Material PDF

DIRECTORATE OF LEGAL STUDIES
Chennai - 600 010
3 Year LL.B., Course Semester System

I - Year I - Semester
SI. No Subject Subject Code Page No.
1. Jurisprudence TJB 3
2. Law of Contracts - I TJC 20
3. Law of Torts TJD 76
4. Family Law - I TJE 101
5. Law of Crimes TJF 130
II - Semester
SI. No Subject Subject Code Page No.
1. Law of Contracts - II TJG 153
2. Property Law Including - Transfer of
Property Act and Easement Act TJH 181
3. Constitutional Law - I TJI 202
4. Family Law - II TJJ 232
5. Clinical Course - I Professional Ethics &
Professional Accounting System ( Intr.) TJK 251
COURSE MATERIALS
Compiled by:
Dr. N. Kayalvizhi M.L., Ph.D.,
Asst. Professor,
Dr. Ambedkar Govt. Law College, Chennai - 600 104
First Compilation : Dec 2012
Second Compilation of Re-edition : Oct 2013
Third Compilation of Re-edition : Oct 2014
Fourth Compilation of Re-edition : Feb 2016
Copyright © Director of Legal Studies, Chennai - 600 010.
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I SEMESTER
1. JURISPRUDENCE
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence hope to obtain a
deeper understanding of the nature of law, legal reasoning, legal systems and legal institutions. Modern
jurisprudence began in the 18th century and was focused on the first principles of the law of nature, civil
law, and the law of nations.
General Jurisprudence can be broken into categories both by the types of questions scholars seek
to address and by the theories of jurisprudence or schools of thought regarding how those questions are
best to be answered.
Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in
two rough groups.
1) Problems internal to law and legal systems.
2) Problems of law as a particular social institution as it relates to the larger political and social
situation in which it exists.
Answers to these questions come from four primary schools of thought in general jurisprudence:
Natural law
Natural law is the idea that there are rational objective limits to the power of legislative rulers. The
foundations of law are accessible through human reason and it is from these laws of nature that human
created laws gain whatever force they have.
Legal positivism
Legal Positivism, by contrast to natural law, holds that there is no necessary connection between
law and morality and that the force of law comes from some basic social facts although positivists differ
on what those facts are.
Legal Realism
Legal Realism is a third theory of jurisprudence which argues that the real world practice of law is
what determines what law is. the law has the force that it does because of what legislators, judges, and
executives do with it.
Critical Legal Studies is a younger theory of jurisprudence that has developed since the 1970s
which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as an
expression of the policy goals of the dominant social group.
The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning
“law”, and prudentia means “knowledge”. The word is first attested in English in 1628, at a time when the
word prudence had the now obsolete meaning of “knowledge or skill in a matter”.
Nature of Jurisprudence
Philosophers of law ask “what is law?” and “what should it be?”
Nature and scope of Jurisprudence depends upon the ideology and nature of the society and the
jurist according to their own notion, Growth of the Law is different and it differs according to social and
political condition. There are different meaning for the word “Law” for example in French = Jurisprudence
means “case Law”.
Due to the evolution of the society it is difficult to accept definition by all. The study of Jurisprudence
started from Romans. Latin word “Jurisprudence” evolved = “knowledge of Law” or “skill in law”.
3 JURISPRUDENCE
Ulpian = “The knowledge of things divine and human”.
“The science of the just and unjust”.
Paulus = “The law is not to be deducted from the rule, but the rule from the law”.
But these definitions are vague and inadequate but they put forth the idea of a legal science.
England:
During formative period of the common law the word Jurisprudence was in use. Meaning is little
more than the study of or skill in law.
Early part of the 19th century the word began to acquire a technical significance among English
lawyers.
Bentham distinguished
1. Expositorial Jurisprudence.
2. Censorial Jurisprudence.
Austin occupied himself with “expository” Jurisprudence. (His work consisted mainly at a formal
analysis of the structure of English law).
Bentham analytical exposition or pioneered and Austin developed. Hence the word Jurisprudence
has come to mean in English almost exclusively an analysis of the formal structure of law and its concepts.
Buckland: The analysis of legal concepts is what Jurisprudence meant.
Julius Stone: The lawyer’s extraversion, It is the lawyer examination of the precepts, ideas and
techniques of the law in the light derived from present knowledge in discipline other than the law.
Austin:
He says the science of Jurisprudence is concerned with positive law. It is no matter whether it is
good or bad law.
Austin divides the law as general jurisprudence and particular jurisprudence. General Jurisprudence
is common to all systems.
Particular Jurisprudence confined only to the study of any actual system of law or any portion of it.
General Jurisprudence = science which is concerned with the exposition of the principles notions
and distinctions which are common to all system of law.
Particular Jurisprudence is the science of any system of positive law actually obtaining in a
specifically determined political society.
General Jurisprudence is a province of pure abstract jurisprudence to analyze and systematize
the essential elements underlying the indefinite variety of legal rules without special reference to the
institution of any particular country.
Particular Jurisprudence is a science of particular law General and particular jurisprudence differs
from each other in this scope but not in its essence.
Generally it takes data from the system of more than one state while particular takes the data from
a particular system of law.
Both are positive only.
Example: Possession is one of the fundamental legal concepts recognised by all system of law.
Criticism by Salmond Holland
1. Impracticability.
2. Error in Austin’s idea of general jurisprudence.
3. Jurisprudence is the integral social science and the distinction between general and particular
jurisprudence is not proper.
4 JURISPRUDENCE
4. There may be many schools of jurisprudence but there are not different kind of
Jurisprudence.
5. He says it is not correct to use English Jurisprudence as Hindu jurisprudence.
6. We are dealing with different systems of law and not different kinds of jurisprudence.
7. He says jurisprudence is a social science which deals with social institutions governed by law
it studies them from the point of view of their legal significance.
Holland
1. Error on particular Jurisprudence.
2. We can classify a material into general and particular but we can’t classify the science hence
the study of particular legal system is not a science.
3. Example Geology of England Geology of India etc.
Lord Bryce “The law of every country is the outcome and result of the economic and social conditions
of that country as well as the expression of its intellectual capacity for dealing with these conditions”.
Savigny “Law grows with the growth and strengthens with the strength of people and its standard
of excellence will generally be found of any given period to be in complete harmony with the prevailing
ideas of the best class of citizens
Progress in the formation of law keep pace with the progress in the knowledge of the people.
Holland
Jurisprudence is the formal science of positive law.
It is a formal or analytical science rather than material science.
He terms the positive law as the general rule of external human action enforced by a sovereign
political authority.
He follows the definition of auction but he adds the term formal which means that which concerns
only the form and not its essence.
A formal science is one, which describes only the form or the external side of the subject and not
it internal contents.
Salmond:
Jurisprudence as the science of law means civil law or law of the land. Jurisprudence is of 3 kinds.
Expository or systematic jurisprudence deals with the contents of an actual legal system as existing
at any time whether past or present.
Legal history says about the process of historical development which helps us to set forth law as it
ought to be. It deals with the ideas of the legal system and the purpose for which it exists.
Salmond makes distinction as generic Jurisprudence and specific Jurisprudence Generic
Jurisprudence includes the entire body of legal doctrines and specific jurisprudence deals with a particular
department of those doctrines.
He defines Jurisprudence as the science of the first principles of the civil law.
Specific Jurisprudence has three branches
1. Analytical Jurisprudence.
2. Historical Jurisprudence.
3. Ethical Jurisprudence.
Keeton
Jurisprudence the study and systematic arrangement of general principles of law. Jurisprudence
deals with the distinction between public and private laws and considers the contents of the principal
departments of law.
5 JURISPRUDENCE
Pound
Jurisprudence the science of law using the term law in the juridical sense as denoting the body of
principles recognized or enforced by public and regular tribunals in the administration of justice.
Gray
Jurisprudence is the science of law the statement and systematic arrangement of the rules followed
by the courts and principles involved in those rules.
Jurisprudence is the study of fundamental legal principles it is any thought or writing about law and
its relation to other disciplines such as philosophy, psychology, economics etc.
Scope of Jurisprudence
No unanimity of opinion regarding its scope.
However it covers moral and religious precepts but that has created confusion. Credit goes to
Austin who distinguished law from morality and theology.
He also restricted the term to the body of rules set and enforced by the sovereign or supreme law
making authority within the realm.
In the present view its scope includes all the conduct of human order and human conduct in state
and society.
Nature of Law
Natural law
Aristotle is often said to be the father of natural law. Socrates Plato and Aristotle posted the
existence of natural justice or natural right.
Natural law theory asserts that there are laws that are imminent in nature, to which enacted laws
should correspond as closely as possible. This view is frequently summarized by the maxim an unjust
law is not a true law, lex iniusta non est lex, in which ‘unjust’ is defined as contrary to natural law. Natural
law is closely associated with morality and, in historically influential versions, with the intentions of God.
Natural law theory attempts to identify a moral compass to guide the lawmaking power of the state
and to promote ‘the good’. Notions of an objective moral order, external to human legal systems, underlie
natural law. What is right or wrong can vary according to the interests one is focussed upon. Natural law
is sometimes identified with the maxim that “an unjust law is no law at ali”.
Thomas Aquinas was the most important Western medieval legal scholar. Main article: Thomas
Aquinas.
He is the foremost classical proponent of natural theology. Aquinas distinguished four kinds of law.
These are:
1. The eternal law
2. Natural law
3. Human law and
4. Divine law.
Eternal law is the decree of God which governs all creation.
Natural law is the human “participation” in the eternal law and is discovered by reason.
Natural law is based on “first principles”: this is the first precept of the law, that good is to be done
and promoted, and evil is to be avoided. All other precepts of the natural law are based on this The desire
to live and to procreate are counted by Aquinas among those basic (natural) human values on which all
human values are based.
Human law is positive law:
The natural law applied by governments to societies. Divine law is the law as specially revealed in
the scriptures and teachings of the apostles
6 JURISPRUDENCE
Thomes Hobbes
He was an English enlightenment scholar.
Hobbes expresses a view of natural law as a precept, or general rule, found out by reason, by
which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving
the same; and to omit that by which he thinks it may best be preserved. Hobbes was a social contrarian
and believed that the law gained peoples’ tacit consent.
He believed that society was formed from a state of nature to protect people from the state of war
between mankind that exists otherwise. Life is, without an ordered society, “solitary, poor, nasty and
short”.
Legal positivists
Positivism simply means that the law is something that is “positive”: laws are validly made in
accordance with socially accepted rules. The positivist view are Firstly, that laws may seek to enforce
justice, morality, or any other normative end, but their success or failure in doing so does not determine
their validity. Provided a law is properly formed, in accordance with the rules recognized in the society
concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is
nothing more than a set of rules to provide order and governance of society. No legal positivist, however,
argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate
question entirely.
What the law is - is determined by social facts
What obedience the law is owed - is determined by moral considerations.
Hans Kelsen is considered one of the pre-eminent jurists of the 20th century. He is most influential
in Europe, where his notion of a Grundnorm or a “presupposed” ultimate and basic legal norm, still
retains some influence.
It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law
and “simple” law are based. Kelsen’s pure theory of law described the law as being a set of social facts,
which are normatively binding too. Law’s normativity, meaning that we must obey it, derives from a basic
rule which sits outside the law we can alter. It is a rule prescribing the validity of all others.
H. L. A. Hart
H. L. A. Hart, who argued that the law should be understood as a system of social rules.
Hart rejected Kelsen’s views that sanctions were essential to law and that a normative social
phenomenon, like law, cannot be grounded in non-normative social facts.
Hart divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials
to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal
disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be
identified as valid). The “rule of recognition”, a customary practice of the officials (especially judges) that
identifies certain acts and decisions as sources of law.
Legal realism
Oliver Wendell Holmes was a self-defined legal realist.
The law should be understood and determined by the actual practices of courts, law offices, and
police stations, rather than as the rules and doctrines set forth in statutes or learned treatises.
SOURCES OF LAW
1. Legislative.
2. Precedents.
3. Customs.
4. Opinion juris (statutory interpretation and preparatory works).
5. Justice equity and good conscience.
7 JURISPRUDENCE
Sources of law means the origin from which rules of human conduct come into existence and
derive legal force or binding characters. It also refers to the sovereign or the state from which the law
derives its force or validity. Several factors of law have contributed to the development of law. These
factors are regarded as the sources of law.
LEGISLATION
Legislation is that source of law which consist in the declaration of legal rules by a competent
authority. Legislature is the direct source of law. Legislature frames new laws, amends the old laws and
cancels existing laws in all countries. In modern times this is the most important source of law making.
The term legislature means any form of law making. Its scope has now been restricted so a particular
form of law making. It not only creates new rules of law it also sweeps away existing inconvenient rules.
1. Supreme legislation.
2. Subordinate Legislation.
1. Supreme legislation
Supreme legislation is the expression of the legislative will of a supreme authority in a state. It
is supreme because no authority can annual, modify or control it. It proceeds from the sovereign or
supreme legislative power in the state, and which is therefore, incapable of being abrogated by any other
legislative authority.
2. Subordinate legislation
Subordinate legislation is that which proceeds from any authority other than the sovereign legislation
power, and is, therefore, dependent for its existence or validity on some superior or supreme legislative
authority. It comes from a subordinate legislature or any authority and is subject to the repealing or
sanctioning control of a superior legislation. In England all form of legislative activity recognized by law,
other than the power of parliament are subordinated and subject to parliamentary control.
Types of subordinate legislation
The chief forms or types of subordinate legislation are five in number. These are:
1. Colonial legislation
It means legislation by the legislature of the colonies or other dependencies. The parliament can
repeal, alter or supersede any colonial enactment.
2. Executive legislation
Though the main function of the executive is to enforce laws, but in certain cases, the power of
making rules is delegated to the various departments of the government, which is called subordinate
delegated legislation.
3. Judicial legislation
It means rules of procedure made by superior courts for their own guidance under authority
delegated to them for the purpose. In other words the superior courts have the power of making rules for
the regulation of their own procedures.
4. Municipal legislation
Sometimes municipal authorities are provided with the power of establishing special laws for the
districts under their control. They are allowed to make bye-laws for limited purposes within their areas.
These are legislation of local bodies such as municipal or corporations.
5. Autonomous legislation
It is the process of law making by persons not by the state for their own guidance. Legislation
thus made by private persons and the law created may be distinguished as autonomic view. These are
autonomous bodies like municipal councils, universities etc.
8 JURISPRUDENCE
PRECEDENT
Precedent is one of the sources of law. The judgements passed by some of the learned jurists
became another significant source of law. when there is no legislature on particular point which arises in
changing conditions, The judges depend on their own sense of right and wrong and decide the disputes.
such decisions become authority or guide for subsequent cases of a similar nature and they are called
precedents. The dictionary of English law defines a judicial precedent as a judgement or decision of a
court of law cited as an authority for deciding a similar state of fact in the same manner or on the same
principle or by analogy. Precedent is more flexible than legislation and custom. It is always ready to be,
used.
Precedent is other wise called case law judicial decision judge made law it is the sources of law.
It enjoyed a high authority precedent plays a vital role when law is unwritten English common law
is based on precedent.
Kinds of precedent
1. Authoritative precedents or absolute precedent.
2. Conditional precedent.
3. Persuasive precedents.
1. Authoritative precedents or absolute precedent
Whether judge approve it or not this king of precedent must be followed.
2. Conditional precedents
The judge may disregard either by dissenting or by over ruling it known as conditional precedent.
3. Persuasive precedents
Judges have no obligation to follow can take into consideration. Precedent of other court. Foreign
court.
Theories of precedent
1. Declaratory theory
Declaration of existing law by the judges is known as declaratory theory. Judge only declare the
existing law.
2. Original precedent theory
Law making by the judge known as original precedent theory judge are the law makers the role of
judge is creative particularly when the law is absent.
Principles of precedent
1. Ratio decidendi
Reason for the decision - An authoritative principle of a judicial decision It contains a the principle
of law formulated by a judge it is Essential for the decision of a case. It has force of law and binding on
the courts.
Prof Keeton. Ration decidendi is a principle of law which forms the basis of decision in a particular
case.
Bridges v. hawkeshworth
Customer found money on the floor of a shopping complex both customer and shopkeeper claim
that money.
Court treated shop as a public place and applied rule finder keeper and it favoured the customer.
Here the ratio decidendi is the finder of goods is the keeper principle.
9 JURISPRUDENCE
2. Obiter dictum
Some thing said by the judge, does not have any binding authority. Judge may declare some
general principles relating to law but that may be unnecessary and irrelevant to the issues before him.
Those unnecessary statements of law which lay down a rule is called Obiter dictum.
3. Stare decisis
Means let the decision stand in its rightful place. During 17 th century a progress made in the law
reporting system. Reporting of the decisions of the court Act to stare decisis a principle of the law which
has become settled by a series of decisions is generally binding on the courts and should be followed in
similar cases. It is based on expediency and public policy.
4. Prospective overruling
Reversing the lower court’s decision by supreme court can over rule their own earlier decisions by
another bench of judges consisting of more number of judges than previous one. it is a modern trend
which enables the court to correct its errors without affecting its past transactions.
CUSTOMS
A custom is a rule which in a particular family or in a particular district or in a particular section,
class or tribe, has from long usage obtained the force of law. The dictionary of English law defines
custom as a law not written, which being established by long use and consent of our ancestors has been
and daily is put into practice. Custom as a source of law got recognition since the emergence of savigny
on the horizon of jurisprudence. It is an exemption to the ordinary law of the land, and every custom is
limited in its application.
A study of ancient shows that law-making was not the business of the kings. Law of the country was
to be found in the customs of the people which developed spontaneously according to circumstances.
It was felt that a particular way of doing things was more convenient then others when the same things
was done again and again in a particular way, it is of custom.
According to salmond custom is the legal source of law.
According to Salmond:
“Custom is the embodiment of those principles which have commended themselves to the national
and national conscience as the principles of justice and public utility.”
According to Austin:
Custom is a rule of conduct which the governed observed spontaneously and not in pursuance of
law set by political superior.”
According to Holland:
“Custom is a generally observed course of conduct.”
Kinds of Custom:
Custom are of two kinds:
I. Legal Custom.
II. Conventional Custom.
I. Legal Custom:
According to Salmond, a legal custom is one whose legal authority is absolute, one which in itself
and propria vigore possesses the force of law:
Kinds of legal Custom: (a) General Custom (b) Local Custom
(a) General Custom:
General customs are those which have force of law throughout the territory. The common law of
England is based upon general customs of the realm.
10 JURISPRUDENCE
(b) Local Custom:
The local custom are those which operate have the force of law in a particular locality. The authority
of a local custom is higher than that of general custom.
II. Conventional Custom:
A Conventional custom is one whose authority is conditional on its acceptance in the agreement
between the parties to be bound by it. There is a process by which conventional usage comes to have
the force of law.
Conditions for a valid custom:
Certain conditions must be satisfied before a court is entitled to incorporate the usages into
contracts.
i) The usage must be so well-established as to be notorious.
ii) The usage must be reasonable.
iii) Usage cannot alter general law of land.
iv) A usage should not nullify or very the express term of the contract.
Requisites of Valid Custom:
Following are the requisites for a valid custom, treated as law.
I. Immemorial :
A Custom to be valid must be proved to be immemorial. According to Blackstone:
“A custom in order that in may be legal and binding, must have been used so long that the memory
of man runneth not to the contrary, so that if anyone can show the beginning of it, it is good custom.”
II. Reasonable:
Another essential of a valid custom is that it must be reasonable. The unreasonableness of custom
must be so great that its enforcement results in greater harm than if there were no custom at all.
According to Prof. Allen: The unreasonableness of custom must be proved and not its
reasonableness.
III. Continuous:
A custom must not continuously observed and if it has not been continuously and uninterruptedly
observed, the presumption is that it existed at all.
IV. Peaceable enjoyment:
The enjoyment of a custom must be a peaceable one.
V. Certainty:
A valid custom must be certain and definite, if there is any ambiguities in it or it keeps change, it is
not a valid custom.
VI. Compulsory Observance:
A custom is valid if its observance is compulsory. An optical observance is ineffective.
According to Blackstone: “A custom that all the inhabitants shall be rated towards the maintenance
of a bridge, will be good, but a custom that every man is to contribute thereto at his own pleasure
is idle and indeed no custom at all.”
Vll. General Or Universal:
The custom must be general or universal. According to custom: “In the absence of unanimity of
opinion, custom becomes powerless or rather dose not exist.”
A valid custom must not be opposed to public policy or the principles of morality.
11 JURISPRUDENCE
IX. Not Opposed With Statute Law:
(A) valid custom must be conflict with the statute law of the country. According to Coke:
“No custom or prescription can take away the force of an Act of parliament.”
(B) According to Blackstone customs must be consistent with each other, one custom cannot be
set up in opposition to another.
Theories of customs
There are two theories regarding the question as to when a question is transformed into law:
(i) Historical theory (ii) Analytical theory
(i) Historical theory:
According to the historical theory, the growth of law does not depend upon the arbitrary will of
any individual. It dose not depend upon any accident. It grows as a result of the intelligence of the
people. Custom is derived form the common consciousness of the people.
According to Puchta: Custom is not only self-sufficient and independent of state imprimatur but is
a condition to all sound legislation.
Criticism:
According to Paton: The growth of most of the customs is not the result of any conscious thought
but of tentative practice.
According to Allen: “All customs cannot be attributed to the common consciousness of the people.
In many cases, customs have arisen on account of the convenience of the ruling class.”
(ii) Analytical theory:
Austin, Holland, and Gray are the advocates of analytical theory.
According to Austin:
Customs is a source of law and not law itself. Customs are not positive laws until their existence is
recognized by the decisions of the Courts.
According to Holland:
Customs are not laws when they arise but they are largely adopted into laws by state recognition.
Criticism:
By Allen:
Custom grows by conduct and it is therefore a mistake to measure its validity solely by the elements
of express sanction, accorded by Courts of law of by other determinate authority.
Reasons for Custom is given the force of law:
Following are the reasons, why custom is given the force of law.
(i) Principles of National Conscience:
Custom is the embodiment of those principles which have commended themselves to the national
conscience as principles of truth, justice and public policy.
According to Salmond:
“Custom is to society what laws is to the state. Each is the expression and realization of the
measure of man, insight and ability, of the principles of right and justice.”
(ii) Expectation of continuance:
Another reason for the binding force of custom is the expectation of its continuance is the future.
Justice demands that this expectation should be fulfilled and not frustrated.
(iii) Observance by a large number of people:
Sometimes a custom is observed by a large number of persons in society and in course of time the
same come to have the force of law.
12 JURISPRUDENCE
(iv) Interests of Society:
Custom rests on the popular conviction that it is in the interests of society. This conviction is so
strong that it dose not found desirable to go against it.
(v) Useful to the law giver:
According to paton:
Custom is useful to the law-giver and codifier is two ways. It provides that material out of which the
law can be fashioned. There is a tendency to adopt the maxim whatever has been authority in the
past is a safe guide for the future.
OWNERSHIP
According to Austin ownership means a right, which avails against everyone who is subject to the
law conferring the right to put thing to user of indefinite nature.
It is right in rem which is available to the owner against the world at large. It includes ownership
over both corporeal and incorporeal things. The former refers to physical objects and the latter refers to
all claims.
According to Hibbert ownership is a comprehensive right in rem. It is a bundle of four rights.
1. Right to use a thing
2. Right to exclude others from using the thing
3. Right to dispose of the thing and
4. Right to destroy the thing
Holland “ownership is a plenary control over a object”.
Salmond the relation between a person and any right that is vested and an object forming the
subject matter of his ownership
Ownership denotes the relation between a person and right that is vested in him. Nothing can be
owned except the right over a thing. In other words a thing cannot be owned but a right over such thing
can be owned. Therefore owning a right is called ownership.
Austin
1. Owner can use in many ways or indefinite in point of user
2. Owner has right of transfer or unrestricted in point of desposition
3. Ownership is permanent or unlimited in point of duration
Modes of acquisition of ownership:
The ownership is acquired in two ways
1. Original mode
2. Derivative mode
1. Original mode:
In this mode the owner acquires the ownership over the owner less objects. They are called res
nullis. Such object belonged to no one. It may be acquired by means of accession, occupation and
specification.
2. Derivative mode:
In this mode the owner acquires the ownership by purchasing from the original or previous owner.
The purchaser becomes the owner. It is merely a transfer of existing ownership but not a relation of the
ownership ex buyer derives ownership from seller.
Kinds of ownership
1. Corporeal and incorporeal ownership
2. Trust and Beneficial ownership
3. Legal and Equitable ownership
13 JURISPRUDENCE
4. Vested and Contingent ownership
5. Sole and co- ownership
6. Absolute and limited ownership
1. Corporeal and incorporeal ownership:
The ownership over a tangible or material object is called corporeal ownership
2. Trust and Beneficial ownership
The ownership of a trustee is called trust ownership
3. Legal and Equitable ownership
The ownership which originated from the rules of common law is called legal ownership. A assigned
a debt to B. A is the legal owner and B becomes an equitable owner.
4. Vested and Contingent ownership:
The ownership which comes into existence immediately is called vested ownership. A transfer
his property to B an unmarried daughter for life and to C, an unborn make child. C’s ownership Is
contingent because C’s birth is uncertain.
5. Sole and Co-ownership
An exclusive ownership of an individual as against the whole world is called sole ownership single
owner. The ownership of two or more persons having interest in the same property or thing is called
co ownership
6. Absolute and limited ownership
The ownership which vests all the rights over a thing to the exclusion of all is called absolute
ownership. Ownership which imposes limitations on user duration or disposal of rights of ownership
is called limited ownership.
POSSESSION
Possession means custody or control. The idea of ownership developed slowly with the growth of
civilization.
According to Salmomd possession establishes the relationship between men and the material
things. It is a mere fact.
According to Pollock possession is a physical control over a thing.
According to Savigny possession is the physical power of exclusion. Protection of possession is a
branch of protection to the person. Freedom of will is the ground for the protection of possession.
According to Ihering possession is de facto exercise of a claim over a thing.
According to Roman law possession is a prima facie evidence of ownership. It supports the title of
ownership. The possessor of a thing is presumed to be the owner. Long enjoyment of a property creates
ownership. This is known as prescription hence possession in nine points in law.
Kinds of Possession
1. Possession in fact
2. Possession in law
1. Possession in fact:
The actual or physical possession of a thing is called Possession in fact. Also known as de facto
possession. It indicates physical control of a person over a thing. There may be a physical relation with
the object and the person. That physical relation or control need not be continuous.
2. Possession in law
Possession which is recognized and protected by law is called Possession in law. It is also know
as de jure possession it is a possession in the eye of law.
14 JURISPRUDENCE
Elements of possession
1. Animus possidendi
2. Corpus possessionis
1. Animus Possidendi:
Means intention to possess a thing. It deals with subjective and mental intention to posses a
thing. It deals with subjective and mental element. It denotes a strong desire to possess a thing. Here
the possessor must have strong intention to posses a thing he must have an exclusive claim, Animus
Possidendi need not be a claim or right and need not be a own claim and it need not be specified.
2. Corpus Possessionis
Corpus Possession is means physical possession of a thing it deals with objective element.
According to savigny the actual physical control over a thing is called corpus possessionis. The physical
control gives to an assumption that others will not interfere with it. Possessor must present personally
and physically possess. The possession of a thing extends to accessories too. Possession includes
protection and secrecy of thing
Acquisition of possession
1. By taking
2. By delivery
3. By operation of law
Types of Possession
1. Corporal and incorporeal possession
The possession of a material object is called Corporeal possession. Actual use or control over such
material object is not necessary e.g. possession of car. The Possession of other than a material
object is called incorporeal possession. Actual use and enjoyment of right is necessary.
2. Immediate and Mediate Possession
The direct or primary possession of a material object is called Immediate possession. The possessor
holds thing personally without any intermediary e.g. possession of a car owner.
Indirect or secondary possession of a material object is called Mediate possession the possessor
of a material object is called Mediate possession. The possessor holds the thing on behalf of
another. e.g. possession of a car driver.
3. Representative Possession
The Possession of a thing through an agent or a servant is called Representative Possession. The
representative is not the real possessor e.g. master’s money in the servant’ pocket.
4. Concurrent Possession
Two or more persons may jointly possess a thing at the same time. This Is known as Concurrent
possession e.g. B may have right of way on the A’ land.
5. Derivative Possession
The possession of the holder of a thing is called Derivative possession. He derives title from the
person who entrusts the thing. e.g. a watch repairer. He need not return the watch until the repair
charges are paid.
6. Constructive possession
The possession in law is called constructive possession. It is not an actual possession. It is a
possession in law and not a possession in fact. Possession of keys of a car implies the possession
of car.
7. Adverse possession
The possession against every other person having or claiming to have a right to the possession of
that property is called Adverse possession. It is a possession of a thing without the permission of
its real owner. Lessee possession after expiry of lease period.
15 JURISPRUDENCE
8. Duplicate possession
The possession of a thing by two persons is called Duplicate possession. The possession of one
persons is compatible with the possession of another person. It is possible only when two claims
are not mutually adverse. Possession of co owners.
Distinction between Ownership and Possession
Ownership Possession
1. It is an absolute right 1. It is an evidence of ownership
2. It is de facto exercise of fact 2. It is de jure recognition of claim
3. It is the guarantee of the law 3. It is the guarantee of the fact
4. It is related to a right 4. It is related to a fact
5. It includes possession 5. It does not include ownership
6. It excludes interference 6. It excludes other except owner
7. It developed on possession 7. It is developed with civilization
8. It provides proprietary remedies 8. It provides possessory remedies
9. Its transfer is too technical 9. Its transfer is less technical

