer, bear blew, blue board, bored bough, bow brake, break canvas, canvass ceiling, sealing cell, sell cellar, seller cent, sent, scent creal, serial chord, cord clause, claws coarse, course council, counsel creak, creek currant, current fair, fare flour, floor fore, four foul, fowl gait, gate grate, great groan, grown hair, hare hall, haul hale, hail heal, heel hear, here heard, herd heir, air hole, whole idol, idle kernel, colonel lain, lane lead, led lessen, lesson loan, lone made, maid mail, male manner, manor mantel, mantle meat, meet medal, meddle miner, minor moan, mown pail, pale pain, pane pear, peer peace, piece peal, peel plain, plane pore, pour pray, prey principal, principle profit, prophet rain, rein, reign raise, raze rest, wrest rhyme, rime right, write, rite ring, wring road, rode role, roll rough, ruff sail, sale scence, seen seam, seem sea, see site, cite, sight soar, sore sole, soul some, sum stair, stare stationary, stationery steal, steel straight, strait tail, tale their, there throne, thrown threw, through vain, vein waist, waste wait, weight ware, wear

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MODERN ENGLISH USAGE


ADMIT, ADMIT OF, ADMIT TO Admit takes a personal subject e.g. He admitted killing her, but admit of (allow of, leave room for) does not, e.g. These regulations admit of no variation. Admit to: confess e.g. She refused to admit to the allegation. Also admitted to bail. ADULTERY, ADULTRATION Adultery: violation of the marriage-bed; adultration: mixing something inferior or spurious. ADVANCE (n), ADVANCEMENT Advance: progress, going forward; advancement: promotion or helping forward. AGENDA It is thus used for both the numbers (singular and plural). AGREE (WITH, TO, ON) Agree with a suggestion, a course of action means to regard it with approval; agree to it: to give consent to it. Thus, we may agree to something without agreeing with it. Agree on: to reach an agreement on someth ing. ALIBI Alibi is the defence plea that the accused was elsewhere at the time of occurence. Hence its use in the sense of an excuse, a justification, or extenuating circumstance is not legitimate. ALLOW, ALLOW OF Allow means permit. It takes a personal subject; allow of: give scope for, leave room for (see admit of above). ALMOST, NEARLY Almost and nearly are quite often, used interchangeably. (i) Almost is, however, a genuine adverb of degree, nearly is not. (ii) When we wish to express that we came near to doing a thing but then it was avoided, nearly is preferred e.g. I nearly ran over that beggar squatting on the road. (iii) Verbs and adjectives denoting feeling or state of mind take almost, not nearly, e.g. She almost fainted. ALREADY, ALL READY All ready means prepared, use them separately; Already (adv.) means by the time in question. ALRIGHT It is a very common misspelling, All right is the only correct form. ALSO Also is an adverb, not a conjunction. Hence, it should not be used

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(ii) after a comma to coordinate two nouns unless it is preceded by but or and. Such expressions as Also at the airport were the Mayor and Ministers of are meant for emphasis on the persons. ALTOGETHER, ALL TOGETHER When altogether means completely, its use is right but when all means the whole quantity or number, all together should be used seperately. AMBIGUOUS, AMBIVALENT Ambiguous statement is one where only one meaning was intended, but a second is also possible, e.g. Was he driving on the right side? Ambivalent is one which is intended to have double meaning, e.g., The worthy leaders of the Party may mean really worthy and respectable ones or the dirty lot they are. AMENABLE Amenable must be followed by to a noun, e.g. amenable to reason, to pressure. AMEND,EMEND Amend means alter (usually for the better); emend: means to correct a mistake. AMONG, AMONGST Both must be followed by pl. noun or pronoun or a singular noun with plural sense. Old distinction that a thing is shared between two persons, but among many is no longer observed. Among two, however, is wrong. ANYONE, ANY ONE (i) Anyone can be used only about persons. When reference is to things, any one is required. (ii) Even about persons, if one has the numerical sense they should ba used separately. (iii) Anyone is singular. Hence, it is referred to by a singular pronoun or possessive adjective (e.g. Anyone who does that will only risk his life). This fast usage also applies to anybody. APPROVE, APPROVE OF Approve means give consent to, e.g. approve a plan; approve of: think well of, regard with favour, e.g. He did not approve of my line of defence. Former is often used in the passive and latter is usually found in the active voice. ARTIST, ARTISTE Artiste means performer. AS FOLLOWS It does not matter whether it is accompanied by singular or plural. The grounds are as follows. (not as follow).

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Aside is adverb, e.g. set aside. When the sense is on each side, use separately, e.g. eleven a side. ASSURE, INSURE, ENSURE In technical commercial usage, one assures against something that is bound to happen, e.g. death, and insures against accidents e.g. fire, burglary. Assure also means to promise, to guarantee; easure means to make sure, to make certain. AVAIL (i) All his efforts were of no avail (adjectival), He made repeated attempts but to no avail (adverbial). (ii) Used intransitively (e.g. All his efforts did not avail) or transitively, with a personal object (e.g He availed his special leave) or with a ref lexive object followed by of (e.g. You must avail yourself of this opportunity). BESIDES, BESIDE Use besides only when the meaning is in addition; for all other senses beside should be used. Beside means by the side of. BONA FIDE, BONA FIDES Bona fide means in good faith. It is, strictly speaking adverbial, though it is more often used adjectivally, e.g. bona fide enquiries, bona fide applicant. Bona fides (good faith) is singular, e.g. His bona fides is in doubt. BORN, BORNE The normal past participle of to bear is borne, e.g. a burden, a good character, responsibility, the brunt is borne. Born is used as passive only in connection with birth. CAN, MAY Can (past tense could) denotes ability or potentiality; may (past tense might) shows possibility or permission. CHARGE In charge of means having care of, or authority over, e.g. Mr. Singh is in charge of P.S. Kotwali. In the chaige of means subject to control, care or authority of e.g. She was given in the charge of her legal guardian. CIRCUMSTANCES (UNDER, IN) Under the circumstances is more common. However under should be used when the circumstances affect the speaker; in when they do not. COHERENCE, COHESION Coherence means hanging together of spoken or written expression. Cohesion means literal sticking together of two objects or groups as cohesion of various constituents.

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Compare to means suggest or state a resemblance between two objects as Shakespeare compared the world to a stage; compare with means to put two objects side by side and note points of resemblances and differences between them. By comparison and in comparison are usually followed by with. COMPRISE, COMPOSE OF, CONSIST (OF, IN) The delegation comprised of the following persons is wrong. Comprise doesnt take of; composed of and consist of are correct. Consist in means have as an essential element e.g. Courage consists in overcoming ones fears. CONSIDER, CONSIDER AS Consider needs a direct object, e..g. You may consider the deal settled (not as settled). But when consider means think about or give ones mind to, as signifies the capacity in which the thing or the person is to be considered, e.g. You may consider him as her rnentor. COUNCIL, COUNSEL, CONSUL Council means an assembly. Counsel when used as verb means advise, and when used as noun means advice or one who givrs advice, an advocate. Consul is the representative of a foreign government accredited to another country. COVERED (IN, WITH, BY) In is used when covered has the force of an adjective used predicatively, e.g. His boots were covered in mud. The strict participial use needs with, e.g. The table was covered with a white cloth. When the word following the preposition is thought of as the agent, the correct preposition is by, e.g. Is the A. M. U. covered by Article 30 ? CREDIBLE, CREDITABLE, CREDULOUS Credible means believable; creditable means bringing credit or honour; credulous means one who readily believes anything. DEPRECATE, DEPRECIATE Depricate means express disapproval of, condemn; depreciate means belittle, go down in value. DESPITE - IN SPITE OF, NOT WITHSTANDING Not withstanding is the least emphatic, implies the presence of an obstacle; in spite of suggests active opposition or strongly adverse considerations to be encountered; despite is lighter in its emphasis. (Webster). For example, Notwithstanding any Provision in any statute, it shall be deemed I shall go in spite of the rain. Despite his assurances, I doubted him. DISTINGUISH (FROM, BETWEEN) When distinguish means tell apart or notice a difference, it takes from as distinguish one from the other. When it means make a distinction, use between, e.g. Courts should not distinguish between persons on the ground of their sex, race or religion. DOUBT Doubt as transitive verb takes a direct object or is followed by whether, takes a noun clause, e.g. I doubt whether (if) he will go. As noun it can take that, about, whether (not as to whether), e.g.

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(i) There is no doubt that he is guilty. (ii) I have my doubts about his sincerity. (iii) I have my doubts whether he will win. DUE TO, ON ACCOUNT OF, BECAUSE OF Due is an adjective. Hence due to should be used (i) predicatively or (ii) following a noun, and introducing an adjectival construction which qualifies that noun. Examples: (i) His absence is due to illness. (ii) Mistakes due to catelessness may have serious consequences. For other senses use, on account of or because of. ESPECIALLY, SPECIALLY Specially means for this special purpose, or to this special end, and no other. Especially means to a degree beyond others. Examples: I went there specially (not especially) to see her. There is a dearth of qualified teachers of most subjects, but especially (not specially) of science. EVERY DAY, EVERYDAY Everyday, as one word, should be used only when adjectival, e.g. an everyday occurrence, our everyday existence. In all other senses use them separetely, e.g. He comes here every day. EXCEPT, EXCEPTING Except is a preposition and is followed by the accusative, e.g. Every one except her was informed, Except excludes a particular one, or particular ones, from a group (everyone except me, all the girls except Sheeba). Excepting is used only when it is preceded by not, always, or without, e.g. not excepting the police, without excepting even the highest-placed officials, always excepting the officers. FALSEHOOD, FALSITY, FALSENESS Falsehood means untruth, in the abstract and general sense; falsity means the false nature of a particular thing (e.g. the falsity of a charge or accusation). Falseness means disloyality, treachery (e.g. falseness of heart, falseness to one's trust). FAMILIAR TO, FAMILIAR WITH Familiar to means known to; familiar with means having a fairly good knowledge of, or quite close to. FURTHER, FARTHER Use further (i) when the sense is additional (further evidence, further information), or (ii) when as verb it means advance, promote (He did it to further his own interests). Farther as adj. or adv. denotes distance, though here also further is permissible.

LEGAL LANGUAGE AND LEGAL WRITING FOREGO, FORGO

149

Forego to go before, is generally used in participle forms (the foregoing clauses, a foregone conclusion). Forgo means to do without something to which one is entitled, e.g. forgo one's holiday or claim. GOLD, GOLDEN Use gold when it means made of gold (a gold ring, a gold watch, gold coins). Golden is used (i) for colour, (golden hair) or, (ii) for figurative use (the golden period, a golden opportunity). HOPE (i) Hope as verb may be followed by an infinitive referring back to the subject (I hope to meet her in London), but it connot take an accusative infinitive (We hoped him to be convicted is wrong; We hoped that he would he convicted is correct) (ii) Hope for can be used both in the active and the passive voices, but hope can be used in the passive only when the subject is it. (iii) The plural hopes always takes a gerund (e.g. The partys hopes of winning the next election (not hopes to win). The singular hope also needs gerund when hope carries the sense of chance or likelihood (He hasnt much hope of getting acquital). HOWEVER, HOW EVER (i) When ever generalises, however is used as one word (However we do it, it will be pretty difficult). (ii) If ever emphasises, the two words (how ever) are used (How ever did you find it in that mess?) (iii) However, used, as conjunctive or disjunctive needs a comma (However, we need not take up the issue right now.) (iv) Disjunctive however means but. Hence both should not be used together. But may precede however only when however is adverb of manner or degree, e.g. But however hard he tried, he could not succeed. IF, WHETHER The two are used interchangeably, but use if when the fact in question is something which you desire or when you hope for a positive answer, e.g. Will you check if she has come back?, and use whether when you merely wish to satisfy yourself one way or the other e.g. Will you check whether she has come back? ILLEGAL, ILLEGITIMATE, ILLICT Illegal means expressly forbidden by law land; illegitimte means not recognised by law or not having the sanction of law; illicit, in itself, does not necessarily refer to law; it may be only immoral. Unlawful is more or fess a synonym of illegal, but it applies over a wider field. While all things that are illegal are unlawful, all things that are unlawful are not necessarily illegal. In the context of moral or religious law, illegal is never used, e.g. if a Muslim drinks wine, he does something unlawful though not illegal. IN ORDER THAT, IN ORDER TO In order that is never followed by can/could or will/would. The usual verb is may/might or sometimes, shall/should, e.g. We came early in order that we might get a good seat, or She left

150

LANGUAGE AND THE LAW

by the side door in order that no one should see her. In order + infinitive means for + ing is correct, e.g. He checked her previous statement in order to find out the truth. INFAMOUS, NOTORIOUS Infamous means evil or wicked; notorious means well known for something irreputabie. INGENIOUS, INGENUOUS Ingenious means clever; ingenuous natural, artless, free from deceit. INTO, IN TO Into is a preposition that introduces an adverb phrase, e.g. A person goes into a room, a house, a shop etc. In and to should be written separately (i) when in is an adverb attached to the verb and to a preposition governing the noun following, e.g. Entries should be sent in to the Editor, or (ii) When to is part of an infinitive, e.g., They went in to look at her haggard face. ITS, ITS As in the case of hers and yours, there is no apostrophe in the possessive its. Its is short for it is or it has. LOADED, LADEN The past and past participle of load, is loaded. Laden, as an adjective means heavily burdened. e.g. a ship laden with cotton bales. Fire-arms are loaded. MASTERFUL, MASTERLY Masterful means assertive, strong-willed, determined to be master; masterly means skilful, in the manner of a master of the craft. MEANTIME, MEANWHILE Both are used as adverb, though meanwhile is to be preferred. In the meantime is equally common and preferable. Meanwhile is for shorter duration. MEET, MEET WITH Meet is subjective, meet with objective. The person or the thing that meets someone or something is the agent, the person or the thing that meets with something is affected by the thing met. e.g. we meet a friend, our obligation, or a deputation; we meet with an accident, a misfortune, or our efforts meet with success. MENACE, NUISANCE, ANNOYANCE Menace means threat, danger. Hence, it should not be used as a synonym of nuisance, annoyance or mischief. MOMENTARY, MOMENTOUS Mementary means occurring in the space of a moment (e.g. a momentary thought or suspicion); momentous means important on account of the consequences. e.g. a momentous decision.

LEGAL LANGUAGE AND LEGAL WRITING NAUGHT, NOUGHT

151

Use nought when it is equal to zero, naught when it is nothing, e.g. came to naught. set at naught. PARTLY, PARTIALLY Partly means as regards one part; partially is an adverb of degree, and is opposed to partly (e.g. It was partly done by me. The relief was only partially granted.) PERMIT, PERMIT OF See Admit or Allow above. PICK, CHOOSE Choose suggests careful thought and deliberation, and the weighing of one against another; pick suggests mere selection, sometimes in a rather perfunctory manner. PRACTICE, PRACTISE Practice is noun; practise is verb. PREFER (i) Prefer is normally followed by to not than Izzi prefers coffee to tea, or He prefers going by car to travelling by train). But, when infinitives are involved, it needs rather than (e.g. She preferred to resign rather than to work under him). (ii) Prefer means place before other; hence, it is an absolute term, and cannot be modified by more or most. Which do you prefer more? or Which do yo prefer most? is wrong. PRETENCE, PRETENSION Pretence means make believe. She made a pretence of fainting. Pretension means claim (His pretensions are without any foundation). PURPORT As noun the purport of a document is its apparent meaning. It does not suggest either that the patent meaning is true or that it is not. As verb it can be used only in the active voice and with an impersonal subject, e.g. This letter purports to be a copy of one sent by her on June 25. Present participle purporting followed by infinitive (e.g. purporting to bear his signature) is allowed. PURPOSELY, PURPOSEFULLY, PURPOSIVELY Purposely means intentionally; purposefully means in a determined manner; purposively means in such a manner as to achieve an end or purpose. RESIGN, RESIGN FROM, RESIGN TO One resigns a post or a position, resigns from an institution or organisation, and is resigned to his fate because there is no escape from it. RESORT, RECOURSE One resorts to compulsion or has or takes recourse to something. We do something as a last resort, not as a last recourse.

152 SENSUAL, SENSUOUS

LANGUAGE AND THE LAW

Sensual means appealing to the bodily (usually sexual) appetite (sensual pleasures); sensuous means appealing to the senses of sight, taste, smell etc. (sensuous imagery of Keats). SPOILED, SPOILT When spoil means rob, ravage, lay waste or mar, past tense and past participle are spoiled, when it is meaning ruin, spoilt is used. For example, His essay was spoiled by careless mistakes and The bad egg spoilt the cake. In attributive uses, spoilt is the usual spelling, (a spoilt child, spoilt ballot paper). SUMMON, SUMMONS Summons is singular noun (A summons was served upon him or She received a summons to assist the Commission). Summon is verb. Summons can also be used as verb, but it is rare. TILL, UNTIL There is a tendency to use till for a point of time and until for duration. Dont do anything further till you hear from me. The goods will not be released till you pay the whole price. She lived with her aunt until she married). Until is also more common when used (i) at the beginning of a sentence, or (ii) when result, not merely time, is expressed.

Bring out the difference between the uses or meanings of the following and use them in sentences of your own: allusion - illusion between - during canvas - canvass confirm - conform contemptible - contemptuous corporal - corporeal corroborate - verify defer - postpone -adjourn draft - draught forbidding - foreboding ill sick infer imply lack - absence want latter later lawful legal luxuriant luxurious may shall meet assemble occupant occupier permissible permissive pitiable - pitiful prescribe - proscribe principal - principle proceed -process proportional - proportionate relation - relationship - relative rise - arise rouse - arouse though - although wait - await

CHOICE OF WORDS*
ABET, INCITE, INSTIGATE Abet means to cause, to assist, to command, to make mere suggestion for a crime; incite means to provoke, to inflame; instigate means to stir up other persons to bring about a certain object. (AIR 58 Pat. 259), to goad on, to coax one into doing. ABOLISH, ABROGATE, REPEAL Customs, systems, traditions etc. are abolished. Laws are repealed by the Legislature after a formal declaration to this effect. They are abrogated by subsequent acts or laws without a formal declaration that the former has been done away with. ACTION, ACT Action means a process, a step; act means a completed action. ACCUSED, GUILTY Accused is a person charged with an offence; guilty, in common parlance, is one who commits an offence; in law, one who has been found by a court to have committed the crime he was accused of. ACKNOWLEDGE, ADMIT, CONFESS, OWN Acknowledge means to signify receiving or acceptance, admit means to own, confess means to make a formal admission; own is to take full.responsibility. ADAPT, ADOPT Adapt means to adjust to suit to a new situation, adopt is to take like one's own as adopting a child, system or a custom. ADMISSION, ADMITTANCE Admission is allowing; admittance is more formal and means leave or right to enter. AFFECT, EFFECT Affect is verb; its corresponding noun is effect. Affect also means to assume, as a form of affectation. Effect as verb means to bring about or to achieve, e.g. to effect a change or an escape. Effects as plural means results and personal belongings. AFFINITY, CONSANGUINITY Affinity is closeness between two; in law, relationship by marriage as distinct from consanguinity which means relationship by blood. AGENT, TOUT Agent is either nominated or accepted by consent to act as representative of another (AIR 1959 Assam 200/203) ; tout is a self-imposed middleman who hangs on as a go-between.
*

These groups of words are a random sample, meant for discussion and practice in the classroom. For very specialised meanings or for finer legal distinction between meanings of these or other synonymous words, please look into the Law Dictionaties, Lexicons, Digests or to the Definition clauses in the statutes concerned. 153

154

LANGUAGE AND THE LAW

AGREEMENT, CONTRACT Every contract is an agreement but every agreement is not a contract. A lawful agreement with consideration amounts to a contract. ALLEGIANCE, LOYALTY Allegiance is a subjects formal obedience to the sovereign or superior; loyalty is faithful personal devotion of one for another. ALLOW, PERMIT Allow means not to stop, to give consent; permit means to give approval after due consideration. ALTERNATE(LY), ALTERNATIVE(LY) The former means to follow by turns or to come one after the other; the latter, choice excluding others. APPROPRIATE, PROPER, RIGHT, SUITABLE Appropriate is based on propriety; proper means correct; right means not wrong; suitable is that which is convenient and hence suits. APPROVAL, CONSENT, CONNIVANCE Approval is that,.and only that, which one has with full knowledge approved (Stroud); consent means acquiescence or to agree (AIR 1958 Raj. 332). It may be implied, or express; connivance is a consent, indirectly given, for doing something unlawful (Bouvier's Law Dictionary). ARBITRATOR, ARBITER, JUDGE Arbitrator is appointed by the consent of the parties; arbiter is one who decides a dispute; judge is one appointed to hear and settle causes or to try the accused person; one who judges merit as in a competition. ARGUE, PLEAD, ENTREAT, REQUEST Argue is to advance reasons, to pile arguments in support of ones premise; plead is to advance or put forward ones cause; entreat is to attempt to move one's heart by arousing emoticns of sympathy or pity; request is a humble prayer, a wish ASSAIL, ASSAULT, INVADE, RAID, ATTACK Attack is generic; assail is to attack honour, position or stand; assault is to attack body or person; invade is to attack a territory, as in war; raid is a sudden and violent attack on house or a site. AUTHORITY, LICENCE, POWER Authority and power are used interchangeably. Auhotrity is legal right or power vested in some one or some agency to do something; power has a wider and more general meaning. power is the attribute of authority. Authority is the focus of power, it is the status capacity of power: licence is a formal right or permission granted for doing, a specific thing; authorities (pl.) are persons vested with powers. BAIL, BOND Bail is to set an arrested person at liberty; the person who gives security for his appearance for trial becomes a surety. Bond is that instrument which binds a person to another for payment of a sum or fulfil a condition in case of default.

LEGAL LANGUAGE AND LEGAL WRITING

155

BELIEF, FAITH Belief is conviction based on reasoning; it reflects a mental attitude; faith is an emotional attitude. Its seat is our heart. Good faith is upright mental attitude and clear consience. CENSURE, CENSOR, IMPEACH Censure means to blame, to condemn, to find fault with; censor is to condemn on the ground of public morality; impeachment means a formal trial of certain high off icers of state by the legislature. CESS, TAX, LEVY Cess indicates tax on particular thing, not forming part of the general fund (AIR 1960 Mad. 160); it is more like excise duty. Levy is temporary charge usually on agricultural produce. CHOICE, ALTERNATIVE Choice gives a wider range of selection; alternative limits it to two or three, to the exclusion of others. CITE, QUOTE, REPEAT Cite is to call orsummon, act of quoting, giving, reference to a case, passage or name; quote is using words used by another without any change; repeat means to say again for emphasis, do again. CITATION, RULING Citation means (1) giving reference to an interpretation given earlier e.g. AIR 1960 Mad 160, (2) to mention name and work of someone; ruling is authoritative interpretation given by higher courts, generally binding on the lower ones. COMPLEX, COMPLICATED, INTRICATE Complex means consisting of parts; not easy to comprehend or solve; complicated means made difficult to unravel or smoothen; intricate means involved, entangled. COPY, DUPLICATE, FACSIMILE (FAX), PHOTOSTAT Copy is an accurate or full imitation or reproduction of the original (1967 SC 526); duplicate means two-fold, same as another; facsimile is that appears similar to the original; photostat is photographic reproduction of the original. COPYRIGHT, TRADE-MARK Copyright means (1) Ones right to his own literary composition, to that piece and its copies, (2) Ones exclusive right of multiplying copies and excluding others from copying it; Trade-Mark is any name or device warranting goods for sale as genuine product of a firm. CRIME, OFFENCE Crime is any positive or negative act in violation of penal law, an offence against the State. It denotes such offences as are of a deeper and more atrocious dye. (Blacks Law Dictionary); offence is anything that offends or transgresses a law. CRIMINAL, PENAL Criminal has a wider connotation, anything pertaining to crime or criminai mentality; penal is only that which is within the purview of the penal law of the land.

156

LANGUAGE AND THE LAW

CUSTOM, CONVENTION, TRADITION Custom is to society what law is to the State (Salmond). It is rule of conduct established by long usage; convention is (1) the most general name given to agreements, established usage or fashion etc., (2) an assembly of delegates; tradition means consistent usage or behaviour. DECEIT, DECEPTION Deceit is the tendency to play fraud; it is a part of ones character, deception is the actual act of fraud played upon someone. DESCENDANT, HEIR Descendant includes children and their children and their children to any degree; heir is one who inherits the property by blood-connection or nomination. DIRECTIVE, ORDER Directive is a general instruction which may or may not be binding; order is a command of the superior, violation of which may be visited with penalty; specif ic instruction to do something. DISCHARGE, ACQUITTAL The former is to release on account of want of evidence; the latter is after holding the accused not guilty. DISMISS, REJECT, SET-ASIDE Dismiss is to throw out (as from service) or not to accept; reject means not to agree to, not to recognise; set aside means cast away, store away (e.g. part of money) hence derivatively to reject an earlier finding or order. DISINTERESTED, UNINTERESTED The former means having no personal advantage to gain; the latter, unwilling to give attention to, bored. e.g. A judge should be disinterested but not uninterested in a case. DOUBT, SUSPECT Doubt means to be apprehensive, to hesitate in believing, to distrust; suspect means to feel an inkling, a fear, mistrust. The f ormer reflects a mental, the latter an emotional response. ELICIT, EXTRACT, EXPORT Elicit means to draw forth, to evoke by persuation; extract means to draw out by force or otherwise, to derive something by putting pressure; extort is to wring out or to gain by compulsion, violence or by putting under fear. EVACUATE, VACATE, LEAVE, GIVE UP, GIVE OVER Evacuate means to throw out the contents of, to remove from a place; vacate is to make or leave empty, to quit, to annul e.g. a stay order; leave means to abondon, to depart from (also to allow to remain); give up means to leave a habit or job, to surrender; give over means to hand over right and possession, to transfer to another. EXONERATE, EXTENUATE Exonerate is to absolve from, to clear of the accusation; extenuate is to loosen the grip or lessen the gravity of a charge.

LEGAL LANGUAGE AND LEGAL WRITING

157

FABRICATE, FORGE Fabricate is to put together by art, to devise, falsely, hence fabrication, falsehood; forge is to make falsely, to counterfeit or imitate for purposes of fraud (also to go ahead). FATAL, LETHAL Fatal is that which causes death; lethal is that which has the capabillity te cause death or has death in it. FORBID, PROHIBIT, PREVENT Forbid means to stop a person from doing something, to command not to do; prohibit is to interdict, to forbid by law doing or use of something; prevent is to preclude, stop, keep, or hinder effectually, to forestall. FOREIGNER, ALIEN Foreigner is belonging to a foreign land; alien is extraneous, an outsider, a resident neither nativeborn nor naturalised. GIFT, AWARD, REWARD Gift is voluntary tranfer of any property without consideration by one in favour of another, award: thing given by way of compensation or for acknowledging some work of the doer or decision given by a tribunal or commission; reward, prize or recompense. INDEPENDENCE, LIBERTY, FREEDOM, LICENCE Independence is the state of being independent, a competency; liberty is the quality of a free mind; freedom is the state of being not bound, unconstrained; licence is the uninhibited freedom, usually moral laxity. INFER, IMPLY Infer is to suggest, without actually stating; imply means to read a meaning into, draw a conclusion. INJURY, DAMAGE Injury is generic. In law it is any actionable wrong; damage is specific, usually measured in terms of loss in monetary value. Damages (pl.) compensation for a loss or a wrong (e.g. a tort). INSURE, ENSURE, ENTRUST Ensure is to make certain of; insure means to guarantee against loss, death, accident, fire etc.; entrust is to hand over something to some one for a specific purpose (1964 M.P.L.J. 753). INSURGENT, BELLIGERENT Insurgent is one who rises in revolt against the established authority, a rebel; belligerents are those recognised legally as a party or a group waging war against the group in power. INQUIRY, ENQUIRY, TRIAL, INQUEST Inquiry is investigation by a court or a magistrate (AIR 1966 ALL 68); enquiry is search or request for information, more often used in pl.; trial means the conclusion by a competent court of questions in issue whether civil or criminal, (Stroud) hearing of a cause, civil or criminal, before a judge. (Whartons Law Lexicon); inquest is the inquiry by a jury or sheriff into any cause civil or criminal (Brownss Lew Dictionary). It is, however, confined to the search after sudden or violent death.

158

LANGUAGE AND THE LAW

JUDICIAL, JUDICIOUS, JURIDICAL Judicial is relating to duties exercisable by a judge or justices in court (AIR 1958 Punj. 69); judicious means based on justice, just, fair; juridical is relating to the distribution of justice, used in courts of law. JUSTICEABLE, JUSTIFIABLE Former means that which can be heard and decided upon by a court; latter means that which can be justified on any ground. KIDNAP, ABDUCT Both of Swedish origin. Formerly kidnap (kid-nappa) meant lifting of a child for collecting ransom and abduct (ab-duco) meant taking away a daughter, obviously for immoral purposes. Now used interchangeably. OBSCURE, OBSOLATE Obscure means unknown to fame, living or enveloped in darkness; obsolete means gone out of use, no longer functional or fully developed. OBSERVANCE, OBSERVATION Former means paying due regard or attention to e.g. observance of rules, regulation, latter means capacity to see or something one sees. OFFICIAL, OFFICIOUS Official is pertaining to office, done under authority, issued or authorised by a public authority; officious is very ob1iging, too forward in offering unwelcome or unwanted services. OWN, POSSESS, OCCUPY, HOLD Own is to have proprietary right; possess is to exercise that right; occupy means to take physical possession of something; hold is to keep in ones control and power (for hold also refer to the Chapter on Verbs). PARTITION, DIVISION Partition is the act of dividing into separate geographical parts; division is the act of dividing, state of being divided, a section, a portion of the whole. PATENT, LATENT Patent is lying open, obvious, conspicuous, ident; latent is concealed, not visible, dormant but capable of development. PERMISSIBLE, ADMISSIBLE Former means that which can be permitted or allowed; latter, that which can be addued as eidence or claim and can be legally admitted or received. POSITION, SITUATION, CONDITION Position means rank, status, stand, posture; situation and condition are used interchangeably for circumstances surrounding a thing or a person; situation also has a geographical connotaton, as condition also means state of affairs or event which attaches to an obligation; or a restraint placed. PRACTICAL, PRACTICABLE Practicable is such as can be carried out practical is either based on past practice or suited the existing situation.

LEGAL LANGUAGE AND LEGAL WRITING PRECEDENT, EXAMPLE

159

Precedent is that which has happened or been before; example may be real or just an imaginary thing. PROOF, EVIDENCE, WITNESS Proof is that which proves. There is a clear distinction between legal proof and moral conviction. Once the evidence comes bafore the court and stands the test of severe legal scrutiny, it constitutes legal proof (AIR 1944 All 94). Evidence is that which is adduiced to establish a fact e.g. oral evidence or exhibit. Witness is the person who tenders evidence for establishing a fact. PROPOSAL, PROPOSITION Proposal is a suggestion, an offer, the act of proposing; proposition is an act of propounding or the thing propounded. PROSECUTION, PERSECUTION Prosecution is to pursue by law, to bring before a court, to follow onwards (as a plan); persecuton is to harass, afflict, hunt down, especially for religious or political opinions. QUALIFIED, FIT Former means one who possesses the necessary qualifications; the latter means one who is suitable for the job with or without the necessary paper qualifications. REFUTE, DENY, REPUDIATE, DISOWN Refute is to challenge, to question the validity or truth; deny is not to admit; repudiate is to divorce, to reject, to cast off, to refuse or cease to acknowledge; disown is to refuse to own or acknowledge as beloriging to oneself. RIGHT, LIBERTY Right is an interest created or recognised and protected by another or law; liberty is an inherent quality of a free mind, freedom and authority to do anything even if wrongful or illegal. Hence, law which confers right, also curtails liberty. ROAD, ROUTE Road is a kutcha or pakka track suitable for wheeled traffic, especially for thorough communication, a street; route is a way, or course ihat is traversed. SECURITY, SURETY See Bail, Bond above. SIMILAR, IDENTICAL Similar is like (4 Bom. L.R. 390), resembling, exactly corresponding in shape without regard to size; identical is very same, not different. SLANDER, LIBEL Libel means false defamatory words, written and published including such words spoken in talking films; slander means a false, malicious defamation by spoken words or by looks signs and gestures.

160

LANGUAGE AND THE LAW

SPECIMEN, SAMPLE Specimen is that which promises that others would be like, an object serving as a sample, especially for purposes of study and collection; sample is a small portion to show the quality of the whole. STIPULATION, CONTRACT Any lawful agreement based on conbideration is a contract. Stipulation may be a condition attached to it. SUBMIT, SURRENDER Submit is to yield to subordinate, to refer for decision or consideration, to lodge, to put forward in respectful contention; surrender means to deliver over, to relinquish, to yield up, to resign; as noun it may also mean merger as understood in English law. TEMPORARY, PROVISIONAL Former means not permanent; latter is for the time being. UNLAWFUL, ILLEGAL, CRIMINAL Unlawful is not recognised by law; illegal is that which violates a law; criminal is that which constitutes an offence punishable by the law of crimes. UNSOCIAL, ANTI-SOCIAL The former is one who does not move much in society, who mostly keeps himself; to himself the latter is one who is cpposed to the social norms, a nuisance to society. ULTERIOR, EXTRANIMUS Ulterior is beyond what is seen or avowed; hence ulterior purpose or motive means some purpose or motive other than the declared one (AIR 1957 SC 676); extraneous means external, not belonging to or dependent on a thing, not essential. ULTRA VIRES, INVALID, IRREGULAR Ultra vires means beyond power, or outside the scope of authority; invalid is having no validity in the eyes of law; irregular is that for the validity of which certain formalities are necessary and have not been gone through (AIR 1962 S.C. 554). VARIOUS, DIFFERENT, SEPARATE Various means several unlike each other, uncertain, variegated; different means distinct, unlike, not the same; separate means physically away from, not connected with. WAGES, SALARY In general salary is used for payments of servants of higher classes for longer durations and wages is confined to the earnings of labourers and artisans (AIR 1926 All. 175). Both may be used interchangeably as both are emoluments paid to an employee by way of recompense for his labour. Neither is a term of art, (1964 S.C.J. 334). WORTH, VALUE, PRICE Worth is that quality which renders a thing valuable, moral excellence, instrinsic merit; value means generally monetary equivalent, amount or market price of the subject~matter of the suit (ILR 28 All. 548); price is the value in cash or kind demanded exchange fora thing.

LEGAL LANGUAGE AND LEGAL WRITING

161

Distinguish between the meanings of the words in the following pairs:


ambiguous ambivalent amend emend artist artiste assure ensure coherence cohesion confirm conform council counsel consul deprecate depriciate dissolve prorogue especially specially infamous notorious ingenious ingenuous jurisdiction scope likely probably possibly partiaily partly practice practise pretence pretension purposely purposefully purposively recourse resort seldom occasionally security surety

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LANGUAGE AND THE LAW

PREPOSITIONS
Fill up the blanks by suitable prepositions 1. The treasurer has absconded the funds the club. 2. The accused was absolved all blame. 3. Just acquaint this gentleman the facts the case question. 4. I refuse to acquiesce this plot the government. 5. He assured me his full co-operation the business. 6. He has been addicted hashish years. 7. Do you adhere any special political opinions ? 8. I suggest we retire the Council room further discussion the subject consideration. 9. Our newspaper aims having a million readers next year. 10. Twenty thousand are allocated the purchase books general interest. 11. I appeal you mercy the prisoner. 12. The advocate has been briefed all the aspects this case. 13. We have not arrived any decision this matter. 14. I refuse bargain you the price those conditions. 15. She was indifferent his protestations love. 16. Please dont consort those men. They are not worthy you. 17. He bequeathed his whole estate the Gandhi Eye Hospital. 18. He was prevented taking the matter his lawyers. 19. showing disrespect the judge, he was sent fifteen days. 20. Law is a rule conduct binding a community. 21. Clap the thief jail and deprive him any further opportunity stealing. 22. I am collaborating him writing a book. 23. Her beautiful voice compensates her hideous face and lack intelligence. 24. You cant conceal your faults your master, so it is no use your thinking excuses. 25. Does the other doctor concur this opinion your illness ? 26. The manager is conferring the board a matter importance. 27. Your story conflicted that of other eye witnesses, whose versions all tally one another the minutest detail. 28. You must conform the rules the game all events. 29. The police connived his escape. 30. He has not contributed much the solution the problem.

LEGAL LANGUAGE AND LEGAL WRITING Answers: 1 with of 2 from 3 with of in 4 in against 5 of in 6 to for 7 to 8 to for on under 9 at by 10 for of of

163

11 to for on

12 about of

13 at in

14 with on under

15 to of

16 with of

17 to

18 from to

19 on to to for

20 of on of

21 in of of

22 with in

23 for of

24 from of

25 with about

26 with on of

27 with with in

28 to of in

29 at

30 to of

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LANGUAGE AND THE LAW

PHRASAL VERBS
Technically they are called phrasal verbs, because they are formed by two or more words. Thus, they are not words, but phrases. What are phrasal verbs? A phrasal verb is a verb followed by one or two adverbs or prepositions. Here are some examples: get up break down look after look forward to run out

It is usually impossible to guess the meaning of phrasal verbs just from knowing the meaning of the verb and the adverb or preposition. For example, give up something means to stop doing something. It has nothing to do with giving things. Therefore they are called idiomatic verbs. Following are some of the examples: break away break into break open break out break through break up break with bring about bring down bring forward bring out bring round bring up clear ... of, from (an accusation) clear off clear up give away give in give out give over give up go on go over go through hang about hang for hang together hold back hold by hold in hold together hold up let down let in let into let off let out make out make over make away make up put down put forward put off put on put out set about set apart set aside set down set forth take back take down take for take over take up

Phrasal verbs with more than one meaning One phrasal verb can have more than one meaning. Often, the meanings are not related. Just pick up the phone and ring her! She picks up languages really easily.

Write two sentences for each of these phrasal verbs, using different meanings for each sentence: turn out catch on come under sth fall apart

LEGAL LANGUAGE AND LEGAL WRITING The grammar of phrasal verbs

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Some phrasal verbs have objects, some do not, and some sometimes have objects and sometimes do not. This is shown in the way the phrasal verb is written in the dictionary. The way the phrasal verb is written also shows you whether the object is a person, a thing, or an action. Phrasal verbs that do not need an object are shown like this: check in drift off e.g. You need to check in three hours before the flight. e.g. The room was so hot I could feel myself beginning to drift off.

Phrasal verbs that need an object are shown like this: pack sth in pack sb off e.g. I packed in my job to go travelling. e.g. They packed him off to school in Paris.

Note that sth means something, and sb means someone. Phrasal verbs where an object is sometimes used and sometimes not used are shown like this: pack (sth) up e.g. I packed up all my belongings and left the house.; Could you help me pack up?

Prepositions following phrasal verbs Many phrasal verbs are often followed by particular prepositions. These are shown in dark type in the dictionary. e.g. He dressed up as a ghost.

Fill in the gaps in these sentences with the correct prepositions. 1. 2. 3. 4. 5. 1. 2. 3. 4. 5. She stood in ___ her boss while he was sick. Just carry on ___ your work. She looked back ___ her days as a student with nostalgia. Hes always going on ___ his car. We will have to cut back ___ our spending. She stood in for her boss while he was sick. Just carry on with your work. She looked back on her days as a student with nostalgia. Hes always going on about his car. We will have to cut back on our spending.

Answers:

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Fill in the gaps in these sentences with the correct phrasal verbs. 1. 2. 3. 4. If you carry ___ spending like that youll have no money left. I nodded ___ after lunch. The brakes suddenly seized. It took him a long time to get ___ her death.

Answers: 1. 2. 3. 4. If you carry on spending like that youll have no money left. I nodded off after lunch. The brakes suddenly seized up. It took him a long time to get over her death.