LEGAL PERSONALITY
In the common law tradition, only a person could sue or be sued. This was not a problem in the
era before the Industrial Revolution, when the typical business venture was either a sole proprietorship
or partnership the owners were simply liable for the debts of the business. A feature of the corporation,
however, is that the owners/shareholders enjoyed limited liability the owners were not liable for the debts
of the company. Thus, when a corporation breached a contract or broke a law, there was no remedy,
because limited liability protected the owners and the corporation wasn’t a legal person subject to the
law. There was no accountability for corporate wrongdoing.
To resolve the issue, the legal personality of a corporation was established to include five legal
rights
1. The right to a common treasury or chest (including the right to own property),
2. The right to a corporate seal (i.e., the right to make and sign contracts),
3. The right to sue and be sued (to enforce contracts),
4. The right to hire agents (employees) and
5. The right to make by-laws (self-governance).
Legal personality
Legal personality (also artificial personality, juridical personality, and juristic personality also
commonly called as a vehicle) is the characteristic of a non-living entity regarded by law to have the
status of personhood.
A legal person has a legal name and has rights, protections, privileges, responsibilities, and liabilities
under law, just as natural persons (humans). The concept of a legal person is a fundamental legal fiction.
Legal personality allows one or more natural persons to act as a single entity (a composite person)
for legal purposes. Legal personality allows that composite to be considered under law separately from
its individual members or shareholders. They may sue and be sued, enter contracts, incur debt, and own
property. Entities with legal personality may also be subjected to certain legal obligations, such as the
payment of taxes. An entity with legal personality may shield its shareholders from personal liability.
The concept of legal personality is not absolute. “Piercing the corporate veil” refers to looking at the
individual natural persons acting as agents involved in a corporate action or decision; this may result in
16 JURISPRUDENCE
a legal decision in which the rights or duties of a corporation are treated as the rights or liabilities of that
corporation’s shareholders or directors. Generally, legal persons do not have all of the same rights - such
as the right to freedom of speech - that natural persons have.
Types of legal persons
1. Cooperatives
A corporation sole is a corporation constituted by a single member, such as The Crown in the
Commonwealth realms.
2. Corporation
A corporation aggregate is a corporation constituted by more than one member. Municipal
corporations (municipalities) are “creatures of statute.” Other organizations may be created
by statute as legal persons. business association that carries on an industrial enterprise, are
usually corporations, although some companies may take forms other than a corporation, such
as associations, partnership, unions, joint stock companies, trusts, and funds. Limited liability
companies are unincorporated associations having certain characteristics of both a corporation
and a partnership or sole proprietorship.
3. Sovereign states are legal persons.
4. International legal systems
Various organizations possess legal personality. These include intergovernmental organizations
(e.g. U.N)
5. Temples
Temples, in some legal systems, have separate legal personality.
Not all organizations have legal personality. For example, the board of directors of a corporation,
legislature, or governmental agency typically are not legal persons in that they have no ability to
exercise legal rights independent of the corporation or political body which they are a part of.
There are limitations to the legal recognition of legal persons. Legal entities cannot marry, they
usually cannot vote or hold public office and in most jurisdictions there are certain positions which
they cannot occupy. The extent to which a legal entity can commit a crime varies from country to
country. Certain countries prohibit a legal entity from holding human rights; other countries permit
artificial persons to enjoy certain protections from the state that are traditionally described as human
rights.
Special rules apply to legal persons in relation to the law of defamation. Defamation is the area of
law in which a person’s reputation has been unlawfully damaged. This is considered an ill in itself
in regard to natural person, but a legal person is required to show actual or likely monetary loss
before a suit for defamation will succeed.
Theories of corporate personality
There are five theories which explains the nature of corporate personality
1. Fiction theory
2. Realistic theory
3. Concession theory
4. Bracket theory
5. Purpose theory
17 JURISPRUDENCE
ADMINISTRATION OF JUSTICE
Punishment according to dictionary- involves the infliction of pain or forfeiture, it is infliction of
penalty. chastisement or castigation by the judicial arm of the state. If the sole purpose behind punishment
is to cause physical pain to the wrongdoer, it serves little purpose. However, if punishment is such as
leads him to realize the gravity of the offence committed by him, and to repent at once for it, it may be
said to have achieved its desired effect.
There are many theories of concerning the justification of punishment. It is clear that the philosophy
of punishment will affect the actual standards of liability laid down by the law.
The ends of criminal justice are four in number, and in respect of the purpose so served by it,
punishment may be distinguished as
1 . Deterrents
2. Preventive
3. Reformative
4. Retributive.
1. Deterrent theory:
Punishment is before all things deterrent and the chief end of the law of crime is to make the evil-
doer an example and warning to all who are like minded with him. According to this theory, offences
are result of a conflict between the interests of the wrong-doer and those of society. The aim of
punishment is to dissolve the conflict of interests by making every offence. This theory has been
criticized on the ground that it is ineffective in cases where crime is committed under severe mental
stress. In such cases to punish the wrongdoer to deter him is meaningless.
2. Preventive theory:
Punishment is, preventive or disabling. Its primary and general purpose being to deter by fear,
its secondary and special purpose is wherever possible and expedient, to prevent a repetition by
wrongdoer by the disablement of the offender. The most effective mode of disablement is the death
penalty, which in practice, in time of peace, is confined to the crime of murder, though it is legally
possible for treason and certain form of piracy and arson.
A similar secondary purpose exists in sub penalties as imprisonment and forfeiture of office, the
suspension of driving licenses and in the old penalty of exile. The aim of this theory is not to repeat
the crime the crime but this theory takes no note of criminal. It prefers to disable the wrong-doer
from committing any more crime but it ignores one of the basic object of the criminal law, i.e. to
reform the criminal.
3. Reformative theory:
A crime is committed as a result of the conflict between the character and the motive of the criminal.
One may commit a crime either because the temptation of the motive is stronger or because the
restrain imposed by character is weaker.
The deterrent theory by showing that crime never pays separate the motive., while the reformative
theory seems to strengthen the character of the man so that he may not become victim of his own
temptation. This theory would consider punishment to be curative or to perform the function of
medicine.
According to this theory crime is like a disease .. This theory maintains that you can cure by killing.
The ultimate aim of reformists is to try to bring about a change in the personality and character of
the offender, so as to make him a useful member of society.
18 JURISPRUDENCE
4. Retributive theory:
Retributive punishment, in the only sense in which it is admissible in any rational system of
administering justice, is that which serves for the satisfaction of that emotion of retributive indignation
which in all healthy communities is strived up by injustice. This was formerly based on theory of
revenge.- “tooth for tooth” and “eye for eye”.
The idea behind the retributive punishment is that of the restoration of the moral character, the
appraisement of the disturbed conscience of society itself and the maintenance of the sovereign
power of the state which becomes aggrieved when a crime is committed and inflicts punishment to
set matters of right. Though the system of private revenge has been suppressed, the instincts and
emotion that lay at the root of these feelings are yet present in human nature. Therefore, according
to this moral satisfaction that the society obtains from punishment can not be ignored.
On the other hand, if the criminal is treated very leniently or even in the midst of luxury, as the
reformative theory would have it, the spirit of vengeance would not be satisfied and it might find its
way through private vengeance. According to this theory eye for eye and tooth for tooth is deemed
to be a complete and really sufficient rule of natural justice.
In the last, we can easily say that the only logical inference from the reformative theory, if akin itself,
is that they should be abandoned in despairs as no fit subject for penal discipline. The deterrent
and disabling theories on the other hand, regard such offenders as being pre-eminently those with
whom the criminal law is called upon to deal.
The application of purely reformative theory, therefore would lead to astonishing and inadmissible
results. The perfect idea of criminal justice is based on neither reformative nor the deterrent principle
exclusively, but the result of comprise between them.
In this it is the deterrent principal which possesses predominant influence. It will not be out of place
to mention here that Gandhiji “hate the sin and not the sinner”, is merely a philosophical assertion
and can not furnish a practical guide in the administration of justice.
**********
19 JURISPRUDENCE
2. LAW OF CONTRACTS - I
INDIAN CONTRACT ACT, 1872
Commencement and applicability:-
Short Title, Extent and commencement :
• Prior to this English law of contract was followed in India.
• It has XI chapters.
• Law of contract creates jus in personam and not jus in rem.
• The Indian Contract Act consists of the following two parts:
(a) General principles of the Law of Contract.
(b) Special kinds of contracts.
• The general principles of the Law of Contract are contained in Sections 1 to 75 of the Indian
Contract Act. These principles apply to all kinds of contracts irrespective of their nature.
• Special contracts are contained in Sections 124 to 238 of the Indian Contract Act. These
special contracts are Indemnity, Guarantee, Bailment, Pledge and Agency.
Sources of Mercantile Law in India
• English Mercantile
• Indian Statutes Law
• Judicial Decisions
• Customs and Usages
INDIAN CONTRACT ACT, 1872
The Indian Contract Act 1872 Applicable to whole of India except the state of Jammu & Kashmir
First day of September 1872(1st Sept. 1872)
Contracts as Defined by Eminent Jurists
1. “Every agreement and promise enforceable at law is a contract.” - Pollock
2. “A Contract is an agreement between two or more persons which is intended to be enforceable
at law and is contracted by the acceptance by one party of an offer made to him by the other
party to do or abstain from doing some act.” - Halsbury
3. “A contract is an agreement creating and defining obligation between the parties”
- Salmond
ESSENTIALS OF A VALID CONTRACT
“All agreements are contracts, if they are made -
• by free consent of the parties, competent to contract,
• for a lawful consideration and
• with a lawful object, and
• not hereby expressly declared to be void.” - Sec.10.
Offer + acceptance = Promise
+
consideration
=
Agreement
+
enforceability By Law
20 LAW OF CONTRACTS - I
Contract
1. Proper offer and proper acceptance with intention to create legal relationship: Cases:- A
and B agree to go to a movie on coming Sunday. A does not turn in resulting in loss of B’s time B cannot
claim any damages from B since the agreement to watch a movie is a domestic agreement which does
not result in a contract.
• In case of social agreement there is no intention to create legal relationship and there the is
no contract (Balfour v. Balfour)
• In case of commercial agreements, the law presume that the parties had the intention to
create legal relations.
• [an agreement of a purely domestic or social nature is not a contract ]
2. Lawful consideration :- consideration must not be unlawful, immoral or opposed to the
public policy.
3. Capacity:- The parties to a contract must have capacity (legal ability) to make valid contract.
Section 11:- of the Indian contract Act specify that every person is competent to contract provided.
(i) Is of the age of majority according to the Law which he is subject, and
(ii) Who is of sound mind and
(iii) Is not disqualified from contracting by any law to which he is subject.
• Person of unsound mind can enter into a contract during his lucid interval.
• An alien enemy, foreign sovereigns and accredited representative of a foreign state.
Insolvents and convicts are not competent to contract.
4. Free consent :- consent of the parties must be genuine consent means agreed upon something
in the same sense i.e. there should be consensus - ad - idem. A consent is said to be free when it is not
caused by coercion, undue influence, fraud, misrepresentation or mistake.
5. Lawful object :
The object of agreement should be lawful and legal.
Two persons cannot enter into an agreement to do a criminal act.
Consideration or object of an agreement is unlawful if it
(a) is forbidden by law; or
(b) is of such nature that, if permitted, would defeat the provisions of any law; or
(c) is fraudulent; or
(d) Involves or implies, injury to person or property of another; or
(e) Court regards it as immoral, or opposed to public policy.
6. Possibility of performance:
The terms of the agreement should be capable of performance.
An agreements to do act, impossible in itself cannot be enforced.
Example : A agrees to B to discover treasure by magic. The agreement is void because the act in
itself is impossible to be performed from the very beginning.
7. The terms of the agreements are certain or are capable of being made certain [29]
Example : A agreed to pay Rs.5 lakh to B for ultra-modern decoration of his drawing room. The
agreement is void because the meaning of the term “ ultra - modern” is not certain.
8. Not declared Void
The agreement should be such that it should be capable of being enforced by law.
Certain agreements have been expressly declared illegal or void by the law.
9. Necessary legal formalities
A contract may be oral or in writing.
Where a particular type of contract is required by law to be in writing and registered, it must comply
with necessary formalities as to writing, registration and attestation.
If legal formalities are not carried out then the contract is not enforceable by law.
Example : A promise to pay a time-barred debt must be in writing.
• Agreement is a wider term than contract where as all contracts are agreements. All agreements
are not contracts.
The various agreements may be classified into two categories:
Agreement not enforceable by law / Agreement enforceable by law
All Contracts are Agreements, but all Agreements are not Contracts
Any essential of a valid contract is not available.
Distinction between Contract & Agreement
1. Section : Sec. 2(h) Sec. 2(e)
2. Definition : A contract is an agreement Every promise or every set of promises
enforceable by law. forming consideration for each other is
an agreement.
3. Enforceability : Every contract is enforceable. Every promise is not enforceable.
4. Inter-relationship : A contract includes an An agreement does not include a
agreement. contract.
5. Scope : The scope of a contract is limited, Its scope is relatively wider, as it includes
as it includes only commercial both social agreement and commercial
agreements. agreements.
6. Validity : Only legal agreements are called An agreement may be both legal and
contracts. illegal.
7. Legal Obligation : Every contract contains a legal It is not necessary for every agreement
obligation. to have legal obligation.
TYPES OF CONTRACTS :
b. Unilateral contract
On the Basis of creation
(a) Express contract :- A contract made by word
a. Express contract
b. Implied contract
c. Tacit contract
d. Quasi contract
e. E contract
On the Basis of Validity
a. Valid contract
b. Void contract
c. Voidable contract
d. Unenforceable contract
e. Illegal contract
On the Basis of execution

a. Executed contract
b. Executory contract
c. Partly executed and party executory
On the Basis of Liability

a. Bilateral contract
b. Unilateral contract
c. Express contract :- A contract made by word spoken or written. According to sec 9 in so for
as the proposal or acceptance of any promise is made in words, the promise is said to be
express.
d. Example : A says to B ‘will you purchase my bike for Rs.20,000?” B says to A “Yes”.
e. (b) Implied contract :- A contract inferred by
• The conduct of person or
• The circumstances of the case.
f. By implied contract means implied by law (i.e.) the law implied a contract through parties never
intended. According to sec 9 in so for as such proposed or acceptance is made otherwise
than in words, the promise is said to be implied. Example: A stops a taxi by waving his hand
and takes his seat. There is an implied contract that A will pay the prescribed fare.
c. Tacit contract: -
A contract is said to be tacit when it has to be inferred from the conduct of the parties. Example
obtaining cash through automatic teller machine, sale by fall hammer of an auction sale.
d. Quasi Contracts are contracts which are created -

Neither by word spoken
Nor written
Nor by the conduct of the parties.
But these are created by the law.
Example :
If Mr. A leaves his goods at Mr. B’s shop by mistake, then it is for Mr. B to return the goods or to
compensate the price. In fact, these contracts depend on the principle that nobody will be allowed
to become rich at the expense of the other.
(e). e - Contract: An e - contract is one, which is entered into between two parties via the
internet.
On the basis of validity
(a) Valid contract:- An agreement which satisfies all the requirements prescribed by law
On the basis of creation
(b) Void contract (2(j)):- a contract which ceases to be enforceable by law because void when
of ceased to be enforceable
When both parties to an agreement are:-
Under a mistake of facts [20]
Consideration or object of an agreement is unlawful [23]
Agreement made without consideration [25]
Agreement in restraint of marriage [26]
Restraint of trade [27]
Restrain legal proceeding [28].
Agreement by wage of wager [30]
(c) Voidable contract 2(i) :- an agreement which is enforceable by law at the option of one or
more the parties but not at the option of the other or others is a voidable contract.
Result of coercion, undue influence, fraud and misrepresentation.
(d) Unenforceable contract :- where a contract is good in substance but because of some
technical defect i.e. absence in writing barred by imitation etc one or both the parties cannot
sue upon but is described as unenforceable contract.
Example: Writing, registration or stamping.
Example: An agreement which is required to be stamped will be unenforceable if the same is not
stamped at all or is under stamped.
(e) Illegal contract:- It is a contract which the law forbids to be made. All illegal agreements are
void but all void agreements or contracts are not necessary illegal.
Contract that is immoral or opposed to public policy are illegal in nature.
• Unlike illegal agreements there is no punishment to the parties to a void agreement.
• Illegal agreements are void from the very beginning but sometimes valid contracts may
subsequently becomes void.
On the basis of execution
(a) Executed contract :- A contract in which both the parties have fulfilled their obligations under
the contract.
Example: A contracts to buy a car from B by paying cash, B instantly delivers his car.
(b) Executory contract:- A contract in which both the parties have still to fulfilled their obligations.
Example : D agrees to buy V’s cycle by promising to pay cash on 15th July. V agrees to
deliver the cycle on 20th July.
(c) Partly executed and partly executory:- A contract in which one of the parties has fulfilled
his obligation but the other party is yet to fulfill his obligation.
Example : A sells his car to B and A has delivered the car but B is yet to pay the price. For A,
it is executed contract whereas it is executory contract on the part of B since the price is yet
to be paid.
On the basis of liability for performance:-
(a) Bilateral contract:- A contract in which both the parties commit to perform their respective
promises is called a bilateral contract.
Example : A offers to sell his fiat car to B for Rs.1,00,000 on acceptance of A’s offer by B, there is
a promise by A to Sell the car and there is a promise by B to purchase the car there are two
promise.
(b) Unilateral contract:- A unilateral contract is a one sided contract in which only one party has
to perform his promise or obligation party has to perform his promise or obligation to do or
forbear.
Example :- A wants to get his room painted. He offers Rs.500 to B for this purpose B says to A “
if I have spare time on next Sunday I will paint your room”. There is a promise by A to pay
Rs 500 to B. If B is able to spare time to paint A’s room. However there is no promise by B to
Paint the house. There is only one promise.
Difference Between Void and Voidable Contract
Matter Void contract Voidable contract
Definition It means contract which cease
It means an agreement enforceable by
to be enforceable. law by one or more parties.
Nature Valid when made subsequentlyIt remains voidable until cancelled by
becomes unenforceable. party.
Rights or remedy No legal remedy. Aggrieved party has remedy to cancel
the contract.
Performance of contract Party can’t demand If aggrieved party does not cancel it
performance of contract within reasonable time, performance
Reason Due to change in law or If consent is not obtained freely.
circumstances
Damages Not available Can demand in certain cases.
Difference between Void and illegal Agreement
Matter Void agreement Illegal agreement
What Void agreement is not prohibited It is prohibited by law.
by law.
Effect on collateral transaction Enforced Not enforced.
Punishment No Yes
Void ab initio May not be void ab initio Always void ab-initio
Contract of record:
It is either a judgment of a court or a Recognizance.
A Judgment is an obligation imposed by a Court upon one or more persons in favour of another
or others. In real sense, it is not a contract, as it is not based upon any agreement between two parties.
Recognizance is a Bond by which a person undertakes before a Court of Magistrate to observe
some condition e.g. to appear on summons.
Contracts of record derive their binding force from the authority of the Court.
Contract under Seal:
(a) A contract under Seal is one which derives its binding force from its form alone.
(b) It is in writing and signed, sealed and delivered by the parties.
(c) It is also called a Deed or a Specialty contract.
E - Contract
Electronic Contract General Principles of contracts to be read along with Information Technology
Act. 2000 and amended act 2008 to understand e-contracts. Electronic contract is a contract
executed by a software system. Computer programs are used to automate business processes that
governs e-contracts. It helps to map interrelated programs which have to be specified carefully to satisfy
the contract requirements. The programs do not have the capabilities to handle complex relationship
between parties to an e-contract.
Modes of entering into an e-contract: An electronic contract is an agreement which is created
and signed in an electronic form. In other words no paper or other hard copies need to be utilized. For
instance., you write a contract on your computer and email it to business associate, then the associate
emails back with an electronic signature accepting your offer. An e-contract can be done “Click to Agree”
contract, commonly used by downloading an software(Flipkart, Snapdeal,Crafts villa, Quiker dot.com
etc.,) The user clicks an “I Agree “ button on a page containing the terms of the software license before
the transaction can be completed.
The contractual rights are determined with reference to individuals , the need of the hour is
to ascertain whether existing contract law doctrine can cope up with the new laws of technology.
E-contracts is of two types. Web-wrap agreements and Shrink –wrap agreements. Web-wrap contracts
are web based contracts which requires assent of the party by way of clicking”I agree “or I’ confirm ‘
For eg., E-bay accepts by terms and conditions mentioned by the seller. On the other hand shrink wrap
agreements are those which are accepted by a user when a software is installed from a CD-ROM e.g
Microsoft office software. Before analyzing these concepts one must know the way contract is entered
into for convenience let us assume the most simple web wrap agreement entered between the buyer and
seller through a computer. A buyer accesses an autonomous computer controlled by a seller wherein
the seller has hosted an item to be sold at a specific price, an interested buyer after satisfying himself
makes an order after reading through after reading through the terms and conditions of the seller. The
computer then checks the availability of the item in its stock and then notifies the buyer that the order has
been confirmed and is dispatched for its delivery after necessary payment option selected by the buyer.
In such cases the actual seller of goods is unaware about the fact that the transaction has been entered
between him and the buyer. The question which arises here is that whether such contracts are valid or
not.
When it comes to legality and enforceability of e-contracts entered between two or more parties
all essential conditions of the contract need to be fulfilled which need to be fulfilled with the aid of the
computer program.
OFFER
Offer(i.e. Proposal) [section 2(a)] :- When one person signifies to another his willingness to do or
to abstain from doing anything, with a view to obtaining the assent of that other person either to such act
or abstinence, he is said to make a proposal.
To form an agreement, there must be at least two elements - one offer and the other acceptance.
Thus offer is the foundation of any agreement.
The person who makes an offer is called “Offeror” or “ Promisor” and the person to whom the
offer is made is called the “Offeree” or “Promised’.
Example
Mr. A says to Mr. B, “Will you purchase my car for Rs.1,00,000?” In this case, Mr. A is making an
offer to Mr. B. Here A is the offeror and B is the offeree.
Essentials elements of an offer:-
(1) There must be two parties.
(2) The offer must be communicated to the offeree.
(3) The offer must show the willingness of offeror. Mere telling the plan is not offer.
(4) The offer must be made with a view to obtaining the assent of the offeree.
(5) A statement made jokingly does not amount to an offer.
(6) An offer may involve a positive act or abstinence by the offeree.
(7) Mere expression of willingness does not constitute an offer.
A tells B’ that be desires to marry by the end of 2008, if does not constitute an offer of marriage by
A’ to B’ A further adds will you marry me. Then it become offer.
Legal Rules as to valid offer:-
1. Offer must be communicated to the offeree: The offer is completed only when it has been
communicated to the offeree. Until the offer is communicated, it cannot be accepted. Thus, an offer
accepted without its knowledge, does not confer any legal rights on the acceptor.
Example:
A’s nephew has absconded from his home. He sent his servant to trace his missing nephew. When
the servant had left, A then announced that anybody who discovered the missing boy, would be
given the reward of Rs.500. The servant discovered the missing boy without knowing the reward.
When the servant came to know about the reward, he brought an action against A to recover the
same. But his action failed. It was held that the servant was not entitled to the reward because he
did not know about the offer when he discovered the missing boy. [Lalman Shukla v. Gauri Datt
(1913) All LJ 489]
2. The offer must be certain, definite and not vague, unambiguous and uncertain.
Example:
A offered to sell to B. ‘a hundred tons of oil’. The offer is uncertain as there is nothing to show what
kind of oil is intended to be sold.
3. The offer must be capable of creating legal relation. A social invitation is not create legal relation.
Example:
A invited B to a dinner and B accepted the invitation. It is a mere social invitation. And A will not be
liable if he fails to provide dinner to B.
4. Offer may be express and implied
The offer may be express or implied; An offer may be express as well as implied. An offer which
is expressed by words, written or spoken, is called an express offer. The offer which is expressed by
conduct, is called an implied offer [Section 9].
5. Communication of complete offer
Example:
A offered to sell his pen to B for Rs.1,000. B replied, “I am ready to pay Rs.950”. On A’s refusal
to sell at this price, B agreed to pay Rs.1,000. held, there was not contract at the acceptance to
buy it for Rs.950 was a counter offer, i.e. rejection of the offer of A. Subsequent acceptance to pay
Rs.1,000 is a fresh offer from B to which A was not bound go give his acceptance.
6. Counter offer - A counter offer amounts to rejection of the original offer
7. Cross offer do not conclude a contract
8. An offer must not thrust the burden of acceptance on the offeree.
Example:
A made a contract with B and promised that if he was satisfied as a customer he would favorably
consider his case for the renewal of the contract. The promise is too vague to create a legal
relationship.
• The acceptance cannot be presumed from silence.
• Acceptance is valid only if it is communicated to the offeror.
9. Offer must be distinguished from invitation to offer.
Example:
Menu card of restaurant is an invitation to put an offer.
Example:
Price - tags attached with the goods displayed in any showroom or supermarket is also an invitation
to proposal. If the salesman or the cashier does not accept the price, the or the cashier does not
accept the price, the interested buyer cannot compel him to sell, if he wants to buy it, he must make
a proposal.
Example:
Job or tender advertisement inviting applications for a job or inviting tenders is an invitation to an
offer.
Example
Standing Open and Continuous offer
Counter offer
An advertisement for auction sale is merely an invitation to make an offer and not an offer for sale.
Therefore, an advertisement of an auction can be withdrawn without any notice. The persons going to
the auction cannot claim for loss of time and expenses if the advertisement for auction is withdrawn.
10. Offeror should have an intention to obtain the consent of the offeree.
11. An answer to a question is not a offer.
Offer Invitation to offer
• Show his readiness to enter into a contract, it is • Person invites offer to make an offer to him.
called as an offer
• Purpose of entering contract • Purpose of enter offer
• Results in a contract • Results in offer.
Example Application filled in by a prospective Example Issue of prospectus by a Company,
applicable to the Institution, a student seeking an education Institution
admission in educational Institution.
KINDS OF OFFER
1. Express offer
2. Implied offer
3. Specific offer
4. General offer
5. Standing Open and Continuous offer
6. Counter offer
7. Cross offer
I. Express offer
When the offeror expressly communicate the offer, the offer is said to be an express offer. The
express communication of the offer may be made by:
Spoken word; Written word
II. Implied offer -
When the offer is not communicated expressly. An offer may be implied from:- The conduct of the
parties or The circumstances of the case
III. Specific:
It means an offer made in
(a) a particular person or
(b) a group of person: It can be accepted only by that person to whom it is made. Communication
of acceptance is necessary in case of specific offer.
IV. General offer:
It means on offer which is made to the public in general.
General offer can be accepted by anyone.
If offeree fulfill the term and condition which is given in offer then offer is accepted.
Communication of acceptance is not necessary in case of general offer
Example
Company advertised that a reward of Rs.100 would be given to any person who would suffer
from influenza after using the medicine (Smoke balls) made by the company according to the printed
directions.
One lady, Mrs, Carlill, purchased and used the medicine according to the printed directions of the
company but suffered from influenza, She filed a suit to recover the reward of Rs.100. The court held that
there was a contract as she had accepted a general offer by using the medicine in the prescribed manner
and as such is entitled to recover the reward from the company.
Carlill v Carbolic Smoke Ball Co. 1893
V. Cross offer:-
When two parties exchange identical offers in ignorance at the time of each other’s offer the offer’s
are called cross offer.
Two cross offer does not conclude a contract. Two offer are said to be cross offer if
1. They are made by the same parties to one another
2. Each offer made in ignorance of the offer made by the
3. The terms and conditions contained in both the offers’ are same.
Example : A offers by a letter to sell 100 tons of steel at Rs.1,000 per ton. On the same day, B also
writes to A offering to buy 100 tons of steel at Rs.1,000 per ton.
When does a contract come into existence: - A contract comes into existence when any of the
parties, accept the cross offer made by the other party.
VI. Counter offer :-
When the offeree give qualified acceptance of the offer subject to modified and variations in the
terms of original offer. Counter offer amounts to rejection of the original offer.
Legal effect of counter offer:-
(1) Rejection of original offer
(2) The original offer is lapsed
(3) A counter offer result in a new offer.
In other words an offer made by the offeree in return of the original offer is called as a counter offer.
Example:
A offered to sell his pen to B for Rs.1,000. B replied, “ I am ready to pay Rs.950.” On A’s refusal
to sell at this price, B agreed to pay Rs.1,000. Held, there was not contract as the acceptance to
buy it for Rs.950 was a counter offer, i.e. rejection of the offer of A. Subsequent acceptance to pay
Rs.1,000 is a fresh offer from B to which A was not bound to give his acceptance.
VII. Standing, open and continuous offer:-
An offer is allowed to remain open for acceptance over a period of time is known as standing, open
or continuous offer. Tender for supply of goods is a kind of standing offer.
Example:
When we ask the newspaper vendor to supply the newspaper daily. In such case, we do not repeat
our offer daily and the newspaper vendor supplies the newspaper to us daily. The offers of such
types are called Standing Offer.
LAPSE OF AN OFFER
An offer should be accepted before it lapses (i.e. comes to an end). An offer may come to an end
in any of the following ways stated in Section 6 of the Indian Contract Act:
1. By communication of notice of revocation: An offer may come to an end by communication
of notice of revocation by the offeror. It may be noted that an offer can be revoked only before its
acceptance is complete for the offeror. In other words, an offeror can revoke his offer at any time before
he becomes bound by it. Thus, the communication of revocation of offer should reach the offeree before
the acceptance is communicated.
2. By lapse of time : Where time is fixed for the acceptance of the offer, and it is not accepted
within the fixed time, the offer comes to an end automatically on the expiry of fixed time. Where no time
for acceptance is prescribed, the offer has to be accepted within reasonable time. The offer lapses if it is
not accepted within that time. The term ‘reasonable time’ will depend upon the facts and circumstances
of each case.
3. By failure to accept condition precedent: Where, the offer requires that some condition must,
be fulfilled before the acceptance of the offer, the offer lapses, if it is accepted without fulfilling the
condition.
4. By the death or insanity of the offeror: Where, the offeror dies or becomes, insane, the offer
comes to an end if the fact of his death or insanity comes to the knowledge of the acceptor before he
makes his acceptance. But if the offer is accepted in ignorance of the fact of death or insanity of the
offeror, the acceptance is valid. This will result in a valid contract, and legal representatives of the
deceased offeror shall be bound by the contract. On the death of offeree before acceptance, the offer
also comes to an end by operation of law.
5. By counter - offer by the offeree: Where, a counter - offer is made by the offeree, and then the
original offer automatically comes to an end, as the counter - offer amounts to rejections of the original
offer.
6. By not accepting the offer, according to the prescribed or usual mode: Where some manner
of acceptance is prescribed in the offer, the offeror can revoke the offer if it is not accepted according to
the prescribed manner.
7. By rejection of offer by the offeree: Where, the offeree rejects the offer, the offer comes to an
end. Once the offeree rejects the offer, he cannot revive the offer by subsequently attempting to accept
it. The rejection of offer may be express or implied.
8. By change in law: Sometimes, there is a change in law which makes the offer illegal or incapable
of performance. In such cases also, the offer comes to an end.
ACCEPTANCE
Acceptance 2(b):- When the person to whom the proposal is made, signifies his assent there to ,
the proposal is said to be accepted.
1. Acceptance must be absolute and unqualified
Example: A offers to sell his house to B for rupees two lakhs. B accepts the offer and promises to
pay the price in four installments. This is not the acceptance as the acceptance is with variation in the
terms of the offer.
2. Acceptance must be communicated:
Mere mental acceptance is no acceptance, But there is no requirement of communication of
acceptance of general offer.
Example: The manager of Railway Company received a draft agreement relating to the supply of
coal. The manager marked the draft with the words “Approved” and put the same in the drawer of
his table and forgot all about it. Held, there was no contract between the parties as the acceptance
was not communicated. It may however, be pointed out that the Court construed a conduct to
parties as railway company was accepting the supplies of coal from time to time.
3. Manner of acceptance
General rule say that it must be as per the manner prescribed by offeror. If no mode is prescribed
in which it can be accepted, then it must be in some usual and reasonable manner.
4. If there is deviation in communication of an acceptance of offer, offeror may reject such
acceptance by sending notice within reasonable time. If the offeror doesn’t send notice of rejection, he
accepted acceptance of offer.
Example: A offers B and indicates that the acceptance be given by telegram. B sends his acceptance
by ordinary post. It is a valid acceptance unless A insists for acceptance in the prescribed manner.
5. Acceptance of offer must be made by offeror.
Example : A applied for the headmastership of a school. He was selected by the appointing
authority but the decision was not communicated to him. However, one of members in his individual
capacity informed him about the selection. Subsequently, the appointing authority cancelled its decision.
A sued the school for breach of contract. The Court rejected the A’s action and held that there was no
notice of acceptance. “Information by unauthorized person is as insufficient as overhearing from behind
the door”.
6. Acceptance must be communicated to offeror
7. Time limit for acceptance
If the offer prescribes the time limit, it must be accepted within specified time.
If the offer does not prescribe the time limit, it must be accepted within reasonable time.
Example : A applied (offered) for shares in a company in early June. The allotment (Acceptance)
was made in late November. A refused to take the shares. Held, A was entitled to do so as the reasonable
time for acceptance had elapsed.
8. Acceptance of offer may be expressly (by words spoken or written); or impliedly (by acceptance
of consideration); or by performance of conditions (e.g.in case of a general offer)
9. Mere silence is not acceptance of the offer
Example: A offers to B to buy his house for Rs.5 lakhs and writes “If I hear no more about it within
a week, I shall presume the house is mine for Rs.5 lakhs. “B does not respond. Here, no contract is
concluded between A and B.
10. However, following are the two exceptions to the above rule. It means silence amounts as
acceptance of offer.
Where offeree agrees that non - refusal by him within specified time shall amount to acceptance
of offer.
When there is custom or usage of trade which specified that silence shall amount to acceptance.
11. Acceptance subject to the contract is no acceptance
If the acceptance has been given ‘subject to the contract” or subject to approval by certain persons,
it has no effect at all. Such an acceptance will not create binding contract until a formal contract is
prepared and signed by all the parties.
1. In case of acceptance by post

Where the acceptance is given by post, the communication of acceptance is complete as against
the proposer when the letter of acceptance is posted. Thus, mere posting of letter of acceptance
is sufficient to conclude a contract. However, the letter must be properly addressed and stamped.
2. Delayed or no delivery of letter
Where the letter of acceptance is posted by the acceptor but it never reaches the offeror, or it is
delayed in transit, it will not affect the validity of acceptance. The offeror is bound by the acceptance.
3. Acceptance by telephones telex or Fax
If the communication of an acceptance is made by telephone, tele-printer, telex, fax machines, etc,
it completes when the acceptance is received by the offeror. The contract is concluded as soon as
the offeror receives the acceptance.
4. The place of Contract
In case of acceptance by the post, the place where the letter is posted is the place of contract.
Where the acceptance is given by instantaneous means of communication (telephone, fax, tele-
printer, telex etc.), the contract is made at the place where the acceptance is received,
5. The time of Contract
In case of acceptance by post, the time of posting the letter of acceptance to the time of contract.
But in case of acceptance by instantaneous means of communication, the time of contract is the
time when the offeror gets the communication, the time of contract is the time when offeror gets the
communication of acceptance.
6. Communication of acceptance in case of an agent.
Where the offer has been made through an agent, the communication of acceptance is completed
when the acceptance is given either to the agent or to the principal. In such a case, if the agent
fails to convey the acceptance received from offeree, still the principal is bound by the acceptance.
7. Acceptance on loudspeakers
General Rules as to Communication of Acceptance
Acceptance given on loudspeaker is not a valid a acceptance.
Particulars Offer Acceptance
When Communication is Communication of a proposal is As against the offerer/ Proposer:
complete [Sec.4] complete when it comes to the When it is put in a course of
knowledge of the person to whom transmission to him so as to be out
it is made. of the power of the Acceptor.
Example : A proposes by letter, to As against the Offeree/ Acceptor:
sell his Tonga to B at Rs.10,000. When it comes to the knowledge
Communication of the proposal of the Proposer. (See separate
is complete when B receives the question above)
letter.
When Revocation can Offer/proposal may be revoked at Acceptance may be revoked at any
be made [Sec.5] any time before the communication time before the communication of
of its acceptance is complete, acceptor, but not afterwards.
as against the proposer, but not Example: T sends to S by post,
afterwards. an offer to sell his cycle. S sends
Example: U sends a letter to Y his acceptance via post, S could
proposing to sell his land. Y sends revoke his acceptance, upto any
his acceptance by post. U can time before or at the moment when
revoke the offer at any time before he posts his letter of acceptance,
or at the moment when Y posts but not afterwards.
his letter of acceptance, but not
afterwards.
When communication of As against the offeror: When it is As against the Offeree:
revocation is complete put into a course of transmission When it comes to his knowledge.
[Sec.4] to the person to whom it is made, Example : Communication of
so as to be out of the power of the revocation is complete only when
person who makes it. H receives the telegram. When
Example : S proposes to H by H revokes his acceptance, it is
letter. H sends his acceptance complete when he dispatches the
by letter. Suddenly, S sends telegram.
a telegram revoking his offer.
Revocation is complete as against
S when the telegram is dispatched;
H’s revocation of acceptance is
complete when S receives such
telegram.
Accepted is lighted match, while offer is a train of gun powder- Sir willian Anson
CAPACITY TO CONTRACT
Parties unable to Enter into a contract
1. Minor
2. A person of unsound mind, Person disqualified by law
3. Lunatic Idiot, Drunken and Intoxicated
4. Alien enemy, Foreign Sovereign, Convict, Corporation and Company Insolvent
1. Who is competent to make a contract:-
Section 11. Every person is competent to contract who is of age of majority according to the Law
to which he is subject, who is of sound mind and not is disqualified from contracting by any Law to
which he is subject.
Age of majority:- According to section 3 of Indian majority Act-1875 every person domiciled in
India attains majority on the completion of 18 years of age.
Exception: - 21 years - in the following cases.
a. Where a guardian of a minor’s person or property is appointed under the Guardian and wards
Act, 1890.
b. Where minor’s property has passed under the superintendence of the court of wards.
Position of Agreements by Minor:-

1. Validity:
- An agreement with a minor is void-ab-initio [Mohiribibee v. Dharm das Ghose]
Example :
Mr. D, a minor, mortgaged his house for Rs.20000 to a money - lender, but the mortgagee, i.e. the
money - lender, paid him a sum of Rs.8000. Subsequently, the minor sued for setting aside the
mortgage. Held that the contract was void, as Mr. D was minor and therefore he is not liable to pay
anything to the lender.
2. If a minor has received any benefit under a void contract, he cannot be asked to return the same.
3. Fraudulent representation by a minor- no difference in the status of agreement. The contract
remains void.
4. A minor with the consent of all the partners, be admitted to the benefits of an existing partnership.
5. Contracts entered into by minors are void-ab-initio. Hence no specific performance can be enforced
for such contracts.
6. Minor’s parent/guardians are not liable to a minor’s creditor for the breach of contract by the minor.
7. A minor can act as an agent but not personally liable. But he cannot be principal.
8. A minor cannot become shareholder of a the company except when the shares are fully paid up
and transfer by share.
9. A minor cannot be adjudicated as insolvent.
10. Can enter into contracts of Apprenticeship, Services, Education, etc:
(a) A minor can enter into contract of apprenticeship, or for training or instruction in a special art,
education, etc.
(b) These are allowed because it generates benefits to the Minor.
11. Guarantee for and by minor
A contract of guarantee in favour of a minor is valid. However, a minor cannot be a surety in a
contract of guarantee. This is because, the surety is ultimately liable under a contract of guarantee
whereas a minor can never be held personally liable.
12. Minor as a trade union member
Any person who has attained the age of fifteen years may be a member of registered trade union,
provided the rules of the trade union allow so. Such a member will enjoy all the rights of a member.
Contract for the benefit of a minor.
Contract by Guardian
Benefit of a minor by his guardian or manager of his estate.
a. within the scope of the authority of the guardian.
b. Is for the benefit of the minor.
Contract for supply of Necessaries.
Example :
Food, clothes, bed, shelter, shoes, medicines and similar other things required for the maintenance
of his life or for the life of his dependents, expenses for instruction in grade or arts; expenses
for moral religions or intellectual education, funeral expenses of his deceased family members,
marriage expenses of a dependent female member in the family; expenses incurred in the protection
of his property or personal liberty, Diwali pooja expenses, etc. have been held by courts to be
necessaries of life. However, the things like earrings for a male, spectacles for a blind person
or a wild animal cannot be considered as necessaries.
Liability for tort: A minor is liable for a tort, i.e., civil wrong committed by him.
Example :
A, a 14 - year - old boy drives a car carelessly and injures B. He is liable for the accident i.e., tort.
EXCEPTION
PERSON OF UNSOUND MIND
Lunatic Idiot Drunken and Intoxicated
Person of Unsound Mind
A person who is usually of unsound mind, but occasionally of sound mind can make a contract
when he is of sound mind. Similarly, a person who is usually of sound mind, but occasionally of unsound
mind, may not make a contract when he is of unsound mind.
• At time of entering into a contract, a person must be sound mind.
Law presumes that every person is of sound mind unless otherwise it is proved before court.
An agreement by a person of unsound mind is void. The following are categories of a person
considered as person of a unsound mind.
• An idiot
An idiot is a person who is congenital (by birth) unsound mind. His incapacity is permanent and
therefore he can never understand contract and make a rational judgment as to its effects upon his
interest. Consequently, the agreement of an idiot is absolutely void ab initio. He is not personally
liable even for the payment of necessaries of life supplied to him.
• Delirious persons
A person delirious from fever is also not capable of understanding the nature and implications of an
agreement. Therefore, he cannot enter into a contract so long as delirium lasts.
• Hypnotized persons
Hypnotism produces temporary incapacity till a person is under the effect of artificial induced sleep.
• Mental decay
There may be mental decay or senile mind to old age or poor health. When such person is not
capable of understanding the contract and its effect upon his interest, he cannot enter into contract.
• Lunatic is not permanently of unsound mined
He can enter into contract during lucid intervals i.e., during period when he is of sound mind.
Generally of Occasionally of Capacity to Contract Example
Unsound Mind Sound Mind Can enter into a A patient in a lunatic
Contract when he is of asylum, who is at
Sound Mind. intervals of sound mind,
may contract during
those intervals.
Sound Mind Unsound Mind Cannot make a Contract A sane man, who is
when he is of Unsound delirious from fever or
Mind. who is so drunk that
he cannot understand
terms of a contract or
form a judgment, cannot
contract while such
delirium or drunkenness
lasts.
• Drunken person
An agreement made by intoxicated person is void.
PERSON DISQUALIFIED BY LAW

Alien enemy, Foreign Sovereign, Convict, Corporation and Company Insolvent
Person Disqualified by Law
• Body corporate or company or corporation
Contractual capacity of company is determined by object clause of its memorandum of association.
Any act done in excess of power given is ultra - virus and hence void.
• Alien enemy
An ‘alien’ is a person who is a foreigner to the land. He may be either an ‘alien friend’ or an ‘alien
enemy. If the sovereign or state of the alien is at peace with the country of his stay, he is an alien
friend. And if a war is declared between the two countries he is termed as an alien enemy.
During the war, contract can be entered into with alien enemy with the permission of central
government.
• Convict can’t enter into a contract while he is undergoing imprisonment. But he can enter into
a contract with permission of central government while undergoing imprisonment. After the
imprisonment is over, be becomes capable of entering into contract. Thus the incapacity is only
during the period of sentence.
• Insolvent
When any person is declared as an insolvent, his property vests in receiver and therefore, he can’t
enter into contract relating to his property. Again he becomes capable to enter into contract when
he is discharged by court.
• Foreign sovereigns, diplomatic staff and representative of foreign staff can enter into valid
contract. However, a suit cannot be filed against them, in the Indian courts without the prior sanction
of the central Government.
Only those persons, who are parties to a contract, can sue and be sued upon the contract. This
Rule is called “Doctrine of privity of contract.” Exception.
Trust:- In case of trust a beneficiary can sue upon the contract.
Example:
Third party to a contract cannot sue or a stranger to a contract cannot sue.
A transferred certain properties to B to be held by him in trust for the benefit of C. In this case, C
although not a party to the trust, can sue for the benefits available to him under the trust.
This exception to the rule of Privity of Contract has been recognised in a well known case of khwaja
Mohd. Khan v. Hussaini Begum (1910) 32 All 410.
Family settlement / Marriage contract:- In case of family settlement members who were not
originally party to the contract can also sue upon it.
A female member can force a provision for marriage expenses made on partition of HUF.
Example:
H sued her father - in - law K to recover Rs.15,000 being arrears of allowance called Pin money
payable to her by K under an agreement between K and H’s father, consideration being H’s
marriage to K’s son D. Both H and D were minors at the time of marriage. Held, the promise can
be made enforceable by H.
Provision of marriage expenses of female members of a Joint Hindu Family, entitles the female
member to sue for such expenses on a partition between male members.,
Two brothers, on partition of family joint properties, agreed to invest in equal shares for their
mother’s maintenance. Held, the mother was entitled to require her sons to make the investment.
Acknowledgement of liability:- Where a person admits his Liability thereafter if he refused he will
be stopped from denying his liability.
Example
X receives money from Y for paying it to Z. X admits the receipt of that amount to Z. Z can recover
the amount from X, even though the money is due from Y.
Assignment of contract. Assignee (the person to whom benefits of contract are assigned) can
enforce upon the contract..
Contract entered into through an agent.
Covenants running with land.
Stranger to consideration:- “Stranger to contract’ must be distinguished from a stranger to
consideration need not necessarily be provided by the promises it may flow from a third party also
such a person is‘ stranger to consideration,.
(Chinnaya v. Ramayya).
CONSIDERATION
1. (a) Consideration is a quid pro quo i,e something in return it may be -
(i) some benefit right, interest, loss or profit that may accrue to one party or,
(ii) some forbearance, detriment, loss or responsibility suffered on undertaken by the
other party [Currie V Mussa]
(b) According to Sir Frederick Pollock, “consideration is the price for which the promise
of the other is bought and the promise thus given for value is enforceable.
2. Definition [Sec 2(d)]:- when at the desire of the Promisor, the promise of any other person.
(a) has done or abstained from doing, or [Past consideration]
(b) does or abstains from doing, or [Present consideration]
(c) promises to do or abstain from doing something [Future consideration] such act or
abstinence or promise is called a consideration for the promise.
3. Example
(i) ‘P’ agrees to sell his car to ‘Q’ for Rs.50,000 Here ‘Q’s Promise to pay Rs50,000 is the
consideration for P’s promise and ‘P’s promise to sell the car is the consideration for
‘Q’s promise to pay Rs.50,000.
(ii) ‘A’ promises his debtor ‘B’ not to file a suit against him for one year on ‘A’s agreeing
to pay him Rs.10,000 more. Here the abstinence of ‘A’ is the consideration for ‘B’s
Promise to pay.
1. Consideration must move at the desire of the promisor.
D constructed a market at the instance of District collector. Occupants of shops promised to pay
D a commission on articles sold through their shops. Held, there was no consideration because
money was not spent by Plaintiff at the request of the Defendants, but at instance of a third person
viz. the Collector and, thus the contract was void. Durga Prasad v. Baldeo
2. Consideration may move from the promisee or any other person who is not a party to the
contract. [Chinnaya’s v. Ramayya]
A owed Rs.20,000 to B. A persuaded C to sign a Pro Note in favour of B. C promised B that he
would pay the amount. On faith of promise by C, B credited the amount to A’s account. Held,
the discharge of A’s account was consideration for C’s promise. National Bank of Upper India v.
Bansidhar
3. Consideration may be Past, Present, Future:
Under English law, Past consideration is no consideration.
Present consideration :- cash sale
Future or executory consideration:- A Promises to B to deliver him 100 bags of sugar at a future
date . B promise to pay first on delivery.
4. Consideration should be real and not illusory. Illusory consideration renders the transaction
void consideration, is not valid if it is.
(i) Physically impossible
(ii) Legally not permissible
(iii) Uncertain
(iv) illusory (fulfillment of a pre existing obligation)
5. Must be legal:-
Consideration must not be unlawful, immoral or opposed to public policy.
6. Consideration need not be adequate. A contract is not void merely because of the fact that
the consideration is inadequate. The law simply requires that contract should be supported by
consideration. So long as consideration exists and it is of some value, courts are not required to
consider its adequacy.
Example:
A agreed to sell a watch worth Rs.500 for Rs.20, A’s consent to the agreement was freely given.
The consideration, though inadequate will not affect the validity of the contract. However, the
inadequacy of the consideration can be considered in order to know whether the consent of the
promisor was free or not. [Section 25 Explanation II]
7. The performance of an act what one is legally bound to perform is not consideration for
the contract mean’s something other than the promisor’s existing obligation -
A contract not supported by consideration is void.
Exceptions to the Rule “No consideration. No contract”.
1. Written and registered agreements arising out of love and affection:- [25 (1)]
• Expressed in writing and registered under law for the time being in force for registration of
document
• Natural love and affection
• Between parties standing in a near relation to each other
Example:
An elder brother, on account of natural love and affection, promised to pay the debts of his
younger brother. Agreement was put to writing and registered. Held, agreement was valid.
Exception: Rajlukhy Dabee v. Bhootnath Mukharjee
Example:
A Hindu husband by a registered document, after referring to quarrels and disagreements
between himself and his wife, promised to pay his wife a sum of money for her maintenance
and separate residence. Held that the promise was unenforceable since natural love and
affection was missing.
2. Promise to compensate [25(2)]
• Promise to compensate wholly or in part
• Who has already voluntarily done something for the promisor
Ex. Nudo Pacto non oritur actio i,e, an agreement without consideration is void.
Something which the promisor was legally compellable to do.
Example :-
A finds B’s purse and give to him. B Promise to give A Rs.500. This is a valid contract.
3. Promise to pay a time - barred debt. [Sec 25(3)]
• A debt barred by limitation can not recovered. Hence, a promise to pay such a debt is without
any consideration.
• Can be enforced only when - in writing and sighed by Debtor or his authorized agent.
Examples
A owes B Rs.10,000 but the debt is barred by Limitation Act. A signs a written promise to pay
B Rs.8,000 on account of debt. This is a valid contract.
4. Completed gift- gift do not require any consideration.
5. Agency (185) - According to the Indian contract Act. No consideration is necessary to create an
agency.
6. Bailment (148)- consideration is not necessary to effect a valid bailment of goods. It is Called
Gratuitous Bailment.
7. Remission (63).
8. Charity - If a person promises to contribute to charity and on this faith the promises undertakes a
liability to the extent not exceeding the promised subscription, the contract shall be valid.
FREE CONSENT
Free consent
• Consent is said to be free when it is not caused by [ Section 14]
(a) coercion [Section 15]
(b) Undue influence [Section 16]
(c) Fraud [Section 17]
(d) Misrepresentation [ Section 18]
(e) Mistake [Section 20, 21,22]
Effect of absence of Free Consent :-
If consent is through coercion, undue influence, fraud , Misrepresentation the contract is voidable
at the option of party whose consent was not free [19, 19A]
(a) Committing any act which is forbidden by the IPC
(b) Threatening to commit any act which is forbidden by the IPC.
(c) Unlawful detaining of any property or
(d) Threatening to detain any property.
Essential elements of coercion
Above four [a - d]
(e) coercion need not necessarily proceed from party to contract.
(f) Coercion need not necessarily be directed against the other contracting party.
(g) It is immaterial whether the IPC is or is not in force at the time or at the place where the
coercion is employed [Bay of Bengal caption]
Effect of threat to file a suit:-
A threat to file a suit (whether civil or criminal) does not amount to coercion unless the suit is on
false charge. Threat to file a suit on false charge is an act forbidden by the IPC and thus will amount to
an act of coercion.
UNDUE INFLUENCE [SECTION 16]
No. Presumption of Domination of will:-
Effect of Threat to commit suicide:- Threat to commit suicide amounted to coercion and the
release deed was example discussed in class.
Therefore voidable. [Chikham Ammiraju v Seshama]
Duress V Coercion
English Law - Duress does not include detaining of property or threat to detain property.
- Duress can be employed only by a party to the contract or his agent.
Effect:- when coercion is employed to obtain the consent of a party the contract is voidable at the
option of the party where consent was obtained by coercion.
A threat to strike by employees in support of their demands is not regarded as coercion. This
is because the threat to strike is not an offence under the I.P.C. it is a right given under the Industrial
Disputes Act.
Detaining property under mortgage: Detention of property by a mortgagee until the payment of loan
does not amount to coercion.
Meaning of undue influence :- dominating the will of the other person to obtain an unfair
advantages over the others.
(a) Where the relation subsisting between the parties must be such that one party is in position
to dominate the will of the other.
(b) The dominant party use his position.
(c) Obtain an unfair advantage over the other .
Presumption of domination of will:-
Circumstances Examples
Where he holds a real or apparent authority Master and servant, parent and child, Income Tax
over the other officer and assesses, principal and a Temporary
Teacher.
Where he stands in a Trust fiduciary (benefit) Trustee and beneficiary Spiritual Guru and his disciples,
relation to the other solicitors and clients. Guardian and wards
Mental Capacity of a person is temporarily or Relationship between medical attendant and ward.
permanent effected by reason of age, illness
or mental or bodily distress
Effect of undue Influence:- [Section 19A]
When consent to an agreement is caused by undue influence, the contract is voidable at the option
of the party whose consent was so caused.
Burden of Proof:- A contract is presumed to be induced by undue influence if the following two
condition:-
• A party has the position to dominate the will of the others
• The transaction is unconscionable (unreasonable)
In such a case dominant party is under the burden to prove that undue influence was not employed.
[Unconscionable transactions:- if transaction appears to unreasonable the dominant party to
prove that there is no undue influence. ]
• Any other transaction:- weaker party to prove the influence was employed]
Where some transaction is entered into in the ordinary course of business, but due to certain
contingencies, one party is able to make the other party agree to certain terms and conditions then it is
not undue influence.
Example:
A applies to a banker for a loan at a time when there is stringency in the money market. The banker
declines to make the loan except at an unusually high rate of interest. A accepts the loan on these
terms. This is a transaction in the ordinary course of business, and the contract is not induced by undue
influence.
A spiritual guru induced his chela to donate all his property to the ashram and said that in return of
it, he will certainly get salvation. The chela did the same. Held, that this is a case, of undue influence so
it becomes void.
Induced by undue influence
Burden of Proof - Full disclosure is made to pardanashin women
Pardanashin Women - Understand the contract
- Receipt of competent independent advice .
• Dominant party - full disclosure
• Price was adequate
• Receipt of competent independent advice before entering into contract - weaker party.
Rebutting presumption:-
Contract with Pardanashin woman;-
Undue influence v. Coercion
Similarities: - Voidable at the option of aggrieved party:-
Coercion (15) Undue Influence (16)
Meaning - using or threat to use physical Involves use of moral force (mental pressure)
force
Obtain the consent of party (intention) Obtain an unfair advantage (intention)
Punishment under IPC Not criminally liable
Parties - Stranger Between the parties to the contract
Relationship - Immaterial One party dominate the other party
Voidable at the option of aggrieved party Voidable or court set aside
Benefit - Back Benefit - order of court - Back
FRAUD (17)
• The term fraud means to make representation of facts made willfully with a view to deceive the
other party.
• Sec.17- fraud means any act committed by a party to a contract or with his connivance or by his
agent with intent to deceive another party there to or his agent or to induce to enter into contract.
Essentials of fraud :-
(a) By a party to the contract
(b) There must be representation - [an opinion a statement of expression - does not fraud]
(c) The representation must be false.
(d) Before conclusion of contract.
(e) The misrepresentation must be made willfully.
(f) The misrepresentation must be made with a view to deceive the other party.
(g) The other party must have actually been deceived.
(h) The other party have suffered a loss.
Fraud - definition include
• The suggestion, as to fact, of that which is not true by one who does not believe it to be true.
• The active concealment of a fact by one having knowledge or belief of the fact.
Ex. A furniture dealer conceals the cracks in furniture by polish work.
• A promise made without any intention of performing it.
• Any other act fitted to deceive.
Effect of Fraud:-
• Any such act or omission as the law specially declared to be fraudulent.
Ex:- T bought a cannon from H. It was defective, but H had plugged it. T did not examine the
cannon, but it burst when he used it. Held as the plug had not deceived T, he was liable
to pay for the cannon.
Ex.: Where the representation was true at the time of when it was made but becomes untrue
before the contract is entered into and this fact is known to the party who made the
representation. If must be corrected. If it is not so corrected it will amount to be fraud.
When the silence amount to fraud:-
(a) General rule:- Mere (only) Silence as to facts likely to affect the willingness of a person to enter
into a contract is not fraud where the circumstances of the case are such that regarding being had
to them. It is duty of the person keeping silence to speak. Such duty arises in the following two
cases.
(1) Duty to speak exists where the parties stand in a fiduciary relationship, e.g. father and son,
guardian and ward, trustee and beneficiary etc. or where contract is a contract of ubberimae fidei
(requiring utmost good faith), e.g. contracts of insurance.
Ex.:- A sells by auction to B a horse which A knows to be unsound. B’ is A’s daughter and has just
come of age. Here the relation between the parties would make it A’s duty to tell B, the horse is
unsound.
(2) When silence itself equivalent to speech. B says to A “ if you do not deny it I shall assume that
the horse is sound”. A say nothing - A’s silence equivalent to speech. A can held liable to fraud.
[Half Truth is worse than a blatant: - Example - company pay dividend - in class room]
Sec. 19: A contract induced by fraud is voidable at the option of the party defrauded. Till the
exercise of such option, the Contract is valid.
1. Rescinds of contract
2. Right to insist upon performance
3. Right to claim damages - if he suffered loss.
Exception : The contract is not voidable in the following cases.
• When the party whose consent was caused by silence amount to fraud and he has the means
of discovering the truth with ordinary diligence.
• When the party give the consent in ignorance of fraud.
• When the party after become aware of fraud takes a benefit.
• When the parties can’t be restored to their original position.
• Where interests of third parties intervene before the contract is avoided.
MISREPRESENTATION (SECTION 18)

Misrepresentation is when a party (person) asserts something which is not true though he believes
is to be true. In other words misrepresentation is a false representation made innocently. An agreement
is said to be influenced by misrepresentation if all the following conditions are satisfied.
(a) The party makes a representation of a fact [The representation by a stranger (By anyone with
his connivance or by agent) to the contract does not affect the validity of the contract.
(b) The misrepresentation was made innocently i.e. it was not made with a view to deceive the
other party.
(c) The other party has actually acted believing the misrepresentation to be true.
Misrepresentation include:-
• Unjustified statement of facts - positive assertion - Believe true really not true no basis
misrepresentation
• Breach of duty.
• Inducing other to make mistake as to qualify or nature of subject matter.
(1) Right to Rescind contract:-
Can’t do
• Discovering the truth with ordinary diligence.
• Give consent in ignorance of misrepresentation
• Become aware of misrepresentation, takes a benefit
• Where an innocent third party before the contract is rescinds acquires consideration some
interest in the property passing under the contract.
• Where the parties can’t be restored to their original position.
(2) Right to insist upon performance.
Ex.:- Unlike Fraud he cannot sue for damage.
Fraud (17) Misrepresentation (18)
meaning :- wrongful representation is made Meaning - innocently without any intention to
Willfully to deceive the party. Deceive the other party.
Knowledge of falsehood. The person making the wrong statement
The person making the wrong statement does believes it to be true.
not believe it to be true.
Right to claim damage
Means of discovering of truth Can’t claim damage
In case of fraud the contract is voidable even In case of misrepresentation the contract is
though the aggrieved party had the means of not voidable if the aggrieved party had the
discovering the truth with ordinary diligence. means of discovering the truth with ordinary
Exception :- Silence diligence....
MISTAKE
Mistake Erroneous Belief about some facts
Mistake of Fact Mistake of Law [21]
Unilateral [22] Bilateral [20] Mistake of Indian Mistake of foreign Law
One party Under Both parties under
Mistake of fact Mistake of facts the contract is valid same as mistake fact
The contract is valid the contract is void
[Not voidable and void] Both parties under mistake
Exception: - Where contract is not valid (void)
1. Identity of persons contract with
Ex.:- A woman, falsely misrepresenting herself to be wife of a well known Baron obtained two
pearl necklaces from a firm of jewelers on the pretext of showing them to her husband before
buying. She pledged them with a broker who took them in good faith. Held that there was no
contract between jeweler and woman and even an innocent buyer or a broker did not get a
good title. Broker must return necklaces to jeweler. Jeweler intended to deal not with her but
with quite a different person, i.e., wife of a Baron.
2. As the nature of the contract
Ex.:- Illiterate man sign Bill of exchanges by means of false, representation that it was a mere
guarantee. It was held that he was not liable for bill of exchange because never intended to
sign the bill of exchange
Bilateral Mistakes:-
Subject matter Possibility
Existence Quantity Quality Prices Identity Title Legal Physical
(a) It is forbidden by law - law would also include the rules regulations, notifications etc. or issued
under the authority given by a statute.
Ex.:- A sold liquor without license to B. The sale is unlawful as the sale of liquor without license is
forbidden by the law, i.e., The Excise Act. Hence, A cannot recover the price.
Ex.:- a Hindu already married and his wife alive entered into a marriage agreement with Y an
unmarried girl. The agreement is void because the second marriage is forbidden by Hindu
Law.
(b) If it defeats the Provisions of any Law.
- not directly prohibited by any Law
Ex.:- A’s estate is sold for arrears of revenue under the provision defaulter is prohibited from
purchasing the estate upon an understanding with A becomes the purchaser and agrees to
convey the estate to A . Upon receiving from him the price which B has paid. The agreement
is void.
(c) If it is Fraudulent
Ex.:- Object or consideration of an agreement is fraudulent. An agreement with such an object or
consideration is unlawful and void.
(d) If it involves or Implies injury to a person or property of another.
Ex. :- Where it create injury to a person or to the property of another. An agreement with such an
object or consideration is unlawful and void.
(e) If the court regards it as immoral.
• X gave Rs. 10,000 to Y a married woman to obtain a divorce from her husband. X agrees to
marry when divorce taken. X would not recover the amt.
1. Partially unlawful Object or consideration [Sec. 24]: An Agreement is void if -
(a) any part of a single consideration for one or more objects is unlawful; or
(b) any one or any part of one of several consideration for a single object, is unlawful.
2. Example: B is a licensed manufacturer of permitted chemicals. A promise B to supervise B’
s business and combine it with the production of some contraband items together with the
permitted items. B promises to pay A, Salary of Rs.10,000 p.m. Agreement is void, object of
A’s promise and consideration for B’ s promise being partially unlawful.
3. Lawful Consideration enforceable: When there are several distinct promises made for
one and the same consideration and one or more of them are of such nature that law will not
enforce it, only such of the promises as are unlawful cannot be enforced. Other which are
lawful, can be enforced.
4. Test of Severability:
(a) If illegal part cannot be severed from legal part of a covenant, contract is altogether
void.
(b) If it is possible to severe them, whether the illegality be due to Statute or Common Law,
bad part alone may be rejected and good retained.
In case of pre - existing civil liability, the dropping of criminal proceedings need not necessarily
be a consideration for the agreement to satisfy that liability. Union Carbide Corpn. v. UOI
EVERY AGREEMENT OF WHICH THE OBJECT OR
CONSIDERATION IS UNLAWFUL IS VOID [SEC 23]
Illegal agreement - Void - ab - intio
Punishable by the criminal Law of the country or by any special legislation regulation effect of illegal
agreement.
Collateral transactions - illegal
No action can be taken for the recovery of money paid or property transferred.
If illegal part can’t be separated from the legal part.
Whole agreement is altogether illegal. [Sec.57]
If separated
Legal part - enforces illegal part - reject.
Reciprocal promises - In respect of reciprocal promises the agreement as to illegal promise is void.
Agreement opposed to public policy:-
Alternative promises: where in alternative promises one part is illegal, only the legal part can be
enforced. [Sec. 58]
Champerty & Maintenance :
2(g) - Void agreement is an agreement which is not enforceable by Law - void - ab - inito.
(1) Agreement by or with person incompetent to contract [10, 11]
(2) Agreement entered into through a mutual mistake [20]
(3) Object or consideration - unlawful [23]
(4) Consideration or object partially, unlawful [24]
(5) Without consideration [25]
(6) Restraint of marriage [26]
(7) Restraint of trade [27]
(8) Legal proceeding [28]
(9) Consideration identified [29]
(10) Wagering agreement [30]
(11) Impossible agreement [56]
(12) An agreement to enter into an agreement in the future.
Every agreement in restraint of marriage of any person other than a minor, is void, Any restraint of
marriage whether total or partial is opposed to public policy.
Ex. A promised to marry else except Mr. B, and in default pay her a sum of Rs.1,00,000. A married
someone else and B sued A for recovery of the sum. Held, the contract was in restraint of marriage, and
as such void.
Ex. The consideration under a Sale Deed was for marriage expenses of a minor girl aged 12. Held
the sale was a void transaction being opposed to public policy.
Ex. Two co-widows - agreement - if one of them remarried - she should forfeit her eight to her share
in the deceased husband’s property was not void because no restraint was imposed upon either of the
two widows from remarrying.
Ex. Wife to divorce herself and to claim maintenance from the husband on his marrying a second
wife was not void because no restraint was imposed upon husband from marrying a second wife.
Every agreement by which anyone is restrained from exercising a Lawful profession, trade or
business of any kind is void .
Burden for Proof :-
Party supporting the contract:- must show that the restraint is reasonably necessary to protect
public interest. Party challenging the contract:- restraints is injurious to the public.
Ex. : In Patna, 29 out of 30 manufacturers of combs agreed with R to supply combs only to him and
not to anyone else. Under the agreements R was free to reject the goods if he found no market for them.
Held, the agreement amounted to restraint of trade and void.
VOID AGREEMENT
Agreement in Restraint of marriage [26]
Agreement in Restrain of trade [27]
Exception to Sec. 27
(1) Sale of goodwill: - Seller of goodwill of a business may agree with the buyer to restrain from
carrying on business.
(a) Must relate to same business
(b) Restriction shall apply within specified Local limits.
(c) Restriction shall apply within a reasonable time period
(d) The specified local limits - depends on nature of business.
(a) Restriction on existing partner [11(2)]
Not carry on business other than business of the firm till he is partner.
(b) Restriction on outgoing partner [36]
Not carry on a similar business after retirement
Local limits + specified period - local limit - nature of business
(c) Sec. 54: Upon or in anticipation of dissolution of Firm. Partners may agree that some or all
of them will not carry on business similar to that of the Firm within specified periods or local
limits.
(d) Sec. 55(2) : Partner may agree with due buyers of Goodwill, not to use the Firm name or
carry on Firm’s business or solicit clients of the Firm.
(e) Sec. 55(3): Upon sale of Firm’s Goodwill, a partner may agree that he will not carry on any
business similar to Firm’s within specified periods or local limits.
Exception under judicial interpretations :-
(a) Trade combination.
• Traders may form associations among them to regulate the business or to fix prices.
• Such agreement like opening and closing of business venture, licensing of traders, supervision
and control of dealers, etc. are valid even if they are in restraint of trade.
• But, a Combination that tends to create monopoly; or when two enter into an agreement to
avoid competition, they are against public policy and hence void.
(b) Sale dealing agreement: - Agreements to deal in the products of a single manufacturer or to sell
the whole produce to a single dealer are valid if their terms are reasonable.
Ex.: (Discuss in class)
Agreement - buyer of goods for Delhi market not to sell them in Chennai is valid.
• Not to sell to any other firm - valid.
(c) Service agreement.
• Agreement: Employers may enter into agreements with employees - (i) not to engage in
other work during the tenure of his employment; or (ii) not to engage in similar work after his
termination.
• During Employment: The first restraint is always valid, e.g. doctors may be paid non
practicing allowances to avoid practicing when they are employed in a hospital.
• After termination of service: The second restraint is valid only if it is to protect the trade
interests of the employer. It may be imposed to prevent the outgoing employee from using
trade secrets he had learnt during his tenure, to the detriment of his previous employer.
• Valid Agreements : Requiring employees to serve the organization for a few years after
training leaving; or execution of a bond requiring employees leaving the organization to pay
compensation to the employer are valid.
• Use of Personal Skills: The employer cannot prevent the employees from using his personal
skills and knowledge to his benefit; e.g. an employer cannot restrain an employee to act in
theatre plays or in performing an art.
Agreement restricting enforcement of rights:
An agreement by which any party is restricted absolutely from enforcing his legal rights under any
contract is void.
Agreements Limiting period of limitation:- An agreement which limits the time within which an action
may be brought is void.
A partial restrain is not void, eg.
Ex. 1: A clause in a contract that any dispute arising between the parties shall be subject to
jurisdiction of a court at a particular place only, is valid.
Ex. 2: An agreement is not void merely because if provides that any dispute arising between two
or more person shall be referred to arbitration.
That has arises.
Which may arise
Which has already arisen?
Ex. 3: An agreement not to go in appeal to higher court against the judgment of a lower court not
amount to restraint of legal proceeding.
1. An agreement is called an uncertain agreement when the meaning of that agreement is not
certain or capable of being certain. Such agreements are declared void u/s 29.
2. Areas of uncertainty: Uncertainty may relate to - (a) Subject Matter of Contract; or (b) Terms
of contract.
(a) Subject Matter: There may be uncertainty as regards - (i) existence; (ii) quantity (iii)
quality; (iv) price; or (v) title to the subject matter.
(b) Terms of Contract: There may be uncertainty as regards - (i) existence (ii) quality; (iv)
price; or (v) title and other terms in the contract.
Example:
1. A says to B “I shall sell my house; will you buy?” A says, “Yes, I shall buy”. Due to uncertainty
of price, the agreement is void and unenforceable. There is no binding contract.
2. A agreed to pay a certain sum, when he was able to pay. Held, the agreement was void for
uncertainty.
3. D agrees to sell his white horse, for Rs.5,000 or Rs.10,000. - void.
AGREEMENT IN RESTRAINT OF LEGAL PROCEEDINGS [28]
An agreement the meaning of which is not certain (Sec 29):
An agreement between two persons under which money or money’s worth is payable by one person
to another on the happen or non happening of a future uncertain event is called a wagering agreement.
X promise to pay Rs. 1000 to Y if it is rained on a particular day, and Y promise to pay Rs.1000 to
X if it did not.
Wagering agreement is promise to give money or money’s worth upon the determination of
uncertain event.- Sir Willian Anson.
(1) There must be a promise to pay money or money’s worth
(2) Performance of a promise must depend upon determination of uncertain event. It might have
already happened but the parties are not aware about it.
(3) Mutual chances of Gains or Loss.
(4) Neither party to have control over the events
(5) Neither party should have any other interest in event.
(6) One party is to win and one party is to lose.
Ex. 1:- Agreement to settle the difference between the contract price and market price of certain
goods or shares on a particular day.
Ex. 2: A lottery is wagering agreement. Therefore, an agreement to buy and sell lottery tickets is a
wagering agreement. Section 294 - A of the Indian Penal Code declares that drawing of lottery
is an offence. However, the government may authorize lotteries. The persons authorized to
conduct lotteries are exempt from the punishment. But, the lotteries still remain a wagering
transaction.
Ex. 3: However, if the crossword puzzle prizes depend upon sameness of the competitor’s solution
with a previously prepared solution kept with the organizer or newspaper editor, is a lottery
and, therefore, a wagering transaction.
Ex. 4: However, when any transaction in any commodity or in shares with an intention of paying or
getting difference in price, the agreement is a wager.
• Prize in terms of Prize competition Act, 1955 not exceeding Rs.1000 is not wagering
agreement.
• Horse race [500] - An agreement to contribute a plate or prize.
WAGERING AGREEMENT [30] :-