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SOME SPECIAL VERBS


Verbs constitute the backbone of English. Hence a mastery of their varied structural patterns is essential. In the following pages we shall consider various uses of some of the important verbs. 1. TO BE, TO HAVE, TO DO BE (a) to be as an ordinary verb used for giving information: (i) He is a party to this contract. (i i) The Parliament is in session now. (i i i) They are members of the Board. (iv) I am not a practising lawyer. (v) He was an honest broker. (vi) They were guilty. (b) to be followed by introductory words It and There. (i) It is quite late now. (i i) There were six members at the meeting. (i i i) It is unwise for an advocate to quarrel with the Bench. (c) to be as an auxiliary verb. (1) for continuous tense with ing form of the Main verb: She was defending against the charge of abduction X is going to Delhi. (2) for passive voice followed by past participle of the transitive verb: Gita was kindnapped, raped and murdered by those ruffians He was dropped from the Cabinet. (d) to be with infinitive for conveying an instruction: (1) for conveying an instruction: (a) She is to appear before the Commission on Monday. (b) No person is to leave the enclosure unless cleared by the Custom Off icer on duty. (c) You are to proceed atonce and submit your report within 48 hours. (2) to express an arrangement or plan: (a) The case is to be taken up at 2 O clock sharp. (b) She is to arrive in half an hour. (c) He is to visit the riot-affected localities to get first-hand account of the happenings there. HAVE (a) as an ordinary verb: (i) He has no ostensible means of living. (ii) They have plenty of money to squander about. (iii) He had a nice job, but he gave it up.

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DO

(a) as an ordinary verb: (i) It is he who did this mischief. (ii) I do all the work and she does nothing. (iii) These days he is doing nothing. (iv) He was doing very well in his business when suddenly he left it. (b) as an auxiliary verb in negative statements or questions: (i) Do you do this this type of work? (ii) What did you do to him ? He is so upset. (iii) He did not appear and the Munsif did not allow another adjournment. (iv) Now she does not, (we do not) reside there. (c) for emphasis, request or question tags: (i) He did borrow Rs. 1000/- from me. (emphatic) (ii) I do take it as an insult. (emphatic) (iii) Please do appear on my behalf. (request). (iv) He shouted at you, didnt he? (question tag) (v) You dont visit her, do you ? (question tag)

Dont do that. Dont say that. Why are you smiling like that, are correct, but Dont do like that, Dont say like that are wrong. Do and say are transitive verbs. Hence they need direct object immediately after them. Smile' being intransitive, must take the preposition like. 2. SEE, HEAR, FEEL, LET, MAKE (i) From the window I saw the procession on the street, but I was looking at that man throwing something from his balcony. This sentence shows the difference between see and look at. We see anything that passes before our eyes; we look at something which we want to see. A parallel to this pair is found in hear and listen to. We hear any sound that reaches our ears, whether we want to listen to it or not. Looking and listening are voluntary actions, seeing and hearing, involuntary. (ii) I saw her take (taking) the locket from your table.

LEGAL LANGUAGE AND LEGAL WRITING (iii) (iv) (v) (vi) I heard the door open (opening). I felt something crawl (crawling) on my neck. He let me use his bicycle. The S.P. made him walk to the police station in handcuffs.

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In (ii) to (iv) we have verbs followed by an object and then an infinitive (without to) or an ing verb (a gerund). The verbs let and make are followed by an object and an infinitive without to, not by an ing word as in (v) and (vi) above. In addition to their literal meaning the above verbs have a variety of others, for example: SEE 1. 2. 3. 4. 5. 1. 2. 3. 4. 5. I see that you dont want to make a statement. Why dont you see a doctor? I saw red when he blamed me for his mistake. Shell see to it that everything necessary is provided for the occasion. Cant you see the difference between the two impugned judgements. I hear that Nassrin is going to England. I have not heard from Rose for years. Please hear him out before you blame him. Give him a patient hearing. Hearsay is not addmissible as evidence.

HEAR

FEEL

1. I felt lonely so I went to the club (not felt myself). 2. He felt (thought) that he was in the wrong. 3. Leela felt like crying when she was not selected. 4. He felt offended at that remark 5. I felt like doing it. 6. The doctor felt her pulse and pronounced her dead. (Sentences (3 & 4) express actual feeling or emotion). 1. 2. 3. 4. 5. 6. 7. 1. 2. 3. 4. 5. Lets go to the Police Station (a suggestion). You know I was absent, but dont let out this secret. When he let go (stopped holding) the rope, he fell. She let him down (disappointed him). When Diwali approaches children let off crackers. He had behaved improperly but the officer let him off (did not punish him). There should be no let-up in the drive for family-planning. Your suspicion has made him angry. You made a fool of me with your contradiction of my statement. Every morning in the hospital the nurses make the beds. We havent much money; we must make do with what we have. They tried to make out that I was to blame.

LET

MAKE

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LANGUAGE AND THE LAW 6. The culprits made away with my chain before I was aware of what had happened. 7. Whein the rain started we made for the nearest shelter. 8. I cant make out his hand-writing. 9. A carpenter makes chairs and tables. 10. He made over his entire property in return of a handsome annuity. 11. They quarrelled bitterly and then made it up. 12. I dont know what to make of it. 13. Have you made up your mind or are still undecided.

3. VERBS NOT USED IN THE CONTINUOUS TENSE In addition to the factitive verbs and see, hear, feel, in their literal sense there are other verbs NEVER used in the continous tense: to have when it means (i) to possess: He has a large family, and (ii) obligation: He has to go to Calcutta next week. (But we can say We are having a party next month). to belong, (This book belongs to the Law Library.) to contain, to seem, to appear, to rnean, to know, to understand (You must be knowing Rekha. I am understanding Hindi very well are wrong), to love, to like, to want (wish, desire), to hate, to need, to consist, to intend, to recognize. 4. SEEM, APPEAR, FIND (i) (ii) (iii) (iv) He seems (to be) an Iranian. He appears to be a Palestinian. She seems (appears) worried. It appears (seems) that Claudius, not Govinda, is to be made Captain. He seemed (appeared) (to be) trustworthy but he proved (to be) dishonest.

With find we get a number of constructions, for example: (i) He found him a difficult person to deal with. (ii) She finds that she cannot afford the cost of such a prolonged litigation. (iii) He finds Arabic hard to learn. (iv) Can you find me a pair of scissors to cut this string ? (v) The magistrate found him guilty and sentenced him. (vi) He is finding it hard to manage on his meagre income. (vii) On opening the book we find the following sentence. (viii) Hes always finding fault with me. (ix) Inspector Gill found out the missing link. (x) Do anything you like but dont get found out. (xi) I found him making a hole in the wall.

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(i) She likes (wants, coffee) (money, etc.) (ii) She likes to go for walk. He wants to tell you something. (iii) He likes (wants) you to see him. It is wrong to say He likes that you should see him, He wants that you should pass. A that clause after like and went is unidiomatic. 6. NEED As an ordinary verb (i) Anyone going abroad needs the passport and the visa. (ii) This copy needs to be endorsed by a notary to become admissible in evidence. (iii) She needs nothing but a husband. Need as an auxiliary is chiefly used in negative and question: (i) She need not return the baby girl to him until she attains the age of majority. The opposite of this is: She must return the child to him. (ii) Need she return the child? (iii) Must She return the child? The expected answer is: She must. Need not is the negative of must where must is obligatory either due to order or due to circumstances. 7. ORDER, EMPHASISE, STRESS, DESCRIBE, DISCUSS These verbs are always transitive. Hence it is wrong to say He ordered for the arrest or The teacher emphasised on these questions. On the other hand we can say, He issued the order (orders) for their arrest. He laid stress (emphasis) on these questions. In these sentences the noun order (orders) is followed by for, and the nouns stress, emphasis, take on after them. He ordered a cup of coffee, The teacher stressed these questions are the forms needed when the verbs order, stress are used. We discussed the matter, We had a discussion about your affairs, The witness described the incident in a homely style, His description of the incident is correct, show how discuss and describe, and their noun forms are used. Describe about, description about are wrong. In Parliament, there are discussions on a bill, a topic, a question. 8. HOLD, OCCUPY Hold (i) He holds (has) large shares in irdany companies and has a lot of influence overtheir shareholders. (ii) Hold (keep) him in check; he rnay be dangerous. (iii) An emergency meeting of the Cabinet was held (took place) for deciding the issue. (iv) The Prime Minister is holding (to convoke) an important press conference. (v) Ranga and Billa were held (caught) in a military compartment.

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LANGUAGE AND THE LAW (vi) The judge held (found) him guilty of murder and sentenced him to life imprisonment. (vii) Your argument cannot hold good (cannot be accepted). (viii) Pandit Jawaharlal Nehru was held high esteem (respected) even by his political opponents. (ix) Hold (stop) your tongue or I shall thrash you. (x) The Supreme Court held (gave ruling) in the, Kesvanand Bharati case that fundamental rights were unamendable. (xi) Theirs is a Holding company.

Occupy

(i) She occupied (had) the pride of place in that beauty contest. (ii) They gate-crashed and occupied (took possession of) the seats reserved for the V.I.P.s. (iii) Finding all the rooms occupied (engaged), he moved to another hotel. (iv) As he was occupied (busy), I decided to see him later.

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VOICE
THE ACTIVE AND PASSIVE VOICE Transitive verbs have a doer (subject) of the action they express (verb), and a sufferer (object), a person or a thing that undergoes the action. Thus, in the sentence, He violated the law., violation is the action (verb), he is its doer (subject) and law is the sufferer (object). Similarly, He (doer) met (action) her (sufferer) at a get-together and They came from Mumbai. In the last example, the action came has a doer in they but no sufferer inasmuch as nothing to which the coming was done. Come is a transitive verb. Usually, in sentences written in active voice the subject comes first, then the verb, and then the object. However, sometimes the object comes first. He was seen at the station by his friends. This means the same thing as the sentence His friends saw him at the station. But in the former sentence his being seen is more important and not the persons who saw him. In other words the action is primary, the subject is secondary. In the latter sentence the subject is important. Similarly in The injured persons were taken to the hospital, what is more important is that the injured persons were taken to the hospital. Who took them to the hospital is not so important. Such sentences are in passive voice. Some more examples of sentences in passive voice are: 1. 2. 3. 4. 5. 6. The case will be taken up on Monday. Our goods are being loaded into the truck. The notice must have been served by now. Our cases have been put on the cause list. His election to the Parliament has been set aside. Billa and Ranga were arrested at the Delhi Railway Station.

Thus, we can see that in sentences written in passive voice, 1. The object takes the place of subject. 2. The same tense of the to be is added before the past participle of the transitive verb. One can easily see that changing sentences written in active voice to passive voice is almost invariably easy, as both the subject and object are known. Conversely, to write a sentence in active voice, both subject and object must be known. On the other hand, passive sentence may be written without subject. Therefore, changing sentences which are written in passive voice without subject is difficult. Passive voice is, therefore, used 1. 2. 3. 4. where the subject is known or can be guessed, where the subject is everyone concerned, where the subject is unknown, where the subject is not to be revealed.

Therefore, in the following examples the passive voice is a regular feature of style: 1. The contract shall be deemed to have been revoked with or without notice if it is established that either of the parties playing fraud or deception upon the other for obtaining the agreement.

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2. The prisoner, when questioned could not give a satisfactory account of his whereabouts on the night of the theft. He was therefore handed back to the Police and ordered to be kept in custody for two weeks more. The case was brought forward by the local inspector of Police. Two weeks after he was remanded to judicial custody. THE DOUBLE PASSIVE The above examples shall be deemed to have been revoked and was ordered to be kept in custody reveal the use of double passive: a passive verb followed by a passive infinitive. This construction is possible only with a few verbs, not with every verb. An amendment was sought to be introduced is wrong. The test is to put the sentence back into the active voice. Someone sought to introduce an amendment. The subject is neither known, nor can be guessed. Amendment the object of to introduce cannot become the subject of was sought. Only the object of sought cane be the subject of was sought. He was allowed to be released on bail. Here the double passive is correct because the active form The Magistrate allowed him to be released on bail. is possible.

A.

Write the following using the passive voice of the verbs in brackets in a suitable tense. 1. 2. 3. 4. 5. A meeting is going (to hold) in the town hall tomorrow. It (to find) when the final account (to check) that a profit of Rs. 50,000 (to make). By the time the show began all the tickets (to sell out). It (to expect) that the enquiry (to complete) in a fortnight. Ranga (to produce) be fore the Chief Metropolitan Magistrate, New Delhi, on 20th September when, it (to say), a voluntary confessional statement (to make) by him.

B.

Turn the verbs in italics into passive voice and rewrite the following. 1. The customer has returned the books because the firm did not quote the prices correctly when he ordered them. 2. Mr. ajan would have accepted your invitation if you had included his wife in it. 3. The D.M. may issue an order under sec. 144 Cr.P.C. 4. Haris failure in the examination must have disappointed him. 5. The clerk is preparing a list of all the pending cases as his officer told him to do so.

Turn the following sentences into the active voice, supplying a suitable subject wherever the doer is not specified. 1. 2. 3. 4. 5. It has been reported in the papers that hundreds of homes were destroyed by the recent flood. Mr. Ram must have been given wrong directions as to how we could be got in touch with. The proposed Bill providing for Special Courts has been approved by the Supreme Court. Mr. X has been appointed as the new Chief Justice of India. Many articles like weapons used in the crime and blood-stained clothes have been recovered and produced as exhibits.

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USE OF VOICE IN LEGAL WRITING Experts on readability normally agree that language in which passive voice is predominant is harder to read than language in which active voice is predominant. Therefore, active voice is preferred to passive voice. Active voice also helps to avoid ambiguity by forcing the draftsman to name the person, if identifiable, who has relevant duty, right, power or privilege. But that does not mean that one should not use passive voice at all. If there is good reason for using passive voice, there is nothing wrong if one uses it. Sometimes it is not feasible or desirable to identify the person charged with a duty, the recipient of a right or discretionary authority, or the person from whom a right or discretionary authority is withheld or withdrawn. In such a case normally passive voice is preferred to active voice. For example, 1. The by-stander shall be treated as if he were consumer. (to create a duty in an unnamed person). 2. The applicant may not be required to pay the fee. (to negate authority in an unnamed person). 3. A mobile home shall not be moved on a public highway, unless ... (to create a duty not to act in the unnamed person).

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COMMON LEGAL TERMS


1. ab initio - (Lat) - from the beginning. 2. ad idem - (Lat) - with a common understanding. 3. ad infinitum - (Lat) - without limit. 4. ad valorem - (Lat) - according to value. 5. actus reus - (Lat) - result of ones act. The words actus reus denote a deed, i.e., a physical result of ones conduct, which the law seeks to prohibit. Such act should be a voluntary act, i.e., an event subject to the control of the will. Where A stabs B with a knife, depending upon the nature of the wound, B may sustain simple hurt, grievous hurt or B may die, and depending upon that, the actus reus will be simple hurt, grievous hurt or death brought about by As conduct. Acts which are sought to be prohibited by law by imposing punishment are called crimes or offences. See infra (Maxim 2) actus non facit reum nisi mens sit rea. 6. alibi - (Lat) - elsewhere. This is the name given to the special defence sometimes put forward by the accuses in a criminal prosecution, to the effect, that at the time of the offence alleged to have been committed by him, he was at a different place from that specified in the indictment as the scene of the offence. An alibi is the best defence which can be stated in such cases, if it can be clearly proved, but it is always regeded with great suspicion, and is very rarely successful. 7. allegatio falsi - (Lat) - the statement of what is untrue. see: expressio falsi; suppressio veri. 8. amicus curiea - (Lat) - the friend of the Court. The name given to any bystander, who, without having any interest in the cause, of his own knowledge makes a suggestion on a point of fact or law, for the information of the Court, or to correct a mistake. 9. animo remenandi - (Lat) - with an intention of remaining. Said of a person leaving a country without meaning to return; or of a person resident in a foreign country with the intention of remaining there and not returning to settle in his native country. This is one of the two necessary requirements for getting domicile of a place, the other being the factum of residence. 10. bona fides - (Lat) - good faith. See also: mala fide. 11. bona gratia - (Lat) - out of goodwill, voluntarily. 12. bona vacantia - (Lat) - the goods of a person dying without successor. Such goods will escheat to the government as ultimus hres. 13. bonorum possessor - (Lat) - possessor of goods. 14. capex doli - (Lat) - capable of wrong-doing; able to commit a crime or fraud. see: doli incapex.

LEGAL LANGUAGE AND LEGAL WRITING 15. causa causans - (Lat) - the immediate cause.

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The cause which directly produces the effect is distinguished from the causa caus causantis - a proximate but not immediate cause. 16. certiorari - (Lat) - A writ by which the superior Court (High Court or Supreme Court) examines the legality of the order of an inferior Court and in case of illegality quashes the impugned order. The difference between an appeal and the writ of certiorari lies in the fact that in appeal the superior Court corrects the error of the inferior Court, while in case of certiorari it does not. 17. corpus delicti - (Lat) - the substance or body of the offence or crime charged, with the various circumstances attending its commission, as specified in the charge sheet. 18. culpa - (Lat) - fault, negligence. 19. cum testamento annexo - (Lat) - with will annexed. In case of testamentary succession, the estate of the deceased will be administered by the executor appointed by the testator through the will. If such executor is not appointed, or if the executor appointed by the testator dies, or refuses to act, or becomes incapable of acting (due to illness, residence, insanity or insolvency, etc.), some other person will have to be appointed in his place. As executor can be appointed only by the testator, no other person including Court can appoint an executor to replace him. The Court can, however, appoint an administrator through letter of administration. But, issuing letter of administration indicates intestacy. Therefore, in such cases, Court issues letter of administration with will annexed to show that there is no intestacy though letter of administration are issued. This is called issuing of letter of administration cum testamento annexo. 20. damnum - (Lat) - harm, injury, loss. Under the Roman law damnum implied only accidental damage, or damage not the result of a legal wrong. 21. damnum absque injuria - (Lat) - a loss without a legal wrong; loss or hurt without an injury in law, i.e., without such injury as would give rise to action for damages against the offending party. 22. damnum injuria datum - (Lat) - damage or injury culpably inflicted. 23. de die in diem - (Lat) - from day to day, daily. 24. de facto - (Lat) - according to the fact, on the point of fact. See also: de jure. 25. de jure - (Lat) - according to law, on the point of law. See also: de facto. 26. de novo - (Lat) - of new, afresh. 27. del credere - (Lat) - an italian mercantile phrase similar in import to the English word guarentee. It is understood to express the obligation undertaken by an agent, who not only sells his principals goods, but who also guarantees the solvency of the buyer. On account of this guarantee he receives a higher remuneration or percentage on his transaction, which is called a del credere commission. 28. delegatio - (Lat) - delegation. 29. doli incapex - (Lat) - incapable of committing crime or fraud.

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A child below the age of 7 years is presumed to be doli incapex. This is a conclusive presumption and cannot be rebutted by producing evidence. See also: capex doli. 30. dolus - (Lat) - fraud. In the civil law it is defined as every trick, falsehood, or device employed for the purpose of circumventing, cheating, or deceiving another. This is a definition of dolus in its most comprehensive sense, generally termed in the civil law dolus malus. Any contract or agreement brought about by such means cannot be maintained (Ex dolo malo non oritur actio or Dolo malo pactum se non servaturum). 31. dominium - (Lat) - The name given in civil law to the right of absolute ownership. 32. dominium eminens - (Lat) - eminent domain. The supreme power over property vested in the people, in virtue of which they can, for the purposes of the public necessity or utility, compel any proprietor to part with his lands. 33. donatio mortis causa - (Lat) - a gift made in contemplation of death, and upon condition that it is to take effect only in the case of death of the donor. The condition need not be expressed. The Court infers if the gift is made in contemplation of death, and there is nothing to show a contrary intention. If the donor recovers, the gift is revoked. Therefore, an absolute and irrevocable gift cannot be donatio mortis causa. Where a man lies in extremity, or being surprised with sickness, and not having an opportunity of making his will, but, lest he should die before he could make it, he gives with his own hands his goods to his friends about him; this, if he dies, shall operate as a legacy, but, if he recovers, then does the property thereof revert to him. Under Mahomedan law there is a similar concept of gift during marz-ul-maut. 34. ejusdem generis - (Lat) - of the same kind or species. A well known maxim of construction. the phrase ejusdem generis means of the same kind and is more restricted than the word analogous. This is a rule observed in the interpretation of statutes, where a general rule will be controlled and restricted in its application by a special enumeration of cases to which it is intended to apply. Thus, where an Act, relative to the desertion of servants, applies to any servant in husbandry, or any artificer, calico printer, handicraftsman, miner, collier, keel man, pitman, glass man, potter, labouer, and other person. The ordinary interpretation of the last words of this clause would include every servant, the legal interpretation limits it, in respect of the preceding enumeration, to other persons of the same description as those specified. Accordingly, it has been held that this Act does not apply to domestic servants. 35. eo nomine - (Lat) - under that name; under that character. A trustee, suing for a debt due to the trust, must sue eo nomine, as under any other character the debtor owes him nothing, and cannot be compelled to fulfill his obligation. 36. ex facie - (Lat) - on the face of it, evidently. This is said of what appears from the face of a writing. For example, a deed may be invalid or null and void on many grounds, such as fraud, that the person granting it was not in sound mind, etc. But these grounds do not appear from a mere perusal of the deed, whereas, a deed which is erased in essentialibus, without any mention of the erasure in the testing clause, is ex facie null and void, the essential defect appearing from the face of the deed itself without any enquiry whatever.

LEGAL LANGUAGE AND LEGAL WRITING 37. ex officio - (Lat) - officially, by virtue of the office. 38. ex parte - (Lat) - of the one part; from one party; one sided.

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This term is applied in law to a proceeding by one party in the absence of, and without notice to, the other. 39. ex post facto - (Lat) - by matter happening afterwards; from a later act or event; after the fact. It is a term used in the law, signifying something done after, or arising from, or to affect, another thing that was committed before. ex post facto law - an act or statute changing the law as to previous events or contracts. 40. expressio falsi - (Lat) - a false statement. The fraud or misrepresentation, on the ground of which a contract can be rescinded. It is the making of a false statement, knowing it to be untrue. see: allegatio falsi; suppressio veri. 41. extra commercium - (Lat) - beyond commerce. This is said of things which cannot be bought or sold, such as public roads, rivers, titles of honour, etc. 42. felo de se - (Lat) - self murderer. A man of the age of discretion, and compos mentis, who voluntarily kills himself, by stabbing, poison or any other way. 43. feme covert - (French) - (also: femme couverte) - a woman protected, i.e., a married woman. 44. feme sole - (French) - a spinster. 45. fer natur - (Lat) - of a wild nature. A term applied to animals not commonly tamed. 46. forum actoris - (Lat) - the forum of plaintiffs or defendants domicile. 47. forum actus - (Lat) - the forum of the place where the thing was done. 48. forum contractus - (Lat) - the forum of the contract; the Court of place where a contract was made. 49. forum domesticum - (Lat) - a domestic forum or tribunal. 50. forum domicilii - (Lat) - the forum or Court of domicile. 51. forum rei - (Lat) - the forum of property is. 52. fructus - (Lat) - fruit; produce. 53. genus - (Lat) - general class or division, comprising several species; a mans lineage, or direct descendants. 54. habeas corpus - (Lat) - produce the body. Writ requiring body of person to be brought before judge or into the court. The writ is filed for the purpose of challenging the detention of the person as illegal detention. 55. hredes - (Lat) - heirs. [also written as: hres, heredes, heres].

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56. homicide - (Lat) - killing of a human being. 57. id est - (Lat) - (abbr. i.e.) - that is. 58. ignorantia facti - (Lat) - ignorance of a fact. 59. igmorantia juris - (Lat) - ignorance of the law. 60. in camera - (Lat) - in chambers; in private; in the judges private room; not in open court. Normally Court proceedings are conducted in open Court, where the public have free access to observe the proceedings. This is done with an intention to deliver justice publicly, and not secretly. However, in some cases where the things are confidential, the proceedings are held in camera, where only the parties and their counsel have access. This is done for reasons of security, or secrecy, or to avoid embarrassment to the parties. 61. in forma pauperis - (Lat) - as a pauper, i.e., relieved of the payment of court fees, as a poor man is unable to pay court fees. A suitor who from poverty is unable to avail himself of the ordinary forms of the Court, has from a very early period in the history of law, been entitled, upon satisfying the court of his want of means, to obtain an order for leave to sue in forma pauperis. Such order conferred on the pauper immunity from payment of the ordinary fees of the court. 62. in limine - (Lat) - at the threshold. 63. in omnibus - (Lat) - in all things. 64. in pais - (Lat) - out of the Court. 65. in personam - (Lat) - against the person. Proceedings in personam are proceedings which seek the recovery of a personal judgment. An action in personam is distinct from a personal action, both in the sense in which that term is used in the maxim, actio personalis moritur cum persona, and in its sense at common law, which was an action to recover personal property or to enforce a contract or to recover damages for a tort. 66. in re - (Lat) - in the matter; in the transaction. This phrase is much used in certain legal proceedings, particularly in Chancery and bankruptcy matters which are not begun by action in the ordinary way, to indicate the particular estate or matter which is the subject of litigation. 67. in re aliena - (Lat) - in anothers affair or property. 68. in re propria - (Lat) - in ones own business; in a subject belonging to oneself. 69. in rem - (Lat) - against the King; against the property, not against the person. This term is derived from the Roman law, but is not used in English law in precisely the same sense as in that law. Indeed, Bracton, limits proceedings in rem to actions to obtain possession of res by which he understood real actions. A proceeding in rem is a proceeding instituted against a thing, and not against a person. A proceeding in rem, in a strict sense, is one taken directly against property, and has for its object the disposition of the property, without reference to the title of the individual claimants but in a larger and more general sense the term proceeding in rem is applied to actions between parties where the direct object is to reach and dispose of the property owned by them, or of some interest therein.

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A judgment in rem is generally said to be a judgment declaratory of the status of some subject matter, whether this be a person, or a thing. Thus the probate of a will fixes the status of the document as a will; so a decree establishing or dissolving a marriage is a judgment in rem, but it fixes the status of a person. A judgment or forfeiture against specified articles of goods for violation of the revenue laws is a judgment in rem. In such case the judgment is conclusive against all the world, and, if the expression strictly in rem may be applied to any class of cases, it should be confined to such as these. Marshall, CJ, says, I have always understood that where a process is to be served on the thing itself, and where the mere possession of the thing itself, by the service of a process and making proclamation, authorises the Court to decide upon it without notice to any individual whatever, it is a proceeding in rem, to which all the world are parties. ... The claimant if a party, whether he speaks or is silent, whether he asserts his claim or abandons it. But usage has distinguished as proceedings in rem a class of cases in which, while the seizure of the thing will be in aid of jurisdiction, yet it is essential that some form of notice be given to particular person or persons. The proceeding thus assumes a phase of actions in personam, and a judgment will not be binding upon any one who was not before the Court. 70. in status quo - (Lat) - in the same state; without change. in status quo means being placed in the same position in which the party was at the time of the inception of a contract which is sought to be rescinded. 71. in toto - (Lat) - altogether; wholly; entirely. 72. in ventre sa mere - (Lat) - in the mothers womb. A child in ventre sa mere is to be considered as born. Thus where under Transfer of Property Act, a gift to an unborn person is invalid, a gift to a child in womb is not. So also, under law of torts, a child in womb is entitled to recover damages for the harm or loss caused to it. Also written as en ventre sa mere. 73. incognito - (Lat) - a sovereign travelling incognito though he enjoys as sovereign the right of exterritoriality is entitled to be treated as a private person if he so wishes. But when he chooses to put an end to such incognito, he is entitled to all the prerogatives of a sovereign. 74. infra - (Lat) - below. 75. injuria - (Lat) - injury or damage wrongfully inflicted; any wrongful act; a tortuous act. It need not be wilful and malicious, for, though it be accidental, if it be tortuous, an action will lie. 76. injuria sine damno - (Lat) - injury without a damage. 77. innuendo - (Lat) - allusive; deprecatory remark or hint. An innuendo is a statement by the plaintiff in an action for defamation, of the construction of which he puts upon the words himself, and which he will endeavour the jury to adopt at the trial. 78. inter alia - (Lat) - among other things. 79. inter vivos - (Lat) - between living persons. An ordinary deed importing obligation or conveying property is called a deed inter vivos, as distinguished from a will bequeathing movables, or a deed conveying heritage, to take effect only on the granters death, which is called mortis causa. see also mortis causa. 80. interim - (Lat) - meanwhile; in the meantime (e.g., interim order).

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81. interlocutory - (Lat) - in law it means not that which decides the cause, but that which only settles some intervening matter relating to the cause. 82. intra vires - (Lat) - within the powers or authority. 83. ipse - (Lat) - he himself; himself. 84. ipse dixit - (Lat) - he said it himself, i.e., there is no other authority for it. 85. ipso facto - (Lat) - by the fact itself; by the very act itself; by the mere fact; automatically. The expression is used where any forfeiture or invalidity is incurred; and the meaning of it is, that it shall not be necessary to declare such forfeiture or invalidity in a Court of law, but that, by the very doing of the act prohibited, the penalty shall be thereby instantly and completely incurred. 86. ipso jure - (Lat) - by the law itself; by the mere operation of law. 87. judgment in personam or judgment inter partes - (Lat) - A judgement, in form as well in substance, between the parties claiming the right, and that is so inter partes appears by record itself; one which operates only upon those who have been duly made parties and their privies, being against the person merely, and not settling the status of any person or thing. 88. judgment in rem - (Lat) - one pronounced upon the status of some particular person or thing and which binds all persons. 89. jura in personam - (Lat) - rights primarily available against specific persons. 90. jura in rem - (Lat) - rights which are available against the world at large. 91. jura publica - (Lat) - public rights. 92. jura rerum - (Lat) - rights of things. 93. jure gentium - (Lat) - by the law of nations. 94. jure nature - (Lat) - by or according to the law of nature. 95. juris consult - (Lat) - (Roman Law) - one who is consulted on the law; a Roman lawyer who gave opinion on cases put to him. 96. jus civile - (Lat) - the civil law; all the Roman Law except the jus honorarium. 97. jus commune - (Lat) - the common law; common right. 98. jus dicere - (Lat) - to pronounce judgment, to give the legal decision. 99. jus eminens - (Lat) - eminent domain; in the civil law, the supreme power of the state over its members and whatever belongs to them. 100. jus gentium - the Law of Nations; International Law. The law by which kingdoms and societies in general are governed. It is a term of Roman law, and is translated as the Law of Nations or Droit de gens. The jus gentium, opposed to jus civile, means the institutions of Roman law, admitted by all civilised peoples of antiquity. The jus gentium was not international law, nor was it, so to speak, philosophical or ideal law, which is a product of ethical reasoning though the two notions were often confounded; for the rules of law in question were founded on reasons, and were therefore, jus naturale or jus natur. 101. jus in personam - (Lat) - a right against a person: a right which gives its possessor a power to oblige another person to give or procure, to do or not to do, something.

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A complete, as distinguished from an imperfect right; a right, or property in a thing, valid as against all mankind. 103. jus tertii - (Lat) - the right or interest of a third person. When a person is sued in respect of certain property he may sometimes set up as a defence that the title to such property is not in the plaintiff but in some third person. In an action for ejectment, the plaintiff is entitled to succeed solely on the strength of his prior possession and the defendant is not entitled to set up the right of a third party unless he claims under him and makes god that claim. 104. lex - (Lat) - law; a law; the law. 105. lex communis - (Lat) - the common law. 106. lex domicilii - (Lat) - the law of the domicile. Personal contracts or deeds relating to movable property are interpreted and enforced according to the law of the place where the contracting parties, or the grantor of the deed, had their domicile at the time of contracting or granting, and that without regard to the place where the contract is to be executed, or where the movables are situated. Thus a conveyance of a movable situated in Scotland, granted by a domiciled Englishman, will be construed and given effect to according to the law of England. Similarly, a contract entered into between Scotchmen domiciled in Scotland, for the performance of certain works in England, will be enforced according to the laws of Scotland. While it the general rule that the law of any country will acknowledge and enforce contracts lawfully entered into in some other country, yet the rule admits of exception in cases where the contract is at variance with the morals or public policy of that country in which it is sought to be enforced. Thus in some countries where polygamy is permitted, and the several contracts of marriage entered into by the husband are recognised. Such contracts are not recognised in the countries where polygamy is forbidden, nor would the rights of any but the first wife would be enforced against the husband, since the law acknowledges none other than the first married to be the wife at all. Again, contracts concerning and deeds conveying heritable property must be in accordance with the law of the country where the heritage is situated, because it would be contrary to good policy to admit of the administration of a law different from that held and administered where the property is situated. The lex domicilii rules with respect to the person and personal rights, but immovable and heritable rights are regulated by the lex rei sit. 107. lex fori - (Lat) - the law of the forum of the court. See: lex loci contractus. 108. lex loci - (Lat) - the law of the place. See: lex loci contractus. 109. lex loci contractus - (Lat) - the law of the place where the contract is made. Where contracts are entered into in one country and their performance and fulfilment are to be made in another, questions frequently arise as to the rules by which those contracts re to be construed and performance enforced. There is a diversity of opinions in this regard. Some authorities maintain that the law of the place where the contract is to be performed (lex loci

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solutionis) governs the construction of the contract, while others are of the opinion that the law of the place where the contract is made does so. It may, however, be stated generally, that while the lex loci solutionis is always of importance in such a question, the construction and interpretation of a foreign contract depends upon the law of the place where the contract is entered into. While, however, construction of a contract is determined by the lex loci contractus, the mode of procedure for its enforcement must be regulated by the law of the country to whose courts the application has been made to compel fulfilment (lex fori). The lex loci thus determines the meaning, intent, and measure of obligation, the lex fori the mode of procedure by which fulfilment of that obligation is to be enforced. The phrase lex loci contractus is used, in a double sense, to mean sometimes the law of the place where a contract is entered into; sometimes that of the place of its performance. 110. lex loci domicilii - (Lat) - the law of the place of domicile. see: lex domicilii. 111. lex loci rei sitae - (Lat) - the law of the place where a thing is situated. Movable rights are regulated and determined by the law of the domicile; but immovable or real rights are determined by the law of the place where the subject or the property is situated. Thus a contract entered into in England will be enforced in India according to the laws of England. But a deed in respect of an immovable property situated in India, wherever executed, must, to be effectual, be framed according to the requirements of the laws of India. 112. lex loci solutionis - (Lat) - the law of the place where the contract is to be performed; the law of the place where the money is to be paid or obligation is to be discharged. see lex loci contractus. 113. lex mercatoria - (Lat) - law merchant. Law merchant is a body of legal principles founded on the customs of merchants in their dealings with each other, and though at first distinct from the common law, afterwards became incorporated into it. Though part of the general law of England, it is distinguished by a separate name, because it applies to particular subjects, and is based on principles were ingrafted into the municipal law by gradual adoption from the lex mercatoria, or general body of European usages, in matters relating to commerce. 114. lis pendens - (Lat) - a pending process or suit, an action in the course of being litigated, liticontestation. This phrase is sometimes used technically to express a preliminary objection to the suit in which it is advanced. In India, however, such a defence is in the form of res subjudice. Under the Transfer of Property Act, where a property is under litigation, it cannot be transferred. If at all it is transferred, the purchaser will take it subject to the decision of the suit. 115. loco parentis - (Lat) - in the place of a parent. Guardian of a child, testamentary or certificated, stand in loco parentis to the ward. They have the control of the wards person as well as the administration of their estate. The proper definition of a person in loco parentis to a child, is a person who means to put himself in the situation of a lawful father to the child, with reference to the office and duty of making provision for the child; or, as defined by Sir William Grant, M.R., it is a person assuming the parental character and discharging parental duties.

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Similarly, in English law, a tutor appointed to the child, by the will or testament of the childs father, stand in loco parentis to the child. The office of the tutor falls on the child attaining majority when he acquires persona standi which he could not previously have, and is entitled to perform certain acts for himself, which until then could be performed only by his tutor on his behalf. 117. locus standi - (Lat) - a place of standing, a right of appearance in a Court of justice. 118. mala fides - (Lat) - bad faith. Opposed to bona fides. 119. mala in se - (Lat) - (sing. malum in se) - acts bad or wrong in themselves. Acts are said to be mala in se which are contrary to the law of nature or rules of morality; such, for example, are murder, theft, robbery, and other crimes. see mala prohibita. 120. mala prohibita - (Lat) - (sing. malum prohibitum) - acts forbidden by law but not otherwise wrong. Such acts are distinguished from the mala in se in this respect, that these being opposed to morality and law, are wrong in themselves, while mala prohibita are not criminal in themselves, but become illegal by virtue of their prohibition. Thus driving on right side of the road cannot be regarded at any time as in itself an illegal act, but by virtue of statutory enactment it is rendered illegal. 121. mens rea - (Lat) - a guilty mind. Mens rea is a technical term generally taken to mean some blameworthy mental condition. In law of crimes, it has three forms, viz., 1. intention, 2. rashness, or 3. negligence. Where a person knows the consequences of his act and desires the consequences to happen is said to intend those consequences. Thus, if a person does an act with the foresight and desire of the consequences, he does that act intentionally. Where a person knows the consequences of his act but does not desire them to happen, he is said to be rash. Thus, a driver of a vehicle drives a car at high speed, knowing that it may cause accident, he is said to be rash, because he does not desire that accident should take place. Where a person fails to take sufficient care to avoid the consequences of an act, he is said to have acted negligently. Thus where a person throws something out of the window without looking to see i it may hit somebody, he is guilty of negligence. See infra (Maxim 2) actus non facit reum nisi mens sit rea. 122. mortis causa - (Lat) - in contemplation of death. Deeds made in contemplation of death are so called, because the prospect of death is the cause which induces their execution. Wills disposing of movables, and disposition of heritage, to take effect only after the granters death are called mortis causa deeds, in opposition to deeds taking effect during the life of the parties, which are termed inter vivos.

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As mortis causa deeds are of no avail until the death of the granter, they may be recalled or altered by him at any time during his lifetime, and that even where they contain a renunciation of his right to revoke. see also inter vivos. 123. mutatis mutandis - (Lat) - things being changed which are to be changed. This phrase, and the use of it, may best be explained by an example. A proprietor of an estate feus his lands, and the feu contracts all contain the same general clauses, the same obligations on feuers, confer the same rights. In such a case, two of the feu charters are said to be the same mutatis mutandis, that is, they are the same, if (or when) the name of the disponee, the particular disposition of the land feued, and other such - like particulars which are peculiar to each, be changed. 124. nexus - (Lat) - a bond, tie or fetter. An arrestment is said to impose a nexus upon the subjects arrested, because it imposes a legal restraint on the arrestee from parting with the custody of them. One will find this word frequently used in the civil law to signify a man free born, but who had been reduced to slavery on account of debts which he could not pay. Nexus realis is any bond or fetter attaching to real or heritable property, and which restricts the owners exercise of the absolute rights of property. An inhibition is a nexus realis, placing a restriction, as it does, on the owners right of disposing of his property. So also is an adjudication. 125. nisi - (Lat) - The word nisi is often affixed, as a kind of elliptical expression, to the words, rule, order, decree, judgment, or confirmation, to indicate that the adjudication spoken of is one which is to stand as valid and operative unless the party affected by it shall appear and show cause against it, or take some other appropriate step to avoid it or procure its revocation. A decree nisi is one that is conditional and requires something more to make it absolute. 126. non compos mentis - (Lat) - one not of sound mind, memory and understanding; insane. Non compos mentis is a generic term, and includes all species of madness, whether it arises on idiocy, sickness, lunacy or drukenness. 127. non obstante - (Lat) - notwithstanding, not opposing. 128. non sequitur - (Lat) - literally, it does not follow. 129. novatio - (Lat) - novation. A mode of extinguishing an obligation already existing by the substitution of a new engagement or obligation by the same debtor to the same creditor in its place. Thus, when a bill is given for the amount of an open account, and the account is in consequence discharged, novation takes place, the obligation being thereafter for the payment of the bill, and not the account. Another form of novation is when a new debtor is substituted for the old one, with the consent of the creditor. This is generally termed delegation (delegatio). 130. novus actus intervenius - (Lat) - a new act intervening. 131. nudum pactum - (Lat) - literally, a nude pact. A promise that cannot be enforced, either at law or in equity; an executory contract without a consideration, or a naked promise; a voluntary promise, without any other consideration than mere good-will or natural affection. 132. nullius filius - (Lat) - literally, the son of nobody; a bastard.