Agreement not held as wagers:-
Essential elements of wagering agreements
• Contract of insurance utmost in good faith eg. Favour in public policy.
• Share market transaction A commercial transaction should always be distinguished from a
pure speculative transaction. A commercial transaction is done with an intention of delivery of
goods (commodity or security) and payment of price. Therefore, it is not wagering agreement.
• Crossword competition involving skill for its solution. If skill plays an important role in the result
of a competition and prize depend upon the result, the competition is not Involve applications
of skill and prizes are awarded to the participants on the basis of merit of their solutions and
not on chance. Therefore, such competitions are valid and are not wagers.
• Athletic Competitions also fall in the category of games of skill. Therefore, these are also not
wagers.
Example:
A and B, two wrestlers, agreed to enter into a wrestling contest in Ahmedabad on a certain
day. They further agreed that a party failing to appear on the fixed day was to forfeit Rs.500
and the winning party will receive a sum of Rs.1,000. Held, it was not a wagering agreement.
• Contribution to chit fund is not wager - contributions made by the members are refunded by
draw of lots.
• Agreement is void.
• No suit can be filed for any recovery of the amount won on any wager.
• It is not illegal. Any agreement collateral to wagering agreement is valid.
• However, it is illegal in state of Maharashtra and Gujarat.
• Agreement which is prohibited by law is illegal agreement. Example Agreement to commit
crime.
• Effects of illegal agreement:
It is always void.
Any collateral transaction to illegal agreement is also void.
No action is allowed on illegal agreement.
Void Agreement Illegal agreement
Meaning Not enforceable by Law Forbidden by any law
One in another All void agreement is not illegal All illegal agreement are void
Reason 10,29,56 Against the provisions of law
Punishment Not liable to punished Party are criminally liable
Void - ab - initio A valid - collateral - is not void Illegal, collateral - illegal
CONTINGENT CONTRACT
A ‘contingent contract’ is a contract, to do or not to do something. If some event, collateral to such
contract does or does not happen
• A contract to pay B Rs.10,000 if B house is burnt.
• A promise to pay B Rs.1,00,000 if a certain, ship does not return within a year.
Essential features of a contingent contract :-
(a) It is a contract to do or not to do something
(b) Dependent on happening or non happening of an event
(c) Such on event is a collateral event (i.e. it is collateral) to the contract i.e. the event must not
depend upon the mere will of party.
(d) The event is uncertain
CONTINGENT UPON
1. Happening of Uncertain Future Even [Sec. 32].
2. Non - Happening of Uncertain Future Event [Sec. 33]
3. Future conduct of a living person [Sec. 34]
4. Happening of Specified Uncertain Event within Fixed time [Sec.35] [
5. Non happening of Specified Uncertain Event within Fixed Time [Sec.36]
(1) Contracts contingent upon the happing of an event enforced - such event has happened [32]
Void - such event because impossible [happening of such event]
Ex.:- A contract to pay B a sum of money when B marries he dies without being married to B
contract - void
(2) Non happening of a future event:- [33]
Enforced :- when the happening of such events becomes impossible.
Void:- such event has happened.
Ex.:- A agrees to pay B sum of money if a certain ship does not return. This ship is sunk. The
contract can be enforced when the ship sinks.
Happening of Uncertain Future Event
Future conduct of a living person
Non - Happening of Uncertain Future Event
Non - Happening of Specified Uncertain Event within Fixed Time
Happening of Specified Uncertain Event within Fixed time
Impossible Events
Rules regarding contingent contract.
(3) Happening of an event within a specified time [35]
Enforce :- when such event has happened within the specific time.
Void :- When the happening of such event because impossible before the expiry of specified time.
When such event has not happened within specified time.
A promise to pay B sum of money if a certain ship return within a Year
Enforce :- ship returns within the year .
Void :- If the ship is burnt within the year / not come within the year.
(4) Non - happening of an event within a fixed time [35]
Enforce :- When the happening of such event because impossible before the expiry of specified
time.
• When such event has not happened within the specified time.
Void:- When such event has happened within the specified period.
(5) Future conduct of a living person. [34]
Enforced:- When such person acts in the manner as desired in the contract.
Void :- When such person does anything which makes the desired future conduct of such person
- impossible - dependent upon certain contingency.
A agrees to pay B a sum of money if B marries C . C married D. The marriage of B to C must now
considered impossible, although it is possible that D may die any that C may afterwards marry B.
(6) Impossible events [36]
• Such an agreement can not be enforced since it is void whether the impossibility of the event
was known to the parties or not is immaterial.
A agrees to pay B Rs.1,000 if two parallel straight lines should enclose a space. Agreements
are void.
A agrees to pay B Rs.1,000 if B will marry A’s daughter C and C was dead at the time of the
agreement. Agreement is void.
Wagering agreement Contingent agreement
1. Defined Not defined u/s 30 Defined o/s 31
2. Meaning Promise to give money or money’s To do or not to do something if
worth upon the determinative of an some event. Collateral to such
uncertain event. contract does or does not happen.
3. Nature of uncertain event Contingent nature Not be a wagering nature
4. Void / valid. Void Valid
5. Interest No other interest in the subject Have real interest outcome of
matter of the agreement except the uncertain gain. A contingent
within of loss of wagering amt. A contract the not be a wagering
wagering agreement is essentially nature. Not consist a reciprocal
of a contingent nature. Consists of promises future event is fully
reciprocal promises futures event is collateral.
the sole determine factor

Sec 37:- That the parties to a contract must either perform or offer to perform, their respective
promises unless such performance is dispensed with or excused under the provisions of contract Act,
or of any other law.
Performance: - Two types
1. Actual performance - actually performed - liability of such a party comes to an end.
2. Attempted performance or tender of performance refusal to accept offer of performance by
promise [38]
Promisor performance of Offer promisee accept not Does attempted performance
Promisor is not responsible for non performance and they can sue the promisee for breach of
contract - nor he (promisor) thereby lose his rights under the contract.
A. Tender or offer of performance to be valid must satisfy the following conditions:-
(i) It must be unconditional
Ex :- ‘X’ offers to ‘Y’ the principal amount of the loan. This is not a valid tender since the whole
amount of principal and interest is not offered.
(ii) It must be made at a proper time and place.
Ex:- If the promisor wants to deliver the goods at 1 am. This is not a valid tender unless it
was so agreed;
(iii) Reasonable opportunity to examine goods.
Ex:- Delivery of something to the promisee by the promisor. Promisee must have reasonable
opportunity of inspection.
(iv) It must be for the whole obligation :- goods and amount.
Ex:- ‘X’ a debtor, offer’s to pay ‘Y’ the debt due in installments and tenders the first installment.
This is not a valid tender minor deviation - not invalid [Behari lal v ram gulam]
(v) It must be made to the promisee or his duly authorized agent.
Ex:- It must be person who is willing to perform his part of performance.
(vi) In case of payment of money, tender must be of the exact amount due and it must be in the
legal tender.
PERFORMANCE
Essential of Valid tender
Unconditional
At a proper place
For whole obligation
Of exact amount and in legal tender money
At proper time
Reasonable opportunity to Promisee
Tender or offer of performance to be valid must satisfy the following conditions:-
(i) It must be unconditional
Ex :- ‘X’ offers to ‘Y’ the principal amount of the loan. This is not a valid tender since the whole
amount of principal and interest is not offered.
(ii) It must be made at a proper time and place.
Ex:- If the promisor wants to deliver the goods at 1 am. This is not a valid tender unless it
was so agreed;
(iii) Reasonable opportunity to examine goods.
Ex:- Delivery of something to the promisee by the promisor promisee must have reasonable
opportunity of inspection.
(iv) It must be for the whole obligation :- goods and amount.
Ex:- ‘X’ a debtor, offer’s to pay ‘Y’ the debt due in installments and tenders the first installment.
This is not a valid tender minor deviation - not invalid [Behari lal v ram gulam]
(v) It must be made to the promisee or his duly authorized agent.
Ex:- It must be person who is willing to perform his part of performance.
(vi) In case of payment of money, tender must be of the exact amount due and it must be in the
legal tender.
Who can demand performance
[who will perform the contract ]
1. Promisor himself :- include personal skill, taste or art work.
Ex:- ‘A’ promises to paint a picture for ‘B’ as this promise involves personal skill of ‘A’. It must
be performed by ‘A’.
2. Promisor or agent :- [does not involves personal skill]
3. Legal Representative:- [does not involve personal skill and taste]
Type of Tender
Tender of goods and services
When a promisor offers to delivery of goods or service to the promisee, it is said to be tender of
goods or services, if promisee does not accept a valid tender, It has the following effects:
(i) The promisor is not responsible for non - performance of the contract.
(ii) The promisor is discharged from his obligation under the contract. Therefore, he need not
offer again.
(iii) He does not lose his right under the contract. Therefore, he can sue the promise.
• Tender of money
Tender of money is an offer to make payment. In case a valid tender of money is not accepted, it
will have the following effects:
(i) The offeror is not discharged from his obligation to pay the amount.
(ii)
The offeror is discharged from his liability for payment of interest from the date of the tender
of money.
Person by whom promise is to be performed Sec 40.
1. Promisor himself :- include personal skill, taste or art work.
Ex:- ‘A’ promises to paint a picture for ‘B’ as this promise involves personal skill of ‘A’. If must
be performed by ‘A’.
2. Promisor or agent :- [does not involves personal skill]
3. Legal Representative:- [does not involve personal skill and taste]
Performance of Joint Promises:-

4. Third person [Sec 41] :- Acceptance of promise from the third party:-
If the promisor accepts performance of a contract by a third party, he can’t after wards enforce the
performance against the promisor although the promisor had neither authorized not ratified the act of the
third party.
[In other meaning once the promisee accepts the performe from a third person, he cannot compel
the promisor to perform the contract again]
Two or more person make a promise
• Performed by all the joint promisor [42]
• All the joint promisor - liable
• Thus in India the liability of joint promisors is joint as well as several.
In England, however the liability of the joint promisors is only joint and not several and accordingly all the
joint promisors must be sued jointly.
• Liability of joint promisor [43]
1. Liability - joint as well as several [unless express A + B + C 900 D. D may compel either A,
B or C or any of two of them or all of them.
2. Where a joint promisor has been compelled to perform the whole promise, be may compel
every other joint promisor to contribute equally with himself to the performance of the promise
(unless a contrary intention appears from the contract).
C - 9000 - D A + B - C
3000 3000
3. If any one of the joint promisors make default in such contribution, the remaining joint promisors
must bear the loss arising from such default in equal shares
A + B + C - 9000 (A) - Insolvent
B + C = 4500 + 4500 = 9000
Sec 44:- Release of one joint promisor :-

Where one of the joint promisors is released other joint promisors shall continue to be liable. [In
English law if one joint promisor - discharge then all the joint promisors discharge]
Sec 45:-
Rights to claim performance of joint [Devolution of joint rights]
1. During their joint lives - all the joint promisors .
2. After the death of any of them - The representative of such deceased promise jointly with the
surging promise
3. With the representatives of all jointly.
Ex:- ‘A’ in consideration of Rs 50,000 lent to him by ‘B’ and ‘ C’ promises ‘B’ and ‘C’ jointly to
replace them that sum with interest on a day specifies.
• ‘B’ dies. The right to claim performance rests with ‘B’ representatives jointly with ‘c’
during ‘C’ life.
• And after ‘C’s death with the representatives of ‘B’ and ‘C’ jointly .
1. No time is specified for performance [Sec 46]
• Time of performance is not specified + promisor agreed to perform without, a demand
from the promisee the performance must be made within a reasonable time. Reasonable
time - in each particulars case - a question of fact.
2. Time specified but hour not mentioned [47].
Time of performance specified + promisor agreed to perform without application by the
promisee
• Performance must perform on the day fixed during the usual business hours and at the
place at which the promise ought to be performed.
3. Where Time is fixed and application to be made [48]
• Proper place and within the usual hour of business
• Promisee to apply for performance
4. Performance of promise where no place is specified and no application is to be made
by the promise [49]
• It is the duty of the promisor to apply to the promisee to appoint a reasonable place for
the performance and perform it at such appointed place.
5. Performance in manner or at time prescribed or sanctioned by promise [50]
• In such prescribed manner and
• Prescribed time
Ex:- ‘A’ desires ‘B’ who owes him Rs 10,000 to send him a promissory note for Rs 10,000
by Post. The debt is discharged as soon as ‘B’ puts into the post a letter containing the
promissory note duly addressed to ‘A’.
Reciprocal Promise :-
Promises which form the consideration or part of consideration for each other as called reciprocal
promises.
1. Mutual and Independent:- Such promises all to be performed by each party independently
without waiting for the other party to perform his promise can’t excuse himself on the ground
of non-performance by the default party.
Y - Price - non Payment
X - goods delivered
2. Mutual and Dependent:- Sue damage . The performance of promise by one party depended
on the prior performance of the promise by other party.
[The party at fault becomes liable to pay compensation to the other party may sustain by the
non performance of the contract - [54]
3. Mutual and concurrent: - when reciprocal promises are to be performed simultaneously a
promisor need not perform his part unless the promisee is ready and willing to perform [51]
TIME PLACE AND MANNER OF PERFORMANCE[46-50]
PERFORMANCE OF RECIPROCAL PROMISES
Order of performance of reciprocal promises [52]
• Where the order in which reciprocal promises one to be performed is expressly fixed by the
contract - they must be performed in that order.
• Order is not expressly fixed - nature of transaction requires
Ex :- ‘A’ and ‘B’ contract that ‘A’ shall build a house for ‘B’ at a fixed price ‘A’ promise to build
the house must be performed before its promise to pay for it.
Sec 53 :- One party preventing - voidable at the option of the other party so prevented.
• Compensation for loss
Sec 54 :- Legal and illegal
Legal - valid, illegal - void
Sec 58:- alternative promise, one branch being illegal legal branch alone can be enforced.
A - B - 1000 rupees
Deliver - rice + smuggled goods
Where time is essence - the concerned parties must perform their respective promises within
the specified time.
Time are fact :- time is specified for the performance of the contract is not by itself sufficient
to prove that time is essence of the contract.
• Intention of the parties.
TIME IS GENERALLY CONSIDERED TO BE THE ESSENCE OF THE CONTRACT :-
(a) where the parties have expressly agreed to treat as the essence of the contract.
(b) Delay operates as an injury to the party and
(c) Nature and necessities of the contracts requires it to be performed within the specified time.
Delivery of the goods - considered - essence of the contract payment of the price - No
[However in case of sale and purchase of an immoral property, the time is presumed to not
the essence of the contract]
Time is essence of the contract - party fails to perform
In time - the contract becomes voidable at the option the other party.
Time is not essence - only claim damages for delay in performance
TIME AS THE ESSENCE OF THE CONTRACT (SEC 55):-

Assignment of contract :-
(a) By - operation of law
• Death
• Insolvency
(b) By an act of parties
Assignment is a mode of transferring rights.
Assignment and transferring of rights from one person to another.Rules regarding assignment
(a) The liabilities or obligations under a contract can’t be assigned
(b) The rights and benefits under a contract which not of a personal nature can be assigned.
(c) An actionable claim can always be assigned
Succession Assignment
Meaning Deceased person - Legal Person - another person
represent
Time On the death of a person During the life time of a person
Voluntary Act Not voluntary automatic by Voluntary
operation of law
Written document Not required Required assignment deed
Scope Liability and rights Rights
• Appropriation means application of payments - The question of appropriation of payments
arises when a debtor owes several debts to the same creditor and make a payment that is not
sufficient to discharge the whole indebtedness.
1. Appropriation of Payments
Sometimes, a debtor owes several distinct debts to the same creditor and he makes a payment
which is insufficient to satisfy all the debts. In such a case, a question arises as to which particular
debt the payment is to be appropriated. Section 59 to 61 of the Act lay down following rules as to
appropriation of payments which provide an answer to this question.
• Appropriation as per express instructions
Every debtor who owes several debts to a creditor has a right to instruct his creditor to which
particular debt, the payment is to be appropriated or adjusted. Therefore, where the debtor expressly
states that the payment is to be applied to the discharge of a particular debt, the payment must be
applied accordingly.
Example : A owes B three distinct debts of Rs.2,000, 3,000 and 5,000. A sends Rs.5,000 and
instructs B that the payment should be appropriated against the third debt. He is bound to appropriate
the payment against the third debt only.
Appropriation of Payments :- [ Sec 59 - 61]
2. Application of payment where debt to be discharge is not indicated [60]
If section 60 is attracted, the creditor shall have the discretion to apply such payment for any lawful
debt which is due to him from the person making the payment.
Example: A owes to B, among other debts, the sum of Rs.520. B writes to A and demands payment
of this sum. A sends to B Rs.520. This payment is to be applied to the discharge of the debt of
which B had demanded payment.
3. Application of payment where neither party appropriates [61]
The payment shall be applied in discharge of the debts in order of time whether they are or are not
based by the limitation Act 1963, if the debt are of equal standing (i.e. payable on the same date)
the payment shall be applied in discharge of each of these debt proportionately.
• First interest then principle
• Director of payer not receiver.
• Right primary of the debtor
[whatever is paid, paid according to the intention of paying it]
• [Quickquid soivitur , sovitur secundum modem solvents]
Example: A owes B, the following debts:
Amount of Positions of the debt the debt
Rs.2,000 Time barred
Rs.1,000 Time barred
Rs.2,000 Due on 10th June
Rs.3,000 Due on 20th September
A sends Rs. 1,500 in the month of June. He neither expressly intimates nor circumstance of the
case imply as to which debt the amount is to be applied. Moreover, B also does not appropriate the
payment at his own discretion. Therefore, the payment will be appropriated in order of time. However,
here in this case two debts are of equal standing. The payment will, therefore, be appropriated in order
of time but to all equal standing debts. In this case, Rs.1,500 will be appropriated towards the first two
debts of equal standing proportionately, i.e. in the ratio of 2:1.
Discharge by performance
Discharge of a contract means termination of contractual relation between the parties to a contract
in other words a contract is discharged when the rights and obligations created by it are extinguished (i.e.
comes to an end). Fulfillment of obligations by a party to the contract within the time and in the manner
prescribed in the contract.
(a) Actual performance - no party remains liable under the contract. Both the parties performed.
(b) Attempted performance or tender.:- Promisor offers to perform his obligation under
the contract but the promise refuses to accept the performance. It is called as attempted
performance or tender of performance
• But the contract is not discharged.
DISCHARGE OF A CONTRACT
Mode of discharge of contract
1. By performance
• Actual
• Attempted
By impossibility of performance
By lapse of Time
By breach of contract
• Actual
• Anticipatory
2. By mutual agreement
(By implied consent)
1. Novation - Sec 62
2. Rescission - Sec 62
3. Alteration - Sec 62
4. Remission - Sec 63
5. Waiver
6. Merger
3. By Operation of law
1. Death
2. Merger
3. Insolvency
4. Unauthorized alteration
4. Discharge by mutual agreement
(a) Novation [Sec 62] - Novation means substitution of a new contract in the place of the original
contract new contract entered into in consideration of discharge of the old contract. The new
contract may be.
• Between the same parties (by change in the terms and condition)
• Between different parties (the term and condition remains same or changed)
Following conditions are satisfied :-
(1) All the parties must consent to novation
(2) The novation must take place before the breach of original contract.
(3) The new contract must be valid and enforceable.
Example:
A owes B Rs.50,000. A enters into an agreements with B and gives B a mortgage of his estate for
Rs.40,000 in place of the debt of Rs.50,000. (Between same parties)
A owes money Rs.50,000 to B under a contract. It is agreed between A, B & C that B shall henceforth
accept C as his Debtor instead of A for the same amount. Old debt of A is discharged, and a new
debt from C to B is contracted. (Among different parties)
(b) Rescission [62]:- Rescission means cancellation of the contract by any party or all the parties
to a contract. X promises Y to sell and deliver 100 bales of cotton on 1st oct at his go down
and Y promises to pay for goods on 1st Nov. X does not supply the goods. Y may rescind the
contract.
(c) Alteration [62] :- Alteration means a change in one or more of the terms of a contracts with
mutual consent of parties the parties of new contracts remains the same.
Ex:- X Promises to sell and delivers 100 bales of cotton on 1st oct. and Y promises to pay for
goods on 1st Nov. Afterwards X and Y mutually decide that the goods shall be delivered in
five equal installments at is godown . Here original contract has been discharged and a new
contract has come into effect.
(d) Remission [63]:- Remission means accepting a lesser consideration than agreed in the
contract. No consideration is necessary for remission. Remission takes place when a
Promisee-
(a) dispense with (wholly or part) the performance of a promise made to him.
(b) Extends the time for performance due by the promisors
(c) Accept a lesser sum instead of sum due under the contract
(d) Accept any other consideration that agreed in the contract
• A promise to paint a pictured for B. B after words for him to do so. A is no longer bound to
perform the promise.
(e) Waiver:- Intentional relinquishment of a night under the contract.
Discharge by operation of law
(f) Merger :- conversion of an inferior right into a superior right is called as merger.(Inferior right
end)
Basis Novation Alteration

1. Meaning It is substitution of an existing It is alteration to some of the
contract with new one. terms and conditions of the
original Contract.
2. Change in parties It is made by - (a) change in Terms of the contract may be
the terms of the contract or altered by mutual agreements
(b) change in the Contracting by the same contracting
Parties. parties. So, there is no change
in the parties.
3. New Contract A New Contract comes into It is not essential to substitute
existence in place of the old a new contract in place of the
one. old contract.
4. Performance Old contract need not be Old contract as per the altered
performed New contract must terms shall be performed.
be performed.
Discharge by operation of law
(a) Death :- involving the personal skill or ability, knowledge of the deceased party one discharged
automatically. In other contract the rights and liability passed to legal representative.
Example : A promises to perform a dance in B’s theatre. A dies. The contract comes to an end.
(b) Insolvency:- when a person is declared insolvent. He is discharged from his liability up to the date
of insolvency.
Example: A contracts to sell 100 bags of sugar to B. Due to heavy loss by a major fire which leaves
nothing to sell, A applies for insolvency and is adjudged insolvent. Contract is discharged.
(c) By unauthorized material alteration - without the approval of other party - comes to an end -
nature of contract substance or legal effect.
Example : A agrees upon a Promissory Note to pay Rs.5,000 to B. B alters the amount as Rs.50,000.
A is liable to pay only Rs.5,000.
(d) Merger: When an inferior right accruing to a party in a contract mergers into a superior right
accruing to the same party, then the contract conferring inferior right is discharged.
Example: A took a land on lease from B. Subsequently, A purchases that land. A becomes owner
of the land and ownership rights being superior to rights of a lessee, the earlier contract of lease
stands terminated.
5. Rights and liabilities vest in the same person:
Where the rights and liabilities under a Contract vest in the same person, the contract is discharged.
Example: A Bill of Exchange which was accepted by A, reaches A’s hands after being negotiated
and endorsed through 4 other parties. The contract is discharged.
Discharge by Lapse of time
Where a party fails to take action against the other party within the time prescribe under the
limitation Act, 1963. All his rights to come end. Recover a debt - 3 Years recover an immovable property
- 12 years
Ex.:- On 1st July 2001 X sold goods to Y of Rs 1,00,000 and Y had made no payment till August
2004. State the legal position on 1st August 2004
(a) If no. credit period allowed and
(b) If 2 month credit period allowed.
Failure of a party to perform his part of contract
(a) Anticipatory Breach of contract :- Anticipatory breach of contract occurs when the part
declares his intention of not performing the contract before the performance is due .
(i) Express repudiation: - 5 agrees to supply B 100 tunes of specified category of iron on
15.01.2006 on 31.12.2005. 5 express his unwillingness to supply the iron to B.
(ii) Party disables himself: - Implied by conduct.
Ex.:- A agrees to sell his fiat car to B on 15.01.2006 on 31.12.05 A sells his fiat car to T.
(b) Actual Breach of contract :- If party fails or neglects or refuses to perform his obligation on
the due date of performance or during performance. It is called as actual breach.
During performance - party has performed a part of the contact.
Consequences of Breach of contract:- The aggrieved party (i.e. the party not at face it ) is discharged
from his obligation and get rights to proceed against the party at fault. The various remedial available to
an aggrieved party.
(a) Effect of Initial Impossibility
(b) Effect of supervening. Impossibility
(a) Initial Impossibility - at the time of making contract
• Both parties know - put life into dead body - void .
• Both don’t know - void.
• One know - compensate to other party
(b) Effect of super vanity Impossibility:-
• Where an act becomes impossible after the contract is made - void
• Becomes unlawful, beyond the control of promisor - void
• Promisor alone knows about the Impossibility - compensate loss.
• When an agreement is discovered to be void or where a contract becomes void
DISCHARGE BY BREACH OF CONTRACT

Remedies for Breach of contract.
Remedy means course of action available to an aggrieved party when other party breaches the
contract.
1. Rescission of contract
2. Suit for damage
3. Suit for specific performance
4. Suit for Injunction
5. Quantum Meruit
Cases when a contract is discharged on the group of super vent Impossible
(a) Distraction of subject matter - Failure of the ultimate purpose of contract - king coronate
process.
(b) Death of personal Incapacity
(c) Declaration of war
(d) Change of Law
(e) Non existence or Non occurrence of a particular state of thing necessary for performance.
No Super Impossibility - does not become void
• Difficulty of performance - coal - transport
• Commercial Impossibility
• Default of a third party
• Strikes, knockout and civil disturbance.
• Partial Impossibility - coronation of king and to sailing around the lake by boat.
RESCISSION OF CONTRACT - SEC 39
SUIT FOR DAMAGES
Remedies for Breach of contract
5. Quantum Merit
4. Suit for Injunction
Remedy means course of action available to an aggrieved party when other party breaches the
contract.
• It means right to party to cancel contract.
• In case of breach of contract, other party may rescind contract.
Effect of Rescission of Contract
• Aggrieved party is not required to perform his part of obligation under contract.
• Aggrieved party claims compensation for any loss.
• Party is liable to restore benefit, if any.
When can Court Grant Rescind Contract?
Court can rescind the contract in the following situation:
• Contract is voidable.
• Contract is unlawful.
• It means monetary compensation allowed for loss.
• Purpose is to compensate aggrieved party and not to punish party as fault.
• In India, rules relating to damages are based on English judgment of Hadley v. Baxendale.
The facts of case were - H’s mill was stopped due to the breakdown of the shaft. He delivered the
shaft to common carrier to repair it and agree to pay certain sum of repair it and agree to pay certain sum
of money for doing this work. H has informed to B that delay would result into loss of profit. B delivered
the shaft after reasonable time after repair. H filed suit for loss of profit. It was held that B is not liable
for loss of profit. The court laid down rule that damage can be recovered if party has breach of contract.
1. Rescission of contract
2. Suit for damage
3. Suit for specific performance
REMEDIES FOR THE BREACH OF CONTRACT
The following are the different kinds of damages:
• Ordinary damages
These are the damages which are payable for the loss arising naturally and directly as result of
breach of contract. It is also known as proximate damage or natural damage.
• Special damages
These are damages which are payable for loss arising due to some special circumstances. It can
be recovered only if special circumstances which result in special loss in case of breach of contract and
party have notice of such damage.
Example: A sends sample of his products for exhibition to an agent of a railway company for
carriage to “New Delhi” for an exhibition. The consignment note stated: “Must be at New Delhi, Monday
Certain.” Due to negligence of the company, the goods reached only after the exhibition was over. Held,
the company was liable for the loss caused by late arrival of the products because the company’s agent
was aware of the special circumstances.
• Exemplary or punitive or vindictive damages
These damages are allowed not to compensate party but as mean of punishment to defaulting
party. The court may award these damages in the case of:
Breach of contract to marry - loss based on mental injury.
Wrongful dishonor of cheque - smaller amount, larger the damage.
• Nominal damages
Where party suffers no loss, the court may allow nominal damages simply to establish that party
has proved his case and won. Nominal damage is very small in amount.
• Damages for inconvenience
If party has suffered physical inconvenience, discomfort for mental agony as result of breach of
contract, party can recover the damage for such inconvenience.
Example: A photographer agreed to take photographs at a wedding ceremony but failed to do so.
The bride brought an action for the breach of contract. Held, she was entitled to damages for her injured
feelings.
• Liquidated damages and penalty
Party may specify amount at the time of entering into contract. The amount so specified may be (a)
liquidated damage, or (b) penalty.
If specified sum represent, fair and genuine pre - estimate damages likely to result due to breach,
it is called liquidated damage.
But if specified sum is disproportionate to the damages, it is called as penalty.
As regard the payment of liquidated damages and penalty court can’t’ increase amount of damages
beyond the amount specified in the contract.
KINDS OF DAMAGES
Example : A gives B, a bond for the repayment of Rs.1,000 with interest at 12 per cent, at the end
of six months, with a stipulation that, in case of default, the interest shall be payable at the rate of 75 per
cent, from the date of default. This is a stipulation by way of penalty, and B is only entitled to recover from
A such compensation as the Court considers reasonable.
• Forfeiture of security deposit
Any clause in contract entitling the aggrieved party to forfeit security deposit in the nature of penalty
and court may award reasonable compensation.
• Payment of interest
It is permissible.
If interest is in nature of penalty, court may grant relief.
If no rate of interest is specified in contract party shall be liable to pay as per the law in force
or as per custom or usage of trade.
• Cost of suit or decree
The court has also discretion to award cost of suit for damages in addition to the damages for
breach of contract.
It means, demanding an order from court that promise agreed in contract shall be carried out.
SUIT FOR SPECIFIC PERFORMANCE
• When is specific performance allowed?
Where actual damages arising from breach is not measurable.
Where monetary compensation is not adequate remedy.
• When specific performance is not allowed?
When damages are an adequate remedy.
Where performance of contract requires numbers of minute details and therefore not possible for
court to supervise.
Where contract is of personal in nature.
Where contract made by company beyond its power. (ultra - vires)
Where one party to contract is minor
Example : A agree to sell B, an artist painting for Rs.30,000. Later on, he refused to sell it. Here B
can file suit against A for specific performance of the contract.
• It means stay order granted by court. This order prohibits a person to do particular act.
• Where there is breach of contract by one party and order, of specific performance is not granted by
court, injunction may be granted.
Example: Film actress agreed to act exclusively for W for a year and for no one else. During the
year she contracted to act for Z.
SUIT FOR INJUNCTION
It means stay order granted by court. This order prohibits a person to do particular act.
Where there is breach of contract by one party and order, of specific performance is not granted by
court, injunction may be granted.
Example: Film actress agreed to act exclusively for W for a year and for no one else. During the
year she contracted to act for Z.
QUASI CONTRACT
[Contracts implied in law or implied contract]
It means a contract which lacks one or more of the essentials of a contract.
Quasi contract are declared by law as valid contracts on the basis of principles of equity i.e.
no person shall be allowed to enrich himself at the expense of another the legal obligations of parties
remains same.
Nature of Quasi contracts:-
(a) A quasi contract does not arise from any formal agreement but is imposed by law.
(b) Every quasi contract based upon the principle of equity and good conscience.
(c) A quasi contract is always a right to money and generally though not always to a liquidated
sum of money.
(d) A suit for its breach may be filed in the same way as in case of a complete contract.
(e) The right grouted to a party under a quasi contract is not available to him against the whole
world but against particular person(s) only.
(f) A suit for breach of a quasi contract may be filed in the same way as in case of an ordinary
contract
(g) Although there is no contract between the parties under a quasi contracts, yet they are put in
the same position as if he were a contract between them .
Provisions relating to various quasi contracts are contained in section 68 to sec 72 of the con-
tract Act, 1872.
Sec. 68 Sec. 69 Sec. 70 Sec. 71 Sec.72
Supply of Reimbursement Obligation to pay Responsibility of Person receiving
Necessaries of money due for benefit out of Finder of Goods goods are money
non-gratuitous act by mistake
Sec. 68:
If a person, incapable of entering into a contract, or anyone whom he is legally bound to support, is
supplied by another person, with necessaries suited to his condition in life, the person who has furnished
such supplies is entitled to be reimbursed from the property of such incapable person.
1. Meaning of Necessaries:
(a) Necessaries normally include articles required to maintain a particular person in the state,
degree and station in life in which he is.
(b) They are essentials to run a life.
(c) An item will not be considered necessary, if a person already has sufficient supply of things
of such kind.
(d) Necessaries include Services rendered to a person.
(e) What constitutes necessaries depends on the circumstances of each case.
2. Only property liable: person not liable:
(a) It is only the property (movable and immovable) of the incapable person they shall be liable.
(b) He cannot be held liable personally.
(c) Where he doesn’t own any property, nothing shall be payable.
3. Example:
(i) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be
reimbursed from B’s property.
(ii) A who supplies the wife and children of B, a lunatic, with necessaries suitable to their condition
in life, is entitled to be reimbursed from B’s Property.
Payment By a person who is interested in a transaction [69]
Condition of section [69]
Sec. 69 : A person, who is interested in the payment of money and pays such money, which
another is bound by low to pay, is entitled to be reimbursed by the other.
(a) One party is legally bound to make a payment
(b) Some other persons make such payment
(c) The person making such payment is not legally bound to make such payment
(d) The person making such payment is interested in paying such amount
Legal effect of sec 69.:-
If all the conditions of sec 69 are satisfy the person who is interested in paying such amount shall
be entitled to recover the payment made by him.
Ex.:- The goods belonging to A were wrongfully attached in order to realize arrears of Government
revenue due by G. A paid the amount to save the goods from sale at was held that A was entitled to
recover the amount from G.
Obligation of person enjoying benefit of non-gratuitous act [70]
Conditions of section 70.
Sec.70 : Where a person, lawfully does anything for another person, or delivers anything to him;
not intending to do so gratuitously, and such other person enjoys the benefits thereof, then he is bound
to make compensation to the other in respect of, or to restore the thing so done or delivered.
(a) A person has lawfully done something for another person or delivered something to another
person.
(b) Such person must have acted voluntarily and non - gratuitously.
(c) The other person has enjoyed the benefit of the act done for him or the thing delivered to him.
Legal effect of sec 70.
• If the conditions of sec70 are satisfied, there will be quasi contract between the parties.
• Consequently, the party who has done something or delivered a thing shall be entitled to
recover its value from the person who obtained the benefit of the same.
Ex.:- A a trades man leaves goods at B’s house by mistake, B treat the goods as his own, He
is bound to pay A for them.
• A saves B’s property from fire. A is not entitled to compensation from B if the circumstances
show that be intended to act gratuitously.
GENERAL PRINCIPLES OF SPECIFIC RELIEF

Specific Relief or Specific Performance/Meaning Scope of the Specific Relief Act
THE OBJECT OF Specific Relief Act, 1963 is to provide remedies and reliefs for the violation of
legal rights. Specific Relief Act deals with large number of remedial aspects of law. A mere declaration of
rights and duties is not sufficient to give protection to life or property. There should be appropriate legal
mechanism which can hold the persons to enforce their rights. Specific Relief Act was enacted to provide
reliefs in cases relating to contracts, tort and other cases. Specific Relief Act was enacted to provide
reliefs in cases relating to contracts, tort and other cases. Specific Relief Act, 1877 was amended as
Specific Relief Act, 1963 by Parliament of India and came into force on March 1, 1964. Specific Relief
Act, 1963 applies to the whole of India except the State of J&K.
According to Section 4, specific relief can be granted only for the purpose of enforcing individual
civil right and not for enforcing a penal law. The act provides the following reliefs:
1. Recovery of possession of immovable and movable property;
2. Specific performance of contracts; Section 9-25
3. Rectification of Instruments; Section 26
4. Rescission of Contract Section; 27-30
5. Cancellation of Instruments; Section 31-33
6. Declaratory decrees; Section 34-35
7. Preventive relief or injunctions; Section 36-42
In Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC 125 the
Supreme Court stated that injunction by way of specific relief is covered by the Specific Relief Act, 1963.
The Court further explained the nature and scope of various kinds of remedies available to the breach
of contract.
In Sita Ram & Others v. Radhey Shyam AIR 2008 SC 143
The Court held that any person seeking benefit of the specific performance of contract must not be
a non-guilty party.
Recovery of Possession of Property Section 5-8
RECOVERY OF POSSESSION of specific immovable property: Section 5 and 6: According to
Section 5 a person with a “better title’ is “entitled to possession’ on the basis of ownership or possession.
A person can bring an action for recovery of possession of specific immovable property as per the
manner (Institution of Suit and execution of decree under Order 21, Rule 35 and 36) prescribed by the
Code of Civil Procedure 1908.
Illustration: If A enters into peaceful possession of land claiming it as his own although he might
have no title to it, still he can sue such person who has forcibly removed him from possession and who
has no better title to it, because A although he has no legal title as owner, has at least a possessory
title. The burden of proof is on the plaintiff to prove that he has a better title (Annapoorani Ammal v. G.
Thangapalam (1989) 3 SCC 287)
Essentials
1. Defendant must possess a specific movable property.
2. He must not be the owner.
3. The plaintiff must be entitled to immediate possession.
4. Property must be capable of being seized and delivered.
5. Recovery of possession must be made in the same manner provided in C.P.C
In PratapraiN. Kothari v. John Brganza AIR 1999 SC 1666 the defend Defendant was in the
possession of an immovable property for a very long and continuous possession. It was held that such
person can protect his possessory right by applying an injunction against any person in the world except
the true owner. Such true owner can get back his possession only by restoring to the due process of law.
In Adapa Tatarao v. Chamantula Mahalakshmi 2006 the Court held that the plaintiff is not entitled
for recovery of possession and perpetual injunction at the same time and in the same claim.
Suits by Person Dispossessed of Immovable Property
Section 6
SECTION 6 IS ENACTED with an object that ‘a person in the possession of specific immovable
property can be dispossessed only by filing a regular suit in a regular Civil Court by the person whose
possession is valid’. Thus a trespasser cannot recover possession under the section. Possession is
nine points in law. Thus possession confers good title against all the persons in the world except the
real owner. The civil suit for recovery of possession must be brought within 6 months, from the date of
dispossession. The real owner is entitled only for re-possession of the property but not mesne profits.
The relief provided under this section is summary remedy.
In S.R. Ejaz v. T.N. Handloom Weavers Co-op. Society Ltd. (2002) 3 SCC 137 The
tenant proved that he was disposed and kept the matter pending for a long period. The Supreme
Court held that it was wrongful because it had defeated the very purpose of the summary remedy.
Essentials
1. Possession of plaintiff must be valid, at the time of dis-possession.
2. Plaintiff must have been disposed of immovable property.
3. To dispossession must not have been made as per law.
4. Recovery suit must have been filed within six months.
5. Suit for recovery of possess cannot be filed against Government.
6. No appeal or review is allowed from any order or decree.
7. Process of recovery must be as per C.P.C
In Saraswathi v. S. Ganapathy AIR 2001 SC 1844 The Appellant and respondent had purchased
land in adjacent survey numbers. The Appellant encroached into the land of respondents and was in the
possession of more than what was purchased. The Appellant filed a suit to claim possession of property,
which they had never purchased under sale deed. The Supreme Court therefore held that the appellant
was not entitled for possession of property therefore the appeal was dismissed.
Recovery of Specific movable property:
Section 7 deals with recovery of specific movable property. It provides that a person is entitled to
the possession of specific movable property may recover it in the manner provided by the Code of Civil
Procedure 1908. The burden of proof was on the plaintiff to prove his case. He cannot take advantage
of the weakness of the defendant’s case.
Essentials
1. The plaintiff must have right to possession.
2. The property must be specific movable property.
3. Specific movable property must be seized and delivered.
4. Recovery suit must be made within three years
5. Specific property must have been wrongfully dispossessed.
6. The process of recovery must be as per C.P.C
Who can Sue?
1. A trustee may sue under this Section for the possession of movable property for the benefit
of person for whom the trust is created. Hence if trust property is taken away by someone, he
can recover it.
2. A person who has a special or temporary right to the present possession of movable property
is sufficient to support a suit under the Section.
In Bridge v. Hawkeswoth (1851) 21 LJ OB 75. The Defendant while purchasing some goods in
the plaintiff ship found some currency notes on the floor. Both the parties claimed the possession of
the currency notes. The Court held that even though the shop belonged to the defendant, the premises
should be treated as public place due to the accumulation of large number of customers. The defendant
had no possessory title. Hence the plaintiff was entitled to possession of currency notes found by him.
Liability to deliver possession to person entitled: Section 8: According to section 8 any person
having possession or control of a particular article of movable property without ownership, may be
compelled to deliver it to the person who is entitled to its immediate possession in any of the following
cases:
1. When the thing claimed is held by defendant as the agent or trustee of plaintiff
2. When compensation is inadequate relief for loss of thing claimed.
3. When it would be extremely difficult to ascertain actual damage caused by its loss
4. When possession of thing claimed has been wrongfully transferred from plaintiff. E.g. A gives
his watch to Z to for necessary repairs. Z retains it and does not return it to A. Z may be
compelled to deliver it to A.
Essentials
1. Defendant must have possession of specific movable property.
2. He must not be the owner.
3. The plaintiff must be entitled to immediate possession.
4. Property must be capable of being seized and delivered.
5. The recovery of possession must be made as per C.P.C
Differences between Section 7 and 8
1. A person having/who has a special or 1. No suit can be brought against the owner
temporary right to possession may bring the
suit even against the owner of the property.
2. A decree is for either the return of movable 2. The decree is passed only for the return of the
property or for the money value may be specific articles
passed.
Specific Performance of Contracts
Austin: Specific Performance is an equitable relief given by a Court in case of breach of contract
in the form of a judgment that the defendant is to actually perform the contract according to its terms and
stipulations. (Nelson, Specific Relief Act).
Nelson: The aggrieved party is entitled to insist on the actual performance of the contract or to
obtain satisfaction for the non-performance of it.
According to Austin the aggrieved party is entitled to insist on the actual performance of the
contract or to obtain satisfaction for the non-performance of it. There are two types of decrees of specific
performance in the following circumstances:
1. When compensation is neither adequate relief or nor it is proper and reasonable to grant
compensation.
2. When it become difficult and impractical to ascertain compensation.
Principles of specific enforcement:
Section 20: Granting of specific performance is an equitable relief and based on the principles
incorporated under Section 20 of the Specific Relief Act, 1963. The grant of a decree for specific
performance is subject salutary guidelines. The following fundamental principles are recognized and
generally applied by the Courts.
1. The grading the decree of specific enforcement is purely discretion of the Court.
2. The remedy of specific enforcement is not granted in cases where compensation is an
adequate relief.
3. Courts do not grant the decree of specific enforcement in cases, which require constant
supervision of the Court.
The specific performance of contract is an obligation enforceable by law. It is based on the principle
of equity. According to Section 9 the defendant may take all those defences, which are available to him
under any law relating to contract. e.g. defences such as incapacity of parties, fraud, mistake, undue
influence, coercion etc. provided under the Indian Contract Act.
Essentials:
In order to obtain the decree of specific performance the following must be fulfilled:
1. It is necessary to prove that are enforceable contract is in existence
2. It is necessary to prove that important provisions of the contract were certain
3. It is necessary to prove that the terms of the said agreement had been agreed or
4. It is necessary to prove that terms are settled orally but it need not be in writing
5. It is necessary that the contract in question should valid and enforceable
In Bishandayal & Sons v. State of Orissa AIR 2001 SC 544
It was held that a Government contract which is concluded without fulfilling the requirements
prescribed by Article 299 of the constitution of India cannot specifically enforced.
In Raj Kishore (Dead) by Legal Representatives v. Prem Singh and others 2011 i SCC 657 it
was held that in a suit for specific performance, it is mandatory for plaintiff to assert that he was always
ready and willing to perform essential terms of contract sought to be enforced against defendant.
In Pramod Buildings and Developers Private Ltd. v. Shanta Chopra 2011 4 SCC 741 the
Supreme Court held that in a suit for specific performance, burden lies on plaintiff to prove readiness and
willingness to perform his obligations in terms of contract.
In Aloka Bose v. Parmata Devi and Others 20092 SCC 582 the buyer made part payment on a
condition that the sale deed would be executed within three months and balance consideration money
would be paid at the time of execution of the sale deed. When buyer is ready to pay the balance amount
but seller did not execute the sale deed. Held the buyer entitled to decree for specific performance.
Contracts which are Specifically Enforceable
When can specific performance of a contract be enforced?
CONTRACTS WHICH ARE specifically enforceable: Section 10 deals with the cases in which
specific performance of contracts enforceable. Enforceability of contract is purely discretion of the Court
in the following cases.
I. No standard to as actual damage: Section 10:
1. When there is no standard for ascertaining the actual damage caused by non-performance of
the act agreed to be done, or
2. When the act agreed to be done is such that compensation in money for its non-performance
would not afford adequate relief. e.g. A agrees to buy, and B agrees to sell, a picture by a
dead painter and two rare chine Vases. A may compel B specifically to perform this contract,
for there is no standard for ascertaining the actual damage which would be caused by its non-
performance.
II. No Standard to ascertain damages: Section 10(a):
Where there is no standard for ascertaining the actual damage caused by non-performance of the
act agreed to be done specific performance can be enforced.
III. Inadequacy of monetary compensation: Section 10(b):
When the act agreed to be done is such that compensation in money for its non-performance
would not afford adequate relief specific performance is permissible. e.g. A contract with B to sell him a
house for Rs.1,00,0000/- B is entitled to a decree directing A to transfer the house to him, he paying the
purchase money.
In Veerayee Ammal v. SeeniAmmal (2002) 1SCC 134: AIR (2001) SC 2920 The parties did not
conclude the contract. The Supreme Court held that where there is no concluded contract between the
parties to the contract, the relief of specific performance cannot be enforced. Therefore the defendant
was not liable.
In Maharshi Dayananda University v. Anand coop L/C Society Ltd 2007AIR (SC) 2441 it was
held that so long as a formal agreement has not been entered into, it may be open to contend that there
was no concluded contract between the parties.
In Pramod Buildings and Developers Private Ltd v. Shanta Chopra 2011 4 SCC 741 held, in
a suit for specific performance, burden lies on plaintiff to prove readiness and willingness to perform his
obligations in terms of contract.
In Pramod Buildings and Developers Private Ltd v. Shanta Chopra 2011 4 SCC 741 the
Supreme Court held that in a suit for specific performance, burden lies on plaintiff to prove readiness and
willingness to perform his obligations in terms of contract.
In Abdul Rashid Khan v. P.A.K.A. Shahul Hamid (2000) 10 SCC 636 A joint owner of the property
executed a sale deed to the extent of his 5/6th share, who his co- sharer has not joined him to do so.
The Supreme Court upheld the decree passed by that the plaintiff is entitled for decree for specific
performance to the extent of his share.
IV. Specific performance of trust: Section 11(1):
The Contract connected with trusts can be specifically enforced either at the instance of the
beneficiaries or at the instance of the trustees, but a contract made by a trustee in excess of his powers
or in breach of trust cannot be specifically enforced. Specific performance is granted in case:
1. Agreement to sell or transfer immovable property
2. Agreement to make lease
3. Agreement to sell with a condition for repurchase
4. Agreement to partition
5. Compromise of doubtful claims
6. Family settlement and agreement for sale of shares
7. A contract for the purchase of the share of a partner
V. Specific performance of part of contract: Section 12:
According to Section 12 provides the Court shall not grant specific performance of a part of a
contract.
Exceptions: Clauses (2) to (4) are the exceptions to such rule. Where the part which cannot be
performed bears only a small portion to the whole in value and the unperformed part can compensated
adequately in terms of money, the Court may order specific performance of one part and compensation
for the other.
In Surjit Kaur v. Naurata Singh AIR 2000 SC 2927 It was held that specific performance cannot
be granted to a party who has not been ready and willing at all stages to perform the contact. In such
case there can be no specific case there can be no specific performance of a part of the contract at a
later stage.
VI. Acquiring power of performance subsequently: Section 13: When a person enters into
a contract without the power for performing that contract and subsequently be acquire the power of
performing the same, he is bound to perform it. This Section applies only to sale and lease.
Contracts which Cannot be Specifically Enforced
Section 14
CONTRACTS WHICH CANNOT be specifically enforced: Section 14 deals with contracts, which
cannot be specifically enforced, or which cannot be compelled for specific performance. According to
Section 14, the following contracts cannot be specifically enforced.
1. Contracts with adequate monetary compensation: Section 14 (1) & (9) provides that a contract
for the non-performance of which compensation in money is an adequate relief, cannot be
specifically enforced.
2. Contracts involving personal skills: Section 14(1)(b) provides that contracts depending on
minute, or numerous details or volition (Personal skill or qualifications of the parties cannot be
specifically enforced. e.g. contracts involving performance of artistic skills, like contract to sing, to
paint, to act, etc cannot be enforced, but the only remedy available is to save for damages.
In Lumley v. Wagner 1 DM & G 604 : 91 RR 193 A singer the defendant agreed to sing only
at the plaintiff’s theatre for certain period, but within such period she entered into agreement to
sing at some other theatre and refused to sing at the plaintiff’s theatre. The plaintiff filed a suit for
specific performance of contract. The Court held that such contract cannot be specifically enforced
therefore the relief available for the plaintiff is only to claim damages for breach of contract.
In Ram Sahan Rai v. Sachin Samanaya Prabandhak AIR 2001 SC 1173
A District Co- operative Bank having the authority of State without following Rules, Regulation and
principles of natural justice, illegally dismissed an employee and the employee sued the bank and
requested the Court to declare that the order of his removal as illegal, null and void. The trial Court
and High Court dismissed the suit and found that the suit must not maintainable. Finally Supreme
Court set aside the judgment and decree of High Court and held that the dismissal of employee
was illegal.
3. Contracts, which are determinable by their nature: Section 14(1)(c) provides that contracts
which are determinable (ascertainable) by this nature cannot be specifically enforced.
4. Contracts requiring continuous constant supervision: Section 14(1)(d) provides that a contract
the performance of which involving continuous duty which the Court cannot supervise, cannot be
specifically enforced.
5. Contracts to refer arbitrator: Section 14(2) provides that a contract to refer present or future
differences to an arbitrator cannot be specifically enforced. An arbitration agreement operates as a
bar to the filling of a suit.
6. Other contracts which cannot be specifically enforced:
1. Contract without consideration or
2. Contracts based one illegal or immoral agreement
3. Contracts without mutuality
4. Contract to selling or letting the property without title S.17
5. Contracts against the terms and stipulations Sec 18
6. Suit for performance of contract based on false and incorrect facts Sec 2
7. Contracts giving unfair advantage to plaintiff over the defendant. Sec 20(2)(a)
8. Contract involving hardship on defendant, which he did not foresee Sec 20(b)
9. Inequitable contract or one-sided contracts. Sec 20(2)(c)
10. Contract for personal service
11. Contract based an illegal motive Evaluation
12. A contract to build or repair a house
13. Void agreements or contracts
Rectification of Instruments
Section 26
RECTIFICATION MEANS CORRECTION, amendment, adjusting. Rectification of instrument
means correction of mistake in a document. Such mistake may be a fraud or by a mutual error. According
to Section 26(1) when a written contract of other document which does not express the real intention
through fraud or a mutual mistake of the parties, either party or their representatives may approach the
Court for rectification of such document. If the mistake is unilateral then the relief of cannot be obtained.
An order for rectification can be made when the intention of both the parties is same.
Object: Sometimes the real intention of the parties may not be expressed in a document by slip or
mistake. In such case rectification is allowed. The mistake in the instrument of a contract is corrected by
the Court to bring out the real intention of the parties. The mistake may be either of fact or of law.
Effect of Rectification: The instrument represents the true intention of the parties and after
rectification. Rectification removes all previous defects, ambiguities and uncertainties.
Who can apply for rectification?
1. Either party to the suit or his represent. Sec 26(1) (a)
2. The plaintiff. Sec 26(1)(b)
3. The defendant. Sec 26(1)(c)
In Subhadra and Others v. Thankam 2010 11 SCC 514 it was held that the relief of rectification
can be claimed where contract was entered either by through fraud or a mutual mistake of the parties.
Cancellation of Instruments : Section 31-33
CANCELLATION OF INSTRUMENTS: When a contract is void or voidable, and has reasonable
apprehension or fear that such instrument may cause him serious injury may sue for cancellation of
instrument and the Court may, in his discretion declare the contract as that void or voidable and cancel
that instrument.
Essentials
1. The contract must be in writing
2. The contract must be void or voidable
3. The party must have reasonable apprehension of causing injury if not cancelled
Such party must file a suit and party to declare the contract as void or voidable. A conveys land
to B, who bequeath it to C and dies. There upon D gets possession of the land and produces a forged
instrument stating that the conveyance was made to B in trust for him. C may obtain the cancellation of
the forged instrument.
Partial cancellation: As per Section 32: The Court may cancel the written instrument partially
based on the evidence of different rights or different obligation.
Effect: The parties are restored to their original position. Any benefit received from the other party
must be restored to such party.
Object: The relief of cancellation of instruments is granted to prevent the use of any vexation or
injurious instruments which causes the future injury or loss.
Essentials:
1. The written instrument must be void or voidable
2. The plaintiff must face apprehension of harm or injury by theft of instrument
3. The case must be fit for the exercise of the Court’s discretion to grant the order
Limitation: A suit for cancellation of an instrument must filed within 3 years from the date when the
fact entitling the plaintiff where the instrument cancelled first becomes known to him.
Declaratory Decrees
Section 34 and 35
DECLARATORY DECREES: LAW relating to declaratory decrees is dealt under Section 34 and
35. A declaratory decree of Court is a decree, which declares that the plaintiff is entitled to any legal
character, or to right as to any property against defendant, who denies his title. It is a declaration by way
of a decree that the plaintiff is entitled to specific legal right to property. The object of declaratory decree
is to prevent future litigation by removing the existing cause of the controversy.
Essentials
1. Plaintiff must be entitled to any legal character or to any right as to any property.
2. Defended must have denied or is interested to deny character or title of plaintiff
3. Plaintiff must pray for declaration of his legal character or title
4. Plaintiff must not pray for further relief
Is declaratory decree a right? A declaratory decree cannot be claimed as a right. The Court has
discretion either to grant or not to grant. It is granted only to put an end to disputes but not to cause
hardship to the parties.
In Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and Others AIR 2008 SC 306 the Court
held that mere fact that probate of will was granted by competent Court in respect of property and it does
not bar civil suit for declaration of title and permanent injunction in respect of the same property under
Specific Relief Act, 1963.
When Court may not grant declaratory relief?
1. When the conduct of plaintiff has been fraudulent
2. When the plaintiff interest is too remote
3. When the right is claimed in anticipation of a contingency, which may never arise
4. When the allegation of the plaintiff is false and baseless
5. When the defendant does not deny plaintiffs right or claim
6. When the plaintiff’s not the real parties but those who are behind the litigation
7. When the suit is of a speculative nature
8. When the plaintiff seeks a negative declaration so as to infringe right of defendant
Injunction
Preventive Relief
INJUNCTION IS AN order of the Court, which prohibits commencement, or continuance of a
wrongful act. According to Lord Halsbury “an injunction is a judicial process whereby a party is ordered
to refrain from doing or to do a particular act or thing”.
Illustration: A lets certain land to B, and B contracts not to dig sand or gravel there out. A may sue
for an injunction to restrain B from digging in violation of his contract.
While exercising its discretionary powers the Court must keep in mind in well-settled principles of
justice, equity of and fair play. An injunction will not be granted in the following circumstances:
1. Where damages are the appropriate remedy
2. Where injunction is not the appropriate relief
3. Where the plaintiff is no entitled to an injunction
4. Where the contract cannot be specifically enforced
5. Where the injunction would operate inequitably
Kinds of Injunction: Section 37:
1. Temporary or Interlocutory injunction
2. Perpetual or Permanent injunction
When Temporary Injunction is granted? Section 37:
Temporary injunction may be granted if it is proved:-
1. That any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
2. That the defendant threatens, or intends, to remove or dispose of his properties with a view to
defraud his creditors.3. That the defendant threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute in the suit. or
Conditions to grant temporary injunction: Section 37:
1. The plaintiff must establish a prima facie case. The clear title need not be established but
there must be a substantial question to be investigated and that matters should be preserved
in status quo until the injunction is finally disposed of.
2. An irreparable loss or injury would result it the injunction is refused and there is no other
remedy open to the applicant by which he could protect himself from the consequences of the
apprehended injury.
When perpetual injunction is granted? Section 38:
1. Perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation
existing in his favour, whether expressly or by implication
2. When any such obligation arises from the specific performance of contracts
3. When the defendant invades or threaten to invade the plaintiff’s right to or enjoyment of
property,
Condition to grant perpetual injunction
1. There must be a legal right express or implied in favour of the applicant.
2. Such right must be violated or there should be a threatened invasion.
3. Such right must be in existence.
4. The case should be fit for exercise of Court’s discretion.
When injunction cannot be granted: Section 41:
An injunction cannot be granted:
1. To restrain any person from prosecuting a judicial proceeding pending at the institution of
the suit in which the injunction is sought, unless such restraint is necessary to prevent a
multiplicity of proceedings.
2. To restrain any person from instituting or prosecuting any proceedings is Court not subordinate
to that which the injunction is sought.
3. To restrain any person from applying to any legislative body.
4. To restrain any person from prosecuting any proceedings in a criminal matter.
5. To prevent the breach of a contract the performance of which would not be specifically
enforced.
Breach of Injunction: Section 94(C) and Rule 2-A of Order 39, Civil Procedure Code provide
the consequences of breach of injunction. The Court may order the property of the person to attached
and also order such person yet to be detained in the civil prison for a term not exceeding three months,
unless in the meantime the Court directs his release. The disobedience or breach continues, the property
attached may be sold and out of the proceeds the Court may award such compensation as it thinks fit to
the injured party.
Grant of injunction: The Court is not bound to grant an injunction in every case. Sunil Kumar v.
Ram Prakash (1988) 2 Sec 773. A coparcener field a suit for permanent injunction to restrain the Karta
of the Joint Hindu Family from transferring the joint family property in pursuance of a sale agreement with
a third party. The Court held that such an injunction could not be granted. Therefore the plaintiff was not
entitled for grant of injunction.
**********
3. LAW OF TORTS
Nature of Torts
Tort is a species of civil injury or wrong. The distinction between civil and criminal wrongs depends
on the nature of the appropriate remedy provided by law. An action for damages is the essential mark
of tort.
Liquidated and unliquidated damages.
Salmond’s definition of tort. Winfield’s criticism and definition.
Is there a general principle of liability?
The views of Salmond, Winfield and others.
General characteristics of tortious liability.
Forms of action and liability.
The meaning of intention, negligence, strict liability and vicarious liability. Is fault an essential
condition of liability.
The standard of reasonable man and its relevance in the law of torts.
Essential of a Tort
1) Act or Omission
2) Legal Damage
• Injuria Sine Damno
• Darnnum Sine injuria
Malice in the sense of action determined by improper motive is generally irrelevant in the law of
torts. Bradford (Mayor of) V. Pickles.
Assault and Battery
Nature and limits.
Cases: Coward v. Baddeley
Kadar v. Alagarswamy
Tuberville v. Savage
Lunes v. Savage
Stephens v. Myers
False imprisonment - Means complete deprivation of his liberty for any time without lawful cause.
Meaning of ‘false’ ways of committing the tort of false imprisonment. Can a man be imprisoned
without knowing it?
Grainger v. Hill
Meering v. Graham white aviation company
Ram Pyare Lal v. Om prakash
Restraint must be complete:
Bird v. Janes
Mee v. Cruikshank
Means of escape to be reasonable.
Imprositian of reasonable conditions:
Robinson v. Balmain Ferry Co.
Herd v. Weardale etc., Ferry Co.
76 LAW OF TORTS
Remedies: Judicial and extra - judicial
i) self help, 2) Habeas Corpus 3) Action for damages
Nervous Shock
A form of personal injury far which damages may be recovered in certain circumstances.
Cases: Wilkinson v. Downton
Dulieu v. White-Contrasted with
Hambraok v. Stokes Brothers
King v. Philips
Bourhill v. Young
Dooley v. Cammeli Laid & Co.
Defamation
It consist in the publication of a false statement concerning the plaintiff which tends to lower him
in the estimation of right thinking members of society or which tends to make them shun or avoid him.
Clay v. Robert
1. Libel: Representation made in some permanent form (e.g.) writing, printing on pictures.
2. Slander: Publication of a defamatory statement in a transient form (e.g.) words or gestures.
Under Indian Law
South Indian Railway Co., v. Ramakrishnan
Libel and slander.
Youssoupoff v. M.G.M. Pictures Ltd.
Dunlop Rubber Co. v. Dunlop
Byrene v. Deane
Ingredients of defamation
Reference to the plaintiff :
Le Fanu v. Malcolmson
Innocence no defence:
Hulton & Co. v. Jones
Newstead v. London Express Newspapers Ltd.
Words to be defamtory.
Capital and
Counties Bank v. Henty
Lews v. Daily Telegraph Ltd.
Innuendo, meaning of
1. Capital and Counties Bank v. Henty and sons.
2. Morrison v. Ritihie & Co.,
3. Newstead v. London Express Newspaper Ltd.
4. T.V. Ramasubha Iyer v. A.M.A. Mohindeen.
Defamation of a class of persons. Defamation of the deceased person.
Pullman v. Hill.
Communication between Husband and Wife.
1. T.J. Ponner v. M.C. Verghese
2. Theaker v. Richardson.
77 LAW OF TORTS
Defences
1. Justification or Truth
2. Fair Comment
3. Privilege which may be either absolute or qualified
Rajinder Singh v. Durga Sahi
Tolley V.J.S. Fry & Sons Ltd., knowledge of the defendant is immaterial. Cassidy v. Daily Mirror
Newspapers Ltd., Juxtaposition: Monson v. Tussauds Ltd.
Unintention defamation: Provisions of defamation Act. 1952 (of England)
Publication:
Theaker v. Richardson
Sadgrove v. Hole
Huth v. Huth
Emmens v. Pattie
Vzetelly v. Mudies select Library
Martin v. Trustees of British Museum
Defences: Justification literal truth unnecessary
Alexander v. North Eastern Railway Co.•
Fair Comment:
Dakhyl v. Labouchee
Kemsley v. Foot
Privilege, absolute and qualified, consent and apology.
Negligence
Negligence means either (1) a mode of committing certain other torts e.g. nuisance or trespass or
(2) an independent wrong that is a breach of a legal duty to take care which results in damage, undesired
by the defendant, to the plaintiff. Nature and extent of the duty to take care. Vaughan v. Menlove; Rule
in Donoghue v. Stevenson; “You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The
answer seems to be persons who are so closely and directly affected by my act that I ought reasonably
to have them in contemplation as being so affected when I am directing my mind to the acts or omissions
are called in question”.
1. Donoghue v. Stevenson.
2. Rural Transport Service v. Bezlum
3. The Municipal Board v. Brahm Kishore.
No liability when injury not foreseeable
1. Cates v. Mongini Bros.
2. Ryan v. Young.
Reasonable foreseeability does not means remote possibility
Cases: In Fardon v. Harcourt - Rivington
Home Office v. Dorset Yacht Co.
Glasgow Corporation v. Muir
Booker v. Wenborn
Carmarthensive
Country Council v. Lewis
Fardon v. Harcourt. Revington
Bourhill v. Young
78 LAW OF TORTS
Weller & Co. v. Foot and mouth Disease Research Institute
Haley v. London Electricity Board
Impertia culpa adnumeratur. It is a negligent act to voluntarily do a thing which can be safely done
only by a person with special skill. Dr. Laxman Barkrishna joshi v. Dr. Trimback Bapu Godhole.
Standard of Care:
Cases: Bolton v. Stone
Hilder v. Associated Portland Cement Manufacturers Ltd.,
Paris v. Stepney Borough Council
Weithers v. Perry Chain Co.,
Watt v. Hertfordshire Country Council
Latimer v. A.E.C. Ltd.,
The Magnitude of Risk
1. In Nirmala v. Tamil Nadu Electricity Board
2. Veeran v. Krishnamoorthy
3. Pandian Roadways Corporation v. Karunanidhi.
4. Glasgow Corporation v. Taylor.
Res Ipsa loquitur. The ancient speaks for itself. A rule of evidence and not of liability, Conditions
for the operation of this principles as laid down in Scott. v. London and St.
Catherine Docks Co.
Cases: Gee v. Metropolitan Railway Co.
Eassen v. L.N.E. Railway Co.
Byrne v. Boadle.
Words v. Duncan
Municipal Corporation
of Delhi v. Subhagwanti
Alka v. Union of India
Karnataka State Road
Transport Corporation v. Krishnan
Gangaram v. Kamlabai
POSITION AT COMMON LAW
Contributory Negligence : If the plaintiffs own negligence was the decisive cause of the accident
or so closely implicated with the negligence of the defendant as to make it impossible to determine
whose negligence was the decisive cause, the plaintiff cannot recover.
Butterfield v. Forrester
Changes made by law reform (contributory Negligence) Act 1945
Davies v. Swan Motor Co. (Swansea) Ltd.
Davies v. Mann, “the last opportunity rule” British Columbia Electric Railway
v. Loach fee constructive “Last opportunity rule”
Oliver v. Birmingham & Midland Motor Omni bus Ltd.
Stapley v. Gypsum Mines Ltd.
Yachuck v. Oliver Blais Co. Ltd.,
79 LAW OF TORTS
Rural Transport
Service v. Bezlum Bibi
Yoginder Paul
Chowdhury v. Durgadas
The Last Opportunity Rule: Radley v. L&N W.R. Railways