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133. obiter dictum - (Lat) - (pl. obiter dicta) - an expression of opinion by a judge on a question immaterial to the decision of the court. In the course of pronouncing their decision in a case before them, judges sometimes give opinions incidentally on points which may have been raised, but, not being essential to the case, have not been fully discussed or weighed. Such opinions are called obiter dicta. They are not considered as authoritative, nor would they be received as such by the Court, if the question on which they had been expressed came up at a subsequent period of judgment. They are only of importance commensurate with the reputation of the judge delivering them. see also ratio decidendi. 134. onus probandi - (Lat) - the burden of proving. The general rule is that the party making an allegation must prove it. Thus the burden of proving a claim which is denied lies on the pursuer who advances or maintains it, and on his failure to do so, the defendant is assoilized. The burden of proving, however, sometimes falls on the defender, as, for example, where he admits that he owed the sum sued for, but alleges that it has been paid, in which case, the proof of such payment is incumbent upon him. This rule does not apply where there is a legal presumption in favour of the allegation made. Thus, in the payment of a debt made to a minor himself and not to his guardian, action is competent against the debtor for repayment, on the ground that the payment made was to the lesion of the minor. In the ordinary case the minor would be bound to prove the lesion averred, but as the law presumes all such payments to be in lesion, the rule does not apply, and therefore it falls upon the debtor to show that there was no lesion, but that the payment was in rem versum of the minor. In some cases very little proof suffices to shift the onus from one party to the other. 135. parafernalia - (Lat) - (English Law) - The name given to those movables which were properly personal to a wife, and remained her own property, notwithstanding of her marriage, even when (as the law formerly stood) the marriage operated as an assignation of the wifes whole movable estate to her husband. The term includes a wifes wearing apparel, jewels, all ornaments proper to her person, etc. which were hers before the marriage and gifts of a similar character from her husband made before or on the marriage-day: it also includes the cabinets or wardrobe in which such effects were kept. No part of a wifes estate now passes to her husband by virtue of the marriage. 136. pari delicto - (Lat) - in a similar offence or crime; equal in guilt or in legal fault. 137. pari materia - (Lat) - similar in material; similar in substance. Statutes are in pari materia which relate to the same person or thing, or to the same class of persons or things. The phrase statutes in pari materia is applicable to private statutes or general laws made at different times, but in reference to the same subject. Thus the English laws concerning paupers and their Bankruptcy Act are construed together as if they were one statute, and as forming a unit system. Statutes that are in pari materia are to be construed as though they had originally constituted one enactment. 138. pari passu - (Lat) - equally; with equal grade; with equal step; with simultaneous progress. When creditors claiming a common fund and competing as to their rights of preference, as in an action of multiplepoinding, are preferred to the fund equally, or share and share alike, they are said to be preferred pari passu. Where one of the claimants is preferred to the fund to the extent of his claim before all the other claimant, he is said to be preferred in primo loco.

188 139.

LANGUAGE AND THE LAW pendente lite - (Lat) - during the pendency of a suit.

In England, formerly, if one of the parties to a suit assaulted his opponent during the pendency of a suit, or was accessory to such assault, he was punished by the loss of his cause. These laws are now repealed, and such assault is now punished in the same way as in case of any other assault. It has no effect on the decision of the suit. In India, under Transfer of Property Act, transfer of a property under litigation is prohibited. The transferee of such a property with the notice of the litigation will take it subject to the decision of the Court in that case. 140. penology - study of punishment and prison discipline 141. per capita - (Lat) - per heads. A distribution per capita is when a number of individuals, e.g., a class, even though in different degrees of relationship, take the fund distributable among them in equal shares - cf. per stirpes. Where a testator provides that his estate is to be distributed among the beneficiaries per capita, it is divided into as many shares as there are persons called to the succession. In such a succession each individual succeeds in his own right, and the right of representation is excluded. see per stirpes. 142. per curiam - (Lat) - the opinion of the court in a case in which the judges are all of one mind, and the question involved is so clear that it is not considered necessary to elaborate it by an extended discussion. 143. per incuriam - (Lat) - through negligence, mistake, or error. 144. per se - (Lat) - by himself, or itself. 145. per stirpes - (Lat) - per stock. Distribution of property per stirpes means that all the beneficiaries will not, necessarily or probably, take equal shares but, that the property is to be divided in to as many parts as there are stocks and each stock will have one and only one of such parts though such stock may consist of many persons whilst another may only consist of one person - cf. per capita. 146. periphrases - (Lat) - circumlocution; use of many words to express the sense of one. 147. perjury - the wilful giving under oath in a judicial proceeding or in a court of justice of false testimony material to the issue or point of inquiry. 148. persona - (Lat) - a person. 149. persona designata - (Lat) - a person is indicated in a statute or legal instrument not by name, but either by official designation or as one of a class. 150. pro forma - (Lat) - as a matter of form; a proceeding purely formal. 151. pro rata - (Lat) - according to a measure which fixes proportions; according to a certain part; in proportion; according to the rate. 152. pseudo - (Lat) - sham. 153. puisne - (Fr) - junior or inferior in rank. Several judges and barons of the Former Common Law Courts at Westminster, other than the chiefs, were called puisne. 154. qua - (Lat) - considered as; in so far as; in the character or capacity of.

LEGAL LANGUAGE AND LEGAL WRITING e.g., a trustee qua trustee. 155. quantum - (Lat) - the extent; how much. 156. quantum meruit - (Lat) - so much as is deserved or merited.

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Reasonable amount is to be paid for services rendered or work done, when the price therefor is not fixed by contract. 157. quantum valebat - (Lat) - for so much as it was worth; whatever value it may have. Where goods and wares sold are delivered by a tradesman at no certain price, or to be paid for them as much as they are worth in general, the quantum valebat lies, and the plaintiff is to aver them to be worth so much. also written as quantum valeat. 158. quasi - (Lat) - as if; as it ware; analogous to; seemingly but not really. This term is used in legal phraseology to indicate that one subject resembles another, with which it is compared, in certain characteristics, but that there are also intrinsic differences between them. 159. quid pro quo - (Lat) - the giving of one thing of value for another thing of value. Something for something; thing given as compensation or consideration. 160. ratio decidendi - (Lat) (pl. rationes decidendi) - reason or occasion of a law. 161. reddendo - (Lat) 162. reddendo singula singulis - (Lat) 163. referendo singula singulis - (Lat) - referring separate words to separate subjects; making a distributive reference of words in an instrument; construing distributively. 164. res - (Lat) - (Civil Law) - a term said to signify an a thing or an object. 165. res aliena - (Lat) - the property or subject belonging to another. 166. res communes - (Lat) - common things; things common to all by the law of nature. 167. res gest - (Lat) - (sing. res gesta) - the things done; the whole transaction or circumstance. Or literally speaking, the facts of the transaction; the facts of a transaction explanatory of an act or showing a motive for acting; matters incidental to a main fact and explanatory of it, including the acts and words which are so closely connected with a main fact as will constitute a part of it, and without a knowledge of which the main fact might not be properly understood; events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when narrating the events; the circumstances, facts and declarations which grow out of the main fact, or are contemporaneous with it and serve to illustrate its character; those circumstances which are the automatic and undesigned incidents of a particular litigated act, and are admissible when illustrative of such act. The test of whether or not declarations are res gestae is, were they the facts talking through the party or the partys talk about the facts? Instinctiveness is the requisite, and when this exists the declarations are admissible. 168. Res ipsa loquitur - (Lat) - The thing speaks for itself; the affair speaks for itself. A general way of saying that the circumstances attendant upon an accident are of themselves of such a character as to justify a jury in inferring negligence as the cause of that accident.

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Res ipsa loquitur imports that the plaintiff has made out a prima facie case without any direct proof of actionable negligence. 169. res judicata or res adjudicata - (Lat) - matter adjudged; a thing judicially acted on or decided. Res adjudicata means that if an action be bought, and the merits of the question be discussed between the parties, and a final judgment be obtained by either party, the parties are concluded, and cannot agitate the same question in another action. In is founded upon two maxims of law, one of which is that a man should not be vexed for the same cause, and the other that it is for the public good that there be an end of litigation. The principle is that the decision of a Court of competent jurisdiction upon a point which is or should have been construed as necessarily involved is final and conclusive. Matters once decided by a Court of competent jurisdiction can never be questioned. It matters not under what form the question be presented. Whenever the same question recurs between the same parties, the plea of res adjudicata estops. 170. res nullius - (Lat) - things belonging to no one; the property of nobody. 171. respondeat - (Lat) - let him answer. 172. Respondeat ouster - (Lat) - let him answer further; the judgment for the plaintiff on a plea of abatement. 173. Respondeat superior - (Lat) - Let the principal answer. A general rule which charges the master with liability for the servants negligence in the masters business causing injury to third persons; founded on this principle, that he who expects to derive advantage from an act which is done by another for him must answer for any injury which third person may sustain from it. also written as respondez superior. 174. san mentis - (Lat) - of sound mind. 175. sine die - (Lat) - without date (indefinitely postponed). 176. sine qua non - (Lat) - a condition precedent. 177. solatium - (Lat) - compensation; indemnification. This word indicates the compensation given by the law for the injury done to the feelings of any one; while damages generally signifies the compensation awarded for pecuniary loss sustained, or bodily injury inflicted. Thus where a man has been killed through the fault or negligence of another, the widow and the children of the deceased are entitled, not only to the damages on account of his death, and consequent removal of pecuniary support he afforded, but also to solatium on account of their wounded feelings. Solatium was given even where the death of the sufferer, instead of being a loss to his family, might be regarded as a benefit, on account of his bankruptcy and dissipated habits. 178. spes successionis - (Lat) - the hope or expectancy of succession. Any one who has a right to succeed to certain properties, either from his natural position (as an heir) or from the terms of a will, but whose right at the same time, is one which may be defeated, is said to have a spes successionis. Thus, the son of a person has the hope of succeeding to his fathers estate, and will succeed unless his expectation is defeated by his fathers act. So, also, a substitute called to a succession under a simple destination, has the hope or expectancy of succeeding, but merely the hope, since the institute may defeat it by altering the course of the

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succession. Such a spes cannot be transferred by the heir expectant (sec. 6 of Transfer of Property Act). 179. stare decisis - (Lat) - to stand upon decisions; to abide by the precedents. 180. status quo - (Lat) - the state in which; the pre-existing state of affairs. 181. suppreessio veri - (Lat) - the suppression or concealment of the truth. see expressio falsi. 182. uberrimae fidei - (Lat) - of the utmost good faith; good faith of the most full and copius character. 183. ultra vires - (Lat) - beyond the power; in access of authority. An act performed by a delegatee not authorised by the principal in his favour, is said to be ultra vires of the delegatee. 184. usufructs - (Lat) - fruits; income. 185. vicarious - (Lat) - substitute. 186. vis major - (Lat) - the greater or superior power. The phrase vis major natur (the superior power of the nature) comprehends the force of the elements, or force arising from natural causes which are irresistible, such as a violent gale of wind, floods, earthquake, etc.

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LEGAL MAXIMS
INTRODUCTION TO LEGAL MAXIMS A maxim is a sure foundation or ground of art, and a conclusion of reason, so sure and uncontrollable as that it ought not to be questioned. What is elsewhere called a principle, and is all one with a rule, a common ground or axiom. The language of legal maxims is almost invariably Latin, for they are commonly derived from the civil law, either literally or by adaptation, and most of these which are not found in the Roman sources are the invention of medieval jurists. Law, like moral philosophy or politics, has its maxims which sum up in a pregnant sentence some leading principle or axiom of law. According to Coke, quia maxima est ejusdignitas et certissima auctoritas atque quod maxime omnibus probetur. The merit of maxims is twofold. 1. Their sententiousness: There are useful generalisations of law. As Wingate observes a maxim is like a master key which opens many locks. In other words, maxims reduce all the cases to a few theses. Their epigrammatic form: Maxims are the proverbs of the law. They embody the wisdom of many and the wit of one. The latinised dress in which they generally appears is only part of this epigrammatic form - Latin more than any other language lending itself to point and brevity.

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These qualities of maxims have made them at all times a favourite form of legal currency, tendered and accepted generally, or to take another mataphor, a portable armoury of legal weapons. However, maxims have the same merits and defects as other proverbs, being brief and pithy statements of partial truths. Therefore, there are differences of opinion as to their utility as foundation of law. According to some authors, they express general principles without the necessary qualifications and exceptions and they are therefore much too absolute to be taken as trustworthy guides to the law. Brevity makes maxims occasionally obscure. They disguise, at times, a fallacy. Lord Esher, M.R., in Yarmouth vs. France, (1887) 19 Q.B.D. p. 653, in connection with Volenti non fit injuria, went so far as to say that they are almost invariably misleading, and for the most part so large and general in their language that they always include something which really is not intended to be included in them. Similarly, the late Mr. Justice Stephen (History of Criminal Law, p. 94) wrote, They are rather minims than maxims, for they give not a particularly great, but a particularly small, amount of information. As often as not the exceptions and qualifications are more important than the so called rules - which, while they mostly serve as good indexes to the law, are mostly bad abstracts of it. Some authors argue that it would be unfair to quarrel with the maxims for such reasons, because maxims do not condense into a sentence the significance of a volume, or because it is apt at times to tyrannise over the mind. Nowhere more than in the maxims does the robust good sense of the Common Law of England displays itself. Maxims of English law like the rules of the common law, derive their source and sanction from an immemorial antiquity, from the frequent judicial recognition, and from the imprimatur sages of the English law. Wingate has gone so far as to describe them as prime emanations of the Eternal

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Wisdom. It is argued that maxims are principles and authorities, and part of general customs or Common Law of England, and are of the same strength as Acts of Parliament, when the judges have determined what is maxim. Lord Bacon puts it quaintly thus, This delivering of knowledge is distinct and disjointed aphorisms doth leave the wit of man more free to turn and toss and to make use of that which is so delivered to several purposes and applications. A maxim is said to be a proposition of all men confessed and granted, without argument or discourse. Maxims of the law are holden for law. False and misleading when literally read, these established formulae provide useful means of expression of leading doctrines of the law in a form which at the same time brief and intellegible. They constitute a species of legal short-hand, useful to the lawyer, but dangerous to anyone else; for they can be read only in the light of expert knowledge of the law of which they are elliptical expression. SELECTED LEGAL MAXIMS 1. Actio personalis moritur cum persona - A personal action dies with the person. This maxim describes a class of actions which do not transmit, but die with the person who had the right to bring the action, or against whom it was brought. All penal actions are of this character. Similarly, some of the civil actions in which the cause of action arises from delict belong to this class. Actions for divorce are strictly personal to the offended spouse, and are barred, or after commencement the action fails, by death, and cannot competently be commenced or continued by the heir or representative of the injured party. As against this, there is a class of actions which transmit to and against the heirs of the deceased. This is expressed by another maxim actio contra defunctum coepta, continuatur in hredes. Thus, the legal representatives of the deceased creditor can sue the debtor for the recovery of the loan due to the deceased. Similarly, the legal representatives of the deceased debtor are liable, so far as they have assets of the deceased debtor in their hands, to pay the debt of the deceased debtor. Thus, where the action is based on the proprietary rights of the deceased, the action continues even after his death. This is because as soon as the death occurs, law divests the deceased of the proprietary rights and vests the rights in his legal representatives. Therefore, they step into the shoes of the deceased and get a right to sue if the deceased has not yet filed the suit, or continue the suit already filed by the deceased, on the basis of this proprietary right. On the other hand, the legal representatives of the deceased may also be sued in such cases. But the case of personal rights is different. That right is not transmitted to the legal heirs of the deceased, and therefore, they cannot file a suit or continue a suit based on such personal right. Conversely, they cannot be sued also. This rule of Common Law has been encroached upon by various statutes in England as well as in India. Motor Vehicles Act, Workmens Compensation Act, etc. are the main examples. 2. Actus non facit reum nisi mens sit rea - Act does not make a man guilty unless there be a guilty intention. This maxim lays down the fundamental principle of criminal law. A person cannot be punished for committing an offence without any intention or negligence on his part. Thus, if a person takes the property of another thinking it to be his, he is not guilty of theft. Similarly, a person cannot be

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punished just because he intended to commit an offence. Thus, if a person intends to take the property of another, he is not liable for theft. Only when a person takes the property of another with an intention to commit theft, he is liable. Thus, to constitute a crime, both act and intention to commit the act must be present. Actus reus refers to the result of the act. Act, here, includes omission. Thus, doing an act which is legally forbidden is unlawful. So also not doing some acts which the law requires a person to do is unlawful. Mens rea is refers to the mental condition of the accused. It takes three forms, viz., 1. intention, 2. rashness, or 3. negligence. Under Indian Penal Code, the term mens rea as such is not used anywhere, but term like, intentionally, voluntarily, negligently, dishonestly, etc. have been used to denote the mental element in the definitions of various offences. The general rule that mens rea is necessary to constitute an offence is subject to certain exceptions. In some cases the law holds a person guilty of committing an offence even though mens rea is absent. Such liability is called strict liability. See supra (Terms 5, 121) actus reus; mens rea. 3. Audi alteram partem - Hear the other side. Natural justice is made of two rules: 1. Nemo judex in causa sua (No one should be a judge in his own case), and 2. Audi alteram partem (Hear the other side). According to this second rule of natural justice, no one should be condemned, punished, or deprived of his life or property in any judicial proceeding, unless he had an opportunity of being heard. To satisfy this rule, certain procedural safeguards are provided to the parties in any judicial proceeding: 1. Right to notice - Place, time and date of hearing and the officer conducting the hearing must be intimated to the parties. Further, the allegations against them should be made known to them, so that they can answer the same. 2. Right to present case and lead evidence. 3. Right to rebut adverse evidence - This includes the right of cross-examination and legal representation. Further, no evidence shall be collected behind the back of the party. 4. Right to reasoned decision or speaking order - The judgment or order must show the reasons therefor. A decision given in violation of the above rule may be set aside. However, there are certain exception to this rule: 1. 2. 3. 4. 5. In case of emergency In case of confidentiality In case of routine matters such as academic adjudication In case of impracticability In case of interim preventive action

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4. Cessante ratione legis cessat ipsa lex - When the reason of any particular law ceases, so does the law itself. Reason is the soul of the law and when the reason of any particular law ceases, so does the law itself. Similarly, when the grounds or reason which gave rise to a law cease to exist, the law itself ceases to exist. It is obvious that if the circumstances which rendered the passing of a law necessary cease to exist, for if the same circumstances again emerge, the law itself will cease to be operative. But it can scarcely be said that the law ceases to exist, for if the same circumstances again emerge, the law does not need to be re-enacted, but may at once be put into force: unless in the meantime it should have been repealed, or should have fallen into desuetude. The maxim must therefore be read in this limited sense, - that when the necessity for the law has ceased, the law is for the time inoperative, just as if it did not exist at all. For instance, a member of Parliament is privileged from arrest during the session, in order that he may discharge his public duties and the trust reposed in him; but the reason of this privilege ceases at a certain time after the termination of the parliamentary session because the public has then no longer an immediate interest in the personal freedom of the individuals composing the representative body. This maxim, thus, if read literally, and in its widest signification, is erroneous and misleading. This finds familiar illustration in the protection from all civil process given to a foreign ambassador whilst in the exercise of the duty of his office; to Members of Parliament during the sitting of Parliament; to judges exercising their judicial functions; to barristers attending the courts of law and equity, and others; the reason being that such protection is necessary for the performance by them of their respective duties; but the moment they cease to be so acting, the protection so afforded them also ceases. This maxim is also applicable to property, and finds illustration in the case of a proprietor who is responsible for the due performance of rights and duties respecting his property so long as he is the owner thereof; but so soon as the property passes from him the incidents connected therewith which the law attaches thereto also pass. But the maxim is not of universal application. For instance, in Edwards vs Porter, [1925] AC 1, a majority of the House of Lords held that though a wife could, after the Married Womans Property Act, 1882, be sued for her post-nuptial torts, her husband should still be joined in the action. See the maxim used in the dissenting judgment of Viscount Cave p. 10 and see for the present law, Law Reform (Married Women and Tortfeasors) Act, 1935, sec. 3. 5. Communis error facit jus - Common error sometimes passes as current law. Common error makes a rule of law. When an erroneous practice has become general, and prevailed for a considerable period, an especially where the parties to some transaction have depended upon the prevailing practice as correct, the Court will not give effect to any objection or defence founded on it as error. It is necessary, however, that the error be general and of long standing. The above maxim must be applied with very great caution. It has sometimes been said, observed Lord Ellenborough, communis error facit jus; but I say communis opinio is evidence of what the law is - not where it is an opinion merely speculative and theoretical, floating in the minds of persons; but where it has been made the groundwork and the substratum of practice (Isherwood vs Oldknow, 16 RR 305).

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But, this maxim cannot be extended beyond the matters of practice. Erroneous views of the law, however widely held and acted upon, and even where indorsed by decisions, are no answer to the enforcement of the law when the error has been discovered and clearly ascertained; otherwise an error as to the law or a misconception of it would destroy the law (Anderson vs. MCall, 4 Macp. 765). In like manner, communis error and a long course of local irregularity, have been found to afford no protection to one who was answerable for skill in his profession. In the case of OConnell vs. Regina, 11 Cl. & F. 372, it was remarked by Lord Denman, in giving judgment in the House of Lords, that a large portion of the legal opinion which has passed current for the law falls within the description of law taken for granted, and that, when in pursuit of truth, we are obliged to investigate the grounds of the law, it is plain and has often been proved by recent experience, that the mere statement and restatement of a doctrine the mere repetition of the cantilena of lawyers cannot make it law, unless it can be traced to some competent authority, and if it be irreconcilable to some clear legal principle. 6. Delegatus non potest delegare - Delegate cannot further delegate. This rule applies in case of agency. Wherever the delegation of authority involves a trust in the agent or the capacity of the agent to properly execute the work for which he is selected. In such cases, the agent may have been appointed by the principal because of that agents skills, experience, talent, honesty, etc. But where such a thing is not involved in the appointment of agent, this rule does not apply. This rule is also applicable in administrative law, in respect of delegation of quasi judicial, quasi legislative or administrative functions and in case of delegation of legislative functions. But where the functions are purely ministerial in nature, this rule is not applicable. 7. Ex nudo pacto non oritur actio - From a bare contract an action does not arise. A nudum pactum under the civil law was a bargain, promise, or engagement undertaken or given without consideration, and did not constitute an obligation which could be enforced. This law does not have application under some legal systems, such as the Scotch legal system, where promises and engagements may be enforced, although granted gratuitously and without consideration. A consideration of some sort or another is so necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay something on one side, without any compensation on the other, will not at law support an action; and a man cannot be compelled to perform it (2 Bl. Com. 445). Thus, for instance, in Folkes vs Beer (1884), LR 9 HL 605, the House of Lords held that an agreement between a judgment creditor and judgment debtor that in consideration of the debtor paying down part of the judgment debt and the rest by instalments the creditor would not take any proceedings on the judgment was a nudum pactum, being without consideration and did not prevent the creditor, after receiving the whole debt and costs, from enforcing payment of the interest on the judgment. Where indeed a promise is made under seal, the solemnity of that mode of delivery is held to import, at law, that there was a sufficient consideration for the promise, so that the plaintiff is not in this case required to prove a consideration; nor can the deed be impeached by merely showing that it was made without consideration. But such a deed gives no right to specific performance. 8. Ex turpi causa non oritur actio - An action does not arise from a disgraceful or immoral consideration. No action can be maintained on a contract or obligation, the consideration of which is disgraceful or immoral.

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Every agreement, bargain, or contract is illegal within the meaning of this maxim, the purpose of which is to do or carry out something opposed to the law of the land, or which is opposed to sound policy or morality. Of the first class (those which are in opposition to the rules of law, and forbidden) may be instanced the pactum de quota litis, a bargain between agent and client to the effect that the former will receive a part of the subject of the lawsuit instead of his ordinary fees. Contracts for smuggling of goods in defraud of the revenue, and obligations for gambling debts, are of the same class, and give rise to no action. Trustees are not allowed to purchase the property of the trust, because that would be opposed to the sound policy, enabling them to enrich themselves at the cost of those whose interest they as trustees are bound to protect. Contracts or agreements whereby one is to receive a sum of money for bringing about a certain marriage, or contracts or obligations imposing a restraint on marriage, are regarded also as inconsistent with sound policy, and are ineffectual. Obligations granted as the wages of prostitution, or for money given as an incentive to commit crime, or conceal crime, are illustrations of agreements contra bonos mores (against morality). None of these agreements can be enforced. Maxims Ex maleficio non oritur contractus and Ex facto illicito non oritur actio are also to the same effect. 9. Falsus in uno falsus in omnibus - False in one thing is false in everything. If a witness on oath in giving evidence makes a statement which is manifestly false, the effect of it undoubtedly will be, and most properly so, to cast doubt over the whole of his evidence. His credibility will thereby be so affected as to make his evidence of little or no value. At the same time it would be rash to reject the whole testimony of a witness because in one part of it he has been guilty of falsehood; there may be motives inducing the witness to falsehood on one branch of the case in which he is being examined which do not operate in regard to other parts of it. The whole evidence given will be weighed by the judge or jury, and that which a witness says which appears to be true will receive weight, although he may have also told something which is false; his whole evidence is not necessarily to be disregarded because it is not all true. Under English law, a person convicted of perjury was formerly held to be inadmissible as a witness, but that is no longer so. This maxim may properly be applied in those cases only where a witness speaks to a fact with reference to which he cannot be presumed liable to mistake. 10. Generalia specialibus non derogant - General things do not derogate from special things. Where a deed contains provisions of a general nature, and also others which are special, the latter may limit the application of the former, but the special are never limited or explained by the general. This rule applies whether the deed be unilateral, as, for example, a deed of settlement, or a contract to which there are several parties. Special Acts are not repealed by general Acts unless there be some express reference to the previous legislation, or a necessary inconsistency in the two Acts standing together, which prevents the maxim from being applied: Harlow vs. Minister of Transport [1951]2 K.B. 98. A general provision relating to meetings and the formalities to be served in connection therewith does not become inapplicable in toto to a particular meeting mentioned in another section simply because some of the language of the general section is not applicable to a meeting of the later description [54 Bom. 908 = 130 I.C. 385 = 32 Bom.L.R. 1252 = AIR 1930 Bom. 584]. For the application of the maxim to statements by accused to Police see 54 Cal. 237 = 99 IC 227 = 28 Cr.L.J. 99 = AIR 1927 Cal. 17]. Specialia derogant generalibus - Special provisions derogate from general.

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11. Ignorentia facti excusat, ignorentia juris non excusat - Ignorance of fact is an excuse, ignorance of law is not an excuse. Ignorentia juris non excusat - Ignorance of law is no excuse. Ignorantia legis neminem excusat - Ignorance of law does not afford excuse. The word juris in this maxim means the settled general law of the Country. A person is not bound to know the true solution of a doubtful point of law, nor the true position regarding private rights, even his own: Cooper vs. Phibbs L.R. 2 H.L. 149, p.170 per Lord Westbury; Solle vs. Butcher [1950]1 K.B. 671. As observed by Lord Tindal, C.J., in MNaghtens Case, law is administered upon the principle that every one must be taken conclusively to know it without proof that he does not know it. Therefore, every one is presumed to know the law, and therefore, a plea of ignorance will not excuse a breach of it. This rule makes it compulsory for everyone to know the law of the land. Even foreigners are not excepted from the application of the rule. Every person who enters the territory of any country, by implication agrees to know and be bound by the laws of that country. Ignorance, when not plainly culpable, may induce lineancy, as where a law newly promulgated, and the provisions of which are not yet generally known, has been broken. 12. In jure non remota causa, sed proxima spectator - In law, immediate not remote cause, of every event is regarded. It frequently happens that a wrongful act has been done to a person, he suffers damage and he has a cause of action for the wrongful act, and yet he cannot found any claim for compensation for the particular damage because the connection between such damage and the wrongful act is insufficient: the damage is too remote. The law must abstract some consequences as relevant not perhaps on grounds of pure logic, but simply for practical reasons: Liesbosch Dedger vs. Edison, [1933] A.C. 449, p.460 per Lord Wright. Also causa proxima et non remota spectatur. 13. In pari delicto potior est conditio defendentis - Where both parties are equally at fault, the condition of the defendant is the stronger. In equal delict, the position of the defender is the stronger. Where a claim arises, or is based upon a delict in which both parties are equally concerned, the person resisting the claim is in a stronger and better position than the person making it. In illustration of this, suppose the case of two persons engaged in a smuggling transaction, and that the smuggled goods are in the possession of one of the parties. His positions who holds the possession of the goods is the stronger, because his co-adventurer cannot either recover any part of the goods or their value. If the latter was to raise an action for the delivery of the part of the goods or their price, his action could not be successful if the other pleaded that the goods or the money in question were the result of an illegal transaction. The law will take notice of an illegal transaction to defeat a suit, not to maintain one. Thus, in Taylor vs. Chester, (1869) L.R. 4 Q.B. 309, the plaintiff failed to recover the half of a 50l. note deposited with the defendant as a security for a debt contracted for wine and suppers supplied to the plaintiff by the defendant for consumption in a brothel kept by her, inasmuch as the plaintiff could not recover without showing the true character of the deposit. The rule is well settled, as to executed contracts, that if the parties be in pari delicto, they will be left where they have placed themselves. They do not come into the Court with clean hands. If, however, one party is but an instrument in the hands of another, then they cannot be said to be in

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pari delicto. Story says, And, indeed, in cases where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be, and very often are, very different degrees in their guilt. One party may act under circumstances of opposition, oppression, hardship, undue influence, or great inequality of condition or age, so that his guilt may be far less in degree than that of his associate in offence. In pari delicto potior est conditio possidentis - Where both parties are equally at fault, the condition of the possessor is the stronger. When one is in possession of a subject, he is not bound to cede possession to any one showing as good a title to it as that on which he possesses. The claimant or challenger must show a better title than the possessor, for the law presumes right to possess where possession is held. Law is in favour of continuing the possession of the possessor than in disturbing it. Also In quali jure melior est condition possidentis. 14. Omnia prsumuntur contra spoliatorem - All things are presumed against a wrong doer. The wrong-doing to which this maxim has reference is that which can be so regarded by law, and does not include those acts which, however wrong according to a moral standard, are still within the legal right of the doer. As a general rule, also, the maxim does not apply in criminal cases, where (with very rare exceptions) there is no presumption against the accused, but everything essential to guilt must be proved. But the maxim has application in many circumstances in civil cases. For example, if one of the parties to a suit calls for the production of an agreement or letter or other document in the possession of his opponent, the terms of which are in dispute, and it appears that the party having the custody of the document has wilfully destroyed it, the document will be presumed to have been in its terms disadvantageous to the destroyer of it. So, also, where the goods liable to duty are concealed on board a ship, the person concealing them will be presumed to have concealed them for the purpose of defeating the revenue, and will incur the penalties of smuggling, and the goods will be forfeited. Where articles of value are lent or deposited, and the borrower or depository refuses to deliver them up, the presumption will be that the article was of the most valuable description of its kind, and his liability for its price will be ascertained according to that standard. This maxim was applied in the leading case of Armory vs. Delamirie (1721, 1 Str. 505, where it was held that where A had unlawfully detained jewels (of which only the size was proved) the property of B, then the jewels must - unless produced - be presumed to have been of the finest quality. 15. Qui facit per alium facit per se - He who does an act through another is deemed to do it himself. On this principle principal is liable for the acts of his agent. Similarly, a master is liable for the consequences of any act done by his servant in the ordinary course of his duties. Thus, a driver, while driving his masters car, should, through recklessness of inattention, inflict an injury upon a pedestrian by driving the car over him, or otherwise, the master is responsible for the injury so inflicted. This maxim enunciates the general doctrine on which the law relative to the rights and liabilities of principal and agent depends. Where B employs A to buy goods for him, B is liable in an action for the amount. If a servant do what his mater ought to do, it is the same as though the master dir it himself; and if a servant do any such thing without the consent of the master, yet if the master subsequently ratify the act of the servant it is sufficient. The maxim applies to everything done by the agent in the ostensible scope of his authority. It does not apply to the acts of the agent of an agent.

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Where a notice was issued in pursuance of the resolution of the Standing Committee and it appeared that the notice was to all intents issued by that body, though it was signed by the Chief Officer, held, by Broomefield, J., that the notice can be taken to be that of the Standing Committee by applying this maxim. [32 BomLR 757 = AIR 1930 Bom 352] See also 30 BomLR 364; 12 MIA 157 (195-197) = 11 WR (PC) 19]. Applicability of this maxim to the civil law and not criminal law. See AIR 1937 Rang. 117. 16. Rex non potest peccare - The king can do no wrong. It is not to be presumed that the king will do or sanction anything contrary to law, to which he is equally amenable with his subjects [rex est major singulis, minor universis]. But if an evil act be done, though emanating from the king personally, it will be imputed to his ministers, and the king is in no way responsible for their acts. Upon this principle the king cannot be prejudiced by the wrongful acts of his servants nor by errors in letters patent, etc. 17. Salus populi est suprema lex - The welfare of the people is the supreme law. Private or individual rights and interests must always give place to the public welfare. So, where a railway or public road is to be made, the private rights of the owners of the land over which it is to pass have to give way before the public advantage to be conferred by the new works. So also the house of a private proprietor may lawfully be destroyed or injured for the purpose of checking a fire which might otherwise spread to the injury of the town. The public welfare justifies what would otherwise be an illegal or unjustifiable interference with private property. 18. Sic utere tu ut alienum non ldas - Enjoy your property in such a manner as not to injure that of another person. This maxim of the civil law contains the only restriction laid upon the otherwise unlimited right which a proprietor has of using his property according to his own pleasure. Even where the use to which a proprietor puts his subject is injurious to his neighbour, yet if it be for his own advantage, and not merely a wanton or malicious act intended to injure, such use cannot be interfered with, for utitur suo jure. But, on the other hand, an act of the proprietor done in mulationem vicini, may be interdicted. Lord Wright observed in Sedleigh-Denfield vs OCallaghan ([1940] AC 880, at p. 903), This, like most maxims, is not only lacking in definiteness but is also inaccurate. An occupier may make in many ways a use of his land which causes damage to the neighbouring landowners and yet be free from liability. This may be illustrated from Bradford Corporation vs Pickles [1895] AC 587. Even where he is liable for a nuisance, the redress may fall short of the damage, as, for instance, in Colls vs Home and Colonial Stores [1904] C 179. A balance has to be maintained between right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. 19. Ubi jus ibi remedium - Where there is a right there is a remedy. Jus signifies here the legal authority to do or to demand something; and remedium may be defines to be the right of action, or the means given by law, for the recovery or assertion of a right. A man who has a right to vote at an election for Members of Parliament may maintain an action against the returning officer for maliciously refusing to admit his vote, though his right was never determined in Parliament, and though the persons for whom he offered to vote were elected; and Lord Holt observed that, if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense [Ashby vs White, 1 Smith LC].

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Remedium includes more than is usually included in the English term remedy. It means right of action as well as remedy. Thus where ones right is invaded or destroyed, the law gives a remedy by interdict to protect it, or damages for its loss, and where ones right is denied the law affords the remedy of an action for its enforcement. Wherever, therefore, a right exists, there is also a remedy - i.e., an action to enforce it, to protect or replace it. 20. Ut res magis valeat quam pereat - It is better for a thing to have effect than to be made void. This maxim expresses a rule to be observed in the construction of deeds or contracts. When the writing is ambiguous, and open to construction, that construction of it is to be preferred which will make it of avail, rather than that which, if adopted, would make it of no avail. The contract or writing having been executed presumably with the view of having some effect, no construction of it will readily be adopted which would result in making it a dead letter. The intention of parties will rather be sought for, and given effect to. There are other maxims to the same effect: Benedicta est expositio quando res redimitur a destructione (That exposition, or construction, is to be commended by which the matter is rescued from destruction; Benigne faciend sunt interpretationes ut res magis valeat quam pereat (Liberal constructions are to be given, so that the matter may be made of avail rather than be destroyed); Ut res valeat potius quam pereat (That the thing may avail, or be valid, rather than perish, or be invalid. 21. Vigilantibus non dormentibus jura subvenienta - The laws assist those who are vigilant, not those who sleep over their rights. On this maxim preference is given in competition to rights which have been first perfected, and to diligences which have been first used; those who have been most watchful of their rights, and careful to use the legal means of securing them, being best entitled to the benefits which the law confers or affords. This maxim is gives us the basic principle of law of limitation. A person whose rights are violated is expected to seek legal remedy without delay. Law of limitation lays down the period within which the right should be enforced by starting the legal action. This period is reckoned from the date of cause of action or from the date on which the person became aware of violation of his rights, whichever is later. After the expiry of the period of limitation no legal action can be brought seeking the remedy. However, it must be noted that limitation bars only the remedy and not the right itself. Thus, the right of the person continues, but the remedy to enforce that right lapses after the period of limitation. Thus, if a creditor does not file a suit to recover loan within a period of 3 years, he cannot bring an action to recover the loan, though his right to recover the loan does not lapse. This is described by saying that before the lapse of the period of limitation, his right is a perfect right, while after the lapse of period of limitation it becomes an imperfect right. On the other hand, prescription not only bars the remedy, but removes the right itself. Thus, where a persons land is occupied by a trespasser, he should bring an action within a period of 12 years, or else, the trespasser will become the owner of the land by adverse possession. Prescription is founded in part upon this maxim; for rights are cut off in pnam of the neglect of the owner to enforce his rights as a presumption of abandonment or discharge. In all actions, suits, and other proceedings at law and in equity, the diligent and careful plaintiff is favoured to the prejudice of him who is careless. The Limitation Act, 1939, was made in furtherance of this principle. And the equitable doctrine of laches denies relief to one who has long and negligently delayed to sue for specific performance.

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22. Volenti non fit injuria - That to which a man consents cannot be considered an injury. The import of this maxim is that, that which would amount to wrongful injury, subjecting the doer of it in damages to the person injured, loses this character, if the person suffering the disadvantage or injury consents to the performance of that act. To break down a neighbours wall, to build upon his land, or to do anything inflicting damage upon him entitles him to damages, but if his consent to the act has been obtained, it takes away that which was wrongful in it, and at the same time takes away all the claim for damages on account of it. Injuria signifies, not injury or damage, merely, but injury or damage wrongfully inflicted, and giving rise to a claim or reparation. This maxim has often been urged in defence where the damage arose or was occasioned by a danger seen by the person injured, which was or known to the person injured, to exist. In actions founded on tort the leave and licence of the plaintiff to do the act complained of usually constitutes a good defence; and as a rule a man must bear loss arising from acts to which he assented. On this principle, when a man connives at or condones the adultery of his wife, he cannot in such a case obtain damages from the seducer, nor sustain a petition for divorce. A railway company usually owes a duty to a passanger to take reasonable care of him, but he cannot demand such care if he expressly agree, in consideration of a free pass, to travel at his own risk. To succeed under the maxim it is necessary for the defendant to prove that the person injured knew of the danger, appreciated it, and voluntarily took the risk. That he had some knowledge of danger is not sufficient. A man cannot voluntarily undertake a risk, the extent of which he does not appreciate [1923 MWN 544 = 45 MLJ 53 = 17 LW 495 = AIR 1923 Mad. 565].