The occupier of land who brings and keeps upon it anything likely to do mischief if it escapes is
bound at his peril to prevent its escape, and is liable for all the direct consequence, of its escape, even if
he has been guilty of no negligence.
Rylands v. Fletcher
Escape necessary: Land must have been put to non-natural user. Exceptions to the rule.
Cases: Read v. Lyons
Hele v. Jennings Bros.
Carstairs v. Taylor
Box v. V.Jubb
Northwestern
Utilities v. London Guarantee and Accident Co.,
Nichols v. Marsland
Green v. Chelsea water works Co.,
Charing Cross
Electricity supply Co. v. Hydraulic Power Co.,
Ponting v. Noakes.
Rules of Absolute Liability
(i) Sochacki v. Sas
(ii) Noble v. Harrison
(iii) Richards v. Lothian
(iv) Green v. Chelsea Water Works Co.,
(v) M.C. Mehta v. Union of India
Dangerous Animals
1. Ordinary liability in tort 2. Cattle trespass 3. Liability under the scienter rule.
Two classes of animals: 1 ) Ferae nature 2) Mansuetae nature.
Nature of liability,
Defence:
1. Contributory negligence.
2. Act of God.
3. Plaintiff of trespasser.
4. Valenti non fit injuria
5. Fault of the plaintiff.
Cases: Buckle v. Holmes
Tirlett v. Holmes
May v. Burdett
80 LAW OF TORTS
Behrens v. Bertram Mills Circus Ltd.
Mequaker v. Goddard
Hudson v. Roberts
Fitzgerald v. Cooke Bourne (Farms)
Rands v. Mc Nell
In Animals Act, 1971 animals ferae nature become animals which belong to dangerous species
and animals man suetae nature become animals not belonging to dangerous species provisions, of the
Act.
TRESPASS TO GOODS AND CONVERSION
Trespass to goods consists in wrongful physical interference with possession of goods. Remedies:
1. Detinue 2. Replevin
Conversion: Wrong against ownership
Kinds of conversion. (a) Conversion by taking: Fouldes v. Willough by (b) Conversion by detention,
(c) Conversion by wrongful destruction. (d) Miscellaneous forms of conversion. Defence (a) Lien (b)
Right of stoppage in transit (c) jus tertii (d) goods taken under distress or under execution (e) Retaking
good in wrongful possession of another.
Finders: If true owner is not discoverable finder has a better title than any person.
Armony v. Delamirie
Bridges v. Hawhesworth.
Hannah v. Peel Exception.
Kirk v. Gregory.
Conversion or Trover
(i) Richardson v. Atkinson
(ii) Rooplal v. Union of India
If the article found is attached to or lying under the surface of the landowner of the land is entitled
to it in priority to its finder:
Cases:
Elwes v. Briggs Gm Co.
Southstaffordshire
water works Co., v. Sharman
London Corporation v. Appleyard
Interference with a Subsisting Contract:
(a) By direct persuasion: Lumley v. Gye. But no action will lie for inducement of a breach of contract
which is void; ego wagering contract, contract in restraints of trade (b) direct interference; G.W.K. Ltd. v.
Dunlop Rubber Co. (c) Indirect action J.T. Stratford & Sons Ltd v. Lindley.
Deceit :
This tort was first stated in pasley v. Freeman. If the defendant makes wilfully a false statement
with the intention that the plaintiff shall act relying on it, with the result that he so acts and suffers harm
as a consequence, he is guilty of wrong of deceit. Misrepresentation must be a false statement of fact
& not a more broken promise.
81 LAW OF TORTS
If, at the time when defendant made the statement, he had no intention of fulfilling it, he is liable for
deceit. Edington v. Fitmaurice.
Blundering but honest belief in an honest allegation cannot be deceit, Derry v. Peek.
False statement must be made with the intention that the statement shall be acted upon by plaintiff.
Peek v. Gurney Exceptions to rule in Derry v. Peek.
Nocton v. Ashburton : Negligent Misstatement: Hedley Byrne & Co., Ltd. v. Heller & Partners Ltd.
Liability for Dangerous Premises:
Liability based on occupancy or control, and not on ownership: Four kinds of visitors under
common law. 1) Contractor 2) Invitee 3) License and 4) Trespasser Duties to them. Changes made by
the Occupiers Liability Act 1957.
Cases: Francis v. Cockrell
Indermaur v. Dames
Fairman v. Perpetual Building Society
Mumford v. Naylor
Hardcastle v. South Yorkshire Railway Co.
Bird v. Holbrook
Duty to children
Coote v. Midland Great Western Railway of Ireland
Lathan v. V.R. Johnson & Nephew Ltd.
Phillips v. Rochester Corporation
Moloney v. Lambeth Borough Councill
Trespass to Land
Ways of committing the wrong of trespass to land. Trespass to subsoil. Trespass on highway.
Hickman V. Maisey, Trespass and Nuisance. Trespass by relation : immediate right to pass. Continuing
trespass. Holmes V. Wilson Interference with air space. Wilson V. Imperial Tobacco Co. Trespass ab
initio: Six carpenters case Elias v. Pasmore Defence: justification by law licence Remedies: 1. Re-entry
2. Ejectment 3. Jus tertii. 4. Action for Mesne profits cases
(i) Hemmings v. Stoke Pogs Golf Club
Distress Damage Pheasant
Nuisance is unlawful interference with a persons use or enjoyment of land or of some right over
or in connection with it, public nuisance and private nuisance. Nuisance to incorporeal property. Right
of support, Right to light and air: Right to water. Relevance of malice in nuisance: Who can sue for
nuisance? Who can be sued for nuisance?
Nuisance Cases:
Dr. Ramraj Singh v. Babulal
Radhey Sham v. Guruprasad
Stone v. Bolton
St. Helen’s Smelting Co. v. Tipping
82 LAW OF TORTS
Case Law:
Barber v. Penley
Nuisance on highway
Defences: Valid and invalid defence
Cases: Rose v. Milles
Health v. Mayor of Brighton
Robinson v. Kilvert
Coil v. Home & Colonial Service
Christie v. Davey
Hollywood Silver
Fox Form Ltd. v. Emmett
Fay v. Pentice
Fritiz v. Hobson
Noble v. Harrison
Tarry v. Ashton
Bliss v. Hall
Adams v. Ursell
Sturges v. Bridgman
Dangerous Chattels:
There is really no category of dangerous things: there are only some things which require more and
some which require less care. Liability to immediate transferee: Godley v. Perry:
Liability to ultimate transferee liable for fraudulent representation misleading the recipient into
causing damage to the plaintiff.
Langridge v. Levy
Liability for negligence liable if he has been guilty of a breach of a duty of care owed to the plaintiff.
Rule in Donoghue v. Stevenson a manufacturer of products, which he sells in such a form as to show
that he intends them to reach the ultimate consumer in the form in which he left him with no reasonable
possibility of an intermediate examination and with the knowledge that the absence of care in the
preparation or putting up of products will result in injury to the consumers life or property, owes a duty to
the consumer to take that reasonable care.
Cases: Brown v. Cotteril
Andres v. Hopkinson
Grant v. Australian knitting Mills Ltd.
Evans v. Triplex Safety-Glaxo Co.
Kubach v. Ho
Injurious Falsehood:
It consists in false statement made to other about the plaintiff as a result of which he suffers loss
through the action of the others.
Ratcliffe v. Evans
Passing off: One trader represent in his goods or services as those of another. While Hudson & Co.
Ltd. v. Asian organization Ltd.
Hendriks v. Mantaque
Reddaway v. Benhan
Fels v. Hedley & Co.
Benme & Co, Ltd v. Moore Ltd.
83 LAW OF TORTS
Jays Ltd. v. Jacobi
Parker-Knold Ltd v. Knoll international Ltd
Day v. Brownrigg
Conspiracy
It consists in agreement of two or more persons to do an unlawful act, or to do a lawful act by
unlawful means.
The Moghul case
Allen v. Flood
Quinn v. Leatham
Moghul steamship Co. v. Mcgregor Gow & Co.
Crafter Hand Woven
Harris Tweed Co. Ltd. v. Veitch.
Soreil v. Smith
Scala Ball room
(oliver hampton) Ltd. v. Ratcliffe.
Malicious Prosecution:
It consists in instituting unsuccessful preceding maliciously and without reasonable and probable
cause against a person which result in damage to him.
Abrath v. North-eastern Railway
Infringement of privacy, It is interference with another person’s seclusion of himself, his family or
his property from the public.
Williams v. Settle
Monson v. Tussand’s Ltd.
Gokul Prasad v. Radho
Komathy v. Gurunanda
MINOR: A minor can sue for torts committed against him just like an adult. He is as much liable to
be sued for torts as it and adult.
Gorley v. Codd
O’Brain v. McNamee
An action based on contract cannot be converted into an action of tort.
Leslie v. Sheil
Jennings v. Rundall
Branard v. Haggis
Batlet v. Mingay
Parents are not as such responsible for their children’s torts
Newton v. Edgerley
Goriey v. Codd
INSANITY: It is not in itself a ground of exemption from liability for tort.
Morris v. Marsden
CORPORATION: A corporation can sue for torts committed against it. It is liable for torts committed
by its agents or servants provided the tort is committed in the course of doing that act which is within the
scope of the powers of the Corporation.
Poulton v. L.& N. W. Railway Company
Compbell v. Paddington Corporation.
84 LAW OF TORTS
JUDICIAL ACTS: If the judge acts within his jurisdiction no action lies for acts done or words
spoken by him in exercise of his judicial office, although his motive is malicious and the acts or words are
not done or spoken in the honest exercise of his office.
Judicial officer’s Protection Act, 1850
Sailajanand Pande v v. Suresh Chandra Goel, State of U.P. v. Tulasiram protection is only for
judicial acts, and not for administrative or ministerial acts.
JOINT WRONGDOERS: Their respective shares in the Commission of the wrong are done in
furtherance of the common design.
Brooke v. Bool
Liability is joint and several Nature of liability
Brinsmead v. Harrison
Provisions of Law Reform (Married Women And Tort Feasors) Act, 1935
Whether one wrongdoer, who had paid damages, has a right to claim compensation from other
wrongdoers?
Merryweather v. Nixon
Adamson v. Jarvis
The law Reform (Married Women and Tort Feasors) Act, 1935 enables a wrongdoer to claim
contribution from the other wrongdoers. Successive actions on the same facts of the case:
More than one action will not lie on the same cause of action.
Fritter v. Veal
If there are two distinct causes of action successive actions will be permitted.
GENERAL DEFENCES
VOLENTI NON FIT INJURIA - That to which consent is given cannot be complained of as an injury.
It applies to intentional and negligent harm. The consent must be real.
Cases: Hall v. Brooklands Auto Racing Club.
LIMITATION
Rescue Cases :- Haynes v. Harwood
(1) Mere knowledge of the risk is not the same as consenting to the risk. The Maxim is volenti non
fit injuria not scienti non fit injuria.
Smith v. Baker & Sons (1981) 60 L.J.Q.B. 683 (1981) A.C. 325.
Smith was employed by Baker & Sons in their stone Ouarry. He worked in a cutting operation. On
his top a crane often jobbed (swing) heavy stones over his head while he was drilling the rock facing in
the cutting. Both he and his employers knew that there was a risk of the stone falling, but no warning
was given to him of the movement at which any particular jibbing was to commence. A stone from
the Crane fell upon and injured him, HELD by a majority of the House of Lords that (1) Smith had not
voluntarily undertaken the risk; (2) there was negligence on the part of his employers and therefore (3)
the employers were liable.
In the case of Master and Servant the maximum should be applied with very great caution where
a person undertakes to do work which is intrinsically dangerous, now withstanding that reasonable care
has been taken to render it as little dangerous as possible, he no doubt voluntarily submits himself to the
risk inevitably accompanying it; but in the case of ordinary occupations, mere knowledge of the risk does
not necessarily amount to consenting to the risk). Imperial Chemical Industries V. Sharwell.
Dann v. Hamilton (1939) I.K.B. 509.
The plaintiff voluntarily chose to travel by motor car though she knew that the driver of the car
was under the influence of drink and though she could have her journey by bus. She was injured in an
accident caused by the driver’s drunkenness.
85 LAW OF TORTS
HELD She could recover damages. Mere Knowledge of the risk is not the same as consenting to
the risk.
Insurance Commissioners v. Joyce.
(2) The maxim has no application to ‘Rescue cases’.
Haynes v. Harwood (1935) I.K.B. 146.
The defendant’s servants had left his van and horses unattended in a crowded street. The horses
bolted when a baby threw a stone at them. The plaintiff was a police constable who was on duty in a
nearby police station. He saw that if nothing was done a woman and children were in grave danger, and
with great personal risk he managed to stop the horses but in doing so he suffered serious injuries to
rescue cases.
In an action against the defendants it was held that the plaintiff was entitled to recover damages.
The maxim Volenti non fit injuria has no application to rescue cases.
M v. Aylen
The plaintiff was in the habit of accompanying a small child home from school. One day when
returning from school the child has stepped on to the road from the pavement when the plaintiff saw the
defendant who was riding his motorcycle approaching at a rash speed. The child was in great danger of
being knocked down, when the plaintiff rushed on to the road to try to save the child but in the process
she herself was knocked down by the motor cyclist and injured.
It was held that she was entitled to recover damages from the motor cyclist as the maximum volenti
non fit injuria has no application to rescue cases.
Cutlet v. United Diaries
Baker v. T.E. Hopkines & Sons Ltd.
Videan v V. British Transport Board.
INEVITABLE ACCIDENT
“An accident not avoidable by any such precaution as a reasonable man, doing such an act then
are there, could be expected to take” - Polock.
The Nitro - Glycerine Case 15 Wall 524 (1872).
The defendants, a firm of carriers, received a wooden case at New York to be carried to California.
‘There was nothing in its appearance calculated to awaken any suspicion as to its contents’. On arriving
at San Franciseo it was found that the contents were leaking. The case was then, according to the
regular course of business, taken to the defendant’s office (which they had rented from the plaintiffs
(or) examination. A servant of the defendants proceeded to open the case with mallet and chisel the
contents being Nitro-Glycerine exploded, and all the persons present were killed and the plaintiffs
building damaged. The action was brought by the plaintiff for damage to his building. It was found as a
fact that the defendants had not, nor had any of the person concerned in handling the case, knowledge
or means of knowledge of its dangerous character, and that the case had been dealt with in the same
way that other cases of similar appearance were usually received and handled and the mode that men
of prudence engaged in the same business would have handled cases having similar appearance in the
ordinary course of business when ignorant of their contents.
HELD: Defendant was not liable as the damages was due to an inevitable accident.
(No one is responsible for injuries resulting from unavoidable accident whilst engaged in a lawful
business.)
Brown v. Kendall 6. Cush. 292. 1850
The plaintiff’s and defendant’s dogs were fighting. The defendant was beating them with a stick in
order to separate them while the plaintiff was looking on. The defendant retreated backwards from before
86 LAW OF TORTS
the dogs, striking them as to be and as he approached the plaintiff, ‘with his back towards’ him, in raising
his stick over his shoulder in order to strike the dog he accidentally hit the plaintiff in his eye thus causing
him a severe injury.
In an action for trespass for assault and battery the Supreme Court of Massachusetts held that this
act of defendant in itself was a lawful and proper act which he might do by proper and safe means; and
that in doing this act, using due care and all proper precaution necessary to the exigencies of the case
to avoid hurt to others, in raising his stick for the purpose, he accidentally, hit the plaintiff in the eye and
wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore
the action would not
All that could be required of the defendant was the exercise of due care adopted to the exigency
of the case.
Holmes v. Mather L. R. 10 Ex 44. (1875)
The defendant was out with a pair of horses driven by his groom. The horses ran away and the
groom being unable to stop them, guided them as best as he could. But he failed to get them round the
corner and they knocked down the plaintiff.
The jury found there was no negligence. It was argued on the authority of the old cases that a
trespass has been committed. The court refused to take this view, but said nothing about inevitable
accident in general.
“For the convenience of mankind in carrying on the affairs of life, people as they go along roads
must expect, or put up with, such mischief as reasonable care on the part of other cannot avoid”.
Stanley v. Powell (1898) I. Q. B. 86
The plaintiff and the defendant were members of a shooting party. The defendant fired his gun a
peasant which rose, but not in the direction of the plaintiff, but a pellet from the cartridge glanced off the
bough of a tree and destroyed the eye of the plaintiff who was employed in carrying cartridges for the
shooting party.
The plaintiff sued the defendant who was held not liable for negligence because there was none,
nor for trespass to the person because the harm was accidental in the same that there was no negligence
or want of due caution in its occurrence. Denman J. based his decision on the ground that even if the
action were in trespass, not case, the injury being accidental the defendant could not be liable.
MISTAKE: Mistake, of law, of fact, no excuse, Consolidated Co. v. Curtis.
ACT OF GOD
Not a general defence like inevitable Accident but restricted to caution based upon the rule in
Rylands v. Fletcher and other instances of Strict or Absolute liability. It is due of operation of Natural
forces in which there is no human agency involved.
Nichols v. Marsland (1876) 2 Ex. D.1.
The defendant had constructed several artificial ornamental lakes on her land and filled it with
water by damming a natural stream. The embankment were well and carefully constructed and were
adequate for all ordinary occasion. An extraordinary rainfall greater and more violent than any within
human memory broke down the artificial embankment and the rush or escaping water carried away from
country bridges belonging to the plaintiff, in respect of which the plaintiff sued the defendant.
Judgement was given for the defendant, the jury had found that she was not negligent and the
court held that she ought not be liable for an extraordinary act of nature which they could not reasonably
anticipate.
Greenock Corporation v. Caledonian Railway (1917) A. C. 556
The Corporation in laying out a park had constructed paddling pool for children in the bed of a
stream and thereby altered its course and obstructed its natural flow.
87 LAW OF TORTS
Owing to rainfall of extraordinary violence the stream overflowed at the pond and a great volume
of water, which would have been safely carried away by the stream in its natural course flooded the
property of the Railway Company.
HELD by the House of Lords that this was not an Act of God and the corporation was liable.
Flour of the law, Lords cast doubt upon the finding of the jury in Nichols v. Marsland and two of them
distinguished his case on the ground that no one could say that such rainfall was unprecedented in
Scotland where the case arose.
Necessity: If the defendant is acting under necessity to prevent a great evil he may not be liable
even for damage done intentionally. Cope v. Sharpe.
STATUTORY AUTHORITY
May be of two kinds (i) Absolute Authority (i.e.) authority to do the act not withstanding the fact that
if necessarily causes a nuisance or other injuries to third parties, Or (ii) ,Conditional Authority to do the
act provided it can be done without causing a nuisance or other injurious consequence.
1) Green v. Chelsea Water Works Co.
2) Vaugham v. Taff Vale Railway (1806) 5 H.N.679
The defendant Railway Company has statutory authority to use steam engine for their trains. A
spark escaped from one of their engines and set fire to the plaintiff’s which was alongside the railway
lines.
It was proved that the engines were constructed with all due care and skill and that it was impossible
wholly to prevent the escape of sparks.
HELD: Defendants were not liable. They had absolute statutory, authority, Metropolitan Asylum
District v. Hill (1881) 6. A. C. 193.
A local authority had been authorised by statute to erect a hospital for patients suffering from
Smallpox and other infectious diseases. They constructed a hospital near the plaintiff’s property. This
constituted nuisance to the plaintiff and, he brought an action for an injunction to stop the defendant from
using the building as a small pox hospital.
HELD the defendant could be restrained. The statutory authority was construed, not a absolute
authority to erect a hospital where the defendants pleased and whether a nuisance was thereby created
or not, but as a conditional authority to erect one if they could obtain a suitable site where no nuisance
would result to others.
Private defence: Of person and property. Law permits a man to use reasonable degree of force for
the protection of himself on others against unlawful use of force.
MOTIVE - MALICE
In general, motive is irrelevant in the law of Torts. An act which is not otherwise tortuous will not
become wrongful because it is done with a malicious motive.
Mayor of Bradford v. Pickles (1895) 64 L. J. Ch. 759 (1895) A. C. 597
Pickles was annoyed at the refusal of the Bradford Corporation to purchase his land in connection
with a water supply scheme. Therefore, animated by the most spiteful and revengeful motive, Pickles
deliberately sank shafts on his land pumped out all the under ground penolating water as a result of
which the corporations water supply became dry and polluted.
Held in action for an injunction to restrain the defendant that Pickles was not liable. The act, done
by him was one which he was entitled to do. The mere fact that the act was done with an evil motive will
not convert his otherwise lawful act into a wrongful one.
88 LAW OF TORTS
“No use of property which would be legal if due to a proper motive can become illegal because it is
promoted by a motive which is improper or even malicious”
“It is the act, not the motive for the act, that must be regarded. If the act apart from the motive gives
rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply
that element”.
CAPACITY OF PARTIES
1) Act of State
2) Corporations
3) Minor
4) Independent and Joint Tort feasors (composite Tort-feasors)
5) Husband and wife
1. THE STATE (a) England
The law in England on this matter has been greatly changed by the crown proceedings Act 1947,
Section 2 (1 ) of the Act provides as follows:
Subject to the provisions of the Act, the Crown shall be subject to all those liabilities in tort to which,
if it were a private person of full age and capacity it would be subject.
(a) In respect of torts committed by its servants or agent;
(b) In respect of any breach of their duties which a person owes to his servants or
agent in common law by reason of being employer; and
(c) In respect of any breach of the duties attaching at common law to the ownership,
occupation, possession or control of property.
The liability of the crown is of course conditional on the agent or servant being liable in tort for such
conduct. There are several exceptions provided by the Act such as that no action will be against the kind
in his personal capacity, no action possible in respect of act or omissions of its servants or agents in
relation to a postal packer or telephonic communications or respect of an act or omission of a member of
the Armed forces causing death or personal injury to another member of the Armed Forces etc.
(b) India
Article 300 of the constitution of India provides for suits against the Government.
A distinction is made between mercantile or private function of the Government on the one hand
and Sovereign Act on the other. For acts done in former capacity Government can be sued, but not for
acts done in sovereign capacity just as in the case of the East India Company provisions to 1858.
P & 0 Steam Navigation Company v. Secretary of State for India (1861) Born. H. C. R.
The plaintiff’s horse was injured owing to the negligence of the servants employed in the
Government’s dockyard on the river Hoogly who had allowed a heavy piece of machinery on the horse
while it was being led along the dockyard in a action brought in by the plaintiff against the Government.
HELD: Government would be liable, as the maintenance of the dockyard was an act done by the
Government in its mercantile capacity.
Secretary of State for India v. Cockraft (1914) I.LR. 39 Mad. 351
The Government was maintaining a military road in Malabar. Owing to the negligence of servants
employed by the Government a heap of gravel was left in the middle of the road on which the plaintiff’s
carriage dashed and capasized and the plaintiff was injured. In an action against the Government.
HELD: No action would lie as the maintenance of a military road was an act done by the Government
in its sovereign capacity.
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ETTI v. Secretary of State for India I. L. R. (1939) Mad. 843
The plaintiff has taken his infant son for treatment at the Government women and children’s hospital
in Egmore. He was asked to come back some days later to take away his child. When he went there he
was informed that by mistake his child had been given away to some other person. For the negligence
of the hospital staff the plaintiff brought an action against the Government.
HELD: That since the hospital was maintained by the Government out of a public Revenue and for
the benefit of the Public, the Government was acting in the exercise of their sovereign functions and so
no action would lie.
State of Rajasthan v. Vidhyawati A.I.R. 1962 / S.C. 1933
The driver of a jeep which was owned and maintained by the State of Rajasthan for the official use
of the collector of a district; drove the Vehicle negligently while bringing it back from a workshop after
repairs and knocked down a pedestrian who died subsequently. In an action by the widow against the
state of Rajasthan ..
HELD: As the maintenance of the jeep for the Collector’s use not an act done in the exercise of
sovereign powers by the Government of the State of Rajasthan, it could be made liable for the negligent
act of the driver.
Kasturi Lal Ralia Ram Jain v. State of U. P. :
The Supreme Court held that the State is not liable for the acts done by its servants in the exercise
of statutory duties.
ACT OF STATE
“An act injurious to the person or to the property of some person who is not at the time of that act a
subject of Her Majesty; which act is done by an representative of Her Majesty’s authority, civil or military,
and is either previously sanctioned or subsequently by Her Majesty” - Sir Fitzames Stephon.
For an act of State neither the State nor its representative is liable.
BURON v. DENMAN (1948) 2 EX. 167.
The plaintiff a Spaniard was a slave trader who owned some slaves and some buildings, housing
the slaves in the West Coast of Africa. The defendant who was a captain the British Navy released the
slaves and set fire to the plaintiff’s property. He had no authority to do so but his act was ratified by the
British Government who congratulating him on his “Spirited and able conduct” granted him a reward of
$ 4,000.
It was held that Buron had no remedy for lies Paris as it was an act of State.
An Act of State can only be justified against foreigners.
JOHNSTONE v. PEDLAR (1921) 2A, C.262.
Pedlar, an Irishman, became a naturalised American citizen, returned to Ireland in 1916, took part
in a rebellion there, and was deported. In 1917 he returned to Ireland and in 1918 was arrested there for
illegal drilling. A sum of money found upon his was confiscated by the police, the action being ratified by
the Chief Secretary for Ireland. Pediar sued the Chief Commissioner of Police for wrongful detention of
the money are alternatively for damages for conversion of it. The defendant pleaded act of State.
The House of Lords; held the defence bad, as there cannot be an act of State between a Government
and its own subjects. A friendly alien residing in Britain is in the same position as a British subject even
if a resident alien flagrantly violates his allegiance to the Crown as Pediar had done.
MASTER AND SERVANT
The master is liable for any tort which the servant commits in the course of this employment.
The Servant is also liable.
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WHO IS A SERVANT?
A servant is one whose work under the control of another. He must be distinguished from an
independent contractor “who undertakes to produce a given result but so that in the actual execution of
the work he is not under or control of the person for whom he does it and may use his own discretion in
things not specified beforehand”.
Performing Right Society v. Mitchell 1924, I. K. B. 762
The plaintiffs were the proprietors of the sole right of performing in public certain musical work.
They alleged that the defendants infringed their copyright in two musical works by allowing their
band to play these musical items in public in a dance ball owned by them without getting the plaintiff’s
consent.
HELD: Mc Carida J. that the defendants were vicariously liable for the act done by the band who
were servants of the defendants and not independent.
The agreement between the defendants and the band made the band the servants of the defendants
... “It provides for seven hours daily service”. It mentions salary’ .. it mentions pay’. It uses the word
employ’. It provides for a period of employment. It provides that the band shall play at any place in London
where the defendants may direct. It provides that the services shall be at the exclusive disposal of the
defendants. It gives the defendants the right of immediate dismissal for the breach of any reasonable
instruction or requirements. Above all it gives 1 think, to the defendants the right of continuous dominant
and detailed control on every point including the music to be played. In my opinion this is not a case of
an independent contractor agreement with some features of service agreement, it is a case rather of a
service agreement with several peculiar features appropriates to the employment of a band ...
Hospital Cases
Hilleyer v. The Governors of St. Barthalomews Hospital (1909) 2 K. B. 820 (C. A.):
The plaintiff had gone for treatment at the defendant’s hospital. He was taken to the operating
theatre for examination and placed under an anaesthetic. When he recovered consciousness he found
that his arm had been brushed by coming into contact with, hot water can, due to the negligence of the
hospital staff. The staff concerned consisted of a consulting Surgeon, a house surgeon, an anesthetist
and three nurses. The plaintiff claimed damages from the hospital authorities for the negligence of their
staff.
It was held that hospital authorities were not liable as the members of their staff involved were not
servants for the purpose of liability ..
Farwell L. J. .... The first question then is : Were any of the persons at the examination servants of
defendants ?. It is impossible to contend that Mr. Lockwood the surgeon, or the acting assistant surgeon,
or the acting house surgeon, or the administrator of anesthetics or any of them were servants in the
proper sense of the world: they are all professional men employed by the defendants to exercise their
profession to the best of their abilities according to their own discretion: But in exercising if they are in
no way under the orders or bound to obey the direction of the defendant. .. It is true that the defendants
have power to dismiss them, but it has this power not because they are its servants but because of its
control of the hospital where their services are rendered. They would not recognise the right.. While
retaining them, to stand on a somewhat different of patients. “The three nurses and the two carriers
stand on a somewhat different footing, and I will assume that they are the servants of the defendants.
But although they are such servants for general purposes, they are not so for the purposes of operations
and examination by the medical officers. It and so long as they are bound to obey the orders of the
defendants. It may be that they are their servants, but as soon as the door of the theatre or operating
room has closed on them for the purposes of an operation (in which term (i) include examination by the
surgeon) they cease to be under the orders of the defendants, and are the disposal and under the sole
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orders of the operating surgeon until the whole operation has been completely finished .. The nurses and
carriers therefore, assisting at an operation cease for the time being to be the servants of the defendants,
in as much as they take their orders during that period from the operating surgeon alone and not from
the hospital authorities”.
Gold v. Essex Country Council (1942) 2.K.8. 293 (C. A)
The plaintiff, a child of 5 was taken to the defendant’s hospital for treatment for warts on her face.
She was seen by the visiting dermatologist of the hospital who prescribed treatment by 1000 units Grenz
rays and sent the plaintiff to the radiology department. The department was in charge of a radiologist,
but the treatment was given to the plaintiff by a qualified and competent radiographer who was employed
under a full time contract of service. In the course of the treatment the radiographer was admittedly
negligent in that he covered the plaintiff’s face only with a piece of lint while submitting her to the Grenz
ray treatment. As a result the plaintiff’s face permanently disfigured.
HELD that the hospital authorities were liable for the negligence of the radiographer even though
he was a skilled professional man.
The Court of Appeal in this case repudiated the opinion expressed in Hiltyer v. St. Barthalomew’s
Hospital that a hospital was not responsible for the negligence of its professional staff (including trained
nurses) in matters involving professional care and skill as distinct from matters of a purely administrative
nature.]
Cassidy v. Ministry of Health (1951) 2 K. B. 343 (C. A.)
The plaintiff, a general labourer was suffering from a contraction of the third and fourth fingers of his
left which was diagnosed as Dupuytren’s conditions. He went to a hospital belonging to the defendants
where an operation was performed by Dr. Fahrni, a highly qualified surgeon who was a whole time
assistant medical officer of the hospital. After the operation the patient hand and lower arm was kept
rigid in a splint for about 14 days although the patient had complained and his hand was to all intents
and purpose useless. The post operative treatment was under the case of Dr. Fahrni, a house surgeon
and the hospital’s nursing staff.
The plaintiff claimed damages from the hospital authorities for their negligence on the part of the
staff.
HELD that the hospital authority would be liable for the negligent post operational treatment afforded
by the full time staff (assistant medical officer, house surgeon and nurses) each of whom were employed
under a contract of service. The fact that these employees were exercising professional care and skill
was held to be no defence.
LENDING OF A SERVANT
Where a servant is lent by his master to another person, and the servant commits a tort against a
third person in the course of his work for that other person, the question as to which of his two masters
will be responsible will depend on which of them had the right to control his work at the time he committed
the tort in the sense that he is entitled to order the servant, not only what he is to do, but also how he is
to do it.
Mersey Locks and Harbour Board v. Goggin and Graffiths Ltd., (1947) A. C. I.
The appellant Harbour owned a number of mobile cranes, each driven by a skilled workman (driver)
engaged and paid by them for the purpose of letting out the cranes so driven, to applicants for unloading
cargo from ships. There was a clause in the conditions of hiring. “The drivers so provided shall be the
servants of the applicants. The Respondents Coggins and Griffiths Ltd. Were a firm of stevedore who
had hired a mobile crane together with its driver from the Harbour board. While the crane driver was
opening the crane for the hirers, he was negligent and a serious injury was caused to one Mc. Farlane
who was trapped and struck by the cranes.
92 LAW OF TORTS
The question was whose servant was the crane driver at the time of the accident.
It was held that not withstanding the clause in the contract of hiring it was the permanent employers
of the crane driver (i.e.) the Harbour Board who was vicariously liable because they had the control of the
servant’s work at the time of the accident.
Lord Porter in his judgement stated:
“Many factors have a bearing on the result. Who is a paymaster, who can dismiss, how long
the alternative service lasts, what machinery is employed, have all be kept in mind ... But the ultimate
question is not what specific orders, or whether any specific orders were given but who is entitled to
give the orders as to how the work should be done. Where a man driving a mechanical device, such as
a crane is sent to perform a task, it is easier to infer that the general employer continues to control the
method of performance since it is his crane and the driver remains responsible to him for its safe keeping
.... ‘
Lord Ushwatt in the course of his judgement said:
“ ..........The manner in which the crane was to be operated was an remained exclusively the
workman’s affair as the servant of the appellant board. The workman (crane driver) in saying in his
evidence “I take no orders from anybody” he asserted what was involved in the hiring out of the crane,
committed to his charge by the appellant board, arid so far as the respondent Company (Coggins and
Griffiths Ltd. was concerned gave an accurate legal picture of his relations to the respondent company.
The respondent ,Company’s part was to supply him with work; he would do that work, but he was going
to do it for the appellant board as their servant in his own way.........“
Casual delegation of Authority: ‘A’, while still retaining his right of control of his chattel allows ‘B’ to
use it for a purpose in which ‘A’ has some interest and ‘B’ negligently injures ‘C’. with it. ‘A’ is liable to ‘C’.
Hull v. Lees
Ormrod v. Crosville Motor Service Ltd.,
Scarsbrook v. Mason
Britt v. Galmoye
COURSE OF EMPLOYMENT
Unless the servant has committed the wrong in the course of his employment the master will be
liable. Cases
National Insurance Co. Kanpur v. Yogendra Nath
1) Mistake of Servant
A servant may be acting in the course of his employment even if he makes a mistake as to the
scope of the authority conferred on him by his master
Baylay v. Manchester, Sheffield and Linconshire Rly. (1873) 42 L. J. C. P. 75
A porter employed by the defendant Railway Company asked plaintiff, a passenger who had taken
his seat in a railway Carriage, where he was going. The plaintiff replied, “To Maccles field” and in fact that
was there the train was going. But the porter mistakenly thinking that he was in the wrong train told him
so and violently pulled him out of the train as it started moving off and the passenger fell on the platform
and was injured.
The plaintiff sued the defendant Railway Company on the ground that the porter’s tort was
Committed in the course of his employment.
HELD that the Railway company was vicariously liable. It was part of the porter’s duty to see that
passenger’s were travelling in the right trains. One of the rules of the Railway Company was that porters
are to do all in their powers to promote the comfort of the passengers and the interests of the Company.
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No doubt the porter made a blunder, but he had authority to prevent passengers going by a wrong train.
So since he was doing an authorised act but in an unauthorised manner., he was acting within the course
of his employment and his master would be liable.
Poland v. Parr & Sons
(2) Negligence of Servant
Williams v. Jons (1896) 3 H and C. 602
A Carpenter employed by X to make a wooden sing board while working in Y’s shed lit his pipe
and carelessly threw away the lighted match which set fire to the wooden shavings and burned Y’s shed,
HELD that the first was not caused in the course of the carpenter’s employment and therefore X
was not liable to Y.
Jafferson v. Derbyshire Farmers Ltd. (1921) 2 K. B. 281
The defendants were using the plaintiff’s premises as a garage. A servant of the defendants while
transferring motor spirit from a drum into some tins, lit a cigarette and threw the match on the floor. The
spirit caught fire and the shed was burnt.
The defendants were held liable as the servant’s act was a negligent performance of his work (i.e.)
drawing motor spirits.
In one sense it may be said that the act of the boy in lighting and throwing away the match was
not done in the course of his employment; “ .... but that is not the way in which to approach the question.
It was in the scope of his employment to fill the tin with motor spirit from the drum. The work required
special precautions. The act which caused the damage was an act done while he was engaged in this
dangerous operation, and it was an improper act in the circumstances. That is to say, the boy was doing
the work of his employers in an improper way and without taking reasonable precautions; and in that
case the employers are liable. Williams v. James 3.H. and C. 602 is distinguishable, because the making
of a sign-board is not in itself a dangerous operation demanding the exercise of any precautions. The act
of the Carpenter in lighting his pipe had no connection with the work he was engaged to perform. The
act was no breach of any duty to exercise due care and caution in the work on which he was engaged
because the work on which he was engaged was not dangerous” Per. Warrington L.J.
Century Insurance Co. Ltd., v. Northern Ireland Road Transport Board (1942) A. C. 509
(House of Lords).
The driver of a petrol lorry, employed by the defendants, while transferring petrol from a lorry to an
underground tank in the plaintiff’s garage, struck a match to light a cigarette and threw it on the floor and
caused a fire and an explosion which damaged the plaintiff’s property.
The defendants were held liable, for the careless act of the driver was done in the course of his
employment. Lord Wright pointed out that the act of the driver in lighting his cigarette was done for his
own comfort and convenience was in itself both innocent and harmless. But the act could not be treated
in abstraction from the circumstances as separate act; the negligence was to be found by considering
the time when and circumstances in which the match was struck and thrown down, and this made it a
negligent method of conducting his work.
Sitaram v. Santanuprasad
Station v. National Coal Bound
Storey v. Ashton
(3) Wilful Wrong of Servant
Limpus v. London General Omnibus Co. (1862) I. H. & C. 526
The driver of the defendant’s bus had printed instruction not to race with or obstruct other vehicles.
In disobedience to this order the driver obstructed a rival bus by driving across the road, and caused a
collision which injured the plaintiff’s bus.
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The defendants were held liable because what the driver did was merely a wrongful, improper and
unauthorised mode of doing an act which he was authorised to do namely to promote the defendant’s
passenger carrying business in competition with their rivals. The driver whose conduct was in question
was engaged to drive and the act which did the mischief was a negligent mod¬of driving for which his
employers must answer, irrespective of any authority or of any prohibition.
Twine v. Beans Express Ltd. )1946) 62 T. L. R. 155
The employers had expressly forbidden the driver of one of their vans from giving a lift to any
unauthorised persons and had affixed a notice to this effect on the dash board of the van. Despite this
the driver gave a lift to a person, who knew of the breach of instructions and was killed by reason of
the driver’s negligence. The Court of appeal held that the driver was acting outside the scope of his
employment and so his employers were not liable.
“He was doing something that he had no right whatsoever to do, and qua the deceased man he
was as much as a frolic of his own as if he had been driving somewhere on some amusement of his own
quite unauthorised by his employers”.
Giving a lift to an unauthorised person “was not merely a wrongful mode of performing the act of
the class this driver and employed to perform but was the performance of an act of a class which he was
not employed to perform at all.
It may be otherwise in the cases of “stray passengers, picked up by a driver to whom no contrary
instruction had been given”. Or if the plaintiff could show that the defendants had acquiesced in their
servants branches of his instructions.
A master is liable if the tort is committed in the course of employment even though it was not
committed for the benefit of the master.
Fraud of Servant
Lloyd v. Grace Smith & Co. (1912) A. C. 716 House of Lords
The plaintiff was a widow who owned some cottages. Being dissatisfied with the income which they
produced, and from a mortgage on other property and wishing to find a more profitable investment, she
went to the office of the defendant, Frederick Smith, who was then the sole member of Grace Smith &
Co., a firm of solicitors. There she saw one Sandles whom she thought to be a partner, but who was
the managing clerk who conducted all the conveyancing business of the defendants without supervisors.
Acting on his advice she directed him to sell the cottages and call in the mortgage. Sandles then
fraudulently induced her to sign certain documents, on the pretence that documents were necessary for
the sale of the property. Actually there was a conveyance of the cottage to Sandles. He then dishonestly
disposed of the property for his own benefit.
Smithon J. gave judgement 1 ; for the plaintiff. The Court of Appeal reversed this. But the House of
Lords unanimously reversed the decision of the Court of Appeal and restored the judgement of smithon
J.
It was held that the fraudulent act committed by the clerk was done in the course of his employment
and the employers would be vicariously liable even though the tort was committed for the servant’s own
benefit and the master did not stand to give anything .
.... ‘The general rule is, that the master is answerable for every such wrong of the servant or agent
as if committed in the course of the service and for the master’s benefit though no express command
or privity of the master be proved ... But it is a very different proposition to say that the master is not
answerable for the servant or agent committed in the course of the service, if it be not committed for the
master’s benefit.
... It would be absolutely shocking to my mind if Mr. Smith was not held liable for the fraud of his
agent in the present case. When Mrs. Lloyd put herself in the hands of the firm, how was she to know that
the exact position of Sandles was? Mr. Smith carries on business under a style of firm which implies that
95 LAW OF TORTS
unnamed persons are, or may be, included in its members. Sandles speaks and cut as if he were on of
the firm. He points to the deed boxed in the room and tells her that deeds are quite safe in “our” hands.
Naturally enough she signs the documents he puts before her while trying to understand what they were.
Who is to suffer for this man’s fraud? The person who relied on Mr. Smith’s accredited representative, or
Mr. Smith who put this rogue in his place and cloth him with his authority. If Sandles had been a partner
in fact. Mr. Smith would have been liable for the fraud of Sandles as his agent. It is a hardship to be
liable for the fraud of your partner. But that is the law under the partnership Act. It is less a hardship for
a principal to be held liable for the fraud of his agent or confidential servant. You can hardly ask your
partner for a guarantee of his honesty. But there are such things as fidelity policies. You can assure the
honesty of the person you employ in a confidential situation, or you can make your confidential agent to
obtain a fidelity policy” Per Lord Macnaughten.
(4) Criminal offence of Servant
Warren Henlys 1948) 2 All E. R. 935
The defendants who were the owners of a service station employed a petrol pump attendant.
The attendant erroneously believing that the plaintiff who was a customer would drive away his car
without paying money for petrol he had filled in his car and without surrendering the coupons, entered into
a violent quarrel with him. The plaintiff after paying the bill and giving the coupons called in a policeman
who tried to pacify the parties. Subsequently the plaintiff told the attendant assaulted him on his face.
HELD by Hilbery J. that the employers were not liable for this assault committed by the servant
because the assault was an act of personal vengeance and not within the course of employment
Peterson v. Royal Oak Hotel Ltd. (1948) N. Z. L. R. 136
Court of Appeal of New Zealand.
The plaintiff was in the bar of Royal Oak Hotel when an elderly customer who had been refused
a drink by the barman named Price. The customer resenting the refusal, threw an empty glass at the
barman, who in his turn took a portion of the broken glass and hurled at back at the resentful customer.
A fragment of the glass became detached from the main piece and struck the plaintiff who was standing
nearby, in his eye.
(5) Negligent delegation of authority by the Servant
If a servant negligently delegates his authority and instead of himself carefully performing a duty
allows it to be negligently performed by another person, the master will be liable for such negligence of
the servant. Thus if a driver instead of himself driving the bus allows somebody else to drive the same it
would amount to negligent mode of performance of the duty by the driver.
Case Laws: 1) Baldeo Raj v. Deowali
2) Ilkiw v. Samuels.
Cases :- Baldeo Raj v. Deowali
Indian Insurance Co. v. Radhabai
Ilkiw v Samuel
Ricketls v. Thomas Tilling Ltd.
It was argued that the employers were not liable for this act of the barman was not done in the
course of his employment, as the barman threw the piece of glass not to ensure the troublesome customer
leaving the hotel but owing to his personal resentment and anger against the customer.
HELD that the employers were liable at the act done by barman was done in the course of his
employment. The barman had been authorised to maintain order in the hotel and his act in throwing the
glass could be considered as a wrongful act through unusual method of maintaining order.
“ ... In the Century case the smoking and lighting of the cigarette was for the servant’s own pleasure,
yet the master was liable because the servant’s act was a wrongful mode of doing his work. In the
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present case even if it was because of resentment alone, the throwing of the glass was nevertheless a
wrongful mode of keeping order, and liability is imposed on the employer”
Doctrine of Common Employment Position in England
1) Priestly v. Fowler
Under English common law, a master was not responsible for negligent harm done by one of his
servant to fellow engaged’ in a common employment with him.
This rule has now been abolished by the law reform (Personal Injuries) Act 1948. The rule is also
no now applicable in India.
2) Radcliffe v. Ribble Motor Service Ltd. (1939) A. C. 515
‘A’ and ‘B’ Were motor drivers employed by the defendants to take parties by their buses from
Liverpool to New Brighton .. B had been told to return to the defendant’s garage to Bottle, the particular
route of his return journey being left to his own discretion. On the return journey he stopped at a particular
point for some unknown reason. ‘A’ happened to be returning by the same route and in pulling out to
pass ‘B’s vehicle, he negligently knocked down and killed B who was standing by his own vehicle. B’s
personnel representatives sued the defendants under the Fatal Accidents Act 1846 and also under the
Law Reform. (Miscellaneous). (Provisions) Act 1934.
The defendants pleaded common employment.
HELD that at the time of the accident, drivers A and B were not in common employment and so the
employers were liable to pay damages.
Lord Wright: “The consideration that the risk of injury to one servant is the natural and necessary
consequence of misconduct in the other implies that the skill and care of the one is of special importance
to the other by reason of the relation between these services ... In my opinion the circumstances here, as
found by the judge are such that having regard to the nature of the employment, there was no common
work justifying the conclusion that the deceased man’s contract of employment was subject to the fictitious
implied term that he assumed the risk of his fellow servant’s negligence while driving the employer’s
coach on the high way on a separate job. I think there was no such term. The two drivers concerned
when they were on the road separately driving their motor coaches were engaged on independent piece
of work. There was no common work. The deceased man was not exposed to the risk of the negligence
of another employee of the respondent driving another of the company’s coaches in any greater degree
or in any different sense than he was exposed to the risk of any driver’s negligence on the road. The risk
was the general risk of the highway not the specific risk of the fellow servant’s negligence.
Position in India
1) Secretary of State v. Rukminibai.
2) Governor General in Council v. Constance Zena Wells
REMOTENESS OF DAMAGE It means the defendant is liable only for those consequences which
are not too remote from his conduct.
Cases: 1) Scott v. Shepherd
2) Lynch v. Nurdin.
Two tests have been applied to decide whether the damage is too remote
1. Test of reasonable foresight:
Consequence are too remote if a reasonable man would not have foreseen them.
1) Wagon Mound Case
2) Hughes v. Lord Advocate
3) Doughty v. Turner Manufacturing Co. Ltd.,
97 LAW OF TORTS
2. Test of Direct Consequence
If a reasonable man would have foreseen any damage as likely to result from his act, then he is
liable for all direct consequences of it suffered by the plaintiff, whether a reasonable man would have
foreseen them or not.
Reasonable foresight is relevant to the question “was there any legal duty owned by the defendant
to the plaintiff to take care”. It is irrelevant to the question. “If the defendant broke a legal duty, was the
consequence of this breach too remote ?”
Smith v. London and South Western Rly. Co. 1870 A. R. 6
In a dry and hot summer, the defendants had cut the grass growing near the railway line and placed
it in small heaps between the line and an edge. A spark from an engine of the defendants ignited the pole
of grass and fanned by a strong wind carried across a field and burnt down the plaintiffs cottage which
was at a distance of 200 years.
HELD: That the defendants were liable. Although no reasonable man would have foreseen this
consequence, once the defendants were aware that the heaps of grass were lying by the side of the
line and that it was a hot season and therefore the heaps were likely to catch fire, they were bound to
provide against all circumstances which might result from this and were responsible for all the natural
consequences of it.
.... “I think then there was negligence in the defendants in not removing these trimmings and that
they thus became responsible for all the consequence of their conduct, and that the mere fact of the
distance of his cottages from the point where the fire broke out does not affect their liability”.
Re Polemis v. Furness Withy & Co. Ltd., (1921) 3 K. B. 560
The owners of the steamship. Thrasy Voulos chartered the ship Furness Withy. The charter expected
both the ship owner and the charters free from liability from fire. Among other cargo the charterers loaded
a quantity of benzine and petrol in tins. Owing to leakage there was petrol vapour in the hold of the ship. At
a port of call while some of the benzene tins were being shifted by the charter’s servants a wooden plank
was negligently allowed to fall in the hold of the ship. A fire resulted and the ship was totally destroyed.
The Court of Appeal unanimously held the charters liable to the owners for the loss which amounted to
nearly Rs. 2,00,000. For, to allow the plank to fall into the hold was in itself an act of negligence, in as
much as it would not improbably cause some damage to the ship or cargo. The charters therefore being
guilty of negligence were held liable for the direct consequence of that negligence though in nature and
magnitude those consequence were such as not reasonable man would have anticipated.
Scruttion L. J. said “I cannot think it useful to say the damage must be that natural and probably
result. .. To determine whether an act is negligent, it is relevant to determine whether any reasonable
person would foresee that the act would cause damage; if he would not, the act is not negligent. But if
the act would or might probably cause damage, the fact that the damage that is, in fact causes is not the
exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable
to the negligent act, and not due to the operation of independent causes having no connection with the
negligent act, except that they could not avoid its results. Once the act is negligent the fact that its exact
operation was not foreseen is immaterial”.
Liesbosch Dredger v. Edision S.S. (1933) A. C. 448
By negligent navigation, the ship Edison collided with and snak the dredger Liesbosch the owners
of which were under a contract with a third party to complete a piece of work within a given time failure
to do which would entail them with heavy penalties. Ordinarily the owners of the dredger would have
brought a substitute dredger but owing to their poverty they were unable to do so and they were put to
much greater expense in fulfilling this contract because they had to hire a dredger at an exorbitant rate.
They sued the owners of the Edison for negligence. Among their claim for damages they also claimed
this extra expense which they had incurred owing to their impeniosity.
98 LAW OF TORTS
The House of Lords held that they could recover as damages the mark price of a dredger comparable
to the Liesbosch and compensation for loss in carrying out the contract between the sinking of the
Liesbosch and the date on which substituted dredger could reasonably have been available for work, for
the measure of damages in such case is the value of the ship to her owner as a going concern at the time
and place of the loss, and in assessing that value, regard must be paid to her pending arrangement. But
the claim for extra expenses due to poverty was rejected, because the plaintiff’s lack of means was an
extraneous matter which made this loss too remote. The case of Re Polemis was distinguished on the
ground that there the injuries suffered were “the immediate physical consequences” of the negligent act.
Lord Wright stated ... “ Nor is the appellant’s financial disability to be compared with that physical delicacy
or weakness which may aggravate the damage in the case of personal, injuries, or with the possibility
that injured man in such a case may be either a poor labourer or a highly placed professional man. The
former class of circumstances to the extend of actual physical damage and the later consideration goes
to interference with profit earning capacity; whereas the appellant’s want of means was as already stated
extrinsic”.,
Overseas Tankship (UK) Ltd., v. Morts Dock & Engineering Co. Ltd., (The Wagon Mound)
Privy Council (1916) A. C. 388
‘The appellants, the Overseas Tankship Ltd., were the charters of the ‘Wagon Mound’ an oil burning
vessel which was moved as the Clatex Wharf in Sydney harbour for the purpose of taking on fuel oil.
Owing to the carelessness of the Overseas Tankship Ltd.’s servants, a large quantity of fuel oil was split
on to water and after a few hours this had spread to the Morts Dock Ltd.’s Wharf about 600 ft. Away
whether another ship, the Corimal was under repair. Welding operations were being carried out on the
Corimal, but when the Mort Dock Ltd.’s manager became aware of the presence of the oil he stopped
the welding operation and enquired of the manager of the Caltex oil company whether they could safely
continue their operations on the wharf or upon Corimal. The results of the enquiry coupled with his own
belief as to the inflammability of furnace oil in the open, led him to think the respondents could safely
carryon their operation. He gave instruction accordingly, but directed that all safety precaution should be
taken to prevent inflammable material falling off the wharf into the oil. Two days later the oil caught fire
and extensive damage was done to Morts Dock Ltd.’s wharf.
The case was dealt with on the footing that there was a breach of duty and direct damage, but that
danger caused was unforeseeable.
The Privy Council reversing the decision of the Supreme Court of New South Wales held that the
defendants were not liable as the damage was too remote as it was not reasonably foreseeable. They
held that Re Polemis should no longer be regard as good law. “It is the foresight of the reasonable
man which alone can determine responsibility. The Polemis rule by substituting direct’ for reasonable
foreseeable’ consequences leads to a conclusion equally illogical and unjust”.
Smith v. Leech Brian and Co. Ltd., (1961) 3 All E.R.1159
Smith was a workman employed by the defendants in their iron works: His work involved lowering
articles into a containing of metallic Zinc and flux. The articles were lowered into the tank by means of
an overheads crane from behind a position behind a sheet of corrugated iron. One day as he lowered
the article into the tank he turned round to see and his head was outside the protective shield when a
piece of molten lead struck him on the lip causing a burn. The burn was the promoting agent of cancer
developed subsequently and the work man died about 3 years later. The cancer developed in tissues
which had already a premalignant condition. But for the burn, the cancer may never have developed
although there was a possibility that might have developed at a much later stage in life.
In an action by the widow claiming damages from the defendants under the Fatal Accident’s Act
and the Law Reform (Miscellaneous Provisions) Act 1934.
Lord Parker C. J., held the defendants liable.
“But for the Wagon Mound it seems to me perfectly clear, that assuming negligence proved,
assuming that the burn caused in whole or in part the cancer and the death, this plaintiff would be entitled
to recover” ..
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... “For my own part, I am quite satisfied that the Judicial Committee in The Wagon Mound did not
have what I may call loosely, “the thin skul “ causes in mind. It has always been the law of this country
that a tort feasor takes his victim as he finds him ......
It is necessary to do more refer to the short passage in the decision of Kennary J, In Dulien v. White
......... Where he said.
“If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the
sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had
an unusually thin skull or an unusually heart.”
... “The judicial Committee were, I think, disagreeing with the decision in re polemis that a man is no
longer liable for this type of damage which he could not reasonably anticipate. The Judicial Committee
were not. I think, saying that a man is only liable for the extent of damage which he could anticipate,
always assuming the type of injury could have been anticipated” .....
.... “In those circumstances, it seems to me that this is plainly a case which comes within the old
principle. The test is not whether these defendants could reasonably have foreseen that a burn would
cause cancer and that Mr. Smith would die. The question is whether these defendants could reasonably
foresee the type of injury which he suffered, namely, the burn. What in the particular case, is the amount
of damage which he suffers as a result of the burn depends on the characteristics and constitution of
the victim. Accordingly I find that the damages which the plaintiff claims are damages for which these
defendants are liable”.
Warren v. Scrutons Ltd. (1962) I Lloyd’s Rep. 497
A stevedore sued his employers in respect of personal injuries he had suffered whilst he was
helping to unload a cargo in the London docks. The employers were negligent in permitting the use
of defective wire in a set of ropes, which had become frayed and dangerous to anyone holding it. The
plaintiff scratched his finger on the frayed wire and it became poisoned and a
piece of the finger had to be cut off. Unfortunately, the infection spread to one of his eyes where an
ulcer developed and his vision become blurred. It appeared that when he was a young man this eye had
been injured and he had an ulcer on it and he had a predisposition to further ulcers if there came into his
body some condition which caused a high temperature due to any infection.
It was argued on behalf of the defendants that according to the principle laid down in the Wagon
Mound case, the wrong doer is only liable for reasonably foreseeable damage and as it was not reasonable
for the employers to foresee that if a finger was picked, the eye may become infected and as it was not
reasonable for them to know that the stevedore had this condition, they could not be held liable for the
damage to the eye.
HELD by Paull J. that the defendants were liable even for the damage to the eye. The type of
damage in the present case was a picked finger; and as this could have been reasonably anticipated,
then any consequence which resulted because the particular individual had some peculiarity was a
consequence for which the tort feasor was liable.
Novus actus intervenience. Liability when intervening act is foreseeable. No liability when it is not
foreseeable.
Cases: Cob. v. Great western Railway.
Harnett v. Bond.
S.S. Singletor Abbey v. S.S. Paludina.
The Ororpesa case
Stanstre v. Troman
Mckew v. Holland and Hannan and
Cubitts (Scotland) Ltd.
**********
100 LAW OF TORTS
4. FAMILY LAW - I
HINDU LAW
I. UN CODIFIED HINDU LAW
1. Sphere of Personal Law
Personal Law and territorial law distinguished - scope of Personal Law - Towards a civil code
codification of Hindu Law - Personal Law distinguished from Territorial Law.
2. Persons governed by Hindu Law
Who is a Hindu - Hindu by birth - Offshoots of Hinduism - Persons who are not Parsis, Muslim,
Christian or Jews - converts to Hinduism - Reconverts to Hinduism - Effects of Conversion.
Case : Ratanji Moraji v. Admn. Gen. of Madras
Case : Perumal v. Ponnusamy
Case : Abraham v. Abraham.
3. Sources of Hindu Law
Meaning of Source of Law = Traditional Sources : The Vedas : Their contribution to Law - The
Smritis - Digests and Commentaries - Custom as ‘a source of Hindu law. Modern Sources : Justice,
Equity and Good Conscience, Precedent and Legislation.
4. Schools of Hindu Law
Origin of the schools of Hindu Law - Mitakshara and Dayabhaga Schools - Sub-schools of the
Mitakshara - Effect of Migration from one sub-school to another.
5. The Hindu Joint Family
i) Nature of Hindu Joint Family & Joint Family Property.
The joint and undivided family is the normal condition of Hindu Society. Every Hindu family is
presumed to be joint, unless and until a partition takes place. A Hindu Joint family consists of
individual bound together by kinship: All agnatic (male descendants from a common ancestor;
their wives and daughters are the members of a joint family. Husband and wife alone do not form
a joint family, a son is essential for its existence, In a joint family the property is owned jointly. The
jointness of ownership of property is due to the undivided status of the family. It is not the result of
any agreement but the creation of law. The joint family can exist even without owning joint family
property. Anyhow, property acquired by the Hindu joint family becomes the joint family property.
ii) Apprathibandha Daya Saprathibandha Daya :
Apprathibandha daya is known as unobstructed heritage. Mitakshara school of Hindu law believed
in the birth right of Hindu sons; in the joint family property. Exercising their rights the son can claim
partition of his share at any stage. The fact that the father is alive in no obstruction for the son to
claim partition of his share. Hence the joint family property is known as unobstructed heritage.
Saprathibandha Daya is known as obstruction heritage. According to Dayabhaga school of Hindu
Law, the Hindu father is the absolute owner of the entire joint family property and of his separate
property. Under Mitakshara he is the absolute owner of his separate property alone. His sons acquire
rights in the property only on his death. Thus the fact that the father is alive is an obstruction for the
sons to claim rights in these properties. Hence the joint family property under Daya Saprathibandha
and the separate property under Mitakshara is known as obstructed heritage.
Coparcenary : A Hindu family is a larger unit within which we come across the smaller unit known
as coparcenary. Coparcenary includes those members in a Hindu Joint Family who are entitled
101 FAMILY LAW - I
to share the family property, Hence joint family property is visually allowed coparcenary property.
A coparcenary extends to three degrees from the senior most, male member. For example, in a
Hindu Joint Family A is father and B is his son. B has a son C and C has son D. D has two sons E
and F. The coparcenary includes A, B, C and D, E, F are not coparceners, since they are beyond
three degrees.
Types of Joint family properties :
Ancestral Property is the first kind of coparcenary property. It is the property inherited from three
paternal ancestors father’s father, a father’s father’s father - (a) Joint Family Property in the hands of
sole surviving coparcener under partition are also ancestral properties of the said coparcener who have
son., son’s son, or son’s son’s son. In the ancestral property the coparcener, son, son’s son, and son’s
son’s son acquire birth right.
Property with Ancestral nucleus :
Property acquired by utilizing coparcenary property is also coparcenary property. The acquisition
may be by an individual in the joint family or by all members. For example, a coparcener insures his life.
He pays the premium out of the income of the coparcenary property. When he dies the insurance amount
becomes coparcenary.
Blended Property : Often in the interests of the family, coparcenary merges his separate property
by the process of merger which is known as blending.
In the case of blending two conditions should be satisfied :
1. The coparcener blending his separate property must have an intention to merge it with
coparcenary property.
2. The merged property must be treated by joint family as part and parcel of the coparcenary
property.
Nature of Coparcenary Property
Ownership of the Coparcenary property remains with the entire coparcenary, therefore no
displacement of ownership when an individual coparcener dies: The interest of the deceased coparcener
devolves upon the surviving coparcener. This principle is known as the Principle of Survivorship. The
interest of a coparcener in the coparcenary property is indefinite. When a coparcener dies the interest of
the other coparcener are increased; when a new coparcener is born the interest of the other coparcener
are reduced. Thus a coparcener interest in the coparcenary property is a fluctuating one and fluctuation
exists till partition.
Separate Property or self-acquired property
Separate property was unknown in early days of Hindu society. In passage of time, a coparcener
was permitted to acquire separate property of his own. He is able to enjoy the property. In short, all
properties acquired by a coparcener, without detrimental to the coparcenary property is recognized as
his separate property.
Originally, even this separate property of a coparcener developed on his death upon the surviving
coparcener. Only during his life time he could enjoy the separate property absolutely with rights to alienate
it. However; this position of law was reversed by the ruling in the famous Sivaganga case. According to
the ruling when a Hindu coparcener dies leaving separate property only his heirs can inherit it.
In a Hindu coparcenary there is joint ownership of property. If one coparcener dies’, the surviving
coparcener succeed to his interest in this property. This rule is known as Doctrine of Survivorship. For
example, A, B and C are brother composing a coparcenary. If A dies undivided B and C jointly succeeded
to A’s share. Till the decision in Sivaganga case ruling of survivorship was applied to the self-acquired
property of a coparcener. The owner of the self-acquired property could be the absolute owner, during
lifetime only. This case settled the rule that the acquired property of an undivided coparcener is inherited
by his heirs.
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a) Property Inherited from collaterals another relations.
This property is the separate property of a coparcener, who inherits it. For example, A Hindu father
and his two sons B and C compare a joint family. The son inherit some properly, from their paternal grand
mother B dies and the surviving coparceners claim his interest in the property by survivorship. B’s widow
claim the property as A’s heir. Only B’s widow can inherit B’s half shore in the said property, since the
property is a separate property of B and C.
b) Property received by gift from Paternal Ancestor.
A Hindu son may receive some property from his father under a will or gift, whether this property
is coparcenary property or self-acquired property, in the hands of A, depends upon the intention of the
father. The intention is gathered from the language of the document of transfer. The father gives the
property not as to a son but as any donee, the son takes it as separate property. When the father gives
the property and the son takes it in his capacity as son. The property is ancestral property. These rules
have been laid down in the leading SC case Arunachala Mudaliar v. Muruganatha Mudaliar.
c) Share allotted at Partition and Coparcenary property in the hands of the sole surviving
coparcener.
These properties are separate properties so long as their owner do not begin sons. The moment
sons are born, together these properties become coparcenary properties.
II. HINDU MARRIAGE
Conditions for valid marriage under Dharma Shastras and under the Hindu Marriage Act, 1955.
The, Hindu marriage is samskara or a sacrament. The Hindu Marriage Act of 1955 has however
brought about many changes in their conception of Hindu Marriage. Under prior law these were many
qualifications prescribed in the texts for a valid marriage. Chastity, auspicious marks, young age, freedom
from disease, difference in gotra, absence of sapinda relationship, are some for the qualifications found
in the text of Yajnavalkya. Most of these conditions were only rules of caution and advice, They were
recommendatory and their violation did not affect the validity of marriage. Now the conditions for a valid
Hindu marriage are laid down in Sec. 5 of the Hindu Marriage Act. Violations of these conditions render
a Hindu Marriage void a voidable.
1. MONOGAMY :
Under the Act, neither party to the marriage should have a spouse living at the time of marriage.
Hence persons competent to marry are (1 ) Unmarried persons (2) divorced man or woman (3) Widow
or widower. A bigamous marriage is valid under Sec. 7 of the Act. Besides it is punishable under Indian,
Penal Code, according to Sec. 494 of the Act.
When a person is not heard for seven years by these who would have naturally heard of him, he
is presumed to be dead under Sec. 108 of the Indian Evidence Act. Upon this presumption a wife a
husband can remarry, and such marriage is valid.
Under earlier Hindu Law the Shastras held monogamy as an ideal to be followed by all Hindus,
however polygamy was recognized for valid reasons like ill-health miss conduct or ill- temperament of
the first wife. In some communities remarriage of widows was recognized by custom, though for long
period, remarriage of widows was not approved by Hindu Law. However in 1856 the Widows Remarriage
Act ‘was passed and their remarriage was legalized. Polyandry was not recognized under prior law.
2. LUNACY AND IDIOCY
Under prior law the marriage of a lunatic or an idiot was valid. Such marriage was brought about by
his guardian. The only condition was that such marriage should be performed according to the rites and
ceremonies prescribed by the shastras.
Under the Act it was provided originally that ‘Neither’ party to marriage should, be idiot or a lunatic
at the time of marriage. These provisions has been amended by Act 68 of 1976. After the amendment
the conditions are that neither party.
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1. Is incapable of giving a valid consent to the marriage, in consequences of unsoundness of
mind. (or)
2. Has been suffering from mental disorder rendering him or her unfit for marriage and the
procreation of children has been subject to recurrent attacks of insanity.
Marriage violating this condition is voidable under Sec. 12 of the Act. If the party to marriage
develops mental disorder subsequent to the marriage, it is a ground for judicial separation under Sec.10
and for Divorce under Sec.13 of the Act.
3. AGE LIMIT
Under prior law no age limit was prescribed for the parties to marriage. Child marriages were
common and valid however some age limit could be inferred from other condition for valid marriage. A
male was to mercy after completing his study of vedas and a girl was to marry after attaining puberty.
Under the Act the bride should complete 18 years of age, and the bridegroom should complete 21
years of age. If the bride is below 18 years age, consent of the guardian is necessary for her marriage.
Even prior to the present Act, in 1929 the Child Marriage Restraint Act was passed. It prescribed
18 years of age for the bride.
Surprisingly violation of the condition relating to age limit does not make the marriage void avoidable.
Neither the Act of 1929 nor the Act of 1955 provides for the legal effect of child marriage. However under
Sec. 18 of the present Act, parties participating in child marriage are punished.
4. SAPINDA RELATIONSHIP
Under the Act, the parties to the marriage should not be sapindas of each other. However the
custom governing the parties may permit marriage between Sapindas. Sapinda relationship extends to 3
degrees on the mother’s side and to 5 degrees on the fathers side. The concerned party to marriage and
the common ancestor are counted as two degrees. Sapinda marriage is void. (Sec. 11).
Under the prior law also sapinda relationship was prohibited among parties to marriage. But the
sapinda relationship extended to five degrees on the mother’s side and to seven degrees on the father’s
side. Relationship through father meant relationship completely through males. When a female intervened
the relationship was on the mother’s side:
5. DEGREES OF PROHIBITED RELATIONSHIP
Under the Act, the parties to the marriage should not be within Prohibited Degrees of Relationship.
There is prohibited degree of relationship in the following cases.
1. If one is a lineal ascendant of the often.
2. If one is the wife or husband of a lineal ascendant or descendant of the other.
3. If one is the wife of the others (a) brother (b) father’s brother (c) mother’s brother (d)
grandfather’s brother (e) grand mother’s brother.
4. If two are brother and sister, uncle and niece, aunt and nephew or children of brother and
sister, children of two sisters, children of two brothers.
6. CEREMONIES AND FORMALITIES
Performance of ceremonies is essential for the validity of a Hindu Marriage. Without ceremonies
only the relationship of concubinage can be created. Mere agreement between a man and woman, to live
as wife and husband forever cannot bring about any martial relationship between them. The ceremonies
may be (1) Shastriac (2) Statutory (3) Customary.
Mostly shastriac ceremonies and customary ceremonies consist of 2 parts (1 ) Betrothal and (2)
Performance of Marriage. Betrothal is only an agreement to give the girl in marriage to a boy. This
ceremony does not create any martial relationship. In case of breach of agreement in the Betrothal,
104 FAMILY LAW - I
damages can be claimed by the injured party; apart from recovery of the expenses incurred. The second
part of the ceremony relates actual performance of marriage in accordance with the rites, and rituals
prescribed by Shastras or customs. Kanyathan, Vivaha Homam and Saptapathi are some of the essential
ceremonies in the shastraic form of marriages.
Sec. 7 of the Act does not provide any particular ceremony a formality for performance of a valid
hindu marriage. It states that marriage may be solemnized in accordance with the customary rites and,
ceremonies of the party. When Saptapathi is part of such ceremonies the marriage is complete, only
when the seven step is taken by the bride and the bridegroom jointly before the sacred fire.
Case Law : Deivanai Achi v Chidambaram Chettiar
A Hindu widow & widower were members of a society known as Anti Prohit society. They got
married without performing any rite or ceremony. They merely convened a meeting of relatives and
friends, and made a declaration that they became wife & husband they lived together subsequently as
husband and wife for several years. Later on, the question areas whether they were lawfully married. The
court decided that there was no valid Hindu Marriage between them.
In 1967, the Hindu Marriage (Madras Amendment) Act 1967 was passed, and Sec. 7A was
introduced into the Hindu Marriage Act of 1955. This section validates Suyamariyathai and Seerthirutha
Marriages solemnized between two Hindus, the conditions of such marriages are:
1. The marriage should take place in the presence of relatives, friends or other persons (or)
2. Each party to the marriage should declare that he a she takes the other as wife a husband.
(or)
3. Each party to the marriage should garland the other or put a ring upon any finger of the
other. (or)
4. The bridegroom should tie a thali around the neck of the bride.
Sec. 7A was given retrospective effect, and so even marriages performed earlier have become
valid, if they followed the formalities laid down here. For example the marriage ‘ in Deivanai Achi case
becomes valid after the introduction of Sec. 7A.
VOID AND VOIDABLE MARRIAGES
Sec. 11 and 12 of the Hindu Marriage Act deals with void & voidable marriages. A marriage is void
when it is good for no legal purpose. It does not create lawful mantal relationship between the parties
to marriage. The courts regard the marriage be maintained in any proceeding in any court and between
any parties. If may be maintained either in the life time or after the death of the parties to marriage the
children born of void marriages are illegitimate:
Either party to the void marriage may obtain a decree of nullify from the court on a petition against
the other party.. The following are the grounds for obtaining the decree or nullify.
1. That the marriage is bigamous marriage.
2. The parties to the marriage are sapindas of each other.
3. The parties to the marriage are within degrees of prohibited relationship.
A voidable marriage is valid until and unless it is annulled by the court, at the instance of either
party to such marriage. Both parties enjoy the option to set aside this marriage. There is an imperfection
or defect in the voidable marriage and on this account it is liable to be avoided by either party. Such
marriage can be set aside only by the party to the marriage; and during the lifetime of both parties.
Children born of voidable marriages are legitimate, provided they are born before the marriage is set
aside by either party.
105 FAMILY LAW - I
Either party to the voidable marriage may annull it by a decree of nullify from the count, on a petition
against the other party. The following are the grounds for obtaining the decree of nullify under Sec. 12
of the Act.
1. If the marriage violates the condition relating to mental disorder mentioned in Sec.5 of the
hindu marriage act.
2. If the marriage is not consummated owing to the impotence of the wife or the husband. Before
the amendment in 1976, the respondent must be impotent at the time of marriage and still the
filing of the petition.
3 a. If the consent of the party to marriage, or consent of the guardian; is obtained (1) by force by
fraud as to the nature of the ceremony or as to any material fact circumstance concerning the
respondent. Before the amendment in 1976, the nature of the fraud was not specified.
In this case the petition must be presented within one year after the cessation of force, or
after the discovery of fraud. The petition cannot be presented, if the petitioner lives with the
respondent with full consent, after the cessation of force, or after the discovery of fraud.
4. If the respondent was at the time of marriage pregnant by some person other than the
petitioner.
In this case petition can be filed only when.
a) The petitioner was at the time of marriage ignorant of the pregnancy..
b) No material intercourse taken place with the consent of the petitioner, after the petitioner’s
discovery of the existence of this ground for a decree of nullity.
c) One year has not elapsed (1) after the date of marriage, in the case of marriage
performed after the Act, and (2) after the commencement of the Act, in the case of
marriage performed before the Act.
JUDICIAL REMEDIES
1. Restitution of Conjugal Rights (Sec. 9 of the Act)
As a legal consequence of marriage, the spouses one entitled to mutual consortium company.
When one spouse deserts the other without legal justification, the deserted spouse can see for Restitution
of Conjugal rights. Thus a remedy is provided by the matrimonial law for presentation of marriage
relationship. Hindu texts did not provide this remedy, but British courts have been granting the remedy to
deserted spouses. Sec. 9 of the Act provides this remedy. For seeking this remedy,
(a) There should be a subsisting lawful marriage between the parties
(b) One party, should have deserted the other, (withdrawn from the society of the other without
remarkable causes.)
(c) Petition should be filed by the deserted party.
The court grants this remedy (1) If it is satisfied of the truth of the statements in the petition. (2) If
there is no legal ground for refusing the remedy.
The order of Restitution of Conjugal Rights directs the deserting spouse to resume cohabitation
with deserted spouse. However there is no effective machinery for enforcing the order of the court. If
the deserting spouse violates the order of the court, Cr. P.C. provides for attachment and sale of his her
property. The decree holder is entitled to compensation out of the sale proceeds. Therefore this remedy
is criticized as physically undesirable and morally unwanted.
Any how violation of the order of the restitution of conjugal rights entitles the petitioner to claim
maintenance. Besides failure to resume cohabitation within one year after the decree for restitution of
conjugal rights, is a ground for divorce under Section 13.
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Defences :
The defences to the petition for the remedy are (1) reasonable excuse for desertion: (2) any just
cause (3) that the petition is not sincere and that he does not desire bonafide resumption of cohabitation.
The reasonable excuse implies any cause fit and property in the opinion of the count for denying the
remedy. When the relations of parties are so strained that further peaceful cohabitation is impossible,
their remedy is not granted by the court: Almost all grounds for judicial’ separation and divorce under the
Act, can be raised as defences to the petition for this remedy.
Judicial Separation (Sec. 10)
Judicial separation is a halfway house between marital status and complete dissolution of marriage.
Judicial separation does not put an end to the matrimonial relationship. It effects a physical separation
between the spouses in their own interests; and it is a stepping stone to the remedy of divorce. At any
time there many be reconciliation, and the parties may rescind the decree of judicial separation and
resume cohabitation, Even under early law the husband was permitted to keep apart an ensuring wife
and to maintain her.
After the Amendment in 1976, all the grounds available for the remedy of Divorce Under Sec. 13
are grounds for Judicial Separation. Either party to marriage may file the petition for Judicial Separation
After the passing of the decree the parties are not under legal obligation to cohabit, with each other.
However at any time either party may file petition for residing the decree. Divorce. (Sec.13, 13A,138)
Hindu Marriage was a sacrament, and a divine union. Hence the Hindu believed that it is not to be
dissolved. The Hindu Marriage Act provides the remedy of divorce in Secs. 13, 13A, 138. Either party to
the marriage cane file a petition for divorce in the following grounds:
Section 13 (1):
1. Respondent has voluntary sexual intercourse with another person after the marriage:
2. The Respondent has treated the petitioner with cruelty, after the marriage.
3. The respondent has deserted the petitioner for a continuous period of not less than 2 years
prior to the petition.
4. The respondent has become a convert to a non-Hindu religion.
5. The respondent has been (a) incurable of unsound mind (b) or suffering continuously or
intermittently from mental disorder rendering cohabitation difficult.
6. The respondent has been suffering from a virulent and incurable form of leprosy.
7. The responded has been suffering from venereal disease in a communicable form.
8. The respondent has renounced the world by entering any religious order.
9. The respondent is not held of for 7 years or more by these persons who would naturally have
heard of him or her.
10. If there is no resumption of cohabitation between the parties of one year, after the passing of
the decree for judicial separation.
11 . If there is no restitution of conjugal rights between the parties for a period of one year, after the
passing of the decree for Restitution of conjugal rights.
Section 13 (2):
The wife alone may file a petition for divorce on the following grounds.
1. If the husband marries again after the commencement of the Act, or of any other wife of the
husband married before the Act was alive at the time of petitioners marriage and the other
wife is alive at the time of filing the petition.
2. If the husband in guilty of rape, sodomy or bestiality, after the solemnization of marriages.
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3. If there is no cohabitation between the parties for one year or more after a decree is passed
for maintenance to the wife, under Hindu Adoptions and Maintenance Act a under Cr. PC.
4. If the marriage was solemnized before 15 years of age. If she repudiated the marriage after
attaining 15 years. and before reaching 18 years.
Sec. 13 A (1976 Amendment):
This section provides an alternate relief in divorce proceedings. On a petition for divorce the court
may grant an alternate remedy of judicial separation. The petition must have been filed on any of the
grounds in Sec. 13, except the following grounds:
1. Conversion of the respondent to non-Hindu religion.
2. The respondent’s renunciation of worldly life.
3. The respondent not being heard of for seven years. (Sec. 13B).
Provides the remedy of divorce by mutual consent. Both parties to the marriage may present a
petition together to the District Court for the remedy of divorce by mutual consent.
1. If they have lived separately for a period of one year or more:
2. If they are not able to live together.
3. If they have mutually agreed to have the marriage dissolved.
Within 18 months and after 6 months from the date of the petition under this section, the parties
must make a motion. On the motion, the court hears the petition, makes enquiry and grants the decree
of divorce by mutual consent.
Time Limit :
No petition for divorce can be presented within one year of marriage. However the parties may
obtain permission from the court premature applications for divorce.
1. If there is exceptional hardship to the petitioner.
2. Or, if there is exceptional depravity on the party of the respondent. If such permission is
obtained through mis representation, or concealment of the nature of the case, the court
(1 ) may either dismiss the divorce petition, or (2) shall pass a decree on condition that the
divorce shall take effect only after one year. In granting permission for premature petitions
for divorce, the court considers interests of the children of marriage, and the possibilities of
reconciliation between the parties.
Divorced persons, can remarry (1) after one year from the date of the decree (2) or from the
confirmation of the decree by the Appellate Court, before the Amendment 1976.
LAW OF ADOPTION
Basis and Objects of Adoption :
Ancient Hindu lawyers recognized twelve kinds of sons. They were broadly classified into three
groups :
1. Atmaja son (sons born of oneself)
2. Paraja sons (sons born of others and)
3. Adopted sons.
The basis of the Hindu Law Adoption is spiritual and not secular. The ancient sage Atri has state
the two fold objects of adoption; as (1) Offering spiritual benefit (Pinda or oblation of food and udaka
or labation of water) to the ancestors (2) and perpetuation of the lineage. These objects are obviously
spiritual in character. In fact the adopted son becomes a coparcener with the adoptive father, and acquire
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share in coparcenary property. On the death of the adoptive father he inherits his properties. But these
property rights are only secondary, and they are the secular objects of adoption. Dharma Sutra also
expresses the spiritual theory of adoption.
Amarendraman Singh v. Sannothan Singh
A Hindu son died unmarried, living his widowed mother Indumati. By a family custom females were
excluded from succession to immovable property. Hence, on his death, his estimate was inherited not by
his mother but by a collateral Banamali. Thereafter, Indumati adopted Amarendra as her son Banamali
questioned the validity of adoption. The Privy Council upheld the adoption on the basis of the spiritual
theory of adoption.
The spiritual theory of adoption was explained by the Privy Council. For every hindu a son is
essential to offer spiritual benefit to him on his death. The spiritual benefit is essential for attainment of
Salvation, recording to hindu faith. Only for fulfillment of this spiritual purpose, continuation of male line
is indispensable in a hindu Family.
Whenever a male dies without a son, he casts a duty upon his widow to provide for the continuance
of male line. Naturally, the widow adopts a son and allows the male line to continue. When a son dies
unmarried, the widowed mother adopts a son.
CONDITIONS OF A VALID ADOPTION

Valid and void Adoption
Hindu Law of adoption has been codified in the Hindu Adoptions and Maintenance Act of 1956.
After the Act, an adoption has to be made according to the provisions contained in the Act. Any adoption
made in contravention of the said provisions shall be void. But adoption made before 1956 according to
prior Hindu Law, are valid under Sec. 5 of the Act.
An adoption is either valid or void, and there is no voidable adoption. It cannot be also partly valid
arid partly void. A void adoption brings about no legal change in the status of the adopted person. The
adopted does not acquire any right in the adoptive family. Likewise his rights in the natural family are
not lost. After adoption, suppose the natural father alienates family property. If the adoption is valid
the alienation cannot be impeached by the son. If the adoption is void, the adopted son can attack
the alienation as not binding on him. Similarly, after adoption the adoptive father may gift away some
property to the adopted when the adoption becomes void, the gift fails, if the intention of the adoptive
father was to benefit the adopted solely because of adoption. But the gift is valid, if the adoptive father
intends to benefit the adopted under all circumstances as a person designate.
Conditions of a Valid Adoption
Sec. 6 of the Act states the conditions for a valid adoption
1. The person adopting must have capacity and right to adopt.
2. The person giving in adoption must have capacity to adopt.
3. The adopted must have capacity to be adopted.
4. Other conditions in the Act must be fulfilled.
Capacity of the Person Adopting
Formalities : Before the Act ceremonies for adoption were not uniform Physical Act of giving and
receiving was essential in all ceremonies. In the case of Brahmins alone performance of the ceremony
of Datta Homam was insisted.
After the Act under Sec. 11 the child to be adopted must be actually given and taken in adoption
by the parent and guardians. This corporeal delivery can be effected even by third person under the
authority of the parents. In the Corporeal delivery there must be an intention to transfer the child from
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the natural family to the adoptive family. However; the performance of Datta Homam is not essential to
the validity of an adoption. But there is nothing to prevent the performance of datta homam, and in some
communities data homam is still performed.
Illus :
A sent his son through his agent to house of B in another town for the purpose of education. B had
already an intention to adopt A’s son. Now B presumed that A was willing to give the child in adoption to
him. After sometime, A brought back the son, and B raised the question of adoption. Court decided that
there was no valid adoption. Even through the child was physically delivered by A is agent to B, there
was no intention to give in adoption.
Capacity of the person adopting
Under the prior Hindu law a sonless male could adopt a son. A man was sonless if he had no
son, son’s or son’s son’s son. An illegitimate son was not recognized as a son at all and so the putative
father could adopt a son. Even bachelors and widowers could make adoption of son. There was no
possibility for the adoption of a daughter. However custom recognized the adoption of daughters in
certain communities. For e.g.., in the case of dancing girls of South India.
Under prior law females could not adopt to themselves. However, a wife was allowed to adopt a
son to her husband, as the agent of her husband.
The person adopting should full two qualifications (1) he should not be minor (2) he should not be
a lunatic.
Under Sec. 7 of the Act a Hindu male has capacity to adopt if he is of sound mind and a major (18
years). If he has a wife living he can adopt only with her consent. If he has more than one wife living, the
consent of all the wives is necessary. But the wife’s consent is not necessary if (1) she has finally and
completely renounced the world (2) or she has renounced Hindu Religion (3) or she has been declared
by court to be of unsound, mind.
FEMALE : Under prior Hindu Law a female could not adopt to herself. However, a wife could
adopt to her husband as his agent or surviving half. When the husband was alive his permission was
necessary. If the husband was a lunatic the wife could not adopt, since consent was not possible. When
the husband was an ascetic his consent was presumed and the wife could adopt depended upon the
school of Law to which she belonged.
Under Sec. 8 of the Act a female Hindu has how the capacity to adopt, if she is of sound mind and
a major (18 years). Thus even unmarried woman can adopt to themselves. A married woman can adopt
(1) if she obtains a divorce;
(2) if her husband is dead;
(3) if her husband completely and finally renounces the world;
(4) if her husband becomes a convert to non-Hindu Religion;
(5) if her husband is declared a lunatic by a competent court. Females can adopt either a son or
a daughter.
Capacity of persons giving in adoption :
Under prior law the parents alone could give the boy in adoption. The father enjoyed the prior right
and he could give in adoption without the consent of the mother. The mother could give in adoption only
when the husband was dead or became an ascetic. However, the widowed mother was not entitled to
give in adoption her son by the first husband after her marriage.
Now under Sec.9 of the Act the father or the mother or the guardian of a child has capacity to give
the child in adoption. He father enjoys prior right to give in adoption, but he should secure the consent of
the mother. Unless (1) the mother completely and finally renounces the world (2) the mother becomes,
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a convert to non-Hindu faith, (3) the mother is declared by a court of competent jurisdiction to be a of
unsound mind. The mother can give the child, in adoption if -
(1) the father is dead;
(2) the father completely and finally renounce the world;
(3) the father becomes a convert to non-Hindu religion;
(4) the father is declared by a court of competent jurisdiction to be of unsound mind.
In the following circumstances the guardian, the child can give the child in adoption, with the
previous permission of the Court -
1. when both the father and mother are dead; or
2. when they completely and finally renounce the world;
3. when they are declared by a Court of competent jurisdiction to be of unsound mind. Before
granting permission to a guardian the Court shall be satisfied that -
1. the adoption is for the welfare of the child
2. the guardian has not received or agreed to receive any reward or consideration for the
adoption.
Capacity of the Adopted :
The prior Hindu Law permitted adoption of son alone. There were many qualifications prescribed
by the Texts regarding his capacity to be adopted.
(1) The boy must be of the same caste.
(2) He should be a near relation and living close by.
(3) He should be affectionate towards the adaptor.
Generally, a boy could be adopted at any time before Upanayana among the regenerate casts
and before marriage among Sudhras. Adoption of only son or the eldest son was prohibited. Besides,
an illegitimate son, already adopted son, congenitally deaf and dumb son and an Orphan could not be
adopted.
Under sec. 10 of the Act there is provision for adoption of a son as well as a daughter. There is
no restriction as to caste. The child to be adopted should be a Hindu, unmarried and below 15 years of
age However, there are customary adoptions of married boys and boys about 15 years. When a Hindu
adopts a child of the opposite sets there must be a difference of at least 21 years between the adaptor
and the adopted.
Effect of valid Adoption :
Sec. 12 and 13 of the Act deal with the Legal effects of valid adoption. When there is valid adoption,
the child is deemed to die in the natural family, and to be reborn in the adoptive family. His rights in the
natural family are destroyed, and he acquires in the adoptive family. An adopted child becomes the child
of the adoptive family for all purposes from the date of adoption. In fact, he is deemed to be natural son.
Marriage :
To adopted child’s relationship with the natural family continues for purpose of marriage. A child
cannot marry anybody whom he or she could not have married in the natural family.
Vesting in Natural Family :
Any property vested in the adopted child prior to adoption is not divested by adoption for e.g.,
A, B and C are brothers in a hindu joint family. All of them inherit some properties from their maternal
grandmother. They hold these properties in common; with rights so equal share. ‘A’ is adopted. Now,
the one third share vested in ‘A’ is not divested by adoption. He takes his one third share to the adoptive
family, but subject to obligations attached to the property. (obligation to maintain a member etc.).
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Divesting in Adoptive Family :
When the adopted son acquires a right by birth to the ancestral property in the hands of the
adoptive father. But in the self-acquired property of the adoptive father the adopted son does not acquire
any right. The adoptive father con freely dispose of his self-acquired property.
Rights of adopted son as against aurasa son :
A natural son may be born to the adoptive father, after adoption of a son, Under prior law, based on
the text of Vasishta the adopted son was entitled only to a limited share. Vasishta’s text was interpreted
differently in different schools of law. In Madras the adopted son was entitled 1/5 of the share of a natural
son. But among the Sudras adopted son and Aurasa son took equally. After the Act the adopted son
ranks equally with the aurasa son among all castes and takes an equal share.
Right by theory of relation back :
According to the Theory of Relation back an adopted son is deemed to be alive at the time of
death of the adoptive father. Under this, a valid adoption divested the property vested in the adopting
widow or in the heirs of the deceased adoptive father. After the Act, this theory is not applied an adoption
cannot divest any property vested before adoption. For example (1) A Hindu dies leaving behind some
properties and his widow. The properties are vested in the widow as heir to husband. She is absolute
owner of the properties under Hindu Succession Act 1956. In 1957 the widow adopts a son. The adopted
son does not acquire any right to the properties in the hands of adoptive mother. If adoption is made
before 1956, the adopted son can divest the property vested in the widow.
Window’s Power to Adopt
Under prior law only son could be adopted. But a maiden was not qualified to adopt, a son to
herself. Similarly, a married lady also could not adopt a son to her husband during her husband’s life
time. However, after her husband’s death a widow could adopt a son to her husband. The widow’s
power to adopt depended on the school to which she belonged. This power was derived from the text of
Vasishta. Now let a woman give or accept a son, unless with the assent of her Lord.
Collector of Madura v. Muthuramalinga Sethupathy (PC)
The Raja of Ramnad died leaving behind his widow and some properties. The widow adopted a
son with the consent of her mother-in-law. The adoption was attacked invalid. It was argued that the
widow adopted without, the assent of her husband. Regarding the nature of the assent of husband, the
text of Vasishta was relied upon. The different view expressed by various schools of law.
Mithila School - Assent of Lord means husband’s consent to his wife for adoption of son, during
his life time. Hence a widow can adopt with such consent.
Dravida School - Assent of Lord can be secured during his life time and it can be exercised by
the widow, after his death. Or consent can be obtained to adopting after his death also from his
kindred.
Bengal School - Assent of Lord is consent secured during his life time. It can be exercised by the
widow, after his death.
Thus in Madras where the Dravida School is applied, a widow could adopt a son to her husband,
either with her husband’s consent, or with the consent of his kindred. In this basis made by the widow
with the consent of mother-in-law was valid.
Extension of a widow’s Power to Adopt
Under Sastriac Hindu Law there was no limit of time for the widow to make an adoption of a son to
her deceased husband. The Privy Council on grounds of public police imposed a limit upon the widow’s
powers to adopt. The limit is not a durational limit measured in years. It is a contingent limit, a limit
measured in contingencies. The famous Bhoobun Mayee’s case lays down thus limit imposed upon a
widow’s power to adopt.
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Bhoobun Mayee v. Ram Kishore (Privy Council)
A had a son B through his wife C. A gave authority to C to adopt a son, in case he died in future
without male issue. Firstly, A died leaving B and C. B married C1, but soon he also died leaving his
widow C1. The properties acquired by B from his father A were not in the hands of C1. After sometime C
adopted a son to her deceased husband A. Thereafter, C1 also adopted a son to her deceased husband
B. The adopted son of the mother-in-law sued for possession of the family property: The adopted son of
the daughter in law C1 also claimed the property. In order to solve the conflict between the two adopted
sons the validity of the adoptions had to be decided. The Court decided C’s adoption was invalid, since
at time of the adoption her power to adopt was extinct. The following are the rule of law declared in this
case.
1. The primary object of adoption is to provide for spiritual benefit (Pilla and Udaka) to the
ancestors.
2. When a male Hindu dies he casts a duty upon his son to offer spiritual benefit to him and his
ancestor.
3. When his son dies unmarried, or leaving son or widow, his widowed mother can adopt a son
to her husband and provide for spiritual benefit.
4. Similarly, when a male dies sonless he casts the duty to offer spiritual benefit, upon his
widow. The widow adopts a son to her husband and fulfill this duty.
5. Her son B leave his widow C1. C1 can adopt a son to her husband and provide for spiritual
benefit. When she adopts C’s potential power to adopt becomes extinct and her adoption is
invalid.
After the Act :
Under Section 8 of the Act a widow enjoys the absolute power to adopt a son or daughter to herself.
The only conditions are that at the time of adoption :
1. She should not have a son, son’s son or son’s son’s son, if she adopts a son and
2. She should not have a daughter or son’s daughter, if she adopts a daughter.
DOCTRINE OF RELATION BACK
Under the Doctrine of Relation Back, the adopted son was treated as posthumous son. He was
deemed to be in existence at the time of death, of the adoptive father. In result the male line was deemed
to continue without any break. In result the adopted son acquires his rights in the adoptive family from
the death of the adoptive father, and not merely from the date of adoption.
When a male Hindu dies sonless his properties became vested either in his widow or in his surviving
coparceners. When the widow adopted, a son to her husband the adoption divested properties already
vested to the widow or surviving coparcener. In other words, the adopted son and right to recover the
adoptive father’s property from the widow or the surviving coparcener. This right of the adopted son was
recognized under the Doctrine of Relation Back.
One Limitation :
A limitation was imposed upon the doctrine. Sometime for a legal necessity binding on the estate
of the adoptive father, the estate might be alienate. Such alienation was binding the adopted son, and he
could not recover the property from the alliance.
Krishnamurthi v. Dhruwaraja :
A was the father and B was his son. Both were the coparceners in a Hindu Joint Family. B died
leaving his widow’s X. A’s surviving coparcener A acquired B’s interest by survivorship. Later, A also died
and the property was inherited by collateral C. The property passed through many hands and ultimately,
Krishnamurthy became the absolute owner by inheritance. Then the widow X adopted a son Dhruwaraja
113 FAMILY LAW - I