PART FOUR WRITING IN GENERAL

DESCRIPTION AND NARRATION


Desribing facts of a case is an important and unavoidable part of an advocates profession. To tell even a simple story well requires some practice. An uneducated person generally tells a tale badly. He does not mentally look ahead as he tells it and plans it out. So he repeats himself, omits important items, which he drags in afterwards out of place, and dwells too long on minor details and fails to emphasise the leading points. To write a good story, you must have the whole plot clear in your mind, and the main points arranged in their proper order. If an advocate is unable to narrate even the facts of his case, he leaves poor impression in the minds of the judges and fellow advocates, which adversely affects his profession. Therefore, it is imperative on the part of an advocate to practice the art of description and narration. In this exercise you are not asked to make up a story. The plot of each story is given to you, more or less fully, in the outlines provided. But an outline is only a skeleton; it is your work to clothe the skeleton with flesh and breathe life into it. You must try to produce a connected narrative, and to make it as interesting as you can. We narrate what we have seen, what we have heard, and what we spin out of our imagination. The narrative may be the result of one or two of the above experiences or a mixture of all. The subject of a narrative is usually an incident or a chain of incidents or experience, physical or menta1. If the narrative involves an event or incident or an experience we catll it a simple narrative. In this, time and sequence are the important factors. The questions that are put and their answers are usually in this order: What is this event or incident? When did it occur? What happened after it? What next? TEMPLE THEFT Look at the following questions carefully, and then read the story from the newspaper; then write answers to the questions: When was the Kali Temple built? What is the earliest event in the story? What was going to be done in the first week of September? For how many days were the idols missing? Why is the arrest, the last event in the story, the first event mentioned in the newspaper report? (f) How were the idols stolen? (g) Who were the culprits and when were they arrested? (h) Was it necessary that the investigating officers were given special awards? (a) (b) (c) (d) (e)

205

206

WRITING IN GENERAL RARE KALI IDOLS SEIZED: TWO HELD (From our correspondent) Jaipur Sept. 25 The Jaipur, Crime Branch Police nabbed two idol-lifters here in the early hours of today and recovered from them the entire set of twelve idols stolen by thern from the 250-years old Kali Temple in Arner about ten Kilometres from here. The value of the 12 exquisite bronze idols was Rs. 3.5 lakhs. The idols seized included that of the main deity. This was announced here by Mr. B. Sanyal, Superintendent of Police, Jaipur. The temple authorities had arranged a Yagna in the first week of this month, before starting some renovation work, but on the morning of September 8th they found the front door of the temple forcibly opened and all the 12 idols missing. The yagna wad immediately cancelled. The police were infor meet. The Crime Branch officers arrested Lachha, a porter from Johri Bazar and his associate, Sundar, as they were allegedly trying to dispose of the idols through a hotel employee. Ten of the idols seized are rare pieces of art. The Police Chief has recommended a suitable reward to the investigating team of the officials.

A PICKPOCKET Rajan found a purse. Fifteen minutes later Rajan was examining the contents of his find. The purse contained ten rupees in coins and twenty in currency notes and a few paise. Rajan tucked the paise at his waist in his loin cloth. Must give them to some beggars, he reflected generously. The thirty rupees he bundled into a knot at the end of his turban a wrapped this again round his head. It would see him through the rest of the month. Then he opened the flap of the purse and through the slit at its side, he saw aballoon folded and tucked away. Oh, this he bought He remembered the others talk about the motherless child, Rajan was filled with pity at the thought of the young child perhaps of the same age as his second son That motherless boy must have his balloon at any cost, Rajan decided. But how? The balloon could not be handed back. The thing to do was to put it back into the empty purse and slip it into the others pocket. Even before the Magistrate Rajan kept saying, I was only trying to put back the purse. (adapted from R. K. Narayans Trail of the Green Blazer) Rajan had a conversation with the Police Sub Inspector. Here are the things that Rajan said in that conversation. Study them and then write down the suitable questions. S.I. : R. : Rajan, sir.

LEGAL LANGUAGE AND LEGAL WRITING S.I. : R. : 46, Ramakrishnapuram.

207

S.I. : R. : I do various odd jobs, as a day-labourer and that sort of thing.

S.I. : R. : I was going through the market on my way to work.

S.I. : R. : But I didn't take it. I was putting it back.

S.I. : R. : I picked it up when.the man dropped it after buying his balloon. He was walking quickly, so I followed him through the crowd to put it back.

S.I. : R. : I caught up with him when he stopped to listen to the sermon of a priest.

S.I. : R. : I was just about to tell him what I was doing when he seized my arm and began to hit me.

S.I. : R. : No, I am not a pickpocket. 1 told you 1 work as a respectable day-labourer and earn my honest 5 rupees a day.

S.I. : R. : That is my week's wages.

S.I. : R. : I don't know where his thirty rupees are, but these thirty rupees are my honestly-earned wages.

S.I. : R. : Yes Sir. You may. He will verify.

S.I. : R. : Then you may clap me in jail.

S.I. : R. : I dont know, but I can lead you to his house.

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WRITING IN GENERAL XXV. ESSAY WRITING

The dictionary meaning of the word essay is a literary composition (usually prose and short) on any subject. According to Wren and Martin, in its strict sense, essay is a written composition giving expression to ones own personal ideas or opinions on some topic, though the term usually covers also any written composition, whether it expresses personal opinions, or gives information on any given subject, or details of a narrative or description. Wren and Martin also observe that the word essay is somewhat loosely applied to a variety of compositions, from Bacons compressed essays on the one hand, to those so called Essays of Macaulay, some of which are lengthy articles, almost as big as small books, on the other. In ordinary course of his profession, an advocate is never called upon to write an essay. But in law curriculum essay is introduced, and with very good reasons. So far as our curriculum is concerned, an essay is an exercise in composition. Literal meaning of the word essay is an attempt. The essays you write we write here are trial exercises or attempts to express your thoughts in good English. At its best, an essay is the highest form of English prose, and called for the exercise of faculties not brought into operation in ordinary professional communication. A student of law who is desirous of improving his style, and of adding to his stock of literary ideas, will do well not only to read, but also to study the essays of Steele and Addison, of Lamb, Halitt and De Quincey, of Froude and Macaulay, of Matthew Arnold, Birrell and Belloc. In their writing one may not find anything pertaining to law, but he will find choice of diction, felicitous expression, and polished phrase, as well as clear and logical arrnagement of matter, originality of ideas, and thoughtful criticism. A man desirous of influencing his reader or listner must have an idea and a style, i.e., he must have something to say and a good way of saying it. A person cannot write on any subject unless he has the knowledge of facts. No wealth of vocabulary, no choice of diction, no skillful arrangement of phrase and sentence will compensate for ignorance of the subject. Polished manner will never excuse deficient matter. Exercises in essay writing helps one to develop the skills of gathering the facts and figures required to write on any topic. It also helps him to put these facts in an impressive manner. An advocate is required to narrate facts and convince the judge that the law is on his side. To do this he will have to exhibit more or less the same skills which he will be using in writing an essay. Hence, exercies in essay writing are more helpful to a student of law than to anyone else. CHARACTERISTICS OF A GOOD ESSAY According to Wren and Martin, the following are the characteristics of a good essay: 1. Unity. An essay must be a unity developing one theme with a definite purpose. 2. Order. The essay should follow a certain line of thought and come to a definite conclusion. It should not consist of haphazard reflections put down anyhow. 3. Brevity. The essays written in the examinations should not be long. 4. Style. The style of an essay must be dignified and literary. Slang, colloquial terms and free and easy constructions are not proper in an essay. 5. The Personal Touch. An essay should reveal the personal feelings and opinions of the writer. It should have his individuality in it.

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Power of expression and manner of expression are of great importance if the essay has to be effective. When a candidate at the engineering examonation is asked to write an essay on Semiconductors, the object of the examiner is to find out his knowlede of semiconductors, i.e., the extent and accuracy of his technical knowledge on the given subject. When a candidate at an examination in English is asked to write on the same subject, the object is different. Here, the examiner is not very much concerned about the candidates knowledge on the given subject, but he is interested in discovering whether or not the candidate is able to express his knowldege in a correct and suitable language. At an examination in engineering a mistake in English might be excused; at an examination in English an error in grammar or in construction would be more serious than a misstatement of fact. In law, on the other hand, both are important. Law being a technical subject, accuracy of facts is extremely important, and at the same time its precise expression is also equally important. A grammatical mistake or a mistake of spelling or construction which may lead to a different meaning than the one which is intended by the author or speaker is viewed seriously. PREPARING TO WRITE AN ESSAY According to Wren and Martin, there are three stages in preparing to write an essay: 1. General Preparation A student who is preparing himself for the writing of essays at an examination should ever be adding to his stock of general knowledge by (a) Reading (b) Observation (c) Conversation A writer reads, observes, and gets people to talk; and in these ways he is always enriching his mind with ideas and knowledge. 2. Special Preparation At an examination, a choice of subjects on which to write an essay is always allowed to enable the candidate to select the one of which his knowledge is the most extensive and accurate. The candidate should always choose the subject which appears to him to be the easiest. A well-written essay on what seems to be an easy subject will obtain more credit than a poorly written essay on a subject apparently more abtruse. If the essay is to be nicely rounded-off and complete the student must follow the following steps at the time of preparing for examination: (a) Defining the Subject (b) Collecting materials (i) Reading up the Subject (ii) Collection (iii) Selection (c) Logical Arrangement (i) Making the outline (ii) Filling in the Outline WRITING ESSAY At the time of writing an essay at the examination, the following points are recommended by Wren and Martin.

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1. Paragraphs Every essay should be divided into paragraphs, and each heading should have at least one paragraph to itself. An essay not thus paragraphed looks unattractive, and is not easy to read. In constructing a paragraph these principles should be kept in view: (a) Unity. The paragraph must treat of one subject only. (b) Variety. Paragraphs should not all be of the same length or of the same monotonous structure. (c) Logical sequence of thought. (d) Topical sentence. The most important sentences of a paragraph are the first and the last. 2. Structure of an Essay We may divide an essay into three parts the Introduction, the Body of the Essay, and the Conclusion. (a) (b) (c) The Introduction The Body of the Essay The Conclusion

3. Style in Writing Use a simple, direct and forceful style in writing. Be natural: Do not try to imitate any authors style, however eloquent, but be yourself. SUMMARY OF METHOD OF PROCEDURE To sum up: 1. Clearly define your subject in your own mind. 2. Think over it, until ideas about it come into your mind, and jot the points down on paper as they occur to you numbering them. 3. Classify these points in groups under suitable headings, rejecting any that are unsuitable. 4. Arrange these headings in a bare outline. 5. Fill in the ouline, making a full outline. 6. Now begin to write the essay, dividing it into paragraphs. 7. The essay should consist of introduction, body and conclusion. (a) Make the introduction arresting. (b) Keep the parts of the body, of the essay in proper proportion; and take pains in choosing words, construcing sentences and building up paragraphs. (c) Make the conclusion effective and satisfying. 8. Write in a simple, concise, clear, direct and natural style.

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PRCIS-WRITING
A prcis is an abstract, a summary of a given passage. It has to be brief and precise, containing all the essential ideas of the original and keeping out all non-essential details. It should bring out the spirit of the original. In writing prcis, therefore, you must exercise a strict economy in the use of words a wholesome discipline desirable in all forms of composition, but imperative in prcis. In an examination you are generally instructed to limit your prcis to a certain number of words and you must on no account exceed that limit; but strict observance of it does not absolve you from the duty of using throughout the most concise forms of expression consistent with clarity. Prcis-writing must not be confused with paraphrasing. A paraphrase should reproduce not only the substance of a passage, but also all its details. It will therefore be at least as long as, and probably longer than, the original. But a prcis must always be much shorter than the original; for it is meant to express only the main theme, short of all unimportant details, and that as tersely as possible. As the styles of writers differ, some being concise and some diffuse, no rigid rule can be laid down for the length of a prcis; but so much may be said, that a prcis should not contain more than a third of the number of words in the original passage. Success in prcis-writing depends mainly upon two things: 1. A thorough knowledge of and ability to use the language. 2. Ability to grasp readily the important matters in a document You may begin by learning to recognise and to avoid all forms of padding circumlocutions, pointless repetitions, and verbosity generally. We have already sufficiently dealt with about circumlocutions and tautology. Verbosity (wordiness), a general term embracing circumlocution, tautology and other forms of longwindedness, is often accompanied by excessive use of long words. It may be the result of laziness or ignorance, i.e., reluctance or inability to express oneself simply and directly; or it may arise from the notion that it is impossible to be formal or weighty or dignified without it. Prcis-writing is a discipline in reading as well as in writing. A prcis-writer must make up his mind from the beginning that prcis-writing means intensive brain-work. There is no easy short cut to summarising a passage. To tear the heart out of a passage means concentrated thought, and he must be prepared for close attention and hard thinking. He reads primaily for content. His mind follows closely the drift of the thought and understands it in its entirety. His aim is to get to the heart of the given passage. When the ideas have been grasped, his next concern is to express them in his own words, briefly and effectively. There should be no superfluous words in a prcis. A competent prcis writer brings out the thought-content of the passage with the minimum use of words. These two aspects of a prcis grasping the essential meaning of the substance of a given passage and expressing it briefly and effectively are learnt through patient and constant practice. The following practical hints given by Wren and Martin are of help in acquiring competence in prciswriting: 1. Reading (a) First read the passage through carefully, but not too slowly, to get a general idea of its meaning. If one reading is,not sufficient to give you this clearly, read it over again, and yet again. The more you read it, the more familiar will it become to you.

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(b) Usually you are required to supply a title for your prcis. This is a good stage at which to do this. Think of some word, phrase or short sentence that will sum up briefly the main subject of the passage. The effort to find a suitable title at this stage will help you to define in your mind what exactly the subject, or main theme, of the passage is. (c) Further reading is now necessary to ensure that you understand the details of the passage as well as its main purport. Take it now sentence by sentence, and word by word. If the meanings of any words are not clear, look them up in a dictionary. Detailed study of this kind is necessary, because a phrase, a sentence, or even a single word, may be of prime importance, and the misunderstanding of it may cause you to miss the whole point of the passage. (d) You should now be in a position to decide what parts of the passage are essential and what parts are comparatively unimportant and so can be omitted without any loss. This selection should not be in a haphazard or mechanical way. It requires some practice to be able to identify the things essential to the meaning of the passage, and distinguish them from those which are only incidental and unimportant. The best guide, of course, is the subject or main theme of the passage. If you have a clear and correct idea of that you will soon see what is important and what is unimportant. At this stage it is useful to jot down your conclusions in brief notes-writing down the subject, the title, and the details which you consider essential or important. This is a better plan than underlining sentences and phrases in the original. 2. Writing (a) Rough Drafts You should now be ready to attempt the writing of the prcis keeping in mind the limits within which it must be compressed. You may use fewer words than the number prescribed, but in no case may you exceed the limit. It is not likely that your first attempt will be a complete success. The draft will probably be too long. In fact you may have to write out several drafts before you find how to express the gist of the passage fully within the limits set. A good deal of patience and revision will be required before you get it right. (b) Important Points The following points must be kept in mind: (i) The prcis should be all in your own words. It must not be a patchwork made up of phrases and sentences quoted from the original. (ii) The prcis must be a connected whole. It may be divided into sections or paragraphs, according to changes in the subject-matter, but these must not appear as separate notes, but must be joined together in such a way as to read continuously. (iii) The prcis must be complete and self-contained; that is, it must convey its message fully and clearly without requiring any reference to the original to complete its meaning. (iv) It is only the gist, main purport, or general meaning of the passage which you have to express. There is no room in a prcis for colloquial expressions, circumlocutions, periphrasis or rhetorical flourishes. All redundanies of expression must be rigorously pruned. If faithful reproduction of the main theme is the first essential of a summary, conciseness is the second. (v) The prcis must be in simple, direct grammatical and idiomatic English.

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(c) The Art of Compression You are not bound to follow the orginal order of thought to the passage to be summarised, if you can express its meaning more clearly and concisely by transposing any of its pails. In condensing, aim rather at remodelling, than at mere omission, We may omit mere repetitions, illustrations and examples; but we change figures of speech into literal expressions, compress wordy sentences, and alter phrases to words. Take a few examples 1. The dog that belongd to the tinker. The dog belonging to the tinker. The tinkers dog. A house that resembled a palace. A house resembling a palace. A palatial house. 5. 2. An effort that ended in failure. An effort ending in failure. An unsuccessful effort. A bearing that befits a king. A bearing befitting a king. A kingly bearing.

3.

4.

Hayes Barton, where Raleigh was born. Hayes Barton, Raleighs birthplace.

(d) Indirect Speech As a rule, a prcis should be written in indirect speech, after a verb of saying in the past tense. For example: Whether we look at the intrinsic value of our literature, or at the particular situation of this country, we shall see the strongest reason to think that of all foreign tongues the English tongue is that which would be the most useful to our native subjects. Macualay Condensed in indirect speech: Lord Macaulay said that Englands noble literature and the universality of her language made English the fomign language most useful for India. The change from direct to indirect speech calls for attention to the following points : (i) Correct sequence of tense after the verb of saying in the past tense. (ii) Clear differentiation of the various persons mentioned in the passage. Care must be taken with pronouns he, she and they. To avoid confusion proper names should he used occasionally. (iii) Correct use of adverbs and other words indicating time. (iv) Proper choice of verbs of saying, to indicate questions, commands, warnings, threats or exhortations. Great care must be taken to avoid lapsing into direct speech a very common fault. Some passages, however, are best summarised in direct speech.

214 3. Revision

WRITING IN GENERAL

When you have made your final draft, carefully revise it before you write out the fair copy. Be sure that its length is within the limits prescribed. Compare it with the original to see that you have not omitted any important point. See whether it reads well as a connected whole, and correct any mistakes in spelling and punctuation. grammar and idiom. Then write out the fair copy neatly, prefixing the title you have chosen. TO SUM UP 1. Read the given passage quickly but carefully to ascertain what it is about. A great deal depends on this preliminary reading; and though, especially in the examination-room, it cannot be a lengthy process, it must be thorough; a casual, cursory glance is not sufficient. If the drift of the passage escapes you, if you mistake its aim, your prcis is bound to give a misleading impression. If you try to give it a title, you will be getting at the central idea. 2. Immediately this first reading is completed, you should be ready with a title whether you are asked for one or not. The title itself should be an epitome of the general purport of the passage and the less vague and the more significant it is the better. A careful choice of title will enable you in your prcis to stick to the point and preserve unity; and you will have a touchstone by which to test the relative importance of different points. 3. Next examine the passage in detail, to make sure of the meaning of each sentence, phrase and word. Collect the important thoughts and prepare a sketch of the precis. You could do this during the second or third reading. Note, and mark in pencil (1, 2, 3, 4, etc.) in the margin, where the main divisions fall where a new incident or series of incidents, or a new topic, or a new stage begins and ends. You may also care to indicate the important points in each division (1a, 1b, etc.) or underline the significant words which give the clues to these points. But it is easy to overdo or misuse this underlining device; some students end by underlining practically the whole of the passage the result being that they are no nearer the accomplishment of their aim; others are tempted to transfer the underlined words and phrases bodily into their prcis, a temptation to which it is fatal to succumb. Writing down brief notes of these thoughts or ideas is a better method than underlining key words and phrases. Underlining important words has its own dangers. It offers the temptation to follow the original in the order of the thoughts as well as in the manner of expressing them. A better method would be to make marginal notes and then prepare a sketch out of them. 4. When the sketch has been prepared read the original over again to check if any important idea or argument has been left out. This reading may help in rearranging your sketch. 5. Now give your sketch a cogency and prepare a draft of the prcis, keeping in mind length of number of words prescribed for the precis. Take a sheet of paper and transfer to it in the form of rough notes the main points in each division. These should be in your own words; and during this stage the constructive measures such as the substitution of single words for whole sentences and of details in generalisations will be of the greatest use. Your notes should be comprehensive enough to enable you to write a rough draft of your prcis from them without reference to the original passage; but do not copy down chunks of the original word for word. You should condense by remodelling than by mere omission; and that your prcis must be selfcontained and a connected whole. Add nothing; make no comment; correct no facts.

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6. Revise the draft checking not mererly for ideas but for expression as well. See if it reads like a connected piece of composition. Clear up any obscurities or ambiguities. If it is too long, still further compress it by omitting unnecessary words and phrases or by remodelling sentences. Correct all mistakes in spelling, grammar and idiom, and see that it is properly punctuated. Let the language be simple and direct. Count the number of words; if it exceeds the limit prescribed, then you must continue the pruning or condensing processes until you have the necessary reduction. 7. Now you may refer again to the original to make you have omitted nothing essential. Then write fair copy. In its final form your prcis should be an abstract of the original without any kind of flourish. SIGNIFICANCE OF PRCIS WRITING Value of Prcis writing as a mental discipline and as an exercise in expression needs no elaboration. Prcis writing provides a valuable corrective to muddled thinking and loose, vague and verbose expression. Ability to grasp the aim and to follow the thought and structure of a passage is the first step towards a clear understanding of its meaning and thus towards the detection of gaps faults in the development of its theme. The compression and re-statement of a theme in concise and precise terms, with due respect to the true values of words, is not only a further test of comprehension but is also an indispensable part of language training. For these reasons, apart from its practical value in many walks of life academic, professional and commercial prcis writing will always be sure of a place in the educational curriculum. Moreover, it remains one of the few tests which enable examiners to gauge with a high degree of accuracy the mental ability and equipment of their examinees. USES OF PRCIS-WRITING 1. Prcis-writing is a very fine exercise in reading. Most people read carelessly, and retain only a vague idea of what they have read. They are, therefore, often unable to recollect the substance of what they have read, even within a short period. This is not because their memory is weak, but because their attention was not fully centred on the passage while they were reading it. The memory cannot retain what was never given it to hold; one cannot not remember a passage properly if he did not properly grasp it as he read it. Prcis-writing forces one to pay attention to what he reads; for no one can write a summary of any passage unless he has clearly grasped its meaning. So summarizing is an excellent training in concentration of attention. It teaches one to read with the mind, as well as with the eye, on the page. 2. Prcis-writing is also a very good exercise in writing a composition. It teaches one how to express ones thoughts clearly, concisely and effectively. It is a splendid corrective of the common tendency to vague and disorderly thinking, and loose and diffuse writing. Notice how an uneducated person tells a story. He repeats himself, brings in a lot of irrelevant matter, omits from its proper place what is essential and drags it in later as an after-thought, and takes twenty minutes to say what a trained thinker would express in five. The whole effect is muddled and tedious. In a prcis one has to work within strict limits. He must express a certain meaning in a fixed number of words. So he learns to choose his words carefully, to construct his sentences with an eye to fullness combined with brevity, and to put the matter in a strictly logical order. 3. So practice in Prcis-writing is of great value for practical life. In any position of life the ability to grasp quickly and accurately what is read, or heard, and to reproduce it clearly and concisely, is of the utmost value. For lawyers, businessmen, and government officials it is essential.

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WRITING IN GENERAL Attempt prcis of the following passages:

1. There is another big difference between the natural slavery of man to Nature and the unnatural slavery of man to man. Nature is kind to her slaves. If she forces you to eat and drink, she makes eating and drinking so pleasant that when we can afford it we eat and drink too much. We must sleep or go mad, but then sleep is so pleasant that we have great difficulty in getting up in the morning. And firesides and families seem so pleasant to the young that they get married and join building societies to realize their dreams. Thus, instead of resenting our natural wants as slavery, we take the greatest pleasure in their satisfaction. The slavery of man to man is the very opposite of this. It is hateful to the body and to the spirit. Our poets do not praise it: they proclaim that no man is good enough to be another man's master. The latest of the great Jewish prophets, a gentleman hdened Marx spent his life in proving that there is no extremity of selfish, cruelty at which the slavery of man to men will stop if it be not stopped by law. You can see for yourself that it produced a state of continual civil war called the class war between the slaves and their masters, organized as Trade Unions on one side and Employers Federation on the other. Saint Thomas More also held that we shall never have a peaceful and stable society until this struggle is ended by the abolition of slavery altogether, and the compulsion of everyone to do his share of the worlds work with his own hands and brains, and not to attempt to put it on anyone else. Naturally the master class, through its parliaments and schools and newspapers, makes the most desperate efforts to prevent us from realizing our slavery. - George Bernard Shaw 2. A healthy and progressive society requires both central control and individual and group initiative: without control there is anarchy, and without initiative there is stagnation. Some of the qualities that we should with to find in a community are in their essence, static, while others are, by their very nature, dynarnic. Speaking very, roughly, we may expect the static qualities to be suitable for governmental control, while the dynamic qualities should be promoted by the initiative of individuals orgroups. But if such initiative is to be possible, and it is to be fruitful rather than destructive, it will heed to be fostered by appropriate instructions and the safeguarding of such institutions will have to be one of the functions of government. It is obvious that in a state of anarchy there could not be universities or scientific research or publication of books, or even such simple things as seaside holidays. In our complex world, there cannot be fruitful initiative without government, but unfortunately there can be government without initicitive. The primary aims of. government should be two: security and justice. These are things of the utmost importance to human happiness, and they are things which only government can bring about. At the same time, no one of them is absolute: each may, in some circumstances, have to be sacrificed in some degree for the sake of a greater degree of some other good. Security, in the sense of protection of life and property, has always been recognized as one of the primary purposes of the State. Many States, however, while safeguarding law-abiding citizens against other citizens, have not thought it necessary to protect them against the State. Wherever there is arrest by administrative order, and punishment without due process of law, private people have no security, however firmly the State may be established. And even insistence on due process of law is insufficient unless the judges are independent of the executive. This order of ideas was to the fore in the seventeenth and eighteenth centuries, under the slogans 1iberty of the subject and rights of man. But the liberty and the rights that were sought could only be secured by the State and then only if the State was of the kind that is called Liberal.

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Justice, especially economic justice, has become, in quite recent tinnes, a governmental purpose. Justice has come to be interpreted as equality, except where exceptional merit is thought to deserve an exceptional but still moderate reward. Political justice, i.e. democracy, has been aimed at since the American and French revolutions, but economic justice is a newer aim, and requires a much greater amount of governmental control. It is held by Socialists to involve State ownership of key industries and considertble regulation of foreign trade. Opponents of socialism may argue that economic justice can be too dearly bought, but no one can deny that, if it is to be achieved, a very large amount of State control over-industry and finance is essential. Bertrand Russell

Give one-word substitutes:

1. 2. 3. 4. 5 6 7. 8.

Killing of a man. Incapable of being read. An accident or disease that ends in death. One who cannot read or write. A partner in crime or guilt. Settlement of dispute by a person chosen by the parties. One who commits the flirst act of attack or hostility. To violate the sacred character of anything.

9. Twist any thing out of its natural shape or position. 10. Proper or qualified to be selected. 11. A complicated state of affairs that brings all action or progress to a standstill. 12. A malicious oral utterance to damage someones reputation. 13. Having no bearng upon the subject. 14. One who easily believes. 15. One who faces a criminal charge.

Chose from the following list: 1. homicide 2. accused 3. eligible Answers: Q A 1 1 2 15 3 10 4 9 5 6 6 2 7 13 8 11 9 3 10 12 11 4 12 14 13 5 14 7 15 8 4. distort 5. arbitraton 6. illegible 7. irrelevant 8. deadlock 9. fatal 10. slander 11. illiterate 12. credulous 13. accomplice 14. aggressor 15. desecrate

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LETTER WRITING
Letter writing is one of the indispensable skills which every educated person should possess. One should know how to write a clear and readable letter. Everyone has at some time or the other to write a business letter of some sort, and may have to face the problem of writing an important letter that will vitally affect his interests in life. Therefore, Wren and Martin point out that art of letter-writing is, therefore, no mere ornamental accomplishment, but something that every educated person must acquire for practical reasons. 1. THE FORM OF LETTERS A letter is a communication between its writer and its reader. Though a communication need not be in any particular form, certain letter-forms have been established by experience and custom as the most useful forms and neglecting them is a sign of ignorance and carelessness. There are several different kinds of letters (such as friendly letters, business letters, etc.) each one having its own particular form. But there are certain matters of form which apply to all, and these may be explained first. In all kinds of letters there are six points of form to be attended to, namely: 1. The Heading consisting of (a) the writers address and (b) the date on which the letter is signed 2. The courteous Greeting or Salutation. 3. The Communication or Message-The body of the letter. 4. The Subscription, or courteous Leave-taking, or Conclusion. 5. The Signature. 1. The Heading: The position of the heading is the top right-hand corner of the first page the address above and the date just below it, e.g., 24, Mangalwar Peth Tilakwadi, BELGAUM 590 001 10 October 2002 The date may be written in any of the following ways: 4 April 2002 or 4th April 2002 or April 4, 2002 However, if you are writing date in DD MM YY or DD MM YYYY format, you must remember that Americans use MM DD YY or MM DD YYYY format of writing dates. Thus, 4-6-1998 4.6.1998 4/6/1998

To a British person this means the fourth of June To an American it the sixth of April

The date on the letter indicates the date on which it ws signed. If the letter is posted on some other date that date should be indicated below the date of signing, as shown below 24-10-2002 26-10-2002

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2. Salutation or Greeting: The position of the Salutation is at the left-hand of the first at a lower level than the Heading. Salutation is the title given to the person to whom you are writing, and its form depends upon the relation between the writer and the addressee. To members of your family, for example, it will be Dear Father, My Dear Mother, Dear Uncle, Dear Hari, etc. To friends, it will be Dear Shri Desai, or Dear Desai, or Dear Ramchandra, etc. To business people, it will be Dear Sir, Dear Sirs, etc. The use of the term Dear is purely formal, and is a polite expression, not necessarily implying any special affection. 3. The Communication or Body of the Letter: This is the main portion of the latter, and contains the information or message which the writer wishs to communicate. The style in which it is written will depend upon the kind of letter. The style of a letter to an intimate friend will be quite different from that of a purely business/professional letter or an official communication. But following points apply to all letters: 1. The various topics should be arranged in the order of their importance without overlooking the logical order. Each topic should have its own separate pargraph. 2. A letter should be written in simple and direct language and short sentences should be used. 3. The message should be complete. If one has to add postscripts at the end of a letter, that is a sign of slovenly thining. One has to think out what he wants to say before he begins to write. Opening paragraph of a reply should summarize very briefly the contents of the letter to which this reply is being given. 4. Write neatly. The correspondence should be legible. There is a difference between beautiful handwriting and legible handwriting. A beautiful handwriting is not necessarily legible. The reader should not have trouble to read the letter. 5. Mind your punctuation, and put in commas and semicolons and fullstops in their proper places. Incorrect punctuation may alter the whole meaning of a sentence. 6. Any document enclosed should be mentioned in the body of the letter and noted in the margin. 4. The Subscription, Complimentary Close, or Courteous Leave-Taking: A letter must not end abruptly, simply with the writers name. This would look rude. So certain forms of polite leavetaking ate prescribed. Such as Yours sincerely, Your sincere friend, Yours faithfully, etc. Different leave-taking forms are used in different kinds of letters. Leave-taking or complimentary close consists of a phrase expressing respect, obedience or regard. It must be written below the last words of the letter, and to the right side of the page. This is the traditional method. Note that today there is a growing tendency to place the subscription on the left side. The first word of the Subscription must begin with a capital letter; e.g., Sincerely yours

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5. THE SIGNATURE OR NAME OF THE WRITER: This must come below the Subscription. Thus: Yours sincerely, K.R. Deshpande In letters to strangers, the signature should be clearly written, so that the reader may know whom to address in reply. A woman should prefix to the name Miss or Mrs (or; Kumari or in brackets. Ms. can be used by a woman who does not wish to be Miss or Mrs). Yours faithfully, (Mrs.) J.L. Desai Always use the same form of signature. The same individual should not sing John Smith once and J. Smith at another. A person possessing authority to sign on behalf of another person of firm is said to possess a power to sign per procurationem, i.e., as a representative of another. He should, in such a case, prefix to the name of the individual or firm for whom he is acting the letter p. p., and then sign his own name. as for example, p.p. Wilson Bothers, Thomas Brown TO SUM UP In writing a letter, first write your address and under it the date in the top right-hand corner of the first page. Then write the Salutation (e.g., Dear Shri Desai) lower down at the left side of the page, beginning with a capital and putting a comma after it. Next begin your letter (with a capital letter) on the next lower line, to the right of the salutation. At the end of the letter write the Subscription, or words of leave-taking (e.g., Yours sincerely), at the right side of the page, with your re below it. For example,

16 Roy Road, Tilakwadi, BELGAUM 590 006 4 October 1998 Dear Sir, I shall be much obliged if you send me as soon as possible the books which I ordered a week ago. Yours faithfully, Ramesh Kulkarni

2. CLASSIFICATION OF LETTERS

LEGAL LANGUAGE AND LEGAL WRITING Letters may be classified according to their different purposes. Thus :

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(1) Social Letters, including Friendly Letters and Notes of invitations. (2) Business Letters; including Letters of Application, Letters to government officers and Letters to Newspapers. 1. SOCIAL LETTERS (a) FRIENDLY LETTERS: Letters to relations and intimate friends are informal letters, and should be written in an easy, conversational style. They are really of the nature of friendly chat. Forms of address: In friendly letters to relations and intimate friends, the proper form of address is the name (without title) of the person to whom you are writing, prefixed by such qualifying terms as Dear, My dear, Dearest, etc. For example : Dear Father or Mother, Dear Brother, Dearest Sister, Dear Edward, My dear Abdul, etc. But if you are writing to an ordinary friend who is much older than you are, or of superior rank, it is respectul to use a prefix like Mr., Mrs, Shri, Smt. etc. e.g. Dear Mr Krishna Rao. (N.B.: Students writing friendly letters to their teachers or professors, should always address them thus). The forms of subscription are varied. The following can be used in letters to relatives and near friends: Yours affectionately, Your affectionate (or loving) son, or brother or friend, Yours very sincerely (to friends) ; or you can use some such form as this: With love and best wishes, From your affectionate friend, Ahmad Hassan

In concluding letters to friends or acquaintances whom you address as Shri or Mr. (e.g., My Dear Shri Durga Prasad) you should use the word sincerely or very sincerely, in the subscription; and this may be preceded by With kind (or very kind or kindest) regards. Thus: With kind regards, Yours sincerely, Chaman Lal

(N.B.: Sincerely should not be used in letters beginning with the foral Dear Sir, after which the proper word of subcription is faithfully or truly.) (b) NOTES OF INVITATIONS: A formal invitation is generally written in the third person, and should contain no heading, no salutation, and no complimentary close. The writers name should appear in the body of the letter. The address the writer and the date should be written to the left, below the communication. The reply to such a note should also be in the third person, and should repeat the date and time mentioned in the invitation.

222

WRITING IN GENERAL [Formal note of invitation]

Mr and Mrs V.A. Paul request the pleasure of Mr K. GopaIan's company at er on Friday, 14 July, at eight oclock. 18 Peters Road Chennai 600 014

[Formal note of acceptance] Mr K. Gopalan has pleasure in accepting the kind invitation of Mr and V.A. Paul to dinner on Friday, 14 July, at eight oclock. 12 Kamaraj Salai Chennai 600 005 [Formal note of refusal] Mr K. Gopalan regrets that a previous engagement prevents his accepting the invitation of Mr. and Mrs. V.A. Paul to dinner on Friday, July. 12 Kamaraj Salai Chennai 600 005 2. BUSINESS LETTERS Business letters should be terse, clear, and to the point. Businessmen are busy men, and have no time to read long, rambling and confused letters. Business letters are naturally much more formal in style than friendly letters. Certain forms of polite expression are used, such as I shall be much obliged if you will send me, "Please despatch at your earliest convenience, etc. At the same time certain phrases of business jargon should be avoided. They are commonly used, but are not good English; and the meaning can be conveyed as clearly in simple, everyday language. Examples of such expressions are Yours of even date to hand. Despatch same at once. Avoid so far as possible abbreviations (like advt. for advertisement exam. for examination, etc.) and the omission of I or we (e.g., Have received instead of We have received). In business letters ordering goods, care should be taken to give clear and exact descriptions of the articles wanted. An itemized list of the goods wanted should be supplied, with the quality and quantity required.

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Directions for forwarding should be given (by rail, post, etc.) and the manner in which payment will be made indicated (by Money Order, V.P.P., cheque, or by debiting to the writers account). Everything should be clear and precise. FORM The form of business letters is the same as already described, with one addition, viz., the Address (i.e., the name of the firm or businessman to whom the letter is addressed), which should be written on the first page, lower down than the Heading and to the left of the page. (It may be placed at the end of the letter lower than the signature and at the left side of the page, but the usual position is at the beginning.) MODES OF ADDRESS The modes of address vary. (1) To a tradesman: Shri B.N. Rao Bookseller 12 Ring Road Bangalore Begin Dear Sir, and conclude Yours faithfully. (2) To a firm: Messrs K.R. Das & Co. Tea Merchants 24 Ring Road Calcutta Begin Dear Sirs, and conclude with Yours faithfully. Note: If the firm has an impersonal title, Messrs should not be prefixed. For example: Eurasia Publishing House, Vijay Trading Co. (3) To professional men or private gentlemen: Mr. K. Bhaskar Chartered Accountant Pratibha House Thiruvanthapurani 695 002 Mr. K.R. Misra 32 Bhandarkar Road Pune 411004 Begin Dear Sir or My dear Sir, and conclude Yours faithfully, Yours truly, etc. (not Yours sincerely). When a clerk signs a business letter on behalf of his employer, he puts the letter p.p. (Latin per pro on behalf of) or for before the name of the firm, and writes his signature beneath. For example:
for

Yours faithfully R. Gomes & Sons K.S. Kumar

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If a gentleman is entitled to be called Honourable, he is addressed, for example, as The Hon. Shri KR. Patil. (N.B.: The title The Hon. cannot be used by itself; you must not write The Hon. KR. Patil). REPLIES: In replying to a business letter, always quote the number of reference (if there is one) and the date of the letter you are answering. For example: In reply to your letter No. 5021P, dated July 26, 19, I would like to say, etc. LETTERS OF APPLICATION A letter applying for employment should contain (a) A short introduction stating whether the writer is answering an advertisement or is applying on his own responsibility. (b) A statement of his age, education and experience. (c) A conclusion giving references, testimonials, or an expression of the applicants earnestness of purpose. Letters of application should be in the form of business letters. LETTERS TO NEWSPAPERS These should always be addressed to The Editor, and they usually end with Yours faithfully. The form of Salutation is Sir, or Dear Sir. If the writer gives his address for publication, it is often placed below the letter and to the left of the signature. If the writer does not wish his name to be published, he can sign his letter with a non-de-plume (such as Interested, Anxious, who knows, etc.); but in any case he must give his name and address (in a covering letter) to the Editor, for no respectable newspaper will publish anonymous letters.

PART FIVE LEGAL DRAFTING

CONVEYANCING
1. DEFINITION OF DOCUMENTS, INSTRUMENTS AND DEEDS Document is any writing on any matter. Document is defined under section 3(18) of the General Clauses Act, 1897. According to this definition, a document includes any matter written, expressed or described upon any substance by means of letters, figures or marks, which is intended to be used for the purpose of recording that matter. All documents are not instruments. An instrument is formal legal writing. Instrument is defined under section 2(14) of the Indian Stamp act, 1899. According to this definition, an instrument includes every document by which any right or liability is created, transferred, limited, extended, extinguished or recorded. At common law, all instruments are not deeds. A deed at common law is a written contract or agreement which has been properly signed under legal seal. However, in India, there is no difference between a deed and an instrument. Instruments may be unilateral (e.g., promissory note), bilateral (e.g., sale deed, gift deed, etc.) or multilateral (e.g., partition deed, partnership deed, etc.). 2. DRAFTING OF DOCUMENTS The person who drafts a deed is known as draftsman or conveyancer. A scribe only writes a document, but does not draft it. Before drafting a deed, the draftsman must know three important things: 1. The language in which the deed is to be written. 2. The transaction intended by the parties. 3. The law applicable to that transaction. Therefore, drafting is usually done by advocates. At the time of drafting the advocate has to carefully ascertain the competency of the parties to enter into that particular transaction. This means two things: 1. Capacity of the parties to enter into that transaction, and 2. Authority of the parties to enter into that transaction. Further, the advocate should not lose sight of the principles of construction of the documents. The following are the main principles of construction of deeds: 1. The meaning of the deed is sought within the deed. The intention of the parties is discovered from the language used by them. 2. Clear and unambiguous words prevail over the actual intention of the parities. The question is not what the parties intended to do, but what they have actually done. Therefore, the rights and duties of the parties are not to be decided from the title of the deed, but from the actual matter of the deed. But where the words are ambiguous, an effort may be made to find out the actual intention of the parties. 3. Words are to be given literal meaning. Thus the meaning of words will be their dictionary meanings and the meaning of the phrases and sentences will be according to the rules of grammar. 227

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LEGAL DRAFTING 4. While applying the literal meaning to the words, the conventions used by the parties shall be considered. Thus, the habit of the parties of affixing a particular meaning to a particular word, phrase or sentence cannot be overlooked. Similarly, technical words shall be given technical meaning. 5. Extrinsic evidence can be used not for finding out the intention of the parties, but for interpretation of the language. 6. The deed must be construed as a whole.

The advocate must be careful in properly describing all the facts, times and persons because of the rules regarding exclusion of oral evidence by documentary evidence. Section 91 of the Evidence Act excludes oral evidence to prove the terms of the document. Section 92 excludes oral evidence to contradict, vary, add to or subtract from the contents of a document which has already been proved. Sections 93 and 94 of the Evidence Act excludes evidence to explain patent ambiguity. Section 95 permits extrinsic evidence to explain latent ambiguity. 3. Parts of Deeds An instrument or a deed usually consists of three parts, namely 1. A non-operative part; 2. An operative part; and 3. A formal part. THE NON-OPERATIVE PART This part consists of the following components (a) (b) (c) (d) Description of the name of the deed; Date of the deed; Parties to the deed; and Recitals

(a) Description or Name of the Document: It is a common part. But it is not a necessary to begin a deed by giving it a name. The name, if given, has to be chosen with great care. The name given should indicate the true nature of the contents of the deed. This is because sometimes a deed is construed on its name. The description of the document is, however, is not decisive by the terms of the deed and the nature of transaction has to be construed while interpreting a document. (b) Date of the Deed: It is a common practice to give the date on which a deed is executed either after the name or at the end, before signatures. The date is stated thus: THIS DEED OF SALE made on the fifth day of September one thousand nine hundred and eighty nine (5th September 1989) (c) Parties to the Deed: After the name and the date of the deed, the names of the Parties to the deed are set out. The names and particulars of the Parties should be given in detail so that the Parties can be easily identified. It is in common to describe the Parties by their names, parentage, age, occupation and residence thus:

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Shri ________ s/o ________, aged ________ years, occupation ________, resident of ________ In cases where it is intended that the successors of the Parties will also be bound by the deed, it is usual to add a clause after the description of the Parties stating: the Parties shall include their heirs, successors, assigns and legal representatives Whenever companies, firms and minors are to be described, they are described in the following manner: Company : The Delhi Sugar Mills Co. Ltd., a Company registered under the Companies Act, 1956 having its registered office at ___________, represented by its Managing Directors. Firm Minor : M/s. Elnek Industries, a registered partnership form having its office at ______, by its Managing Partner : Shri ______ s/o. ______, aged ______ years, resident of ______, a minor acting through Shri ______ s/o ______, aged ______ years, occupation ______, resident of ______, his guardian appointed by the District Judge, Dharwad, by Order dated ______

(d) Recitals: Recitals are the facts narrating of what has led to the necessity or desirability of executing the deed or document. They contain a brief history for making the deed. Recitals begin with the familiar word: WHEREAS, the Parties ........ Recitals show the reasons and the history of the title designed to show that the landlord is having the right to dispose of the property. OPERATIVE PART This part contains the following components (a) (b) (c) (d) Testatum or the Premises; Habendum; Exceptions and Reservations; and Covenants.

(a) Testatum or Premises: After the recital the operative part of the deed begins, generally, with the words NOW THIS DEED WITNESSES THAT ........ This part gives effect to the intention of the Parties and sets out every details of the transaction between the Parties to the deed. It also sets out the various capacities in which the Parties to the deed are acting, and the payment and receipts of consideration. In this part the property which is subject of the deed is also described.

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(b) Habendum: After testatum next follows the habendum. This part of the deed used to be introduced by the words, To have and to hold....... The purpose of habendum is to define the interest conveyed and to set out the limitations on the property involved. It shows whether the transfer is of a life interest or the creation of a trust or an absolute sale. It also mentions whether the property is or not. Habendum is not an essential or necessary part of a deed. (c) Exceptions and Reservations: In this part of the deed all the exceptions and the reservations which are intended to be attached to the transfer should be clearly stated. For example, if it is desired to lease out a parcel of land, the transferor may desire to retain the right to extract minerals therefrom, or again a person may reserve right to pass rain water over the land demised, all such exceptions and reservations must be clearly set forth in this part of the deed. (d) Covenants: Almost every document, whether a sale, lease or mortgage, must contain terms by which the Parties bind themselves. It is not necessary to mention such covenants as are attached by law to a particular transaction, but if any special terms or agreements are made at variance with the implied covenants, then these must be clearly stated. For instance, a lease under the Transfer of Property Act implies a right to sublet, but the Parties may impose conditions against subletting. In such a case, the terms and conditions must be clearly stated. THE FORMAL PART This part consists of the following components: (a) Testimonium Clause; (b) Signatures and Attestation; and (c) Description of the property. (a) Testimonium Clause: This part of the deed sets forth the fact that the Parties have signed the deed. It usually begins with the words IN WITNESS whereof the Parties aforesaid, namely, ______, have the day and year first above mentioned put their signatures in the presence of the witnesses. If the date of execution is not given in the beginning, then it is to be given in this part. (b) Signatures and attestation: Immediately following the testimonium clause the Parties put their signatures. Thereafter, the witnesses put their signatures. If the deed requires attestation then the executant must sign in the presence of the witnesses and the witnesses must sign in the presence of the executant. (c) Parcels or Demise of Property: The property is described in detail, accurately and correctly either at the foot of the deed or in the schedules annexed to the deed. The object of the description is to make the property easily identifiable.

LEGAL LANGUAGE AND LEGAL WRITING 4. TRANSFER OF PROPERTY Definition of Transfer of Property

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Section 5 of the TP Act defines Transfer of Property as an act by which a living person conveys property, in present or in future, to one or more living persons, or to himself, or to himself and one or more other living persons. Therefore the both the parties must be 'living' 'persons'. They may be natural persons or artificial persons. There must be conveyance of property. However, the TP Act governs only five kinds of transfer: sale, mortgage, lease, gift and exchange. Section 6 says that property of any kind may be transferred, except the ones mentioned under that section. Essentials of Valid Transfer of Property There are six requirements of valid transfer of property: 1. 2. The property must be transferable (sec. 6) The transferor must be competent to transfer (sec. 7) (a) (b) (c) (d) major sane not otherwise disqualified from entering into contract having authority to transfer the property (i) owner of the property (ii) agent of the owner of the property (iii) any other legal authority to transfer the property (e.g., Karta of JHF, guardian of a minor, motgagee)

3.

The transferee must be competent to take transfer of the property. (a) Even a minor can be transferee where he does not have any obligations towards the transferor under the transfer of property. Thus a minor can be purchaser or donee, but cannot be a lessee or usufructuary mortgagee. (b) He should not be disqualified from taking the transfer. Under section 136 of the TP Act, judges, advocates and other officers of the Court are disqualified from purchasing any actionable claim. Similarly, under O. XXI, R. 73 of CPC which disqualifies the officers of the Court from bidding for a property at a Court auction, and to acquire or attempt to acquire any interest in such property.

4.

Consideration and object of the transfer must be lawful. (a) It is not forbidden by law. (b) It is not of such nature that, if permitted, it would defeat the provisions of any law. (c) It is not fraudulent. (d) It does not involve or imply injury to the person or property of another. (e) It is not immoral or opposed to public policy.

5.

The transfer must not be opposed to the nature of the interest affected thereby.

232 (a) (b) 6. (a) (b) (c) (d)

LEGAL DRAFTING res communes (things which belong to the entire community, not to any individual) such as light, air, water of a river or sea. res extra commercium such as things dedicated to the public or religious use. Writing Signatures of the parties Attestation by the witnesses Registration (wherever necessary)

It must fulfil the requirements as to formalities laid down under the Act.

Attestation: To attest a document means to authenticate the signature of the executant of the document by putting down his own signature on it as a witness to the execution. Therefore this means two things: 1. Just because a person attests the document he does not become a witness to the transaction made through that document. 2. The attesting witness should not be a party to the document. The following are the requirements of a valid attestation: 1. There must be at least two attesting witnesses where attestation is compulsory. 2. Each witness must (a) see the executant sign the document, or (b) receive from the executant a personal acknowledgment of the signature. 3. Each witness must sign the document in the presence of the exeutant. 5. REGISTRATION OF DEEDS Documents, Registration of Which is Compulsory Section 17 of the Registration Act provides that the following documents must be registered compulsorily. 1. Gift Deeds in respect of immovable properties. 2. Deeds transferring any immovable property of value of Rs. 100 or more. 3. Any receipt acknowledging payment of consideration in respect of such transfer. 4. Any lease deed if the lease is (a) from year to year basis (b) for more than one year (c) reserves yearly rent, 5. Decrees having effect of transfer of immovable property of Rs. 100 or more. Documents, Registration of Which is Optional Section 18 of the Registration Act provides that the following documents may be registered at the option of the parties. 1. Deeds transferring movable property. 2. Non-testamentary instruments transferring immovable property of value less than Rs. 100. 3. Any receipt acknowledging payment of consideration in respect of such transfer. 4. Any lease deed other than the ones mentioned under section 17. 5. Decrees having effect of transfer of immovable property of value less than Rs. 100. 6. Wills.

LEGAL LANGUAGE AND LEGAL WRITING Conditions for Presentation There are three important conditions for presentation of document for registration 1. The document must be (a) in a language known to the registering authority, or (b) in language normally known in the district in which it is to be registered, or (c) must accompany a true translation of the document in English. 2. 3.

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If any interlineations, blanks, erasures, or other alterations are present in the document, the same must be attested by the executants. If the document is in respect of any immovable property such immovable property must be sufficiently described in the document.

Place of Registration Documents in respect of immovable properties must be registered at the place at which the immovable property or any part of the immovable property is situated. Documents in respect of movable properties may be registered at the place where the document is executed or at any other place in the same state where all the parties to the document consent for the registration of the document. Time of Registration The document must be registered within four months from the date of its execution. Where the document is executed by more than one person at different times, the document may be registered with respect to each such execution within four months from the date of respective execution. Where the document is executed outside India, the document may be registered in India within four months from the date on which it was brought into India. Registrar has the discretion to condone delay of up to four months in registration. Wills and authorities to adopt may be registered at any time after their execution. Who May Present Document for Registration A document may be presented for registration by the executant or his agent and after the death of the executant, by his legal representative. A document may also be presented by the assignee of the document. A power-of-attorneyholder of the executant may also present the document for registration. Effect of Registration Registration of a document gives it legal sanctity. However, the document comes into existence not from the date of its registration but from the date of its execution. Effect of Non-registration If a document which must be registered compulsorily under section 17 of the Registration Act is not registered, it cannot be accepted in evidence.

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FORMS OF CONVEYANCING
NOTICES Notice means to bring certain facts to the knowledge of another person. There are three types of notice: 1. Ordinary Notice 2. Legal Notice 3. Statutory Notice Ordinary notice is issued by any person to another person to bring certain facts to the knowledge of that other person, and to make a claim based upon those facts. Legal notice is issued by an advocate on behalf of his client to another person. In that notice, the advocate clearly brings out the facts leading to certain claims on the part of his client against the person to whom the notice is issued, and mentions the claims in clear and unambiguous manner. He then calls upon the person to whom the notice is issued to fulfil the claims made by the client, and warns that if the claim is not satisfied, he will advise his client to approach a court of law for enforcing the claim. Statutory notice is issued where the person against whom the claim is sought to be enforced is government or a public servant. It is issued under sec. 80, CPC. The notice shall state the following particulars: 1. 2. 3. The cause of action. The name, description and residence of the plaintiff. The relief which is sought to be claimed.

Minor defects in issuing notice such as misdescription of the person to whom the notice is addressed are viewed seriously, and merely because of such defects the notice does not become bad in law. The notice shall be delivered to the public officer himself directly or may be left at his office. In case of cases against the government, the notice shall be delivered to the following officers or may be left at their offices: 1. 2. 3. 4. In case of Central Government (except against the Railways), a Secretary to the Govt. In case of the Railways, the General Manager of the concerned Railways. In case of a State Government (except Jammu and Kashmir), a Secretary to the Government or the Collector of a District. In case of State of Jammu and Kashmir, the Chief Secretary to the Government or any other officer designated by the Government.

The plaint should contain a statement to the effect that such a notice was served. This provision is made for the purpose of avoiding unnecessary litigation to which the public officers or government may be exposed. Because if the government or public officer is involved in litigations, he will be engaged in courts and his services to the public will be hampered. Further public money will be wasted in such litigations. If unnecessary litigations are avoided, public money will be saved and the same may be used for works of public importance. The idea behind the section is, therefore, to provide an opportunity to the government to rectify their errors, and settle the case before it goes to the Court. This provision is mandatory and there was no exception to it under the original enactment. This worked difficulties to the public in many cases.

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Therefore, an amendment was carried out to section 80 by including an exception to the general rule in cases where urgent and immediate relief is necessary. Accordingly, in such cases, with the leave of the Court suits may be filed without issuing notice. However, relief can be granted by the Court only after hearing the public officer or the government. After hearing the parties, if the Court is satisfied that there is no necessity of urgent or immediate relief, the plaint shall be returned to the plaintiff for presenting it after complying with the requirements of sec. 80. It should be noted that the leave to file the suit without issuing the notice should be obtained before filing the suit and not after filing the suit. If any suit is filed against the government without issuing notice and when the government in its written statement objects to such filing, the leave cannot be obtained. If leave is obtained after filing the suit, the leave is illegal and the suit is bad in the eye of law. However, notice under section 80, CPC, is necessary only in case of suits in respect of the official acts of the public servants, and not in case of suits in respect of their private acts. Suits relating to the private acts of the public servants can be filed like any other suits without issuing notice. PROMISSORY NOTE Promissory note is a negotiable instrument. A negotiable instrument is a document which entitles a person to a sum of money and which is transferable from person to person by mere delivery or by indorsement and delivery. A person to whom it is so transferred becomes entitled to the money and also to the right to further transfer it. A promissory note is an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of a certain person or to the bearer of the instrument. No particular form is required. However, the following are the essentials of a valid promissory note: 1. 2. 3. 4. 5. It must be in writing. It must be an unconditional promise to pay. It must be in respect of a certain sum of money only. The parties must be certain. The promisor must sign the instrument.

ACKNOWLEDGMENT OF DEBT/LIABILITY It is nothing but an admission of existing liability such as a debt. Suit for enforcement of any liability may be filed within the period of limitation prescribed by the Limitation Act, 1963. After the expiry of that period the suit is barred by limitation law. However, if the person who has the liability acknowledges that liability in writing before the expiry of the period of limitation, Sec. 18 of the Limitation Act provides for fresh period of limitation from that date. The essentials of valid acknowledgment are: 1. 2. 3. 4. It must be in writing and signed by the party. It must be in respect of the liability in respect of a property or a right. It must be made before the expiry of the period of limitation. The words used must relate to a present subsisting liability and indicate existence of legal relationship between the parties.

It is not necessary to make a promise that the liability will be discharged. The document need not be attested and its registration is not compulsory.

236 SALE DEED

LEGAL DRAFTING

Sale is transfer of property for price. Sale of immovable property is governed by TP Act while sale of movable property is governed by the Sale of Goods Act. Essentials of a Valid Sale 1. Competent Parties: (a) Seller (i) Major (ii) Sane (iii) Not otherwise disqualified from entering into contract (v) Having authority to sell the property (b) Purchaser Not barred from purchasing the property. 2. Transferable property Not barred by section 6 of TP Act. 3. Consideration must be price, i.e., money only. If the consideration is not money but some othervaluable consideration, the transaction is not sale, but exchange. In such case, even if a part of the consideration is in terms of money, the nature of transaction does not become sale. 4. Formalities of sale: (a) Where the property is tangible immovable property, (i) if the value of the property is Rs. 100 or more, by a registered deed, (ii) if the value of the property is less than Rs. 100, by a registered deed or by delivery of possession. (b) Where the property is intangible property, by registered deed irresepective of its value. Sale and Agreement of Sale Sale 1. There is transfer of property. Agreement of Sale There is no transfer of property.

2. If the buyer fails to pay price, seller may sue If the buyer fails to pay the price and accept for price as well as for damages. the property seller may sue for damages only. 3. If the seller fails to deliver property, buyer If the seller fails to deliver the property and may file a suit for possession. complete the sale, the buyer may sue for specific performance 4. The buyer becomes owner of the property. The seller remains owner of the property. 5. If the property is destroyed, buyer is put to If the property is destroyed, seller is put to loss. loss.

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Liabilities of Seller A. Before Completion of Sale B. After Completion of Sale 1. to disclose defects in the property or in 1. to give possession his title to the property 2. to covenant for title 2. to produce title deeds 3. to deliver title deeds on receipt of price 3. to answer questions as to title 4. to execute sale deed 5. to take care of the property 6. to pay outgoings Rights of Seller A. Before Completion of Sale to rents and profits Liabilities of Buyer B. After Completion of Sale A. Before Completion of Sale 1. to bear loss to the property 1. to disclose facts regarding the nature of sellers interest in the property which may 2. to pay outgoings materially increase the value of the property 2. to pay the price Rights of Buyer A. Before Completion of Sale to lien (buyer's lien) B. After Completion of Sale to benefits of improvements, rents and profits B. After Completion of Sale to lien (seller's lien)

DEED OF EXCHANGE When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing being money only, the transfer is called an Exchange. There only one difference between exchange and sale and that is in respect of consideration. In case of sale, the consideration for transfer of property is money and only money. In case of exchange the consideration is another property or another property and money. Therefore, the law governing exchange is the same as the law governing sale under the TP Act. MORTGAGE DEED Mortgage is a transfer of interest in a specific immovable property for the purpose of securing 1. the payment of money advanced or to be advanced by way of debt, 2. an existing or future debt, or 3. the performance of an engagement which may give rise to a pecuniary liability.

238 Essentials of a Valid Mortgage

LEGAL DRAFTING

1. Competent Parties: Both mortgagor and mortgagee must be competent to contract, and the mortgagor must have an authority to mortgage the property. 2. Transferable property 3. Lawful Consideration: mortgage money 4. Formalities of mortgage: (a) Writing (b) Signature (c) Attestation (d) Registration (Except in case of equitable mortgage) Types of Mortgage 1. 2. 3. 4. 5. 6. Simple Mortgage Mortgage by Conditional Sale Usufructuary Mortgage English Mortgage Equitable Mortgage (Mortgage by Deposit of Title Deeds) Anomalous Mortgage

Rights of Mortgagor 1. to redeem 2. to inspection and production of documents 3. to lease mortgaged property Liabilities of Mortgagor Liabilities of mortgagor arise out of the following covenants: 1. 2. 3. 4. 5. for title for defence of title for payment of public charges for payment of rent where the motgaged property is lease for payment of interest on prior mortgage

Rights of Mortgagee 1. 2. 3. 4. 5. 6. 7. 8. to foreclosure or sale to sue for mortgage money to exercise power of sale if given to have a Receiver appointed to accession to mortgaged property to the benefit of the renewed lease to spend money in certain cases to proceeds of revenue sale or compensation on acquisition of the mortgaged property.

Liabilities of Mortgagee in Possession 1. 2. 3. 4. to manage the property to collect rents and profits to the best of his endeavours to pay outgoings to pay for necessary repairs of the property

LEGAL LANGUAGE AND LEGAL WRITING 5. 6. 7.

239

not to commit any act which is destructive of the property to apply insurance money in reinstating the property, or if the mortgagor so directs, in reduction or discharge of the mortgage debt to keep proper account of all receipts and payments

Once a Mortgage, Always a Mortgage Once a transaction is entered into as a mortgage, it continues in the form of mortgage. Thus, in case of a mortgage by conditional sale, if the parties agree that if the mortgagor does not repay the money within a particular date, the sale becomes absolute, and if the mortgagor does not pay the money within that date, the transaction does not become sale. It still continues to be mortgage, and the mortgagor has a right to redeem it by repaying the debt. This right comes to an end only when the mortgage is foreclosed by an order of the Court. Clog on Redemption Redemption being a valuable right of the mortgagor, it cannot be defeated by making it subject to impossible conditions. Very difficult conditions are treated as impossible conditions for this purpose. Redeem Up, Foreclose Down If A mortgages the property X to B, C, D, and E successively, C has the right to redeem B, D has the right to redeem B or C or both, E has the right to redeem any or all of the prior mortgages. On the other hand, D can foreclose E, C can foreclose D or E or both, and B can foreclose any or all of the subsequent mortgages. Marshalling of Securities When the owner of two or more properties mortgages them to one person and then mortgaegs one or more to another person, the subsequent mortgagee is entitled to have the prior mortgage debt satisfied out of the property or properties not mortgaged to him. For example, A mortgages properties X and Y to B, and then mortgages only X to C. B wants to realise his debt by selling the properties mortgaged to him, C can compel B to first sell property Y. If B's debt is satisfied by the proceeds of sale of Y, he cannot not touch X. But if the debt is not fully satisfied by the sale of Y, B can sell X for the balance of debt and C cannot prevent him. Charge and Mortgage 1. 2. 3. 4. Mortgage is transfer of interest in property, charge is not. Mortgage does not arise out of operation of law, charge does. Mortgage can be enforced even if the transferee did not have notice of transfer, charge cannot be enforced against bona fide transferee having no notice of charge Mortgage must comply with procedural requirements given under TP Act. A charge created by the act of the parties requires registration, but a charge arising out of operation of law does not.

Types of Charge 1. 2. Created by the act of parties Arising by operation of law

240 Extinction of Charge 1. 2. 3.

LEGAL DRAFTING

By release of the debt or of the security By novation By merger (a) by the mortgage acquiring the equity of redemption (b) by the mortgagor redeeming the mortgage (c) by the purchaser of the equity of redemption redeeming the mortgage

LEASE DEED Lease is the transfer of property whereby the transferor transfers to the transferee a right to enjoy the property for a certain time. Essentials of a Valid Lease There 5 essentials of a valid lease. These are called 5 Ps. 1. 2. 3. 4. 5. Parties: Both lessor and lessee must be competent to contract. The lessor should have an authority to transfer the property by way of lease. Property: The property must be transferable. Premium or rent: Premium is consideration for transfer of possession of the property. It is paid in one instalment. Rent on the other hand, is paid periodically. Possession: There must be transfer of possession of the property by the lessor to the lsessee. Period: The period of the lease must be specified in the lease deed.

Liabilities of Lessor 1. 2. 3. to disclose material defects in the property. to put the lessee in possession of the property. covenant for quiet enjoyment.

Rights of the Lessee 1. 2. 3. 4. 5. 6. 7. to enjoy accretion to the property. to put an end to the lease in case of destruction of the property. to make repairs to the property if the lessor neglects to repair, and deduct the expenses from the rent. to make payments obligatory on the lessor if lessor neglects to pay and deduct them from rent. to remove the fixtures after termination of lease. to have benefit of all crops growing on the land planted or sown by him. to assign his interest in the leasehold.

Liabilities of Lessee 1. 2. 3. 4. to disclose facts materially increasing the value of the leased land. to pay rent. to maintain the property. to give notice of encroachment.

LEGAL LANGUAGE AND LEGAL WRITING 5. 6. 7. not to commit waste. not to build. to restore possession.

241

Determination of Lease 1. 2. 3. 4. 5. 6. 7. 8. By efflux of time fixed. Where the termination of lease is conditional on happening of some event, on happening of that event. By termination of the lessors interest in the property. By merger (i.e., lessee acquiring the lessorss interest in the property). By express surrender. By implied surrender By forfeiture. On the expiration of the notice to quit.

Tenat-at-Sufferance and Tenant Holding Over On the determination of the lease, the lessee is bound to surrender the possession to the lessor. On default, he may be ejected without notice. If a tenant continues to be in possession even after termination of the lease, then: 1. 2. he is called tenant-at-sufferance, if he so continues in possession without lessors assent, he is called tenant holding over, if he pays rent and the same is accepted by the lessor, thereby giving implied assent.

A tenant holding over is a statutory tenant. Statutory tenancy is not heritable. Tenancy-at-Will One of the essential elements of lease is period for which the lease is created. If a lease deed does not mention this period, it is void lease. However, if the lessee has taken possession of the property in pursuance of the agreement of lease, a tenancy at will is created. DEED OF LICENCE Licence is a right to enter upon the premises of another and use it while the premises still remains in the possession and control of the owner. Lease and Licence 1. 2. 3. 4. 5. Lease is a transfer of property, licence is not. A lessee can sue a trespasser in his own name, whereas a licensor cannot. A lease can be assigned, a licence cannot be. A lease is heritable, a licence is not. A lease cannot be revoked until the expiry of the term, a licence can be.

GIFT DEED Gift is the transfer of certain movable or immovable property made voluntarily and without consideration by one person to another.

242 Essentials of a Valid Gift 1. 2. 3. 4.

LEGAL DRAFTING

5.

Parties: Donor must be competent to contract and should have the authority to transfer the property by way of gift. The donee need not be competent to contract. The property must be transferable and must be in existence. The transfer must be voluntary and without consideration. The donee must accept the gift during the lifetime of the donor and when the donor is still competent to contract. If the donee is minor, his guardian may accept the gift on his behalf, but the donee may relinquish the gift when he attains majority. Formalities: (a) The gift of an immovable property must be in writing (except in case of Mohammedans) (b) It must be signed by the donor. (c) It must be attested by at least two witnesses. (d) It must be registered irrespective of the value of the immovable property.

Gift of movable property need not be in writing, and as such other formalities are also not applicable to such a gift. Though Mohammedans can make oral gifts of immovable property also, if they reduce the same into writing in the form of a gift deed, all other formalities i.e., signature and attestation and registration become applicable to it. HIRE-PURCHASE Hire-purchase is a form of hire contract where the hire is payable by installments and the hirer has an option to purchase the goods or become the owner of the goods on making certain payments. It is a process of purchasing or acquiring title to the goods through a hiring contract. A hire-purchase agreement has two elements: 1. 2. element of bailment; element of sale in the sense that it contemplates an eventual sale when intending purchaser fulfils the terms of the sale.

Difference between sale and hire-purchase is that in case of sale the property passes immediately on payment of price, but in case of hire-purchase the property passes only when the option to purchase is finally exercised. Although under the Common Law contractual rights are not assignable, the hirer under a hirepurchase agreement can lawfully assign his interest in Equity, the vendee taking the interest subject to the terms and conditions of the agreement. ADOPTION DEED Adoption is creation of legal relationship of parent and child between the parties where no such natural relationship exists. It is recognised by Hindus, Buddhists, Sikhs and Jains, but not by Muslims, Christians, Parsis and Jews. Now it is governed by Hindu Adoptions and Maintenance Act, 1956. Parties: Natural father, natural mother, adoptive father, adoptive mother and adoptive child.

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Essentials of Valid Adoption 1. The person adopting must have capacity and right to adopt (secs. 7, 8 and 11). Capacity of Male Hindu to Adopt (sec. 7) (a) He must be of sound mind. (b) He must be major. (c) If he has a wife living, her consent must be obtained, except where she (i) has renounced the world (ii) has ceased to be a Hindu (iii) is of unsound mind Capacity of Female Hindu to Adopt (sec. 8) (a) She should be of sound mind. (b) She must be major. (c) (i) She should not be married, or (ii) If she is married, (a) her marriage should have been dissolved, or (b) her husband (i) has renounced the world (ii) has ceased to be a Hindu (iii) is of unsound mind Further conditions as to capacity of a Hindu male or female are given under sec. 11. (a) He/she should not have (i) a Hindu son, son's son or son's son's son (by legitimate blood relationship or by adoption) living, if the adoptive child is male. (ii) a Hindu daughter or son's daughter (by legitimate blood relationship or by adoption) living, if the adoptive child is male. (b) If the person adopting is male and the child is female, the adoptive father must be at least 21 years older than the child, and if the person adopting is female and the child is male, the adoptive mother must be at least 21 years older than the child. 2. The person giving in adoption has the capacity to do so (sec. 9). (a) He/she must be the father/mother or guardian of the adoptive child. (b) If the father of the child is alive only he can give the child in adoption. If the mother of the child is also alive, her consent is necessary, except where she (i) has renounced the world (ii) has ceased to be a Hindu (iii) is of unsound mind (c) Mother may give in adoption only if the father is dead or he (i) has renounced the world (ii) has ceased to be a Hindu (iii) is of unsound mind (d) Where both parents are dead or are of unsound mind, guardian (testamentary or certificated) can give the child in adoption with the prior permission of the Court.

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3. The person being adopted is capable of being taken in adoption (sec. 10). (a) He/she must be a Hindu. (b) He/she should not have been already adopted. (c) He/she should not have been married (except where there is a custom to the contrary). (d) He/she should not have completed the age of 15 (except where there is a custom to the contrary). 4. The adoptive child must be actually given and taken in adoption. Under the Old Hindu Law an orphan could not be adopted. Under the present law, an orphan may be given in adoption by guardian. Adoption once made cannot be revoked. PARTITION DEED Partition is the process of putting an end to joint ownership. It is effected by destruction of the unities, i.e., unity of ownership and unity of possession. A joint estate may be either a "joint tenancy" or a "tenancy-in-common". Joint Tenancy In case of joint tenancy there is unity of (a) title; (b) commencement of title; (c) interest; and (d) possession. They have no definite interest in the property and none of them can transfer his share and on his death his interest in the property does not devolve on his heirs but goes to the other survivors. Tenancy-in-Common When two or more persons get a property by transfer or inheritance they become tenants-incommon. They have unity of (a) commencement of title; and (b) possession. They have definite interest in the property and therefore, can transfer their shares though undivided. On the death of a tenant-in-common, his share goes to his legal heirs. Joint family is recognised only under Hindu Law. It is not recognised under Mahomedan Law or any other law. Under Hindu Law, the property may be either ancestral property or self acquired property. Property received by a Hindu by inheritance is his ancestral property. When a son is born to him, that son gets an equal share in the property. Thus father and son will have shares in the property and they are called coparceners. Such property devolves, upon the death of a coparcener, on the other coparceners not by succession but by survivorship. In Hindu Law partition does not mean simply division of the property into specific shares but it also covers the division of title. Therefore, when there is a partition in the Hindu coparcenary property, it involves severance of joint status as regarding the separating members with all legal consequences resulting therefrom. Partition of the Hindu Joint Family properties may be made either orally or in writing. If the partition is in writing, it must be registered compulsorily.

LEGAL LANGUAGE AND LEGAL WRITING PARTNERSHIP DEED

245

Partnership is the relation which subsists between persons carrying on a business in common with a view to profit. It is a contract between two or more persons to invest their money and effects and to utilise the labour and skill of some or all of them in lawful commerce or industry and to divide the profits and share the loss in certain proportions. Thus, the relationship between partners arises out of contract and not out of status. The word "partnership" is defined under sec. 4 of the Partnership Act, 1932 as a relation between persons who have agreed to share profits of business carried on by all or any one of them acting for all. Partnership has three elements: 1. an agreement entered into by all persons concerned; 2. distribution of profits of the business; 3. management of the business by all or any one or more of them acting for all, i.e., mutual agency. One partner is not only a agent of the firm but also of the other partners and, therefore, can bind others for the acts done by them. This is the most important element of the three, and distinguishes partnership from other types of contractual relations between persons. The persons who have entered into partnership agreement with each other are individually called partners and are collectively called firm. The name under which their business is carried out is called the firm name. A firm must be registered under sec. 58 of the Partnership Act otherwise sec. 69 of the said Act bars a suit filed between the partners or against a third party. POWER OF ATTORNEY Power of attorney is a document whereby one or more persons authorise, empower and constitute another person to act, do and perform any act or acts which they are entitled to do, on their behalf. The person who gives the authority is called the principal, and the person to whom the authority is given is called the attorney. A power of attorney may be a general power of attorney or a special power of attorney. A special power of attorney gives the power to do certain specific act mentioned in the document, whereas, a general power of attorney gives the power to do several acts, deeds or things mentioned in the deed. In any case, the power of attorney must specifically mention and expressly state the authority to be exercised by the attorney. Nothing which is not stated expressly or by necessary implication in the power of attorney can be exercised by the attorney. The principal must further state that he is bound by the acts of his attorney lawfully done under the power of attorney, as if he has himself personally done that act. Following are some of the forms of conveyancing.

246

LEGAL DRAFTING AFFIDAVIT Herein, I Shri ________ s/o ________, age ________ years, occupation ________,

resident of ________ do hereby state on solemn affirmation as under: That, Master ________ is my eldest son, who was born on __________ at _________. The delivery has taken place at ___________. That, I could not inform the Registrar of Births about the date of birth, etc., within time because I was medically disabled to travel. Therefore, the delay in informing the birth of my son is not intentional but bona fide. I state that ______th ______, 19__ is the date of birth of my son Master ______. Therefore, for the bona fide reasons enumerated above, the delay may kindly be condoned and the date of birth of my son Master ________ be registered in the Register of Births. This affidavit is made to produce before the Registrar of Births, Belgaum Municipal Corporation, Belgaum.

DEPONENT I know the Deponent

(Name of the Advocate) Advocate

LEGAL LANGUAGE AND LEGAL WRITING AGREEMENT OF SALE

247

THIS AGREEMENT OF SALE made this ___th day of ______, 1989 BETWEEN Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (who and his heirs, and assigns are, unless the contrary appears, hereinafter called as Vendors) of the first part, AND Shri ______ s/o. ______, age ____ years, Occupation ______, resident of ______ (who and his executors, administrators and legal representatives or assigns are, unless the contrary appears, hereinafter called the Vendee) of the second part. WHEREAS, the vendor is desirous of selling and the vendee is agreeable to purchase a house with open site situated in ______ (more specifically described in the schedule hereto), belonging to the vendor for a sum of Rupees ______ only (Rs. ______) free of all encumbrances, charges and liens whatsoever. NOW THEREFORE THIS AGREEMENT WITNESSETH as under: (1) That, the vendor shall sell free of all encumbrances, charges and liens whatsoever, his

dwelling house with open site situate at ______ bounded as below and the vendee shall buy the same at the said price and condition. (2) That, this agreement has been entered into by the vendee on the vendor holding out that

he, the vendor, is the absolute owner of the said house and open site with a subsisting right to make transfer in the manner hereby contemplated and that the property is not in any manner encumbered or charged with the payment of any money. (3) That, the vendee has this day on the execution of this agreement paid the vendor a sum of

Rupees ______ only (Rs. ______) which constitute the consideration of this agreement and the balance of the purchase price Rupees ______ only (Rs. ______), shall be paid by the vendee on or before the expiry of two months from the date hereof, but subject to the conditions hereinafter appearing. (4) That, the vendor shall produce within one week from today all the title deeds pertaining

to the property intended to be sold for the scrutiny by the legal adviser to the vendee, and if the said legal adviser does not find the title clear and subsisting this agreement shall be of no avail, and the consideration of this agreement i.e. Rupees ______ (Rs. ______ only) acknowledged by the vendor from the vendee today shall be refunded to the vendee without deductions whatsoever and without any delay.

248 (5)

LEGAL DRAFTING That, on the vendee making available the balance of purchase price on or before the

stipulated period hereinabove mentioned a sale deed drafted by the said legal adviser of the vendee shall be executed and registered by the vendor at the cost of the vendee. The sale deed shall contain the usual indemnity clause of good and subsisting title and freedom from encumbrances, etc. (6) That, the vendor shall hand over all title deeds together with the latest receipts of tax

payment in respect of the property showing full payment up to the nearest financial year at the time of or before registration of the sale deed. IN WITNESS WHEREOF the said vendor Shri ______ and the said vendee Shri ______ have hereto signed and executed this agreement on the day and year first hereinabove written.

VENDOR VENDEE

SCHEDULE OF PROPERTY Residential House with built up area ___ sq. ft. and bearing Door No. ______ in Plot No. ____ measuring ___ ' EW and ___ ' NS situated at _________ and is bounded by following boundaries: towards East towards West towards North towards South : : : : _________________ _________________ _________________ _________________

VENDOR VENDEE

LEGAL LANGUAGE AND LEGAL WRITING DEED OF SALE

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THIS DEED OF SALE made this ___th day of the month of _______, 19___, at Belgaum BETWEEN the ______________ Co-operative Housing Society Ltd., Belgaum represented by its Secretary, Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ who is fully authorised this deed under resolution No. ______ dated ______ passed by the Board of Directors of Society (hereinafter referred to as The Vendor, which expression shall, unless it be repugnant to the context or meaning thereof, mean and include its administrators, executors, assigns and successors-in-interest) of the one part AND Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter referred to as The Vendee, which expression shall, unless it be repugnant to the context or meaning thereof, mean and include his or her heirs, executors, assigns and successors-in-interest) of the other part. WHEREAS the Vendor is a society registered under the Karnataka Co-operative Societies Act, 1959 under Registration No. ______ formed among other objects for procurement and allotment of house sites to its members. AND WHEREAS, the Vendor Society has purchased the property bearing RS No. ______ measuring ___ acre ___ gunthas situate at ______ Taluka & District Belgaum, within the jurisdiction of Sub-Registrar Belgaum, under a registered sale deed dated ___th day of __________, 19___. AND WHEREAS the said land has been converted to non-agriculture use by Order bearing No. ________ dated ______ of the Deputy Commissioner, Belgaum and layout in respect of said land, also been approved by the Director, Town and country planning vide No. ______ dated ______. AND WHEREAS the Vendee is a member of the Vendor Society and his name has been entered at Serial No. ___ in the Register of Members maintained by the Society; AND WHEREAS the Vendee requested the Vendor Society to allot him by way of Sale Plot No. ___ out of the said RS No. ____ fully described in the schedule herein below which proposal was favourably considered by the Vendor and hence this sale deed executed. NOW THIS DEED OF SALE WITNESSETH AS UNDER: BY THIS DEED OF SALE the Vendor does hereby convey, transfer and assign unto the Vendee by way of sale the said property for a consideration of Rs. _______ (Rupees __________ only), which amount has already been paid by the Vendee to the Vendor before execution of this sale deed the receipt whereof has been separately acknowledged by Vendor Society.

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LEGAL DRAFTING The Vendor Society covenants with the member/purchaser as under:

(1)

With the execution of this deed, all the right, title, interest, property claim and demand

whatsoever of the said Vendor into and upon the said property and every part thereof are conveyed unto the purchaser and the purchaser shall thereafter peacefully HOLD, USE AND ENJOY the said property forever subject to the terms specified in this sale deed. (2) The Vendor Society, and all persons claiming under it shall from time to time upon the

request by the purchaser do and execute or cause to be done and exercise all such acts, deeds and things whatsoever, for further and more perfectly assuring the said property and every part thereof unto the purchaser and placing the purchaser in actual physical possession of the same according to the true intent and meaning of these presentations as shall or may be reasonably required. (3) etc. (4) The Vendor shall indemnify the purchaser against all losses, damages, costs, expenses The Vendor further declares that plot said hereunder is free from encumbrances, charges

which the purchaser may sustain by reason of any claim being made by anybody in respect of arrears of taxes, etc. in respect of the plot sold hereinunder prior to this date. (5) All further taxes, cesses including development and other charges etc. in respect of the

plot sold hereunder shall be borne by the purchaser. The purchaser/member covenants with the Vendor Society to abide by the following terms and conditions: (1) The purchaser shall HOLD, USE AND ENJOY the said property as his whole and shall

use it for residential purpose only. (2) The purchaser shall construct a residential building on the property within a period of

three years (3 years) from the date of this sale deed at his own costs in conformity with the plans to be got approved by the purchaser from the concerned authority. (3) The purchaser shall not convey, transfer, gift, mortgage or alienate the said property in

any other manner to any individual or group of individuals for a period of ten years (10 years) from this date. However, the purchaser shall have the right of mortgaging of the said property to any Scheduled Bank, Financial Institution, Karnataka Housing Board, Life Insurance Corporation of India, Housing Development Finance Corporation or any other Government or Semigovernment Institutions for raising loan for construction of a residential building on the said property. The purchaser before conveying, transferring or gifting the property obtain consent of

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the society in writing and he shall not convey, transfer or gift the property to a person who is not member of this Society. (4) The purchaser shall abide by the rules and regulations framed by the Vendor Society

from time to time. (5) deed. The terms of this deed are binding on the Parties hereto and their representative heirs, executors, administrators, assigns and successors-in-interest. IN WITNESS whereof the Vendor Society has executed this deed through the Secretary mentioned above, the day the month and year first above mentioned at Belgaum. Witnesses 1. ______________________ 2. ______________________ VENDOR VENDEE The purchaser covenants that he shall be liable for violation of any of the terms of this

SCHEDULE All that piece and parcel of land bearing Plot No. _____ measuring ___acre and ___ guntas, RS NO. ______ situate at ______, Taluka and District Belgaum, beyond the limits of Corporation of the City of Belgaum and beyond the Urban agglomeration is bounded as under: towards East towards West towards North towards South Witnesses 1. ______________________ 2. ______________________ VENDOR VENDEE : : : : _________________ _________________ _________________ _________________

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LEGAL DRAFTING LEASE DEED THIS LEASE DEED is made on the ___th day of ___________ 19___ BETWEEN Shri

______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the Landlord) of the one part AND Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the Tenant) of the second part, WITNESSES that the landlord does hereby demise unto the tenant, ALL that dwelling bungalow bearing Door No. ______, at ________, more specifically described in the schedule hereto, from the _______ day of __________ 19___ for a term of ______ years, ensuing or yielding therefor during the said term the rent of Rupees ______ only (Rs. ______) per month payment to be made on the tenth day of each month according to the English Calendar AND the tenant does hereby covenants with the landlord as under: (1) (2) That, the tenant shall pay the rent hereby reserved on the date hereinabove mentioned. That, the tenant shall have to paint the bungalow every year and expenses of painting

shall be borne by the tenant himself. (3) That, the tenant shall keep the bungalow in a good condition and shall have to maintain

the garden therein. All the expenses of maintaining the building and the garden shall be borne by the tenant himself. (4) That, the tenant shall pay all the Municipal taxes electric consumption charges, water

charges hereinafter be payable in respect of the said bungalow. (5) lease. IN WITNESS WHEREOF, the Parties hereto have hereunder signed this deed on the day and at the place hereinabove first mentioned. Witnesses 1. ______________________ 2. ______________________ LANDLORD TENANT That, whenever any part of the rent hereinabove mentioned if is in arrears for one month,

the landlord may recover the demised bungalow on issuing a months notice and determine this

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Residential House with built up area ___ sq. ft. and bearing Door No. ______ in Plot No. ____ measuring ___ ' EW and ___ ' NS situated at _______ and is bounded by following boundaries: towards East towards West towards North towards South Witnesses 1. ______________________ 2. ______________________ LANDLORD TENANT : : : : _________________ _________________ _________________ _________________

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LEGAL DRAFTING LICENCE LICENCE is hereby granted by Shri ______ s/o ______ age ____ years, Occupation

______, resident of ______ (hereinafter called the Licensor) of the one part AND Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the Licensee) of the other part, to occupy the rooms and the accommodation more specifically described in the schedule hereto, in the house known as Ashirwad situate at ______ on the following terms and conditions: (1) That, the licensee shall pay licence fee of Rs. ______ for the period of ______ to ______

(One month) has been made today the receipt whereof licensor hereby acknowledges. (2) That, the rooms and accommodation shall be used only for dwelling purposes, only by

the licensee. (3) hat, the licensee shall keep the rooms and accommodation in a clean and sanitary

condition, and he shall pay the cost of making good any damages thereto caused by the negligence or misuse of the premises by the licensee or any person on and in the premises as his guest, visitor, relation or friend. If such costs are not paid by the licensee when demanded by the licensor in writing, the licensor may deduct the same from the refundable security deposited by the licensee with the licensor mention of which has been made in the paragraph 8 below. (4) That, the main gate and entrance of the building shall be closed and locked each day at

______ PM and reopened each day at ______ AM and the key kept in custody of the licensor or any person appointed by him in this behalf. (5) That, the licensor shall pay all costs of electricity, water conservancy and taxes relating to

the building. (6) That, the licensee may be cancelled on the breach of any condition by the licensee as

mentioned hereinbefore to be observed and performed by the licensee at the option of the licensor by giving the licensee written notice of one month in advance. (7) That, on the termination of the licence the licensee shall remove his goods in and upon

the rooms and accommodation and hand over the possession to the licensor, who shall refund the security deposit minus any deductions which have been made in accordance with paragraph 3 above. (8) That, the licensee has deposited by way of security the sum of Rupees ______ only (Rs.

______) only refundable on the expiry or sooner determination of the licence after such deduction as may be permitted under this licence.

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IN WITNESS WHEREOF the licensee and the licensor hereto signed at place , this ___th day of ________, 19___.

Witnesses 1. ______________________ 2. ______________________ LICENSOR LICENSEE

SCHEDULE OF PROPERTY LICENSED Room No. ___ in Residential House Ashirwad with built up area ___ sq. ft. and bearing Door No. ______ in Plot No. ____ measuring ___ ' EW and ___ ' NS situated at place and is bounded by following boundaries: towards East towards West towards North towards South : : : : _________________ _________________ _________________ _________________

Witnesses 1. ______________________ 2. ______________________ LICENSOR LICENSEE

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LEGAL DRAFTING SIMPLE MORTGAGE THIS DEED OF SIMPLE MORTGAGE made this ___th day of _______, 19__

BETWEEN Shri ______ s/o ______, age ___ years, Occupation ______, resident of _______, (hereinafter called the Mortgagor) of the one part AND Shri ______ s/o ______, age _____ years, occupation ______, resident of ______, (hereinafter called the Mortgagee) of the other part, WITNESSES that in consideration of Rupees ______ only (Rs. ______) paid by the said Shri ______ to the said Shri ______ receipt whereof the said mortgagor hereby acknowledges. The said mortgagor as beneficial owner hereby transfers unto the mortgages by way of simple mortgage, the landed property bearing RS No. ____ of ________, more specifically described in the schedule hereto AND IT IS HEREBY AGREED AND DECLARED that the said sum of Rs. ________ with interest thereon at the rate of ____% compounded _____, shall be repaid within a period of ______ years from the date of this deed, AND further declared that in the event of failure to repay the aforesaid sum by the mortgaged to be sold with a view to satisfy the claim and if any amount remains unsatisfied the mortgagee shall be at a liberty to recover that remaining sum from the mortgagor. IN WITNESS whereof the said mortgagor and mortgagee have hereto signed at Dharwad the day and the year first above mentioned. Witnesses 1. ______________________ 2. ______________________ SCHEDULE OF THE LANDED PROPERTY Landed property bearing RS No. ______ measuring ______ acres, ______ guntas, situated at __________ and is bounded by following boundaries: towards East towards West towards North towards South Witnesses 1. ______________________ 2. ______________________ MORTGAGOR MORTGAGEE : : : : _________________ _________________ _________________ _________________ MORTGAGOR MORTGAGEE

LEGAL LANGUAGE AND LEGAL WRITING USUFRUCTUARY MORTGAGE

257

THIS DEED OF MORTGAGE is made this _____th day of _______, 19___ BETWEEN Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the Mortgagor) of the first part AND Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the Mortgagee) of the other part. WHEREAS, the said mortgagor, who is absolutely entitled to the property mentioned in the Schedule below, is in need of money. The mortgagor has requested the mortgagee to advance a sum of Rs. ___________ and the mortgagee has agreed to advance the above sum to mortgagor by way of loan on the terms and conditions hereinafter appearing. THIS DEED WITNESSES as follows: (1) In consideration of a sum of Rs. ______/- (Rupees ______ only) borrowed by the

mortgagor from the mortgages (the receipt of which sum the mortgagor hereby acknowledges). The mortgagor hereby transfers by way of usufructuary mortgage to the mortgagee THAT property described in the schedule hereto to the intent that the said premises shall remain in possession of the mortgagee as security for the repayment of the said sum of Rs. ______ in accordance with the provisions hereinafter contained. (2) The mortgagor hereby covenants with the mortgagee as follow (i) (ii) the said property hereby mortgaged is free from encumbrances. All the rents and profits of the mortgage property collected by the mortgagee after paying government revenue, municipal taxes, etc. be appropriated by the mortgagee in lieu of the interest on the said sum of Rs. ______. (3) The mortgagee hereby covenants with the mortgagor that the mortgagor may redeem the

aforesaid mortgage at any time after five years or repayment of the said sum of Rs. ______. (4) It is hereby agreed between the Parties as follow (i) that, the Parties shall have all such rights and be subject to all such liabilities of the mortgagor and mortgagee provided in the Transfer of Property Act 1882 as may be applicable to them; (ii) that, any rents of the mortgage property for the period of mortgage unrealised but being legally recoverable on the date of redemption shall be purchased by the mortgagor from the mortgagee at a price equal to 75% of the total amount of such unrealised rents.

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LEGAL DRAFTING (iii) that, when the mortgagor redeems the mortgage, then the mortgagee shall, at the requests and costs of the said mortgagor, reconvey and deliver the possession of the mortgaged property to the mortgagor.

(5)

It is hereby agreed that whenever such an interpretation as would be requisite in order to

give the fullest scope and effect legally possible to any covenant or any contract herein contained, the expression (the mortgagor) and (the mortgagee) hereinbefore used include their respective heirs, executors, administrators and assigns. IN WITNESS WHEREOF the Parties hereto have hereunder put their signatures the day and the year first above mentioned. Witnesses 1. ______________________ 2. ______________________ MORTGAGOR MORTGAGEE

SCHEDULE OF PROPERTY The following property is subject to usufructuary mortgage bearing CTS No. ______ and situated at Hosyallapur, Dharwad and the same is bounded by the following boundaries towards East towards West towards North towards South Witnesses 1. ______________________ 2. ______________________ MORTGAGOR MORTGAGEE : : : : _________________ _________________ _________________ _________________

LEGAL LANGUAGE AND LEGAL WRITING EQUITABLE MORTGAGE THIS EQUITABLE MORTGAGE is made on ___th day of

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________, 19___

BETWEEN Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ of the one part AND Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ of the other part. WHEREAS, the said Shri ______ has advanced to the said Shri ______ the sum of Rupees ______ (Rs. ______), the receipt whereof the said Shri ______ has on various dates given to the said Shri ______. NOW IN CONSIDERATION of such advances aggregating the aforesaid sum of Rupees ______ only (Rs. ______) and for further securing the repayment thereof on demand, with interest thereon at the rate of ____% per annum from the date hereof, the said Shri ______ has this day deposited with the said Shri ______ the deeds and documents pertaining to his title to the house bearing No. ______ situated at ______ in the city of ______, belonging absolutely to him and does hereby CHARGE the premises comprised in the said deed and documents, the repayment of the said sum of Rupees ______ only with interest thereon at the rate of ____% per annum such interest to be payable half yearly. AND THIS DEED HEREBY AGREES AS FOLLOWS: (1) That, if any interest remains unpaid for a period of more than 6 months from its accrual

or after the expiry of the period specified herein the said Shri ______ shall have the right to call in or enforce payment of the sums due under this mortgage. (2) That, Shri ______ shall repay the interest as stated above and on failure it shall be added

to the principle and such principle shall in any case be repaid. (3) That, the said Shri ______ shall on demand by the said Shri ______ and at his cost

execute a simple mortgage of the property hereby mortgaged on the terms and conditions as to the interest and manner of payment specified herein and such other conditions as may be imposed by Shri _____. IN WITNESS whereof, the said Shri ______ has hereto signed at ______ the day and year first above mentioned. Witnesses 1. ______________________ 2. ______________________ MORTGAGOR MORTGAGEE

260

LEGAL DRAFTING EXCHANGE THIS DEED OF EXCHANGE is made the ________ BETWEEN Shri ______ s/o

______ age ____ years, Occupation ______, resident of ______ (hereinafter called the First Party) AND Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the Second Party) WHEREAS, Shri ______ is the absolute owner in possession of the house property bearing CTS No. ____ situate at ____, more specifically described in Schedule A hereto AND Shri _____ is the absolute owner in possession of the house property bearing CTS No. ______ situate at ______, more specifically described in Schedule B hereto. AND WHEREAS, the properties mentioned in both the Schedules, A and B, are free from all the encumbrances and charges whatsoever and each is of the value of Rupees ______ only (Rs.____) and Rupees ______ only (Rs. ______) respectively. AND WHEREAS, the said Shri ______ and Shri ______ are desirous of mutually transferring the said properties. NOW THEREFORE THIS EXCHANGE WITNESSES that the said First Party hereby transfers absolutely free from all encumbrances whatsoever, the house property mentioned in the Schedule A hereto to the Second Party and the said Second Party, in consideration of the said exchange hereby transfers absolutely free from all encumbrances whatsoever the house property mentioned in Schedule B hereto to the First Party. AND it is hereby declared that either Party will hold the properties transferred hereafter as absolute owners thereof without any interruption from the other. IT IS ALSO AGREED AND DECLARED that either Party hereto has power and authority to give, grant, convey and sell the property mutually conveyed by this deed. AND it is also agreed that either Party will at the request and cost of the other execute every such assurance and do every such act, deed or thing for further and more perfectly assuring to the other the properties hereby mutually conveyed. That this deed shall be executed in duplicate and each document bears the registration endorsements in full. The stamped document to be kept by Shri ______ and the duplicate by Shri ______.

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IN WITNESS WHEREOF the said Shri ______ and Shri ______ have hereto signed at ____, on the day and the year first hereinabove mentioned. WITNESSES 1. ________________________ 2. ________________________ FIRST PARTY SECOND PARTY

SCHEDULE A The following property is subject to usufructuary mortgage bearing CTS No. ______ and situated at Hosyallapur, Dharwad and the same is bounded by the following boundaries towards East towards West towards North towards South WITNESSES 1. ________________________ 2. ________________________ SCHEDULE B The following property is subject to usufructuary mortgage bearing CTS No. ______ and situated at Hosyallapur, Dharwad and the same is bounded by the following boundaries towards East towards West towards North towards South WITNESSES 1. ________________________ 2. ________________________ FIRST PARTY SECOND PARTY : : : : _________________ _________________ _________________ _________________ FIRST PARTY SECOND PARTY : : : : _________________ _________________ _________________ _________________

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LEGAL DRAFTING GIFT THIS DEED OF GIFT is made this 16th day of September, 1989 BETWEEN Shri

______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the Donor) of the one part AND Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the Donee) of the other part. WHEREAS the said donor is the absolute owner in possession of the lands, tenements hereinafter more specifically described in the schedule hereto. AND WHEREAS, the said Shri ______ is the donors cousin living with the donor since the age of seven years and the said donor has great love and affection to dispose the said lands and tenements in the manner hereinafter appearing. NOW THIS DEED OF GIFT WITNESSES that in pursuance of the said indication and in consideration of natural love and affection which the said donor has for the donee, the said donor out of his own free will, without fraud, coercion or undue influence from anybody whatsoever and in full possession of his senses does hereby give, convey, grant, transfer and conform on the said donee the double storied house measuring 1500 sq.ft. with open site together with all outhouses, garage and all privileges, profits, advantages and all other amenities whatsoever; TO HAVE AND HOLD the tenements and the lands hereby gifted on to and to these of the said donee for ever and absolutely. AND THAT THE SAID DONEE shall and may from time to time and at all times peacefully and quietly enter upon, have, hold, occupy, possess and enjoy the property hereby gifted and receive and take the rents, issues and profits thereof and every part thereof without any let or hindrance whatsoever from the said donor or by any person or persons claiming from under or interested of him IN WITNESS WHEREOF the said donor has hereunto set and subscribe his signature and delivered in the presence of the day, month and year first above mentioned. WITNESSES 1. ________________________ 2. ________________________ DONOR

DONEE

LEGAL LANGUAGE AND LEGAL WRITING SCHEDULE OF PROPERTY GIFTED (1)

263

Double storied building bearing CTS No. ______ situated at ________ in the city of

______ having an approximate value of Rupees ______ only (Rs. ______) (2) The landed property bearing RS No. ______ of ______ village, in Taluka ______ District

______ measuring about ____ acres and ____ gunthas and is surrounded by following boundaries: towards East towards West towards North towards South WITNESSES 1. ________________________ 2. ________________________ : : : : _________________ _________________ _________________ _________________ DONOR

DONEE

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LEGAL DRAFTING WILL THIS IS THE last will and/or codicils, if any, made by me at any time heretofore made

and declare this to be my will. It will be effective after my death. It is my wish and desire that after my death my wife, Smt. ______, shall be entitled to all my estate and effects thereof absolutely and for ever. I, accordingly, declare her as the sole beneficiary and universal legatee of my this will. I hereby leave, give, devise and bequeath absolutely and forever to my said wife, Smt. ______, her heirs, executors or administrators, for her use and benefit, absolutely and forever, all my property, assets and credits, both moveable and immovable, of whatsoever character or wheresoever situate including all reversion, expectancy and future assets, if any, acquired by me and I hereby appoint her, the said Smt. ______, sole executrix of this my will who will be entitled to obtain probate without being required to furnish any security. Dated this ______ day of _____, 19__. In witness, I have hereunto set and subscribe my hand and signature this ______ day of ______, 19___.

WITNESSES 1. ________________________ 2. ________________________

TESTATOR

LEGAL LANGUAGE AND LEGAL WRITING DEED OF ADOPTION

265

THIS DEED OF ADOPTION made this the ________ day of the ______ month of ________ year by Shri ________ s/o. Shri ________ age ____ years, r/o. ________ (hereinafter referred to as Natural Father) of the first part AND Shri ________ s/o. Shri ________ age ____ years, r/o. ________ (hereinafter referred to as Adoptive Father) of the second part WITNESSES AS UNDER : (1) (2) That Adoptive Father has no son or sons son or sons sons son living. That Adoptive Father, with the consent of his wife, has decided to take a boy in adoption

and requested the Natural Father to give his son Kum _______ in adoption to him. Natural Father in consultation with his wife agreed to give the said Kum ________ in adoption to the Adoptive Father. (3) In pursuance of the above agreement the Natural Father has given said Kum ________ in

adoption to the Adoptive Father today the __th day of _____, 19__, after performing the necessary religious ceremonies and the Adoptive Father has accepted said Kum ________ as his son. (4) Adoptive Father has named Kum _______ as Kum _________ and from this day he shall

become a part of Adoptive Fathers family and shall have all the rights as if he is a natural son of the Adotpive Father. He shall have no right in the properties of Natural Father. IN WITNESS WHEREOF the Natural Father, the Adoptive Father and the Adoptive Mother have signed this deed on the day and year hereinabove mentioned at ________.

NATURAL FATHER

ADOPTIVE FATHER

ADOPTIVE MOTHER

266

LEGAL DRAFTING DEED OF PARTITION THIS DEED OF PARTITION is made the ____th day of ______. 19__ BETWEEN Shri

______ s/o ______ age ____ years, Occupation ______, resident of ______ of the First Part AND Shri _____ s/o ______ age ____ years, Occupation ______, resident of ______ of the Second Part. WHEREAS, the Parties hereto being in possession as absolute joint owners in equal shares free from all encumbrances whatsoever, the houses, garden, land and premises specifically described in the schedule annexed to this deed, have agreed with each other to put an end to their joint tenancy and to divide the properties contained in the said schedule for the purpose of the same being separately and individually owned, possessed and enjoyed. AND WHEREAS, the said Shri ______ of the First Part who assumed Kartaship of the family now comprising of the Parties hereto, has rendered full account for the period beginning with the date of demise of their father, i.e., ________ and no moneys claimed or charges due and owing by any of the Parties hereto against him or any other co-sharer. NOW THEREFORE THIS DEED OF PARTITION WITNESSES as under: (1) That, it is mutually agreed that the properties moveable or immovable (as per the

schedule), subject of this partition are of the value of Rupees ______ (Rs. ______) only and the value of the separated shares shall be Rupees ______ (Rs. ______) only each which shall be the value for the purpose of stamp duty. (2) Party. (3) That, the respective documents and deeds of title pertaining to the properties have been That, the properties given in List A in the schedule shall belong absolutely to the First

Party and properties given in Lists B and C in the schedule shall belong absolutely to the Second

handed over to their respective owners. (4) That, this deed has been drawn up in duplicate and the stamped original shall remain with

Shri ______, while the duplicate bearing registration endorsements shall remain with Shri ______. IN WITNESS whereof the Parties have hereto affixed their hand the day and the year first above mentioned, at Dharwad. WITNESSES 1. ________________________ 2. ________________________ PARTY NO. 1 PARTY NO. 2

LEGAL LANGUAGE AND LEGAL WRITING MEMORANDUM OF ORAL PARTITION

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THIS MEMORANDUM OF PARTITION is drawn up on the ____th day of ______, 19__ and puts on record the partition effected BETWEEN Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ ; Occupation ______, resident of ______. WHEREAS, Shri _____ demised intestate on ____ - _____ - 19__, leaving behind him 3 sons named above, entitled to the properties, moveable and immovable, left by the said Shri ____. AND WHEREAS, differences and disputes arose between the said three sons of Shri ______ and they approached Shri ______ s/o ______ resident of ______ to divide and distribute the properties held jointly by them. AND WHEREAS, the said Shri ______ on the __th day of ____, 19__ before the Parties divided all the moveable properties in equal shares as per List A attached hereto and allotted the first 10 items to Shri ______; the next 8 items to Shri ______ and the remaining 12 items to Shri ______ all of whom have accepted the said distribution. AND WHEREAS, the said Shri ______ on the same day before the Parties divided the entire house situated at ______ and bearing CTS No. ______ in the city of ______ and allotted the portion marked in blue and coloured blue in the plan of Shri ______ and the portion marked in red and coloured red in the same plan to Shri ______, and the small house situated at ______ was allotted in its entirety of Shri ______. AND WHEREAS, the Parties have accepted the said partition as final, conclusive and binding upon them. WHEREFORE this memorandum of Partition is drawn up before the Parties and the arbitrator who have subscribed their signatures thereto in order to signify the correctness of the facts mentioned above. WITNESSES 1. ________________________ 2. ________________________ PARTY NO. 1 PARTY NO. 2 Shri ______ s/o ______ age ____ years,

268

LEGAL DRAFTING DEED OF PARTNERSHIP THIS DEED OF PARTNERSHIP made the ______ day of ___________, 19___

BETWEEN Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the First Party) AND Shri ______ s/o. ______, age ____ years, Occupation ______, resident of ______ (hereinafter called the Second Party), whereby it is agreed as follows: (1) The Parties shall become and be partners under the firm name of M/s. ______ as from

the date ______ and shall carry on the business of ________. (2) The duration of the firm shall be, to begin with, a period of ______ years or for such

further or lesser period as the Parties may choose to mutually agree. (3) The registered office of the firm shall be at ______, or at such other place or places as the

partners choose to. (4) equally. (5) (6) The partners shall distribute the profits and bear the losses in equal shares. The partners shall be entitled to withdraw out of the profits money not exceeding Rupees The capital of the partnership shall be the sum of Rupees ______ only (Rs. ______) or

such other sum as the partners may mutually agree and shall be contributed by the partners

______ only (Rs. ______) in each month adjustable against the account of the respective partner at the time of the annual accounting. (7) The first Party shall make available to the firm the shop or premises in which the business

of the firm shall be carried on situate at ______ Road and which said shop or premises is in his occupation as a tenant from month to month paying a monthly rent of Rupees ______ only (Rs.____) to Shri ______ and shall hereafter shall hold the said shop or premises in trust for the partnership for which he shall be paid out of the partnership, the said monthly rent of Rs. ______ as from the date mentioned in para one above. (8) The said rent and all taxes, duties, repairs and outgoings in respect of the said shops or

premises or other place or places of business of the partnership shall be paid out of the partnership. (9) No apprentice, clerk or servant shall be employed or dismissed without the consent of the

partners and all premises and fees taken or paid shall be the profits or expenses of the partnership.

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The partners shall cause all usual accounts and entries to be kept and made in proper

books and together with all securities, vouchers and such books shall be kept at the registered office of the partnership and be open to inspection of each of the partners. (11) Immediately after each ____ day of ____ in every year the partners shall take an account

and valuation of the effects, credits and the liabilities of the partnership. Such accounts and valuation shall after mutual examination be drawn up in duplicate and signed by the partners, who shall each retain a copy. The entries in such signed accounts shall be final and binding as between the partners. The profit or loss, as the case may be, divided as aforesaid after signing of such account. (12) The authority of the partners individually shall be limited to the following: a. No partner shall individually purchase goods for the partnership without consulting the other and obtaining his consent to the purchases of the value exceeding Rs. ______ (Rupees ______ only). b. No partner shall bind the partnership by taking any loan or raising any money, whether with or without security to the extent of more than Rs. ________ (Rupees ______ only). c. No partner shall commit the partnership without obtaining the written consent of the other, to any undertaking which involves the partnership financially to the extent or more than Rs. ____ (Rupees _______ only). d. All law suits shall be filed and defended by the partnership by the partners acting jointly in all cases which involve the partnership financially to the extent of more than Rs. ____ (Rupees _______ only). (13) partners. (14) Every partner shall be entitled to dissolve the partnership. The partnership shall be The partnership shall be deemed to be continuing on the admission of a fresh Partner or

partners, provided the admission is on the terms herein laid down and is approved by all the

dissolved by a notice in writing sent by registered post to the address herein given or such address as may be registered from time to time with the Registrar of Firms. (15) On the bankruptcy of any partner or on notice being given to either partner under clause

14 above or on the death and there being no major legal representative willing or capable to take

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the place of the deceased partner, the partnership shall terminate. The share of such partner may be purchased by the remaining partners by paying a value made by arbitrators or their umpire as hereinafter mentioned, in three equal half yearly instalmants. The tenancy of the first Party shall be valued at ____ years rental. (16) Upon determination of the partnership by afflux of time or upon its determination by any

other means, if the option to purchase is not exercised by any other partner then as soon as convenient a full and general account of valuation shall be taken of the property and the assets and liabilities of the partnership and the property and assets shall be put to sale and the debts be realised and credits be paid. (17) If at any time any dispute, doubt or question shall arise between the partners, or their

representatives either on the construction of these presents or respecting the accounts, transactions, profits or losses of the business, or otherwise in relation to the partnership, then every such dispute, doubt or question shall be referred to arbitrators chosen by each of the partner and the representatives or their umpire to be appointed in the manner provided by the law and such reference shall, in all respects, as to the mode and consequence thereof conform to the provisions in that behalf contained in the Arbitration Act, 1940, or any statutory modification thereof. IN WITNESS whereof the said Shri ______ and Shri ______ have hereto at ______ signed the day and year first above mentioned. Place: Date: PARTY NO. 1

PARTY NO. 2

LEGAL LANGUAGE AND LEGAL WRITING DISSOLUTION OF PARTNERSHIP

271

THIS DEED OF DISSOLUTION OF PARTNERSHIP made the ______ day of ______, 19__ BETWEEN Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ AND Shri ______ s/o. ______, age ____ years, Occupation ______, resident of ______. WHEREAS, the partners hereto under a deed of partnership dated ______, made between them formed themselves into a trading firm and carried on business under the name and style of M/s. ______, pursuant to the covenants, stipulations and provisions contained in the said deed. AND WHEREAS, it has been mutually decided between the partners that the said partnership shall be dissolved and the said trade and business shall be wound up and the stock in trade, assets and credits realised and called in, and the net proceeds, after payment and satisfaction of all debts and liabilities divided between the partners according to the covenants in this behalf appearing in the deed of partnership. NOW THIS DEED WITNESSES that in pursuance of the said agreement it is hereby declared and agreed by and between the Parties hereto as follows. That is to say, (1) The said partnership between the partners hereto under the deed dated ______, hereunto

appended shall be determined and stand dissolved as from the ______ day of ______ 19____ and the Parties hereto singly or jointly shall not carry on the business of the said firm or ______ under the said name or style for a period of __ years. (2) The Parties hereto shall on the aforesaid date of _____________ sign notices of

dissolution and forthwith advertise in the local official gazette the fact of dissolution as required by Sec. 45 of Indian Partnership Act, 1932 and shall also intimate the fact of dissolution to the Registrar of Firms under the provision of Sec. 63 of the said Act. (3) Within __ days after the dissolution of the partnership a full and general account and

balance sheet shall be taken and made of the property, assets and liabilities of the partnership and a full and particular inventory and valuation of all the machinery, plans, tools, utensils, stock in hand, office equipment, materials and effects belonging to the firm shall be made by the Parties or such other person as the Parties may choose to appoint, whose decision shall be final and binding on the partners and all debts owing to the firm shall be collected and got in by the Parties or such other persons as the Parties by instrument in this behalf appoint. (4) That, as soon as may be, after the property, assets and liabilities have been got in and

disbursed, the Parties or such other persons whom the Parties may have appointed under the foregoing clause shall divide and apportion the share of the Parties in the proportion of the

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contribution of the Parties towards the capital. In such division any amount paid earlier or due to the Parties according to the books of the partnership shall be taken into account. That, the cost of liquidation proceedings shall also be deemed to be a liability of the partnership and paid from the funds of the partnership. (5) That, in case the winding up shows a loss or the assets of the partnership are insufficient

to meet the liabilities and debts of the partnership, then the partners shall forthwith pay such losses in the proportion of their contribution to the capital. (6) Each of the Parties shall, so soon as the others or any of them, or their or his

representatives, shall have executed and done all the assurances, acts and things hereby agreed to be done by them respectively, and at the request and the cost of such other or others or his or their representatives execute to him or them such releases, indemnities and assurances as may be reasonable and proper. IN WITNESS whereof the said Shri ______ and Shri ______ have hereto signed and executed this agreement of dissolution and appended it to the said deed of partnership dated _____. Place: Date: PARTY NO. 1

PARTY NO. 2

LEGAL LANGUAGE AND LEGAL WRITING GENERAL POWER OF ATTORNEY

273

KNOW ALL ME BY THIS POWER OF ATTORNEY that I, Shri ______ s/o _____, age _____ years, occupation _______, resident of _______ state that I intend to go abroad and stay there fore a long time and so it is necessary and expedient for me to appoint an agent to look after all my affairs in my absence. By these present, I do hereby nominate, constitute and appoint Shri _______ s/o _____, age ___ years, occupation _______ resident of ____________ as my attorney, in my name and on my behalf to execute or do all or any of the acts or things hereinunder mentioned, that is to say (1) to appear and act in all the Courts, civil, revenue or criminal, whether original or appellate, in the registration office or in any other office of Government or District Board, Municipal Board or notified area or any other local authority. (2) to sign and verify plaints and written statements, petitions of claims and objections, memorandum of appeal and applications of all kinds and to file them in any such Court or office. (3) (4) to appoint advocate, pleader or any other legal practitioner. to compromise, compound or withdraw cases, to confess judgements and to refer cases to arbitration. (5) to file and receive back documents, to deposit and withdraw money, and to grant receipts thereof. (6) (7) to obtain refund of stamp duty or repayment of court-fee. to purchase property at Court auction sales in execution of my decree up to the amount of decree. (8) to take delivery of possession of property in execution of my decrees or of property purchased for me at an auction sale. (9) To realise debts due to me, to collect rents from my tenants of houses and to receive any money due to me from any other person and to grant receipts and discharges for the same. (10) to destrain the crops of my tenants for the arrears of rents. (11) to grant lease of my house property lands, agricultural and non-agricultural.

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(12) to file suits for rent and ejectment of tenants, and when expressly instructed by me, other kinds of suits. (13) to apply to Courts and officers for copies of documents and papers. (14) to apply for further inspection of and to inspect judicial records. (15) to nominate and to give consent to the appointment of a patwari, mukhia or chaukidar. (16) to accept service of any summons, notice or writ issued by any Court or officer against me, and (17) generally to do all lawful acts necessary for the above mentioned purposes. AND PROVIDED ALSO that the said attorney shall keep a true and correct account of all income and expenditure, and shall render an account of all income and expenditure to me annually, and shall pay me monthly all balances of money in his hand. AND I hereby agree that all acts, deeds and things lawfully done by my said attorney shall be construed as acts, deeds and things done by me and I undertake to ratify and confirm all whatsoever that my said attorney shall lawfully do or cause to be done for me by virtue of the power hereby given. IN WITNESS hereto I have signed this deed on this __________. Place: Date: EXECUTANT

I KNOW THE EXECUTANT

(Shri ________________) Advocate

LEGAL LANGUAGE AND LEGAL WRITING REVOCATION OF GENERAL POWER OF ATTORNEY

275

TO ALL TO WHOM THESE PRESENTS SHALL COME, I, Shri __________ s/o __________, age __ years, occupation _______, resident of _______ send greetings. WHEREAS, by a Power of Attorney under my hand, dated ___________, I appointed Shri _______ s/o _____, age ____ years, occupation ________ resident of _____________ as my attorney, in my name and on my behalf to execute or do all or any of the acts or things hereinunder mentioned, that is to say (1) to appear and act in all the Courts, civil, revenue or criminal, whether original or appellate, in the registration office or in any other office of Government or District Board, Municipal Board or notified area or any other local authority. (2) to sign and verify plaints and written statements, petitions of claims and objections, memorandum of appeal and applications of all kinds and to file them in any such Court or office. (3) (4) to appoint advocate, pleader or any other legal practitioner. to compromise, compound or withdraw cases, to confess judgements and to refer cases to arbitration. (5) to file and receive back documents, to deposit and withdraw money, and to grant receipts thereof. (6) (7) to obtain refund of stamp duty or repayment of court-fee. to purchase property at Court auction sales in execution of my decree up to the amount of decree. (8) to take delivery of possession of property in execution of my decrees or of property purchased for me at an auction sale. (9) To realise debts due to me, to collect rents from my tenants of houses and to receive any money due to me from any other person and to grant receipts and discharges for the same. (10) to destrain the crops of my tenants for the arrears of rents. (11) to grant lease of my house property lands, agricultural and non-agricultural.

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(12) to file suits for rent and ejectment of tenants, and when expressly instructed by me, other kinds of suits. (13) to apply to Courts and officers for copies of documents and papers. (14) to apply for further inspection of and to inspect judicial records. (15) to nominate and to give consent to the appointment of a patwari, mukhia or chaukidar. (16) to accept service of any summons, notice or writ issued by any Court or officer against me, and (17) generally to do all lawful acts necessary for the above mentioned purposes. Now, by this deed I, the said principal, do by these presents absolutely revoke the said Power of Attorney, and every power or authority expressed or implied to be thereby given. Provided, nevertheless, that nothing herein contained shall impeach or invalidate any act which the said attorney shall do or cause to be done by virtue of any power or authority expressed to be given by the said Power of Attorney, before the revocation thereof by these presents shall have been made known to the said attorney.

IN WITNESS whereof, I, the said Shri ______ have hereto signed at ______ this the ________.

Place: Date:

EXECUTAN

I KNOW THE EXECUTANT

(Shri ________________) Advocate

LEGAL LANGUAGE AND LEGAL WRITING SPECIAL POWER OF ATTORNEY

277

KNOW ALL MEN BY THIS POWER OF ATTORNEY that, Shri ______ s/o ______, age ______ years, occupation ______, resident of ______ hereby appoint and constitute Shri ______ s/o ______, age ______ years, occupation ______, resident of ______ my lawful attorney. WHEREAS, I am owner in possession of properties, amongst others the one detailed below situated in the city of ______. AND WHEREAS, owing to business commitments I am unable to attend personally the sale or the negotiation of its sale and I am desirous of disposing of the some at an early date. AND WHEREAS, the said Shri ______ is willing to undertake the negotiation and the sale of the same. NOW THEREFORE BY THESE PRESENTS, I, the said Shri ______ hereby authorise and empower the said Shri ______ as the lawful attorney for me and on my behalf to do the following acts, deeds and things, that is to say (1) To advertise for sale or otherwise procure and negotiate the sale of my said property described below situate in the city of ______ at a net price of not below Rupees ______ (Rs. ____) only. (2) To receive from the purchaser the purchase money and to give proper receipt and discharge for the same. (3) In my name and as my act and deed to execute and sign a proper conveyancing of the said property to the purchaser. (4) To present the said deed of conveyance for registration to the proper Registration Authority, to admit the receipt of the consideration money and to have the said deed registered AND to do all acts, deeds and things which are necessary for conveying the property and registering the said deed as fully and effectually in all respects as I could do the same if I were present personally. AND I HEREBY AGREE to ratify and confirm all and whatsoever my said attorney shall lawfully do or cause to be done by virtue of these presents. IN WITNESS whereof, I, the said Shri ______ hereto put my signature at ______ this ____th day of ______, 19__. Place: Date: I KNOW THE EXECUTANT (Shri ________________) Advocate

EXECUTANT

PLEADINGS
1. DEFINITION OF PLEADINGS Order VI Rule 1 of The Code of Civil Procedure 1908 defines pleading as meaning plaint and written statement. But a wider definition is given in Rule 3(2) of Civil Rules of Practice framed by the Karnataka High Court, according to which definition plaint, written defence filed in such proceedings, cross objections filed in appeals and any application filed in proceedings for seeking interim reliefs are also pleadings. 2. MAIN RULES OF PLEADINGS 1. 2. 3. 4. Only facts and not law must be stated in pleadings. Only material facts must be stated. The evidence on the basis of which the facts are proved should not be mentioned in the plaint or pleading. The facts must be stated concisely, precisely and with certainty.

1. Plead Only Facts and not Law: The first rule of pleadings requires that only facts must be mentioned in the pleadings, which means that neither provisions of law nor conclusions of law should be mentioned in the pleadings. For example, if a suit is to be filed on the basis of a promissory note it must be pleaded that on a particular date the Party has received the amount and has executed a promissory note. It should not be mentioned that there is a presumption under Sec. 118 of Negotiable Instruments Act that a promissory note is presumed to have been executed for consideration. Similarly in a suit for possession by a landlord against a tenant it must be pleaded that the tenancy has been terminated by serving a notice. It should not be pleaded that the notice is valid under section 106 of the Transfer of Property Act. It is therefore clear that the necessary facts which lead to the required conclusion must be mentioned and the legal consequences and presumptions should not be mentioned in the pleadings. It is for the judge to draw such inferences from those facts as are permissible under the law of which he is bound to take judicial notice. However, the Parties can make their submission about law at any time. For example, the nonmaintainability of the suit which is a point of law, can be urged although no specific plea has been raised in the pleading. The rule that only facts and not law or presumption under law should be pleaded has the following exceptions: (a) Foreign Law: Courts do not take any judicial notice of foreign laws and hence they must be pleaded as facts. The statutes of the foreign country intended to be relied upon should be set forth as substantially as any other facts. (b) Mixed Questions of Law and Fact: Where a question is one of mixed law and fact, it is permissible and proper to plead both the facts and the legal conclusions. For example, the Defendant may say that the suit is barred by the law of limitation, or he may say that he is entitled to a set off after narrating the facts on which he bases his conclusions. (c) Condition Precedent: The Code of Civil Procedure provides that any condition precedent the performance of which is intended to be contested shall be distinctly specified in the pleadings of the Plaintiff or Defendant. For example, the legality of the notice under Sec. 80, Code of Civil Procedure. (d) Customs and Usages of Trades: Custom and usage of any trade and business shall be pleaded like any other facts, if a Party wants to rely on them. But a custom repeatedly brought before Courts and recognised by them regularly is deemed to have acquired the 278

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279

force of law and need not be pleaded. For example, an occupancy tenant is entitled to cut trees growing upon his holdings by local custom. It is not necessary for the occupancy tenant to plead this custom, if he wishes to rely on his right to cut trees. Similarly, a Party who wishes to rely on the usage of a particular trade which is at variance with any provision of the Contract Act, he must plead the usage of such trade and business with its detailed incidents. If it is not pleaded, no evidence to prove it shall be admitted. (e) The fact of negligence, right or liability, unlawful or wrongful act should be specifically pleaded. Every plea of fact should be specifically raised and provided. Facts should be properly stated. For example, it is not sufficient to say that the contract was rescinded. It should be state in what manner and by what means he contends that it was rescinded. 2. Plead Only Material Facts: Material facts are those, the proof of which will enable a Party to seek a relief from the court, and the omission of which will disentitle a Party from getting the relief from the court. For example, in a suit for recovery of money the material allegation would be that the Party has lent a definite sum of money to the other Party on a particular date. That the other Party has failed to return the said money. In such a suit the reasons for taking the money or the reasons for non-returning of it will be immaterial. Similarly in a suit for possession of house by a land-lord against his tenant the material facts to be pleaded would be that there is a relationship of landlord and tenant between the Parties and that the tenancy has been duly terminated. As to how the tenancy was terminated and as to whether there are any documents in this regard will be immaterial facts. The second fundamental rule of pleadings is that every pleading shall contain only a statement of material facts on which the Party pleading relies for his claim or defence. This rule has been enunciated in Order VI, Rule 2 of the Code of Civil Procedure. Though the rule is not a technicality an omission to observe it may increase the difficulty in the Courts task of ascertaining the rights of the Parties. Sometimes it may be practically difficult to ascertain what is a material fact. If any such reasonable doubt arises it is better to plead that fact than to omit it because unless a fact is pleaded he shall not be allowed to prove it at the hearing of the suit. Of course, a material fact can be inserted in the pleadings by amendment which is the right of the Party, but when a pleading is amended one is likely to be saddled with the cost of the other side. When a suit is brought under a particular statute, all facts which are necessary to bring the suit under the statute must be alleged. When a rule of law applicable to the case has an exception to it, all facts are material which tend to take the case out of the rule or exception. For example, the plea that a woman claiming maintenance has lost her right due to continuous desertion or living in adultery should be raised specifically. Where a person claims an alternative relief he must plead facts entitling him for such relief. Where a person claims relief owing to his specific legal position etc. he should specifically mention it. For example, a childless Mohammedan widow claims 1/4 share in the property of her husband. She should specifically state that her husband was a Shia. Similarly, where the question of age or time affects the rights of the Parties, the facts should be specifically pleaded. Where a Plaintiff sues on the basis of a title he must state the nature of the deeds from which he derived the title. Where a plea is based on custom, it must be stated in precise form what the custom is. Every plea must be specifically pleaded and proved. Court cannot allow either Party to the suit to lead evidence inconsistent with his plea. If any Party is allowed to lead evidence inconsistent with

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his plea in spite of objection by the other Party, the evidence in rebuttal does not cure the legal defect. Following are the exception to this rule. (a) Contents of Documents: Whenever the contents of document are material, it shall be sufficient in any pleading to state the effect of the document in brief without setting out whole or any part of the document unless any precise words are material (Order VI Rule 9, CPC). For example, if the claim is based on a sale deed, it is sufficient to state that Defendant has sold the property to the Plaintiff by a sale deed dated ___________. (b) Matters of Inducement: It means the introductory a prefatory facts to be stated in the first and second paragraphs in the body of the plaint or written statement. Though it is not necessary yet sometimes desirable to commence a plaint with some introductory allegations stating who the Parties are, what business they carry on, how they are related and connected and other surrounding circumstances leading up to the dispute. Though these are not material facts yet are allowed in England and hence in India too. But he matter of inducement should be reduced to the minimum need. The material facts should be stated with precision and not in argumentative way. However, an alternative plea can be taken and proved in the pleadings. In certain cases inconsistent pleas can also be taken. But where the inconsistent pleas prejudice the opposite Party or embarrass the fair trial, it cannot be allowed. Where the material facts are not mentioned, the court cannot give any decision on such facts. 3. Facts, Not Evidence: The third fundamental rule of pleading has been laid down by Order VI, Rule 2 of Code of Civil Procedure. It says that every pleading must contain a statement of material facts but not the evidence by which they care to be proved. For example, if a suit is to be filed for recovery of money lent under a demand promissory note it is not necessary to mention in the pleading as to how the money was obtained and in whose presence it was paid. These facts constitute a part of the evidence. Similarly in a suit for recovery of money where the Plaintiff wants to rely upon the correspondence, it is sufficient to mention that the Defendant has admitted his liability in the correspondence between the Parties. Details of the correspondence should not be mentioned. The Plaintiff or Defendant is by all means entitled to tender evidence to prove these facts. In some cases where the facts in issue and relevant facts are so mixed up that it is very difficult to separate them and if it is so the relevant facts may be stated. For example, where the custom is based on the village administration paper, which is the basis of claim and its sole proof, the record has to be pleaded. In Punjab, Rewaz-e-Aam (Customs) are contained in the Manual of customary Law which records customs, are only evidence and it is not necessary to refer them in the plaints. 4. Pleadings must be in a Concise Form With Precision and Certainty: The fourth rule is that the material facts be stated in the pleading in a concise form. Pleading must be drafted with sufficient definiteness to enable the opposite Party to understand the case he is called upon to meet. Material facts must be stated precisely and coherently and as briefly as is consistent with clearness and with obscurity should be avoided at all costs. Unnecessary facts should be omitted. The language used should be terse and a mastery of the vocabulary and grammar of the language in which pleadings are drafted is essential. The whole case should be stated with brevity. Brevity can be attained by: (a) Omitting all unnecessary facts, i.e., matters of law, matters of evidence, facts which are not material, etc.,

LEGAL LANGUAGE AND LEGAL WRITING (b) Omitting all unnecessary details when alleging material facts; and (c) Giving proper attention to the language used in alleging material facts. Precision in drafting can be attained by remembering and observing the following points: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

281

12.

Correct names of persons and places with correct spelling should be given. Adopt same spelling throughout. As far as possible, avoid pronouns. Do not refer the Plaintiff and Defendant by their names. Things should be called by correct names and the same things should be referred by the same name. Facts must be stated plainly and clearly. Avoid ifs and buts. Plead facts in strict chronological order. As far as possible simple sentences should be used. As far as possible prefer active voice to passive one. Repetitions should be avoided. Fundamental rules of grammar and syntax should not be lost sight of. Pleading should be divided into paragraphs, number consecutively. Dates and numbers should be repeated in words. A lawyer suing on a document or on an Act should use the language of the document or the Act itself. He should not invent his own language however correct it may be. For example an insurance policy becomes void in case the assured shall die of his own hand. In this case, while drafting the pleading instead of pleading that the assured died of his own hand. should not plead the assured killed himself or he committed suicide. Forms prescribed in Appendix A of the code of Civil Procedure should be followed. The pleadings should be signed, dated and verified.

3. PLEADINGS AND EVIDENCE If a fact is not pleaded in the plaint or written statement, evidence in respect of the same cannot be admitted. There must be consistency between pleadings and proof. In order to satisfy the requirements of natural justice, it is necessary to give notice of the case of a party to the opposite party. Otherwise the opposite party will be taken by surprise and will not be able to contest the case properly. 4. EFFECT OF FAILURE TO PLEAD Failure to plead a fact debars a party from proving that fact. Therefore, if written statement is not filed, the defendant will have to oppose the plaintiffs case merely by denying the facts pleaded by the plaintiff and by disproving them. He will not be able to prove facts not mentioned in the plaint. However, merely because the defendant has not files written statement, he is neither deemed to have admitted the facts mentioned in the plaint, nor is he barred from contesting the suit. 5. PARTS OF A PLEADING First part of the pleading is the cause-title. It has three sub-parts. 1. Case Number 2. Forum, i.e., title (name) of the court. 3. Description of the parties.

282 Case Number

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Case Number is to be written in the top right corner of the paper. It depends upon the nature of the case. Karnataka Civil Rules of Practice provides for following case numbers:

Nature of the Case


1. 2. 3. 4. 5. 6. 7. 8. 9. 10 11 Suits Suits cognisable by the Court of Small Causes Execution proceedings Land acquisition proceedings Matrimonial proceedings Guardians and wards cases Probate and succession cases Insolvency cases Arbitration cases House rent cases Accident claims under Motor Vehicles Act

Case No.
Original Suit No. Small Cause Suit No. Execution Case No. Land Acquisition Case No. Matrimonial Case No. Guardians & Wards Case No. Probate & Succession Case No. Insolvency Case No. Arbitration Case No. House Rent Case No. Motor Vehicle Case No.

Short From
O. S. No. S. C. No. Ex. C. No. L. A. C. No. M. C. No. G. & W. C. No. P. & S. C. No. I. C. No. A. C. No. H. R. C. No. M. V. C. No.

Similarly in case of appeals, they may be Regular Appeals (R. A. No.) or Miscellaneous Appeals (M. A. No.). Revision petitions under any special enactment shall be designated as Revision Petition and abbreviated as REV with a brief reference as to the nature of case indicated in brackets. Thus, revision under Rent Control Act would carry REV (RENT) No. Forum Forum is nothing but the name or description of the court before which the case is filed. It is written immediately below the case number, in the centre of the page and in block letters. Description of Parties The parties are described by their names, parentage (in case of married woman, by her husbands name), occupation and residence. They are given the following titles as per Karnataka Civil Rules of Practice: Nature of the Case 1. 2. 3. 4. Suits Appeals Execution Cases All other proceedings Contending Party Plaintiff Appellant Decree-Holder Petitioner Opposing Party Defendant Respondent Judgment Debtor Opponent

LEGAL LANGUAGE AND LEGAL WRITING Provision

283

Then he has to write the provision of law under which he is filing the plaint. Plaint is filed under Order VII, Rule 1 of Civil Procedure Code. If the plaint is a money suit, then the provision will be Order VII, Rules 1 & 2 of Civil Procedure Code. Thus, in this case, the provision is - O. VII, RR. 1 & 2, C.P.C. Body of the Plaint After this, following paragraphs are to be drafted: 1. Opening Paragraph 2. Facts 3. Cause of Action 4. Jurisdiction 5. Court Fees 6. Prayer The first paragraph mentioned above is common for all pleadings. In case of a plaint it reads The Plaintiff above-named most respectfully submits as under: In case of other pleadings, in place of the word Plaintiff, the appropriate title of the party is to be substituted. The remaining paragraphs are to be numbered. Paragraph next to the opening paragraph is numbered 1 and contains brief facts of the case. Facts may extend to this paragraph and one or two more of the next paragraphs. It also goes without saying that the facts pleaded must cover all the ingredients of the suit. If any fact is not pleaded, then evidence on that point cannot be lead, and no argument on that point will be heard. Next three paragraphs are technical paragraphs and are to be drafted according to the tradition of pleading and drafting. They show the Cause of Action, Jurisdiction and the Court Fees, respectively. Cause of action means the reason for institution of the suit. The cause of action column is necessary for two reasons. 1. No suit can be filed without there being a cause of action. 2. Limitation commences from the date of cause of action. Jurisdiction column shows how the present suit falls within the territorial jurisdiction of the Court. Court fees column shows under which provision of the Karnataka Court Fees and Suits Valuation Act the court fee is computed. Next paragraph is the prayer, which is an important part of the plaint. All the available reliefs should be prayed. If any relief is not prayed in the suit, no separate suit to seek that relief is admissible (O. II, R. 2, CPC). 6. PREPARATION OF PLEADINGS Pleadings are to be prepared according to the provisions of the Karnataka Civil Rules of Practice which requires that the pleading should be typed, printed or otherwise legibly written on a green (blue) paper of legal size (30.5 cm. long and 21.5 cm. wide) with the following margins. Top Margin - 2.5 cm.; Bottom Margin - 2.5 cm.; Inner Margin - 2.5 cm.; Outer Margin - 6.5 cm.

284 2.5 cm 2.5 cm 6.5 cm

LEGAL DRAFTING 6.5 cm 2.5 cm 2.5 cm

21.5 cm FRONT SIDE OF THE PAPER 7. AMENDMENT OF PLEADINGS

30.5cm

21.5 cm BACK SIDE OF THE PAPER

O. VI, R. 17 deals with the amendment of pleadings. Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be necessary for the purpose of determining the real questions in controversy between the parties. The policy of the courts is that amendments should be allowed in suitable cases in order to overcome the effects of bona fide mistakes whether of law or of fact. All the amendments which do not cause injustice to the opposite party are normally allowed quite liberally. An amendment which is fraudulent in nature is not allowed. So also where the amendment alters the very foundation and character of the suit, it is not allowed. Whenever the Court passes an order allowing the amendment of a pleading the same shall be carried out within the time given for such amendment. If no time is specified by the Court, the amendment shall be carried out within 14 days from the date of the order. If the party fails to amend the pleadings within such time, he will not be allowed to amend the pleadings unless the Court extends the time. The amendment shall be carried out in red ink and in the margin. If the amendment cannot be written in the margin, the same may be written in a separate sheet and the reference to that sheet shall be made in the margin. The party or the pleader shall make an endorsement below the amendment that the amendment was carried out as per the order of the Court and give the particulars of the IA and the date of the order on the IA. When the Court orders for the addition, substitution or deletion of a party, the cause title as well as the body of the pleading shall be amended accordingly before the adjourned date of hearing.

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The Presiding Officer will then compare the averments of the plaint and the written statement to find out the actual controversy between the plaintiff and the defendant. Thus, he will ignore the facts pleaded by the plaintiff and admitted by them. He will only concentrate on those points, which are pleaded by the plaintiff and challenged by the defendant. Issues serve two very important purposes: 1. They mark exact controversy between the plaintiff and the defendant; 2. They decide the burden of proof. Issues are framed in the form of questions, such as Whether the Plaintiff proves that he has advanced loan to the defendant on 1.10.1996? Issues are frames in original suits only. In case of small cause suits or rent control cases, where the proceedings are of summary proceedings, issues are not frames. It is quite evident that if written statement is not filed in an original suit, question of framing issues does not arise. In framing issues, the Karnataka Civil Rules of Practice direct the Courts to proceed as under: 1. Every material proposition of fact and every proposition of law which is affirmed by one side and denied by the other shall be made subject of a separate issue. 2. Ordinarily, the following matters shall form the basis of framing issues: (a) The pleadings in a case. (b) All documents produced by the parties before framing of issues. (c) Records of examination, if any, of the parties, their pleaders or witnesses (including those examined by the Court under O. XIV, R. 4, C.P.C.). (d) Oral submissions or replies given by the parties or their pleaders to the questions put by the Court at the time of framing of the issues. 3. Every issue of fact shall be so framed as to indicate on whom the burden of proof lies. 4. Every issue of law shall be so framed as to indicate, either by a statement of admitted or alleged fact, or by reference to the pleadings or a document mentioned in the pleadings, the precise question of law to be decided. 5. No proposition of fact which is not by itself a material proposition, but is relevant only as tending to prove a material proposition, shall be made subject of an issue. 6. No question regarding admissibility of evidence shall be made subject of an issue. Issues are framed in question form. They shall be framed by the Presiding Officer and written or types on a separate sheet of paper and shall be signed and dated by him. Issues may be amended or struck off at a later stage, if necessary. 9. EVIDENCE In the evidence stage, first plaintiff leads his evidence. He examines his witnesses, and proves the documents he has produced. The witnesses of the plaintiff are given numbers PW1, PW2, and so on. The documents produced by the plaintiff are marked as exhibits during the examination of these witnesses, and they are numbered as ExP1, ExP2, etc. The plaintiff examines himself as PW1 and then he goes on to examine the other witnesses, if any. If the plaintiff does not examine himself as PW1 and examines some other witness as PW1, he can examine himself later only with the permission of the court.

286

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Similarly, the witnesses of the defendant are given numbers DW1, DW2, and so on. The documents produced by the defendant are marked as exhibits during the examination of these witnesses, and they are numbered as ExD1, ExD2, etc. The defendant examines himself as DW1 and then he goes on to examine the other witnesses, if any. If the defendant does not examine himself as DW1 and examines some other witness as DW1, he can examine himself later only with the permission of the court. Following points must be noted in respect of oral evidence: 1. Evidence may be led only on facts in issue and the relevant facts. 2. It must be direct, i.e., (a) if it refers to a fact which can be seen, it must be the evidence of a witness who says he has seen it, (b) if it refers to a fact which can be heard, it must be the evidence of a witness who says he has heard it, (c) if it refers to a fact which can be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he has perceived it by that sense or in that manner, (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of a witness who holds that opinion on those grounds. Examination of any witness will be in three parts: 1. Examination-in-Chief; 2. Cross Examination; 3. Re-examination. Examinations-in-Chief of the plaintiff and his witnesses are conducted by the plaintiffs advocate and their cross-examinations are conducted by the defendants advocate. If any ambiguity arises in the cross-examination, plaintiffs advocate will be given an opportunity to conduct re-examination of the witness. Similarly, examinations-in-Chief of the defendant and his witnesses are conducted by the defendants advocate and their cross-examinations are conducted by the plaintiffs advocate. If any ambiguity arises in the cross-examination, defendants advocate will be given an opportunity to conduct re-examination of the witness. When a witness is put in to the witness box, first he is administered the oath in the following terms: I shall state the truth, the whole truth and nothing but the truth. Then his name, fathers name, surname, age, occupation and residence is noted down. After this, he will be asked questions by the advocate on whose side he is giving evidence. This is what is called the examination-in-chief. Following points are to be remembered with reference to the examinationin-chief: Leading questions are not allowed except in the following cases: 1. Where it is about an admitted fact, 2. Where it has been sufficiently proved. Leading questions are, however, allowed in cross-examination. If any question, which is not permissible, is put, either in the examination in chief or in the cross-examination, the advocate on the other side must immediately object to it. The presiding officer will have to give his decision as to the admissibility immediately.

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The evidence is recorded by the presiding officer in the witnesss own words. This is called the deposition of that witness. If there is any objection to a question which is over-ruled by the presiding officer, the advocate who had raised the objection may request the court to record that part of the evidence in question-answer form. The presiding officer will record the evidence in question answer form, and also note down the objection raised by the advocate and the courts ruling on that objection. This is useful in the appeal, if any, preferred against the judgement of this court. FORMS OF PLEADING I. CIVIL PLEADINGS Plaint Plaint is the statement of claims and demands in writing. O. VI, R. 1 of CPC mentions the particulars to be contained in a plaint. They are: 1. 2. 3. 4. 5. 6. 7. The name of the Court in which the suit is brought. The name description and place of residence of the plaintiff. The name description and place of residence of the defendant. Where the plaintiff or defendant is a minor, a statement to that effect. The facts which constitute the cause of action and when it arose. A statement as to the claim of the plaintiff. A statement as to the actual claim of the plaintiff which he demanded of and from the defendant and but the defendant did not satisfy the plaintiff of his claim. 8. The facts showing that the Court has jurisdiction. 9. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished. 10. A statement as to the value of the subject matter of the suit for the purposes of jurisdiction and court fees. 11. A statement as to the relief specifically claimed by the plaintiff. 12. Signature of the plaintiff, or his authorised agent or advocate. 13. Verification of the plaint. 14. Signature of the verifier.

Written Statement The defendants defence or pleading is called written statement. It contains the denial of allegations made by the plaintiff against the defendant in the plaint. Some of the allegations may also be admitted by the defendant in the written statement. Failure to file a written statement does not amount to admission of the plaint allegations by the defendant. Written statement must contain denials which are specific. They should not be vague or evasive. Every allegation of fact in the plaint must be specifically denied. If there is no specific denial, or denial by necessary implication, or where an allegation of fact is not stated to be not admitted by the defendant, the fact may be deemed to be admitted. The written statement must contain following matters: 1. It should state all the matters which show that the suit is not maintainable, or the transaction in the suit is either void or voidable at the option of the defendant.

288 2. 3.

LEGAL DRAFTING It should state all the grounds of defence, which if not stated would take the opposite party by surprise. It should state all the grounds that raise issue of fact not arising out of plaint, such as fraud, coercion, undue influence, misrepresentation, limitation, release, payment, performance, etc. It should deal with each allegation in the plaint, either admitting it or denying it directly. It should state separately and distinctly the distinct grounds of defence or set-off founded upon separate and distinct facts.

4. 5. Set-off

Set-off is the doctrine of law which allows the defendant to put his claim under certain circumstances against the plaintiff before the Court. It is a reciprocal acquittal of debts, a crossclaim for money and it may extinguish the plaintiffs claim. Its purpose is to avoid the necessity of filing a fresh suit by defendant against the plaintiff. Right to set-off is granted by O. VIII, R. 6, C.P.C. where cross demands arise out of the same transaction or are so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant driven to a cross suit. A set-off may be either a legal set-off or equitable set-off. Legal Set-off: Set-off allowed under O. VIII, R. 6 is legal set-off. It is in respect of ascertained sum of money. It may exceed the plaintiffs claim, and in such cases, decree may be drawn in defendants favour. It may arise out of the suit transaction itself, or from some other transaction. It should be legally recoverable by the defendant, i.e., it cannot be time-barred debt. Because legal set-off makes the written statement similar to a plaint, court fee is necessary. Equitable Set-off: In this case set-off is allowed even in respect of unascertained sum of money, such as dames, if they form the part of the same transaction from which the plaintiffs claim arises. Though CPC does not provide for such set-off, the defendant is allowed to claim equitable set-off in the exercise of his general right to plead a set-off. The defendants claim, however, cannot exceed the plaintiffs claim.
Legal Set-Off 1. It is for ascertained sum of money. 2. It may or may not arise from suit transaction. 3. Court is bound to entertain it. 4. The amount must be legally recoverable. 5. Defendants claim may exceed plaintiffs claim. 6. Requires Court Fee. Equitable Set-Off It may be for unascertained sum of money. It has to arise from suit transaction. Court is not under an obligation to entertain it. Even a time-barred claim may be entertained. Defendants claim cannot exceed plaintiffs claim. Does not require Court Fee.

Counter Claim In Indian law, set-off and counter claim denote one and the same things. But under English law, they are different. It is a claim which a defendant is permitted to make against the plaintiff in respect of any amount, whether the same is ascertained or unascertained, and it may be due on any cause of action. Though C.P.C. does not contain any provision as to counter claim, High Courts having original jurisdiction may frame rules regulating the procedure governing counter claims.

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Set-Off 1. Amount to be set-off arises from suit transaction. Counter Claim

289

The counter claim may arise out of any transaction.

2. Set-off must be in respect of ascertained sum of Counter claim may be in respect of unascertained money. sum of money. 3. Set off is in the nature of a defence. 4. Set-off may not exceed plaintiffs claim. Counter claim is in the nature of a weapon. Counter-claim may exceed plaintiffs claim.

5. In case of set-off a claim barred as on the date of In case of counter claim a claim barred as on the filing of the suit is not admissible. date of its pleading is not admissible

Interim Applications An interim application or interlocutory application means an application to the Court made in any case already instituted in such Court. An application for setting aside decree of the Court or an execution petition is not an interim application. Every such application shall be indicated by the abbreviation I.A. and shall be consecutively numbered in the case in which it is filed. All the facts on which an applicant relies for making the prayer or obtaining the relief sought in the application shall be set out in an affidavit accompanying the application. Where, however, the facts appear from records or relate to the conduct of the applicants advocate himself, the Court may permit a memorandum of facts signed by the advocate in lieu of the affidavit. However, in the following six cases only affidavit and not memorandum of facts can be filed: 1. 2. 3. 4. 5. 6. Application for temporary injunction Application for attachment before judgment Application for arrest before judgment Application for appointment of guardian Application for appointment of receiver Application for amendment of pleadings

Every interim application contains a double cause title. The first cause title shall show the case number, the name of the court and the description of the parties. Thereafter the second cause title shall show the IA No. and the description of the parties to the IA. Thereafter the provision of law under which the IA is filed shall be shown. IA shall be signed by the party or the pleader. Order sheet shall have a column for IAs and show the number of pending IAS. Order on any IA in order sheet shall clearly indicate IA No. on which the order is passed. IA shall be posted for orders before the presiding officer. If the other side has put up appearance a copy of the IA shall be served on the other party before it is so posted before the Presiding Officer for orders. No copy need be served on party remaining ex parte. Service of copy may be dispensed with if the advocate for applicant makes endorsement that: 1. the other side refused service; or 2. that copy could not be served in spite of due diligence. If the application is emergent one, before taking endorsement from other side, an endorsement showing that the application is emergent one to be taken up on the day specified that shall be made If the order on IA is passed without service of notice on other side, no notice of order shall be served unless Process Memo is filed alongwith sufficient number of copies of IA with affidavit or memo of facts and requisite amount of process fee.

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There shall be only one prayer in an IA. If there are more prayers, court shall ask the applicant to choose one of them and delete the others. Separate applications may be filed in respect of each of the rest. Affidavits: Affidavit is the sworn statement of the person signing it, i.e., of the deponent. It is used in place of oral evidence. Every affidavit shall have the cause title. The Deponent shall sufficiently identify himself in the affidavit. Affidavit shall be confined to statement of facts and avoid arguments. When the facts are based on records and not on personal knowledge of the Deponent, the Deponent shall state so, and state that he believes the same to be true. As far as possible, the deponent shall give the source of information and grounds for his belief. Affidavits shall be attested by the following officers prescribed in the Civil Rules of Practice: 1. 2. 3. 4. 5. Judicial Officers; Registrar or Sub-Registrar under Registration Act; Registrar, Deputy Registrar or Assistant Registrar of a High Court; Chief Ministerial Officer of any Court; and Notary Public.

Deponent shall be known to the attesting officer. If he is not known to the attesting officer personally, he will be identified by person known to attesting officer. If not, his left thumb impression shall be obtained and endorsed by attesting officer. If the deponent is blind, illiterate or does not understand the language of affidavit, it shall be explained to him in the presence of attesting officer. If any document is referred to in affidavit, the attesting officer shall endorse on the document that it is the document referred in the affidavit. Oath Commissioner: Apart from the officers mentioned above, the High Court may also appoint Oath Commissioners for the purpose of attesting the affidavits. Any advocate having a practice of not less than 2 years and not more than 7 years can be appointed as Oath Commissioner. The initial appointment shall be for a period of 3 years and can be extended further by 2 years. However either the initial appointment or the extension of period shall not be beyond the date on which the concerned advocate completes 7 years of practice. The Oath Commissioner is entitled to a fee of Rs. 5 for every attestation. If he has to attend the premises of the deponent for the purpose of attestation, he is entitled to a further fee of Rs. 15. The Oath Commissioner shall affix a seal of specified design on all the affidavtis attested by him. He shall also maintain a register of all the affidavits attested by him, the copy of which he shall send to the Registrar of the High Court from time to time for inspection. After the expiry of his tenure, the Oath Commissioner shall surrender the seal as well as the register to the High Court. Guardianship As a minor is incapable of understanding the consequences of his acts, law does not allow him to enter into contracts, except contracts for necessaries, by himself. He can enter into contracts through his guardian. Though he is, as a rule, capable of holding and receiving property, his property is to be looked after by his guardian. Therefore, guardianship gives the guardian many powers and imposes many duties upon the guardian. Guardianship of a Hindu minor is governed by the Hindu Minority and Guardianship Act, 1956, while that of a Muslim minor is governed by

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the personal law of Muslims. The guardianship of a minor who is neither a Hindu nor a Muslim is governed by the Guardians and Wards Act, 1890. Minor, Ward and Guardian Minor is a person who has not attained the age of majority fixed under the provisions of the Indian Majority Act. Indian Majority Act fixes the age of majority at 18 years. Thus any person who is below 18 years of age is a minor. Ward is a minor for whose person or property or both there is guardian appointed. Guardian is a person having the care of the person of a minor, or of the property of a minor, or of both person as well as property of a minor. A guardian may be a de jure guardian or a de facto guardian. De jure guardian is a guardian constituted and recognised by law. He may be natural guardian, testamentary guardian or certificated guardian. A de facto guardian is a guardian in fact. Though he is not constituted by law as a guardian of a minor, he discharges the functions of a guardian. Applications under Succession Laws Succession is the process by which the property of a deceased devolves upon his heirs or legatees. Succession may be either testamentary succession or intestate succession. Testamentary Succession Where the deceased person has left a will behind him, his property devolves upon the legatees mentioned in the will, and the distribution of his property is according to the terms of the will. The deceased person is called "testator", the persons entitled to receive the property under the will are called "legatees" and the property received by the legatees is called "legacy". Under the will the testator names a person to collect the properties and to distribute them among the legatees. This person is called "executor". After the death of the deceased, the executor makes an application to the competent court for probate. Probate is a copy of the will on which the Court puts its seal to show that it is a genuine will. Thus, probate is the conclusive proof that the will is genuine and it also authorises the executor to collect properties of the deceased testator. Intestate Succession Where the deceased person has not written a will, his property goes to his heirs. This is known as intestate succession. The distribution of the property of the deceased among his heirs is governed by the relevant law applicable to the succession of the estate of the deceased. The same law also determines the heirs of the deceased. Intestate succession of Hindus is governed by Hindu Succession Act, 1956, that of Muslims is governed by Mahomedan Law and in case of others Indian Succession Act, 1925 is applicable. The deceased person is called "propositus", the persons entitled to receive the property under the will are called "heirs" and the property received by the legatees is called "inheritance". As there is no will, there will not be any executor to collect the properties of the deceased and to distribute them among the heirs. Therefore, one of the heirs will have to make an application to the competant court for "Letter of Administration". When the letter of administration is issued to the applicant heir, he will be called "Administrator".

292 Succession Certificate

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Succession certificate is necessary where probate or letter of administration are not compulsory. Without it, the legal representatives cannot prove that they are entitled to receive the estate of the deceased. An application for a Succession certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the CPC, and it sets forth the following particulars, namely: 1. the time of the death of the deceased; 2. the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits; 3. the family or other near relatives of the deceased and their respective residences, 4. the right in which the petitioner claims; 5. the absence of my impediment under Section 370 or any other provision of this Act or any other enactment to the grant of the certificate; and 6. the debts and securities in respect of which the certificate is applied for. Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof. II. CRIMINAL PLEADINGS Complaint Complaint is an allegation made orally or in writing to a Magistrate that some person, whether known or unknown, has committed an offence. It is made with a view to his taking action under the Criminal Procedure Code. A police report is not a complaint. It is called a Private Complaint. A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognisable offence shall be deemed to be a complaint, and the police officer by whom such report is made is deemed to be a complainant. It is called a Criminal Complaint. Thus, 1. A "complaint" is always made to a Magistrate under sec. 200, Cr.P.C. When the same is made to a police officer, it amounts to an "information". 2. The complaint must allege the commission of an offence. An "offence" means any act or omission made punishable by any law for the time being in force. 3. The person who makes the complaint is called the "complainant" and the person against whom the complaint is made is called the "accused". In case of a Criminal Complaint always State is the complainant. Bail Application The word "bail" is not defined under Cr.P.C. It is the release of the accused during the pendency of the trial. Blackstone defines bail as "a delivery or bailment of a person accused of an offence to his sureties upon their giving a sufficient security for his appearance; he is being supposed to continue in their friendly custody instead of going to jail".

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All the offences falling under I.P.C. are classified either as bailable offences or non-bailable offences, and the First Schedule to the Cr.P.C. shows which of the offences is bailable and which is non-bailable. Secs. 436 and 437 of Cr.P.C. deal with the right of an accused t claim his release on bail. Sec. 436 deals with bailable cases, where the accused can claim bail as a matter of right. Sec. 437 deals with non-bailable cases, where the accused may be released on bail at the discretion of the Court. Bails granted under these sections are called "regular bails". At the first instance, application for regular bail is filed before the Magistrate before whom the matter is pending. If he rejects the application, a fresh application (not appeal) may be filed before the Sessions Court. If the Sessions Judge rejects the application, a fresh application may be filed before the High Court. In the application filed before the Magistrate, the Cause Title of the application shall be the Cause Title of the case in which it is filed. Thus the Case Number will be either Crime No., Private Complaint No. or Criminal Complaint No., and the parties will be Complainant and Accused. When the application is filed before the Sessions Court or High Court, as no case is pending before the Court, the Case Number is Criminal Miscellaneous No. and the parties are Applicant (Accused) and Opponent (Complainant). Sec. 438 deals with anticipatory bail. Application for anticipatory bail is filed before teh Sessions Court. Magistrate has no jurisdiction to entertain an application for anticipatory bail. If the Sessions Judge rejects the application fresh application may be filed before the High Court. Maintenance Petition Sec. 125 of Cr.P.C., 1973 provides that if a person having sufficient means neglects or refuses to maintain his 1. wife (including a divorced wife), or 2. a minor child, legitimate or illegitimate, or 3. a major child (other than a married daughter) who is physically or mentally abnormal, or injured, or 4. father or mother who is unable to maintain, he or she is entitled to claim maintenance by making an application to a Judicial Magistrate First Class having jurisdiction to hear the application. Wherever the state government has established a Family Court, the application shall be filed before the Family Court. A wife living separately from her husband without a just cause or with mutual consent cannot claim maintenance. Where the husband ill-treats the wife, or where the husband remarries or keeps a mistress, she has a just cause to live separately. A divorced Muslim woman is governed by the Muslim Women (Protection of Rights on Divorce) act, 1986. In cases of divorced women other than a Muslim women, the right ends when the woman remarries. The right of a child is independent of the right of the mother to claim maintenance. Therefore, an illegitimate child can also claim maintenance. Similarly, though a divorced Muslim wife cannot claim maintenance under this section, a child living with her after divorce can claim maintenance. So also, even if the mother has a separate income, the child can claim maintenance. Maintenance once granted can be enhanced or reduced later under a separate application.

294

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If the husband fails to pay the maintenance granted by the Court, wife may file an application under sec. 128, Cr.P.C. for recovery of maintenance and arrears of maintenance for not more than a period of one year prior to the date of application. The amount may be recovered from the husband by the sale of his property, and if the sale of property is not possible, husband may be imprisoned for one month for the default of each month's maintenance. Jurisdiction to entertain a maintencance petition u/s 125 Cr.P.C. lies with the Judicial Magistrate First Class, but in the districts where Family Court is established, the jurisdiction lies with that Court.

Original Suit No. ________/98 IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), BELGAUM AT: BELGAUM Between Canara Bank, Belgaum, represented by its Manager and Power of Attorney-holder Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And 1. Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ 2. Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ ... ... DEFENDANTS ... ... PLAINTIFF

Claim Amount: Rs. ________ Plaint under Order VII, Rules 1 & 2 of Code of Civil Procedure, 1908 Herein, the Plaintiff above named most respectfully submits as under: (1) The Plaintiff Bank is a body corporate constituted under Companies Act and carrying on

banking business having its head office at Mangalore the Plaintiff is one of its branches at Belgaum, represented by its Manager and power of attorney-holder Shri ____________ who has filed this suit. (2) That, the Defendant No. 1 who is an agriculturist has availed a loan of Rupees ___ (Rs.

_________ only) for raising crops from the Plaintiff bank on ________ agreeing to repay the same with interest at the rate of ___% per annum compounded quarterly without prejudice to the right of the Plaintiff to demand entire loan amount at any time. Defendant Nos. 1 and 2 have agreed to repay the loan amount within ___ months from the date of grant of loan or soon after marketing of the harvest whichever is earlier. Having thus borrowed Rs. ____, both the Defendants on _______ have executed a pronote and a crop hypothecation agreement in favour of the Plaintiff bank.

295

296 (3)

LEGAL DRAFTING That, the Defendants failed to make prompt repayments of the loan amount as agreed by

them and to reduce their liability with the bank. Defendant No.1 has acknowledged the debt standing in his name with the Plaintiff bank on ________, ________and________. Thereafter the Defendants went on postponing their repayments. The Plaintiff bank made several requests and sent several reminders through notices to the Defendants to liquidate the loan overdue. But the Defendants did not even care to reply the reminders and notices sent to them by the Plaintiff bank. Ultimately the Plaintiff bank issued a legal notice through its counsel. Even after the receipt of the legal notice the Defendants did not make any effort to liquidate the outstandings. Thus being aggrieved the Plaintiff bank is constrained to file this suit for recovery of Rs. ______ as under: 1. Principal amount 2. Interest up to the date of filing of this suit 3. Cost of notice, etc. Rs. (i.e., up to __- __-____) Rs. Rs. TOTAL Rs. (4) Cause of Action: That, the cause of action for the suit arose on ________ the day on

which the Defendants received the loan amount and executed the loan agreement, deeds, etc., and considering the acknowledgements of debt executed by the Defendant No.1 on ________, ________ and ________, the suit filed today is within limitation. (5) Court-fees: That, the suit is for the recovery of Rs. _____ against both the Defendants.

The court-fee is paid ad valorem under sec. 21 of the Karnataka Court-fees and Suit Valuation Act, 1958. For the purpose of pecuniary jurisdiction and advocates fee the suit is valued at the same. (6) Jurisdiction: That, the Plaintiff is having a branch at Belgaum. Suit transaction has

taken place at Belgaum. Defendants are the residents of Belgaum. Hence this honourable Court has the jurisdiction to try this suit. (7) Prayer: Therefore, the Plaintiff bank prays as under: 1. That decree be passed against the Defendants jointly and severally awarding the suit claim of Rupees __________ (Rs. ______) only. 2. That, pendente lite and future interest be awarded at the rate of 4% per annum on the suit claim amount from the date of the suit till realisation of the entire amount. 3. All expenses including the typing expenses permissible under Civil Rules of practice be kindly awarded.

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All costs and other incidental reliefs fit under the circumstances of the case may kindly be granted.

Place: Date: PLAINTIFF

I Shri _________ s/o __________, the Plaintiff above named do hereby swear on solemn affirmation that the contents of the above plaint are all correct to the best of my knowledge derived from the official records and I believe the same to be true. In token whereof I have signed hereto. Place: Date: PLAINTIFF

298

LEGAL DRAFTING Original Suit No. ________/98 IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), BELGAUM AT: BELGAUM

Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ ... ... ... ... DEFENDANT ... ... ... ... PLAINTIFF

Plaint Under Order VII, Rule 1 of The Code of Civil Procedure, 1908 Herein, the Plaintiff abovenamed most respectfully submits as under: (1) The addresses for the purpose of service of summons/notices to the Plaintiff is the same as the one furnished in the cause-title above, and that of his advocate. Shri ______________________ __________________________ __________________________ And the address of the Defendant for the same purpose is also the same as the one mentioned in the cause-title above. (2) Description of the suit property: The suit property bearing CTS No. ________ and measuring ____ sq. mts. is situated at ____. The property is bounded by the following boundaries. Towards East Towards West Towards North Towards South : : : : _______________ _______________ _______________ _______________

(3) The suit property described in the above Paragraph No. 2 belongs to the Plaintiff abovenamed who has purchased the same on ________ and since the date of purchase, the suit property is in the possession and occupation of the Plaintiff. (4) The Defendant is the owner of the adjoining property bearing CTS No. ______ and is in the possession of the same. In between the suit property and the Defendants property mentioned here, there is no compound wall to demarcate the boundaries. (5) That, the Defendant has started escavation for the purpose of erecting a compound wall. The Defendant has encroached upon the Plaintiffs property and has made preparations for putting

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up the foundation. Immediately after seeing the Defendant making preparations for the encroachment, the Plaintiff requested the Defendant not to encroach upon his property. The Defendant gave deaf ear to the Plaintiffs request and continued to encroach upon the Plaintiffs property. (6) The Plaintiff approached the City Survey authorities and got measured his property and fixed the boundary stones between the properties of the Plaintiff and the Defendant. On demarcation it is confirmed that the Defendant has encroached upon the property of the Plaintiff. (7) The Plaintiff, being aggrieved by the act of encroachment on his property by the Defendant has constrained to file this suit for permanent injunction against the Defendant. (8) Cause of Action: The cause of action for the suit arose on _______, the day on which the Defendant started encroaching on the Plaintiffs property by escavation of the land to put up a compound wall. (9) Jurisdiction: The suit property is situated within the jurisdiction on this Honble Court; the Plaintiff and the Defendant are residing within the jurisdiction of this Honble Court. Hence this Court has the jurisdiction to try this suit. (10) Court-Fee and Suits Valuation: Fixed Court-fee Rupees twenty five only (Rs. 25/- has been paid under the sub-section (c) of section 26 of the Karnataka Court Fees and Suit Valuation Act. The same is the value for jurisdiction. (11) Prayer: It is humbly prayed that (1) decree may kindly be passed issuing permanent injunction against the Defendant restraining him permanently from obstructing the peaceful possession and occupation of the Plaintiff over the suit property; and (2) (3) Place: Date: cost of this suit be kindly allowed; and any other relief the Court deems fit be kindly awarded. PLAINTIFF I Shri _________ s/o __________, the Plaintiff above named do hereby swear on solemn affirmation that the contents of the above plaint are all true and correct to the best of my knowledge and belief. In token whereof I have signed hereto. Place: Date: PLAINTIFF

300

LEGAL DRAFTING Original Suit No. ________/98 IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), BELGAUM AT: BELGAUM

Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ ... ... ... ... DEFENDANT ... ... ... ... PLAINTIFF

Plaint under Order VII, Rule 1, Code of Civil Procedure, 1908 Herein, the advocate for the Plaintiff above named begs to submit as under: (1) The addresses of the Parties for the purpose of service of summonses and notices etc., are the same as the ones shown in the cause-title above. (2) Description of the suit Property: The suit property is an open site bearing CTS No. ______ measuring ______ guntas and ______ annas (__' x __') situated at ______ in the city of ______, and the property is bounded by the following boundaries: Towards East Towards West Towards South Towards North : : : : ____________________ ____________________ ____________________ ____________________

Hereinafter the property is mentioned as the Suit Property. (3) That, the suit property was allotted free of cost to the Plaintiff on _________ by the Commissioner, _________ Municipal Corporation, ________ under a scheme of allotment of plots to the weaker sections of the society. (4) The Commissioner, _________ Municipal Corporation, ________ has prepared a list of allottees and has issued Swadheena Patra to the allottees. The Plaintiff being an aged person suffering from asthma, could not go to the Municipal authorities to collect the Swadheena Patra. The Plaintiff who is a poor washerman could not erect a building on the suit property allotted to him. The suit property was and is assessed by the Municipal authorities for the purpose of taxation and they have collected tax form the Plaintiff as per the assessment every year. The tax receipts and the tax assessment extracts bear the name of the Plaintiff.

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(5) On __________ Defendant trespassed on the suit property and began to excavate the land. The Plaintiff requested the Defendant not to excavate the land. But the Defendant did not heed to the same and continued the excavation work in spite of Plaintiffs request. (6) Being aggrieved by the act of the Defendant, the Plaintiff has approached this Honble Court for declaration that the suit property as his property and as a consequential relief for an injunction restraining the Defendant from interfering with his peaceful possession of the suit property. (7) Cause of Action: The cause of action arose on ________, the day on which the Defendant encroached upon the suit property and commenced digging the earth on the suit property. (8) Jurisdiction: The Plaintiff and the Defendant are residents of Belgaum, and the suit property is situated in Belgaum. Therefore, this Honble Court has got jurisdiction to try this case. (9) Court-fee and Suits Valuation: The suit is valued at Rs. 1000/- for the purpose of court fee and jurisdiction and fixed court-fee of Rs. 25/- is paid herewith. (10) Prayer: Therefore, the Plaintiff prays as under: 1. 2. 3. Place: Date: The Honble court be pleased to declare that the Plaintiff is the absolute owner in possession of the suit property; Consequential relief of permanent injunction be granted restraining the Defendants from interfering with the peaceful possession of the suit property by the Plaintiff; All the costs of this suit may kindly be awarded to the Plaintiff.

PLAINTIFF

I Shri _________ s/o __________, the Plaintiff above named do hereby swear on solemn affirmation that the contents of the above plaint are read over and explained to me in Kannada. They are all true and correct to the best of my knowledge and belief.

Place: Date:

PLAINTIFF

302

LEGAL DRAFTING Original Suit No. ________/98 IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), BELGAUM AT: BELGAUM

Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And 1. Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

...

PLAINTIFF

2.

...

...

...

DEFENDANTS

Written Statement under Order VIII, R. 1 of Code of Civil Procedure, 1908 Herein, the advocate for the Defendant No.1 most respectfully submits his written statement as under: (1) That the averments made in the plaint are hereby denied by this Defendant in toto, and

therefore, the Plaintiff be put to strict proof of the same. (2) That, the averments made in the paragraph 2 of the plaint are hereby specifically denied

by this Defendant. The Plaintiff be put to strict proof of the same. (3) That, the averments made in paragraph ___ of the plaint are also specifically denied by

this Defendant. The Defendant No.1 has not borrowed any loan amount on ________ from the Plaintiff Bank, thereby he is not liable to pay instalments towards the alleged loan. (4) That, consequent on non-borrowing of loan amount from the Plaintiff, the cause of action

does not arise against Defendant No.1. (5) The suit against the Defendant No.1 is false, frivolous and vaxatious and made to harass

the Defendant No.1 at the instance of Defendant No.2 in collusion with the Plaintiff Bank. (6) That, in the year ______, Defendant No.1 was subordinate to Defendant No.2 who has

used his undue influence over his subordinates and has created number of documents. Defendant

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No.1 specially denies his liability towards Plaintiff. It is Defendant No.2 who has borrowed the loan amount and it is he who is liable to liquidate the outstandings and not the Defendant No.1. (7) That, if this Honble Court deems think correct to a decree against the Defendants, it is

Defendant No.2 who is severally liable to pay the decretal amount as he is the author of the documents produced in this case by the Plaintiff. (8) That, the Plaintiff be put to strict proof of the documents produced by him. Therefore it is humbly prayed that this Honble Court be pleased to strike down the liability against Defendant No.1 and direct Plaintiff to proceed against Defendant No.2, in the interest of justice. Place: Date: DEFENDANT

I Shri _________ s/o __________, the Defendant above named do hereby swear on solemn affirmation that the contents of the above written statement are all true and correct to the best of my knowledge and belief. In token whereof I have signed hereto. Place: Date: DEFENDANT

304

LEGAL DRAFTING Original Suit No. ________/98 IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), BELGAUM AT BELGAUM

Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

...

PLAINTIFF

...

...

...

... DEFENDANT

I.A. No. _________ Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

... APPLICANT PLAINTIFF

...

...

...

... OPPONENT DEFENDANT

Application Under Order XXXIX Rules 1 and 2 of the CPC, 1908 In this, the advocate for the Applicant/Plaintiff abovenamed most respectfully applies as under: For the reasons stated in the accompanying affidavit, it is humbly prayed that ex parte adinterim injunction may kindly be granted restraining the Defendant, from encroaching on the Plaintiffs property and erecting any structure thereon during the pendency of this suit in the interest of justice and equity. Place: Date: ADVOCATE FOR APPLICANT/PLAINTIFF

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Original Suit No. ________/98 IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), BELGAUM AT BELGAUM Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

...

PLAINTIFF

...

...

...

... DEFENDANT

AFFIDAVIT I Shri ________ s/o ________, age ________ years, occupation ________, resident of ________ do hereby state on solemn affirmation as under: (1) I am the Plaintiff in the above suit and I am fairly acquainted with the facts of this case

and therefore, competent to swear this affidavit. (2) I am the landlord and the property bearing CTS No. ____ situated at ____ stands in my

name and the details of the suit property are described in the plaint. The Defendant abovenamed is the adjoining landlord of the property bearing CTS No. ____ situated ____. The Defendant commenced excavation of the land to construct a compound wall on the southern boundary of the suit property. While doing so, he commenced to encroach on my property. On my request to the Defendant not to encroach on my property he refused and did not heed to my request and continued the process of encroachment on the southern boundary of the suit property. (3) Being aggrieved by the illegal action of encroachment of my property, I have filed this

suit praying for permanent injunction. To show that the Defendant is encroaching on my property I have produced herewith a joint city survey map for the perusal of this Honble Court. (4) That, at this juncture, if the Defendant is not restrained from encroaching on the suit

property, irreparable loss and hardship will be caused to me. If the Defendant is restrained from encroaching on the suit property, no hardship or irreparable loss will be caused to the Defendant. Therefore balance of convenience is in my favour.

306

LEGAL DRAFTING For the reasons enumerated above and that are to be urged at the time of hearing, of the

application, it is most humbly prayed that the Defendant, his agents of his servants may kindly be restrained from encroaching on the suit property and erecting the compound wall, in the interest of justice and equity. Place: Date: DEPONENT

I KNOW THE DEPONENT

(Shri ________________) Advocate

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Original Suit No. ________/98 IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), BELGAUM AT BELGAUM Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

...

PLAINTIFF

...

...

...

... DEFENDANT

I.A. No. _________ Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

... APPLICANT PLAINTIFF

...

...

...

... OPPONENT DEFENDANT

Application Under Order XXXVIII, Rule 5 of the Code of Civil Procedure Herein, the advocate for the Plaintiff/Applicant most respectfully applies as under: For the reasons stated in the accompanying affidavit sworn by the Plaintiff/Applicant, it is most humbly prayed that the house property bearing CTS No. ____, situated ____ belonging to the Defendant may kindly be attached before judgement in the interest of justice and equity. Place: Date: ADVOCATE FOR APPLICANT/PLAINTIFF

308

LEGAL DRAFTING Original Suit No. ________/98 IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), BELGAUM AT BELGAUM

Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

...

PLAINTIFF

...

...

...

... DEFENDANT

AFFIDAVIT Herein, I the above named Plaintiff do hereby state under solemn affirmation as under: (1) That, I am the Plaintiff in the aforesaid suit and I am conversant with the facts of this

case, therefore, am competent to swear this affidavit. (2) That, I know the Defendant personally, who is at present working in the Karnatak

University Dharwad in the capacity of the Personal Assistant to the Registrar. (3) That, the Defendant is in the verge of retirement and he is owning house property

described below. Residential house with buit up area ___ sq. ft. (__' EW x ___' NW) and Door No. ____, situated in Plot No. ______ measuring, situated at ____ and bounded by following boundaries: to the East to the West to the North to the South (4) : _____________________ : _____________________ : _____________________ : _____________________

That, the property described in the abovesaid paragraph is having a market value of

Rupees _________________ only (Rs. ________). (5) That, I have advanced a sum of Rupees ________________ only (Rs. ______) on

________ to the Defendant on his executing a pronote in my favour. The Defendant has failed to repay the loan amount within the stipulated time and as per the terms of the pronote. That, the Defendant who is in the verge of retirement is attempting to sell his only immoveable property,

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i.e., his house described in Para Three, by appointing Shri ________ as agent to sell the house property. Thus there are ample chances of selling the house and of absconding of the Defendant out of the local limits of the jurisdiction of this Honble Court. (6)That, I am having the property of the Defendant as the only security for my loan amount. If the same is allowed to be sold, I will be deprived of the security for the loan amount. That there are all possibilities of avoiding a decree that is to be passed against the Defendant. Therefore the balance of convenience is in my favour. It is most humbly prayed that the house property described in Para No. 5 may kindly be attached before judgement in the interest of justice.

Place: Date: I KNOW THE DEPONENT

DEPONENT

(Shri ________________) Advocate

310

LEGAL DRAFTING Miscellaneous Application No. ________/98 In O.S. No. _______/__ IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), BELGAUM AT: BELGAUM

Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

... APPLICANT DEFENDANT

...

...

...

... OPPONENT PLAINTIFF

Application Under Order IX, Rule 13 of the Code of Civil Procedure Herein, the Applicant most respectfully applies as under: (1) The addresses for service of summons/notices on the Applicant and Opponent are the

same as shown in the Cause-title. (2) That, I am the Defendant in Original Suit No. ______/19__ on the file of this Honble

Court. An ex-parte decree has been passed against me on ____th ______ 19__. (3) That, I was served with the summons of this Honble Court on the appointed day. I was

travelling from Bangalore to Bijapur by Golgumbaz Express to attend the case. Due to heavy rains the train was stalled near Arasikere. I tried to contact my advocate by telephone and to ask him to seek an adjournment for my appearance. But I could not contact him as he was away to his relations marriage. Therefore he could not represent me on the appointed day. (4) Thus, the Applicant could not appear before the Court on the appointed day. The said

suit was taken up for hearing in the absence of the Applicant and was decided in his absence with an ex-parte decree against him. (5) The Applicant, thus was prevented from appearing before the Court when the suit was

called on for hearing by a sufficient cause. He has not remained absent intentionally. (6) If the ex-parte decree passed against the Applicant is not set aside, the Respondent may

proceed with the execution of the decree. If the execution proceedings are filed against me I will suffer and irreparable loss will be caused to me.

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(7)

The Applicant, for the reasons mentioned above, respectfully prays as under: (a) That the ex-parte decree passed against the Applicant (Defendant) may kindly be set aside and the Original Suit No. ____/1989 may be restored on the file of the Honble Court and may be heard on merits. (b) That pending the hearing and final disposal of this application the Opponent be restrained by an order of the Court from executing the ex-parte decree against the Applicant (Defendant.)

Place: Date:

APPLICANT

I Shri _________ s/o __________, the Applicant above named do hereby swear on solemn affirmation that the contents of the above application are all true and correct to the best of my knowledge and belief. In token whereof I have signed hereto. Place: Date:

APPLICANT

312

LEGAL DRAFTING Regular Appeal No. ________/98 IN THE COURT OF CIVIL JUDGE (SENIOR DIVISION), BELGAUM AT: BELGAUM

Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

... APPELLANT DEFENDANT

...

...

...

RESPONDENT PLAINTIFF

Appeal Memo under Order XLI of the Code of Civil Procedure, 1908 Herein, the Appellant above named begs to prefer this appeal as under: Being aggrieved by the judgement and decree passed on OS No. ______ dated ______ on the file of the Civil Judge, Junior Division, Savadatti, the Appellant begs to prefer this appeal on the following grounds: GROUNDS OF APPEAL (1) (2) That, the judgement passed by the lower court is not sustainable in the eye of law. That, the evidence before the lower Court is obvious and there is no iota of doubt that the

lower Court has no jurisdiction to try this suit. But the lower Court has misconceived the evidence and thereby resulted into the miscarriage of justice. (3) That, the evidence placed before the lower Court by the present Appellant and the

documents produced speak in clear and concordant terms that the suit filed by the present Respondent is barred by time. The lower Court while considering the evidence and believing the documents produced before it was biased. This bias has resulted into misconception of the documents and thereby into the miscarriage of justice. (4) That, the lower Court has erred in considering the case of the present Appellant and also

the basic points canvassed by him before it on the points of jurisdiction, limitation, etc. The present Appellant has also canvassed his case on the various precedents laid down by various High Courts and the Supreme Court on the aforesaid points of limitation of jurisdiction. Thus the lower

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Court has failed to observe the ratio decidendi laid down by the hierarchy of the Courts and the judgement and decree passed by it is erroneous and liable to be set aside. (5) That, the trial Court has not appreciated the evidence of the Defendant/Appellant and his

witnesses. Thus the trial Court has wrongly answered issues No. 1 to 5. (6) That, the Court below ought to have considered the nature of transaction, the place of

transaction and the residence of the Parties to the transaction while answering the issue on the point of jurisdiction of the trial Court. In the absence of any hypothesis a conclusion is arrived by the lower Court which is against the canons of Civil Procedure Code. For these aforementioned grounds and the grounds that are to be urged at the time of hearing of this appeal, it is prayed that this Honble Court be pleased to set aside the judgement and decree passed by the learned Civil Judge, Junior Division, Savadatti in OS No. ______ dated ________ and the appeal be allowed in the interest of justice.

Place: Date:

APPELLANT

I Shri _________ s/o __________, the Appellant above named do hereby swear on solemn affirmation that the contents of the above appeal are all true and correct to the best of my knowledge and belief. In token whereof I have signed hereto.

Place: Date:

APPELLANT

314

LEGAL DRAFTING Probate & Succession Case No. ________/98 IN THE COURT OF DISTRICT AND SESSIONS JUDGE, BELGAUM AT: BELGAUM

Between 1. Smt. ______________ w/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ Smt. ______________ d/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

2.

3.

...

...

... APPLICANTS

And - NIL ... ... RESPONDENT

Petition under sec. 372 of the Indian Succession Act 1925 Herein, the Applicant abovenamed begs to state as follows: (1) That, the deceased, late Shri ________, hereinafter referred to as the deceased, died

intestate on _________ at ____________. (2) That, prior to and at the time of the death of the said deceased, he had his fixed place of

residence at ___________, within the jurisdiction of this Honble Court. He ordinarily resided at _________ and also left behind property at _________. (3) That, the said deceased left behind him his wife Applicant No. 1 abovenamed, a son

Applicant No. 2, and an unmarried daughter Applicant No. 3. (4) That, the said deceased was governed by the Hindu Succession Act, 1956 and the

Applicants No. 1 to 3 being his legal heirs under the said law is entitled to succession certificate in respect of debts and securities hereunder mentioned. (5) That, the said deceased died intestate. No application has been made in any Court of Law

for the grant of Letter of Administration in respect of his estate, and therefore, there is no impediment for the grant of succession certificate to the Applicants. (6) Applicants No. 2 and 3 have no objection to the issuing of the Succession Certificate in

the name of Applicant No. 1.

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315

That, the particulars of debts and securities in respect of which the certificate is prayed

for are set forth in Annexure A. (8) petition. (9) The necessary court fee is paid herewith. The Applicants pray that the Court may be pleased to grant the succession certificate in the name of Applicant No. 1 for collection of debts and securities with interest/dividend thereon in respect of the properties mentioned in Annexure A below. Place: Date: That, the Applicants No. 1 to 3 and the deceased are the residents of _______, and the

properties are situated at _________. Therefore, this Honble Court has the jurisdiction to try this

APPLICANT NO. 1

APPLICANT NO. 2

APPLICANT NO. 3

Herein, we, the Applicants above named do swear on solemn affirmation that the contents of the above application are all true and correct to the best of our knowledge and belief. In token whereof we have signed hereto. Place: Date:

APPLICANT NO. 1

APPLICANT NO. 2

APPLICANT NO. 3

316

LEGAL DRAFTING Private Complaint No. ________/98 BEFORE THE J.M.F.C. (SECOND COURT), BELGAUM AT: BELGAUM

Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And 1. Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ . . . Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

COMPLAINANT

13.

...

...

...

ACCUSED

Complaint under Section 200 Criminal Procedure Code In this, the Complainant above named begs to complain as under: (1) That, the Complainant is the wife of Accused No. 1. Their marriage was solemnised on ________ at ________, in congregation and according to the rites and customs of Hindu religion. Thereafter reception was held at ________ on ________. After the marriage the Complainant joined her matrimonial home at ________. (2) That, the Accused is a businessman owning thirty six power looms at ________ in the industrial estate. He is also a partner in sizing mills at ________. The Accused having married the Complainant began his matrimonial life. Both lead a happy married life for a period of six months. (3) That, the Complainants father had given ten tolas of gold to the Complainant Smt. ________ in her marriage and half tola of gold to Shri ______, Accused No. 1. Accused No. 1 had in turn given seven tolas of gold to the Complainant in her marriage. (4) That, after a lapse of six months of matrimonial life, the Accused No. 1 induced the Complainant to deliver the gold to him and promised to establish power looms in the name of the Complainant and got her signatures on the forms. Being induced by the Accused No. 1, the Complainant delivered seventeen tolas of gold which was in her possession to Accused No. 1 Accused No. 1 did not establish any power loom in the name of the Complainant. Thus, Accused No. 1 misrepresented the Complainant with fraudulent intention to deceive her.

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(5) That, Accused No. 1 thereafter started ill-treating and threatening the Complainant and asked the Complainant to bring Rs. __________ (Rupees ________ thousand only) or ___ tolas of gold from her father to purchase new looms, as promised by Complainants father at the time of marriage, or otherwise he will push down the Complainant from the first floor of the house and marry another lady who would bring dowry for him. The in-laws of the Complainant, i.e., Accused No. 2 and 3, too started ill-treating her, and joined hands with the Accused No. 1. The Complainant denied saying that her father cannot further afford ten tolas of gold or Rs. _________ as dowry and continued her matrimonial life. (6) That, Accused No. 1 thereafter ill-treated the Complainant saying, I have married you with the compulsion of my parents. I am in love with another lady viz., _________ and I am going to marry her. (7) That, the fact of ill treatment came to the knowledge of Complainants father through his eldest son Shri _________, who had been to his sister to invite the couple for Diwali festival. Complainants father and brother made persistent efforts to wipe off the difference between the couple and to keep the matrimonial home in tact. Ultimately, Complainant, owing to continual threats of life from Accused No. 1 joined her father at ________. (8) That, neither Accused No. 1, nor the elder members of his family, now any other members on their behalf turned up at ________ to take back the Complainant. The Complainant also wrote a number of letters to Accused No. 1 to keep her matrimonial house in tact. (9) That, the Accused No. 1 married Accused No. 4 in June 1987 at _________ in congregation and as per rites of Hindu ________. Accused No. 13 ________ solemnised the marriage and Accused No. 5 - 12 were present at the time of solemnising of marriage. That, Accused No. 1 has married Accused No. 4 during the subsistence of marriage with the Complainant and thereby committed offence under Section 494, IPC. Accused No. 5-12 have abetted the commission of the above offence. Hence, it is hereby prayed that cognisance against the Accused persons may kindly be taken, and the Accused have committed the offence Under Sections 494, 109, 498 A r/w sec. 14 of IPC and under Sec. 4 of Prohibition of Dowry Act, and they be tried in accordance with law and punished accordingly. Place: Date: LIST OF WITNESSES: 1. 2. 3. 4. ________________________ ________________________ ________________________ ________________________ COMPLAINANT

318

LEGAL DRAFTING Criminal Complaint No. ________/98 BEFORE THE J.M.F.C. (SECOND COURT), BELGAUM AT: BELGAUM

Between State of Karnataka And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ ... ... ... ... ACCUSED ... ... ... COMPLAINANT

Application under section 436 of Criminal Procedure Code, 1973 The Accused above named begs to state as under : (1) The above mentioned Criminal Case has been hoisted by the Police against the Accused

with an ill-motive of harassing him. (2) The Accused is quite innocent of the charges levelled against him. He is a law abiding

citizen and has not committed any offence much less the ones which are charged against him. (3) (4) same. (5) The Accused undertakes that he will furnish the security to the satisfaction of this court All the offences levelled against the Accused are bailable ones. The Accused is owning agricultural lands at ________ , and is personally cultivating the

same. In the event of grant of bail, the Accused will not jump the bail nor will he mis-use the

and shall abide by all the conditions imposed on him if he is enlarged on bail. For the above stated reasons, the Applicant prays that the court may please to enlarge him on bail, pending the Trial of the above Criminal Case.

Place Date

ACCUSED

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319

Criminal Miscellaneous No. ________/98 BEFORE THE DISTRICT AND SESSIONS JUDGE, BELGAUM AT: BELGAUM Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

PETITIONER

...

...

...

RESPONDENT

Application under section 438 of Criminal Procedure Code, 1973 Herein, the Petitioner above named most respectfully states as under : (1) That an offence under sections ________ was committed in the village _______ which is

near the village where the Petitioners house is situated. The said offence was committed in the house of Shri ________ on or about ________. The owner of the said house is on inimical terms with the Petitioner on account of a long standing dispute between the two relating to the right of taking water from the well. The Applicant believes that the said person is trying to implicate the Petitioner as one of the Accused in the said case, though the Petitioner is innocent. (2) The Petitioner has reason to believe that he may be arrested on an acquisition of having

committed an offence under Sections ________ which are non-bailable offences. And there is likelihood and that at the incidence of the said owner, the Applicant may be arrested by the Police at any time. (3) The Petitioner is aged 85 years and is suffering from Asthama. In case he is arrested by

the Police, there is danger to his life. (4) The Petitioner is also ready to abide by the terms and conditions that may be imposed by

the Court, and will not tamper with prosecution witnesses. For the above stated reasons, the Applicant prays that the Court may be pleased to issue a direction to the Officer-in-charge of Police Station at ________ that in the event of Petitioner being arrested, he may be released on bail of such condition as the Court may be pleased to impose. Place Date PETITIONER

320

LEGAL DRAFTING Sessions Case No. ________/98 IN THE COURT OF THE DISTRICT AND SESSIONS JUDGE, BELGAUM AT: BELGAUM

Between The State of Karnataka And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ ... ... ... COMPLAINANT

...

...

...

...

ACCUSED

Bail Application Under Section 439, Code of Criminal Procedure, 1973 In this the advocate for the Accused above named begs to apply for bail pending sessions trial of the Accused on the grounds mentioned below: FACTS OF THE CASE The Accused has been falsely involved in the case alleged to have been committed on 10.4.1977 at ________ and the case was registered in Dharwad Rural Police Station for the offence u/s 302, IPC and during investigation the Applicant is arrested. After charge-sheet the case is now committed to Court of Sessions and pending before this Honble court. GROUNDS (1) (2) The Accused is innocent and he has been falsely involved in the case by his enemies. The Accused is an employee in the State Transport Corporation, Hubli and has put in

about 10 years of service and his detention in jail is going to affect his service adversely. (3) The Accused has an old mother and Accused has to care for her. Except service he has

no other source of income. His detention has paralysed the entire family. (4) (5) The Accused is a peace-loving person. He has not embarked on a career of crime. The Accused owns a permanent residential house at _________ and in addition he is also

an employee. As such, there is no fear of his absconding, and he will not abscond also. (6) (7) The Accused is willing to offer adequate security for his release. The Accused will not indulge in tempering with the prosecution witnesses and he is not

going to create any obstacle in the way of the prosecution in case he is released on bail.

LEGAL LANGUAGE AND LEGAL WRITING (8) (9) The Accused, if released on bail, will not misuse his liberty in any manner.

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The Accused is willing to abide by any conditions that may be imposed by this Honble

court in order to safeguard the interest of the prosecution. (10) The Accused is in jail for a long time and is unable to arrange for his defence in jail.

Further, there is no likelihood of trial being taken at any early stage. On these, among other grounds that are to be argued at the time of hearing, pending further proceedings the Accused may kindly be released on bail.

Place: Date:

ACCUSED

322

LEGAL DRAFTING Criminal Appleal No. ________/98 IN THE COURT OF THE DISTRICT AND SESSIONS JUDGE, BELGAUM AT: BELGAUM

Between Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________ And Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

APPELLANT ACCUSED

...

...

...

RESPONDENT COMPLAINANT

Appeal under section 374 of Criminal Procedure Code, 1973 In this the Appellant above named being aggrieved by the order of conviction sentence passed in the Criminal Case No. ______/85 of the learned Judicial Magistrate First Class, Savanur, dated ________, wherein, the Accused has been convicted for the offences punishable under sections 451 and 354 of the Indian Penal Code and sentenced him to undergo one months simple imprisonment and to pay fine of Rs. ____ and in default of payment of fine to undergo simple imprisonment of a further period of 30 days for the offence under sec. 354 of the IPC: and the Appellant has been sentenced to pay a fine of Rs. _____ and in default of payment of fine undergo simple imprisonment of ___ months for the offence under sec. 354 of IPC; begs to prefer this appeal against the said order of conviction and sentence. BRIEF FACTS OF THE CASE (1) Brief facts of the prosecution case are that one ________ of _______ has filed a private complaint under sec. 200 of the Cr..P.C. on _________. The said complaint was referred to the Police Sub Inspector of _______ u/s 156(3), Cr.P.C. for investigation. After investigation, the PSI, ________ filed a charge sheet on _________ against the Appellant/Accused. (2) It is the case of the Complainant that on ___________, at about _____ AM when the Complainants brothers wife, i.e., ________ was in her house, the Appellant asked her to give lime. When she went inside the house to bring lime, the Appellant suddenly entered the Complainants house and pulled her saree and tried to rape her. Due to the sudden action of the Appellant/Accused, __________ was shocked and she screamed and raise hue and cry. On hearing this, people gathered and the Appellant/Accused ran away.

LEGAL LANGUAGE AND LEGAL WRITING GROUNDS OF THE APPEAL

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(1) The order of conviction and sentence passed by Judicial Magistrate First Class, ________ convicting the Appellant/Accused is contrary to law and evidence in the case. (2) The lower Court has approached the case from erroneous angle and the same has resulted in miscarriage of Justice. (3) There is delay in filing the complaint. The offence is said to have been committed on _________ and the complaint has been lodged on __________. The delay of ___ days has not been properly explained by the lower Court. (4) Prosecution witnesses 1 and 2 have admitted that the Appellant/Accused has filed a complaint against the prosecution witness 2, viz., _________ for having committed the theft of firewood from his backyard; and in the said case the police summoned them to the police station for inquiry. Owing to this incident and complaint, the Complainant has filed a private complaint against the Appellant. The point of the ill will between the Complainant and the Accused has not been taken into consideration by the lower Court. (5) That the lower Court has given undue importance to the evidence of PW No. 1 to 5. They have got an axe to grind against the present Appellant/Accused. Further it is significant to note that the alleged witnesses are inter-related and are interested witnesses. (6) That, the ill will between the Complainant and the Accused is the sole cause for the present private complaint against the Appellant and seven others. The PSI of the investigation has submitted the charge sheet against the present Appellant/Accused alone, even though there was no evidence to speak about the incident. The Learned Magistrate ought to have acquitted the Appellant/Accused on this ground alone. Hence the conclusion arrived at by the lower Court is unilateral and biased. (7) Without prejudice to the above contentions it is further submitted that the sentence and the fine imposed upon the Appellant is exorbitant and severe. On these grounds and that are to be urged at the time of hearing this appeal, it is humbly prayed that the order of conviction and the sentence passed by the lower Court may kindly be set aside and the Accused be acquitted. Place: Date: APPELLANT

I Shri _________ s/o __________, the Appellant above named do hereby swear on solemn affirmation that the contents of the above plaint are all true and correct to the best of my knowledge and belief. In token whereof I have signed hereto. Place: Date: APPELLANT

324

LEGAL DRAFTING Criminal Miscellaneous No. ________/98 BEFORE THE FAMILY COURT JUDGE, BELGAUM AT: BELGAUM

Between 1. Smt. ______________ w/o ______________ age: _____ years; occupation: ____________ Resident of: __________________________ Ku. ______________ s/o _______________ Minor, represented by his Next Friend Petr. 1 ... ... ... PETITIONERS

2. And

Shri ______________ s/o _______________ age: _____ years; occupation: ____________ Resident of: __________________________

...

...

...

RESPONDENT

Petition Under Section 125 of the Criminal Procedure Code, 1973 In this, the Petitioner No. 1 most respectfully submits as under: (1) That, the addresses for the purpose of issuing summons/notices are the same as shown in

the cause-title above. (2) That, the Petitioner No. 1 is the legally wedded wife of the Respondent. The marriage

between Petitioner No. 1 and Respondent took place on ________ at ________ before congregation in accordance with the rites, customs and tenets of Hindu Law. The marriage has been duly registered before the Registrar of Marriages. (3) That, the Petitioner No. 1 and the Respondent began their marital life soon after their

marriage at ________. Out of this marriage between the Petitioner No. 1 and the Respondent, they have one male issue i.e., Petitioner No. 2. Petitioner No. 2, being a minor, is represented by his natural guardian i.e., Petitioner No. 1 Petitioner No. 2 is residing with Petitioner No. 1 (4) That, soon after the marriage, the Petitioner No. 1 joined her matrimonial home at

______. The Petitioner No. 1 and the Respondent led a happy married life for a period of four years from the date of their marriage during which span Petitioner No. 2 was born. After the lapse of four years of happy life between the husband and wife there cropped up the ill-treatment of the Petitioner No. 1 by her in-laws and Respondent too started ill-treating her on the ill-advice of his parents. The fact of ill-treatment came to the notice of the parents of the Petitioner No. 1.

LEGAL LANGUAGE AND LEGAL WRITING (5)

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That, the parents of Petitioner No. 1 called on to the Respondents place and advised the

Respondent and his elders not to ill-treat their daughter. In spite of being advised by the elders, the ill-treatment to the Petitioner No. 1 in her matrimonial home continued. In spite of being harassed and put to humiliation by the Respondent and his parents the Petitioner No. 1 continued to live with her husband and in-laws. As the days passed, this ill-treatment went to the extent of keeping the Petitioner without food. The Petitioner was subjected to starvation and humiliation. Thus to lead marital life with the Respondent became miserable. (6) The Petitioner No. 1 thereafter continued to lead marital life in the marital home. On one

day, i.e., on _________ the Respondent, on the ill-advise of his parents went to the extent of throwing the Petitioners No. 1 and 2 out of his house. Petitioner No. 1 along with her son took asylum under her parents. The Respondent after this event did not call upon her and he even did not pay anything either in cash or in kind to the Petitioners for their maintenance. Therefore the Respondent has neglected to maintain the Petitioners. (7) That, the Petitioner is a house wife. She does not have any educational, technical or other

qualifications of a vocation. The Petitioner is unable to maintain herself and her minor child i.e., Petitioner No. 2. (8) That, both the Petitioners are solely dependent on the parents of Petitioner No. 1. The

parents of Petitioner No. 1 do not have any landed or house property and are depending on the pension. They are also having the burden of educating their sons and daughters. (9) That, the Petitioner No. 2 is a school-going boy, solely depending on his grant-parents for

his education. (10) That, the Respondent is a Government servant working as a Class Two officer in the

Revenue Department. His total emoluments are Rupees Five Thousand per month. He does not have any other social obligations or family burdens except to look after the Petitioners. (11) That, the Respondent has failed and neglected to maintain the Petitioners and thereby

failed to perform his social obligations. He, thus, has deserted Petitioners. (12) That, in these days of escalating prices depending on the parents of Petitioner No. 1 is

continuing burden for a self-respected wife and being aggrieved by the attitude and desertion of the Respondent, the Petitioner No. 1 has craved for the gender justice before this Honourable Court. (13) That, the cause of action is continuing one.

326 (14)

LEGAL DRAFTING That, the Petitioners are permanently residing at ______ and the Respondent is also

residing at ______. Therefore, this Honble Court has the jurisdiction to try and decide this case. (15) Fixed court-fee of Rupees Two only (Rs. 2/-) is paid herewith. Hence, it is most humbly prayed that a monthly maintenance of Rupees Five Hundred Only (Rs. 500/-) to each Petitioner be granted from the date of filing this petition together with the costs incurred by the Petitioners, in the interest of justice and equity.

Place: Date:

PETITIONER No. 1 (For herself and Petitioner No. 2)

I Smt. _________ w/o __________, the Petitioner No. 1 above named do hereby swear on solemn affirmation on behalf of myself and Petitioner No. 2 that the contents of the above petition are read over and explained to me in Kannada. They are all true and correct to the best of my knowledge and belief.

Place: Date:

PETITIONER No. 1 (For herself and Petitioner No. 2)

LEGAL LANGUAGE AND LEGAL WRITING NOTICE

327

To: _______________________________ _______________________________ _______________________________ I, Shri ________, resident of ________, hereby give you notice that I am ready and willing to purchase and otherwise perform my part under the agreement to sale executed between you and me on ______, the premises and land situate at ______ and described in the said agreement. And I further give you notice that should you fail to execute the sale deed in my favour for which all expenses have been deposited with you on or before the ______ day of ______, 19___, I shall seek such relief(s) against you as I may be entitled to and shall hold you responsible and liable for all damages or expenses incurred by me by reason of your delay or default in enforcing the said agreement. Dated this the ______ day of ______, 19___.

Place : Date :

(Name of the Vendee)

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LEGAL DRAFTING LEGAL NOTICE

LETTER HEAD OF THE ADVOCATE

Date:_____________ (By Registered Post - A.D.) To, 1. ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________

2.

3.

LEGAL NOTICE Dear Sir/s, In pursuance of the letter, instructions and authority given by my client, Senior Manager, Canara Bank, Narayanpur, Dharwad, I have to address you in terms of this legal notice as under: 1. That, you Parties No. 1 and 2 are the partners of M/s. __________, Dharwad. You are

manufacturing wooden furniture. You Parties No. 1 and 2 under the co-obligation of Party No. 3 borrowed a sum of Rs. _________ for working capital of your aforesaid business on _________. You have agreed to repay the loan amount with interest at the rate of ____% per annum compounded quarterly, within a period of one year from the date of loan. For having obtained the loan amount from my client Bank you have executed hypothecation agreement thereby hypothecating the stock in trade. Thus a floating charge has been created by my client Bank on your stock in trade. You have executed Demand Promissory Note and other documents in favour of my client Bank on __________. You have further agreed to pay penal interest at the rate of __% p.a. on default of prompt repayments as agreed.

LEGAL LANGUAGE AND LEGAL WRITING 2.

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You have not repaid the loan amount over drawings as per the terms of the

agreement. An amount of Rs. ________ which is inclusive of interest debited up to _________, and subsequent interest from __________ is due from you. You Parties No. 1 to 3 are jointly and severally liable to liquidate the aforesaid loan amount overdue. You have not taken any steps to liquidate the outstandings despite repeated requests and reminders by my client Bank. Now, I have been authorised by my client to call upon you to clean off the entire arrears as stated above and subsequent overdue amount in lumpsum within 15 days of receipt of this notice, failing which my client will be constrained to proceed for the recovery of loan amount through proper forum of law at your costs and consequences. Please note that the cost of this notice is on you. Yours faithfully,

(Name of the Advocate)

330

LEGAL DRAFTING STATUTORY NOTICE LETTER HEAD OF THE ADVOCATE

Date:__________ To, Shri _______________ Sub Inspector of Police, _______ Police Station, ___________________

As a pleader for and on behalf of Shri ______ s/o. ______, by profession ______ and residing at ____________, I hereby give you notice as follows: (1) In ______, while you were station officer of the ______ Police Station, you maliciously and without any reasonable or probable cause arrested the said Shri ______ and searched his house and prosecuted him on a false charge of murder of his wife. (2) That, while the said Shri ______ was in your custody in the police lockup at place, you abused and beat him, gave him no food, did not allow him to sleep and caused him other inconveniences and tortures in order to extort money from him and when he did not agree to pay you the money demanded by you as bribe, you challenged him and released Shri ______, who was the real murderer of the said Shri _____s wife. (3) That, after a protracted trial at which you gave false evidence and produced suborned witnesses, the said Shri ______ was acquitted, the Sessions Judge finding that the case against him was false. (4) That, the said Shri ______ had to undergo great physical and mental suffering while he was in the lockup as an under-trial prisoner and had to spend Rs. ______ on his defence. (5) The said Shri ______, therefore, demands from you Rs. ______ as damages for assault and battery, Rs. ______ as damages for his physical and mental suffering during the period of trial, and Rs. ____ the cost incurred by him in his defence, total Rs. ____ and gives you notice that, if you do not pay this amount or make suitable amends to the satisfaction of the said Shri ______, the said Shri ______ will on the expiry of two months from the date of service of this notice, file a suit against you for the recovery of Rs. ______ as damages for assault and battery and also for malicious prosecution in the Court of the Civil Judge at _________, as per the enclosed draft plaint. Yours Faithfully,

332

PRESCRIBED CASES

PART SIX PRESCRIBED CASES

CASE 1 Common Cause (A Registered Society), Petitioner vs. Union of India and Others, Respondents (AIR 1996 SC 3081) Common Cause - a Society registered under the Societies Registration Act, 1860 which takes up various matters of general public interest/importance for redress before the courts - through its Director, Mr. H. D. Shourie, filed this public interest petition under Article 32 of the Constitution of India. The primary contention raised in the petition was that the cumulative effect of the three statutory provisions, namely, Section 293-A of the Companies Act, 1956, Section 13-A of the Income Tax Act, 1961 and Section 77 of the Representation of the People Act, 1951, is, to bring transparency in the election-funding. People of India must know the source of expenditure incurred by the political parties and by the candidates in the process of election. It was contended that the mandatory provisions of law are being violated by the political parties with impunity. During the elections crores of rupees are spent by the political parties without indicating the source of the money so spent. According to Mr. Shourie the elections in the country are fought with the help of money-power which is gathered from black sources. Once elected to power, it becomes easy to collect tons of black money which is used for retaining power and for re-election. The vicious circle, according to Mr. Shourie, has totally polluted the basic democracy in the country. Section 293-A of the Companies Act, 1956 (the Companies Act) prohibits contribution of money by any Governmenr Company or by any company which is in existence for less than three financial years, directly or indirectly, to any political party or to any person for political purpose. Any other company may contribute money to political party or for political purpose, but the amount of such money or the aggregate of the amounts which may be so contributed by a company in any financial year shall not exceed five per cent of its average net profits determined in accordance with the provisions of Sec.s 349 and 350 during the three immediately preceding financial years. Further, no such contribution shall be made by a company unless a resolution authorising the making of such contribution is passed at a meeting of the Board of Directors and such resolution shall, subject to the other provisions of this section, be deemed to be justification in law for the making and the acceptance of the contribution authorised by it; and every company shall disclose in its profits and loss account any amount or amounts contributed by it to any person during the financial year to which that account relates, giving particulars of the total amount contributed and the name of the party or person to which or to whom such amount has been contributed. Section 13-A of the Income Tax Act, 1961 (the Income Tax Act) provides that any income of a political party which is chargeable under the head Income from house property or Income from other sources or any income by way of voluntary contributions received by a political party from any person shall not be included in the total income of the previous year of such political party. It is further provided that such political party keeps and maintains such books of account and other documents as would enable the Assessing Officer to properly deduce its income therefrom; and in respect of each such voluntary contribution in excess of ten thousand rupees, such political party keeps and maintains a record of such contribution and the name and address of the person who has made such contribution; and the accounts of such political party are audited by an accountant as defined in the Explanation below sub-section (2) of Section 288. 334

LEGAL LANGUAGE AND LEGAL WRITING

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Section 77 of the Representation of the People Act, 1951 (the RP Act) provides that every candidate at an election shall, either by himself or by his election agent, keep a separate an correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive. It was averred in the petition that most of the political parties in the country registered and recognised by the Election Commission have, for many years, been flouting the provisions of the Income Tax Act so much so that they have not been maintaining accounts as required under Section 13-