to her deceased husband B. Dhruwaraja sued to recover the property from Krishnamurthy. On the basis
of Doctrine of relation Back, the adopted son claimed that he was legally is existence when B died. He
argued that he could divest the estate of his adoptive father, already vested in A and his heirs. The Court
recognized the claim of the adopted son on the basis of Doctrine of Relation Back.
LAW OF GUARDIANSHIP
The Law relating to minority and guardianship among Hindus is now codified by the Hindu Minority
and Guardianship Act of 1956. The provisions and Act shall apply in addition to the Guardians and wards
Act of 1890.
1. Minor and Guardian :
The Act defines a minor as one who has not completed the age of 18 years. When a Hindu minor
has guardian appointed by Court., or were he is a ward of the Court of Wards, the minority continues up
to 21 years. Guardian is a person having the care of -
(1) the person of the minor; or
(2) his property; or
(3) both his person and property.
The Act recognizes four kinds of guardians -
(1) Natural Guardian
(2) Testamentary Guardian
(3) Guardian appointed by Court
(4) Guardian under Guardians and Wards Act.
2. Delegation of Custody and Guardianship :
The Guardianship is the nature of a sacred trust. Therefore he cannot during the life time substitute
another to be a guardian in his place. But he can entrust the custody of his minors to another, but this
authority can be revoked by him. Thus delegation of custody is recognized by law, but delegation of
guardianship is not recognized.
Anne Besant v. Narayanath :
The father entrusted the custody of his two minor boys to Mrs. Besant. He agreed that she alone
should be guardian of their person during their minority. The boys were taken over and they had a course
of tuition in England. Therefore the father demanded restoration of the custody of the boys to him. Mrs.
Besant refused to restore the boys to his custody, and so she was sued. The Court ordered restoration
and made certain observations. Custody can be delegated and the delegation can be revoked. But
delegation cannot be revoked, if revocation is not in the welfare of the children.
NATURAL GUARDIANS
Under Sec. 6, of the Act, the following are the natural Guardians.
1. In the case of a boy or unmarried girl the father and after him the mother.
2. In the case of illegitimate boy or unmarried girl, the mother and after her the father.
3. In the case of a married girl, the husband.
The custody of a minor below 5 years shall be with the mother. Though mother has preferential
right to custody, father alone continues as guardian. For just reasons the father can move the Court to
return the custody of a minor below 5 years of him.
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Qualifications for a Natural Guardian
1. He should not be a minor.
2. He should not convert himself to another religion.
3. He should not renounce the worldly life and become an ascetic.
Powers of a Natural Guardian :
1. Powers of alienation of minor’s property :- The Natural guardian could transfer minor’s
property for legal necessity of the minor of for the benefit of the minor’s estate. His powers of alienation
of minor’s property are-explained by the Privy council in the following case.
Hanumanth prasad v. Mussat Babuyee :
A was a minor son. His widowed mother acted as natural guardian and mortgaged the minor’s
property to B. On attaining majority A used to set aside the mortgage transaction. The Privy Council
decided that the mortgage was binding upon A, and declared the following rules of Law :
1. The Natural guardian has limited power to create burden on the minor’s property, or to transfer
the same.
2. This power can be exercised by the guardian only for the legal necessity of the minor or for
the benefit or necessity of the minor’s estate.
3. The interest of the transferees from the guardian are protected if they act bonafides. They
should enquire and satisfy themselves that the guardian is acting for the welfare of the minor
or for benefit of the minor’s estate. They need not look to the actual application of the money
‘received by the money received by the guardian under the transfer.
Under the Guardians and wards Act of 1890 and Sec. 8 of the Guardianship Act of 1950:
The natural guardian should obtain prior permission from the Court for the following transfers
affecting minor’s property.
1. The mortgage, or charge, or transfer by sale, gift or exchange or Otherwise any part of the
immovable property of the minor.
2. To lease any part of minor’s property for a term exceeding five years, or for term ‘ extending
more than one year beyond the date of minor’s majority.
The Court grants prior permission for the above transfers by the guardian, only in the case of
necessity or for an evident benefit to the minor. If the natural guardian transfers minor’s property without
the prior permission from Court, the transfer is voidable, at the instance of the minor or any person
claiming under him.
Other Powers of the Natural Guardian :
Both under the prior law, and under Sec. 8 of the Act, the Natural Guardian has rights to do all acts
necessary and proper for welfare of the minor, or for the benefit of the minor estate.
1. Contract for purchase by Guardian :
Before the Specific Relief Act contract for purchase by guardian was not binding on the minor.
Likewise the minor was not entitled to enforce such agreements. This ruling was based on the doctrine
of mutuality.
Sarwarajan v. Fakhruddin Mohamed (P.C.)
A minor’s guardian entered into a contract for purchase of some immovable property for the minor.
The contract was in fact for the benefit of the minor. Attaining majority, the minor sued for Specific
Performance of this contract. The Court refused specific Performance and’ observed as follows :
For Specific Performance of a contract there should be mutuality: The doctrine of mutuality means
that both the parties to the contract should be able to mutually enforce the contract against each other.
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This mutuality should exist at the time of formation of the contract, In this case the Vendor can not
enforce the contract against the minor. Therefore the minor alone cannot enjoy the right to Specific
Performance. ,
2. Contract for sale by the Guardian
Before the Specific Relief Act of 1963 and also after the Act. Contract for sale the guardian was
binding on the minor. Likewise he was entitled to enforce the contract against the vendee.
Subramanian v. Subba Rao (P.C.)
This Privy Council reversed the doctrine of mutuality. The mother of a minor son entered into
a contract for sale of minor’s estate. The intended purchaser was put in possession of the estate, in
pursuance of the contract. The minor, on attaining majority, sued for recovery of possession on the
ground that the guardian’s contract for sale was not binding upon him. The Privy Council decided that a
contract for not recover possession. Now under the Act of 1890 and the Act of 1956 Court’s permission
is necessary for this contract.
The Specific Relief Act of 1963
This Act has done away with the doctrine of mutuality. Sec. 20 of the Act states that one party to
contract is entitled to Specific Performance, even when the contract is not specifically enforceable by
the other party. The only question is whether the guardian has power to enter into a particular contract.
When he has the power, his contract can be specifically enforced both by and against the minor.
3. Purely Personal Covenants
Under earlier law and under Sec.8 of the Act of 1956, a natural guardian can in no case bind the
minor by a personal covenant, However if the personal covenant is made by the guardian for the legal
necessity of the minor, or for the benefit of the minor’s estate, the minor’s estate may be made liable.
Vagheela v. Sheik Maiudin (P.C.)
Certain debts were charged upon the estate of the minor. The guardian mother of the minor,
transferred some of the Villages in the estate, in discharge of debts. She covenanted that (1) the villages
were rent free; and (2) she and the minor would be liable to pay the revenue, in case of assessment by
the Government. Later the villages were assessed to revenue. The purchaser used for recovering the
revenue from the minor. The Privy Council decreed that the minor was not liable, since his guardian had
no power to blind the minor by purely personal covenants.
TESTAMENTARY GUARDIANS
Under prior law, the father alone had the power to appoint a guardian for his minor child by Will.
The testamentary guardian was appointed for the custody of the minor or for his property. The mother of
the minor had no power to appoint the testamentary guardian. In respect of the undivided interest of the
minor in the joint family property, testamentary guardian could not be appointed:
Under Sec.9 of the Act of 1956 the father can appoint the testamentary guardian for the person
or property of his minor child (son or daughter). If the mother survives the father, this appointment
made by the father has no effect. The mother can act as the guardian of the minor. She can also
appoint a testamentary guardian for the minor. If she dies without appointing a testamentary guardian,
the testamentary guardian appointed by the father can function.
Even during the father’s life time, the mother can appoint a testamentary guardian for the minor. (1)
by conversion to a non-Hindu faith, or (2) by renunciation of wordly life, if the father is disqualified to act
as guardian. In the case of illegitimate children only the mother can appoint the testamentary guardian.
Such testamentary guardian can function, even if the putative father survives the mother.
In all cases no testamentary guardian can be appointed in respect of the undivided interest of the
minor in the joint family property. In the case of an unmarried girl, the testamentary guardian can function
only till her marriage.
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Powers : The testamentary guardian enjoys all the powers of the natural guardian. His powers can
in no case exceed those of the natural guardian. However his powers can be curtailed by the testament
itself. Besides, the powers are subject to Sec.8 of the Act.
Ramanathan v. Palaniappa
‘A’ executed a will appointing ‘B’ as the executor of the will, and authorizing his widow to adopt a
son. Till the adopted son became a major the executor was to manage the property of the family viz.
a money lending business. In course of business ‘B’ appointed an agent to conduct the business. The
agent borrowed money from a Bank jointly with ‘C’, under a promissory note. The bank recovered the
whole amount from ‘C’; and so ‘C’ sued the adopted son for contribution. The adopted son argued that
his testamentary guardian ‘B’ had no powers to bind him by the personal covenant created by the agent.
The Court held the adopted son liable to contribute on grounds. (1) that the testamentary guardian has
all the powers of a natural guardian; (2) that the transaction was for the benefit of the minor, since the
amount borrowed was invested in the money tending business.
DE -FACTO GUARDIANS
Old Law
The term de facto guardian is a misnomer for the de facto manager of the minor’s person and
property. When a minor has no legal guardian, usually some near relation voluntarily looks after his
person and property. He may also apply under the Guardians and Wards Act of 1890 for appointment by
the Court as a Guardian. Without doing so if he possesses and Manages the minor’s property, he is the
de facto manager. The de facto guardian enjoyed powers of dealing with minor’s property. But his acts
could bind the minor only when they were for the minor’s benefit:
1. A de facto guardian could incur liability on behalf of the minor. The liability could bind the
minor, if it was for his benefit, or for the benefit of his estate.
2. An acknowledgment of debt made by a de facto guardian could not bind the minor or his
estate. He could not acknowledge even debts contracted by lawful guardians.
3. The de facto guardian could not bind the minor or his estate by his contracts with third parties,
Besides he had no powers to bind the minor or his estate by personal covenants.
LAW OF MAINTENANCE
Definition of Maintenance :
The Hindu Law of Maintenance has been codified under. The Hindu Adoption and Maintenance
Act of 1956
According to Sec. 3 of the Act maintenance includes -
(1) in all cases provision for food, clothing, residence; education and medical attendance and
treatment; and
(2) in the case of unmarried daughter, also the reasonable expenses, of her marriage, and
expenses incidental to her Marriage expenses cover the actual expenses in performing the
marriage and expenses incurred in the betrothal function and nuptial ceremonies:
The obligation of a Hindu to maintain others arises on account of personal relationship or ownership
of property, Personal obligation is recognized in favour of virtuous wife, infirm, and aged parents, and
minor children. The personal obligation is a legal, obligation, existing irrespective of ownership of property.
Obligation based on ownership of property relates to other members in the Joint Hindu Family, like the
females.
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MAINTENANCE OF WIFE
Grounds of Maintenance :
It is the duty of husband to maintain his chaste wife in the matrimonial home. Generally, if the wife
deserts her husband she lase her fight to maintenance. However for certain just reasons the wife can live
separate and claim maintenance from the husband. The just reasons are set forth in Sec. 18 of the Act:
1. When the husband is guilty of desertion. Desertion means abandoning the wife without
reasonable cause, and without her consent or against her wish, or wilfully neglected her.
2. When the husband treats the wife with cruelty. The cruelty must cause reasonable fear in the
wife’s mind that it will be harmful or injurious to live with him.
3. If the husband is suffering from a virulent form of leprosy.
4. If the husband keeps a concubine in the same house, or habitually resides with a concubine
elsewhere.
5. If the husband ceases to be a Hindu by conversion to another religion.
6. If there is any other cause justifying the wife’s separate living. The expression justifying
cause is elastic, and includes any situation (a) making the wife’s life in the matrimonial home
miserable (b) making it unjust for the courts to compel the wife to live with the husband. The
court decides upon a satisfying cause on principles of justice, equity and good conscience.
Disqualification :
The section enacts that the wife loses her right to maintenance, if she becomes unchaste or becomes
a convert to another religion. However under Old Law bare pittance or starving maintenance was allowed
to an unchaste wife or separate maintenance is altogether denied. But the husband’s condonation of
the wife’s unchastity can cure her disqualification. In the case of conversion to another religion, the wife
cannot recover her right to maintenance, by reconversion to Hinduism.
Maintenance of aged parents and major unmarried daughters :
Under Sec. 20 Hindu parents are bound to maintain their unmarried daughters till their marriage.
Likewise, Hindu sons and daughters are bound to maintain their aged and infirm parents. Aged parents
and major unmarried daughter can claim maintenance only when they are unable to maintain themselves
out of their own earnings or other property.
Even under Old Law there was obligation upon a Hindu male to maintain his major unmarried
daughter and aged parents. After the Act this obligation has been imposed upon females also,i. e .
daughter and mother. Now the step mother also is included as a parent to be maintained by the step son
or step daughter:
Maintenance of illegitimate children
Under old Law an illegitimate son could claim maintenance from his putative father. After the act
he can claim it also from his mother. When his father died, he could receive maintenance of his life time
out of his father’s property, This right was recognized as substitute for a share.
Under the Old Law illegitimate son by non-Hindu concubine could not claim maintenance. Now also
Sec. 24 requires that a claim to maintenance should be a Hindu, and thus there is no change in the law.
Now under Sec. 20 of the Act an illegitimate male child can claim maintenance only during
minority. Prior to 1956 an illegitimate daughter could not legally claim maintenance. Now she can claim
maintenance during her minority and till her marriage both from her mother and putative father. After
death of her parents maintenance can be claimed from the parent’s property in the hands of heirs.
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Dasi putra and avarudha sri
An illegitimate son by a permanently and exclusively kept concubine was called Dasi Putra. Among
the Sudras a Dasi Putra was entitled to inherit the heritable property of his Putative father, after his death.
He received 1/2 of the share of a legitimate son, This right has now been removed and he is at present
entitled only to maintenance.
A Concubine had no rights of maintenance against her paramour personally. But (an Avarudha Sri)
an exclusively and permanently kept concubine could claim maintenance from her paramour’s property
after his death. But her right to maintenance depended upon her continued loyalty even after his death.
Under the Act the concubine has no right to claim any maintenance from her paramour.
Maintenance of widowed daughter in Law
The widow of a coparcener is a member of the Hindu Joint Family. Originally the Joint Family
Manager was bound to maintain her out of the joint family property. After the Hindu woman’s Right to
Property Act of 1937 she acquired a life estate in her husband’s share. Under Hindu Succession Act of
1956 her limited estate has become absolute estate. Thus acquiring right to claim share along with other
heirs, the widow lost her maintenance right.
Suppose the son died divided from the coparcenary and left his widow. Under the old Law the
father-in-law had a moral obligation to maintain such a widowed daughter-in-law Now under Sec. 19 the
widowed daughter-in-law has legal right to claim maintenance from father-in-law, whether her marriage
took place before or after the Act: But the following conditions must be satisfied for the claim :
1. She is unable to maintain herself out of her own earnings or other property.
2. She is unable to obtain maintenance from the estate of her husband.
3. She is unable to obtain maintenance from the estate of her father.
4. She is unable to obtain maintenance from the estate of her mother.
5. She is unable to obtain maintenance from her son or daughter.
6. She is unable to obtain maintenance from the estate of her son or daughter.
If the father-in-law has only self-acquired property, he is only morally obliged to maintain his
widowed daughter-in-law. But on his death the widowed daughter-in-law as a dependant under Sec. 21,
can claim maintenance from the estate.
Rate of maintenance :
The Court has judicial discretion to determine (1) the need for maintenance and (2) quantum of
maintenance. The Court keeps in mind the following considerations laid down in Sec. 23.
A. Amount of maintenance of wife, children or aged parents :
1. The position and status of parties.
2. The reasonable wants of the claimant.
3. Whether there is justification for the claimant wife to live separately.
4. Claimant’s property and income
5. Other persons entitled to claim maintenance.
B. Maintenance of Dependents :
1. Net value of the estate of the deceased.
2. The degree of relationship with deceased.
3. Any provision for the dependant under any will.
4. Reasonable wants of the dependant.
5. Past relations between the dependant and the deceased.
6. Property and income of the claimants.
7. Other persons entitled to maintenance.
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These are mere guiding principles to exercise judicial discretion, and are not mandatory rules. In
addition the Court bears in mind many other principles. In short, the Court must fix the rate of maintenance
with due regard to all the relevant factors.
The object of the Court must be to make just and reasonable allowance suited to the position in life
of the claimant.
The amount of maintenance whether fixed by Court or agreement, before or after the Act, may be
altered. Such alteration is possible if there is material change in the circumstances. The circumstances
may relate to the claimant or to the person or estate bound to maintain (1) Enormous rise in prices
of necessaries (2) financial crisis faced by person or estate bound to maintain (3) improvement in
the condition of the claimant are all such circumstances. Even the lump amount fixed in full quilt of
maintenance is subject to review and revision. Further in spite of an agreement not to claim enhanced
maintenance, a claim can be made for enforcement.
NATURE OF MAINTENANCE
Sections 26 to 28 deal with nature of maintenance claims. Sec. 26 clearly states the debts
contracted or payable try the deceased have priority over maintenance claims. A claim for maintenance
only a personal Right and note charge, on the property, unless it is made so. When there is a charge,
maintenance claims shall have priority over the debts.
Under Sec. 27 a maintenance claim can be made a charge on the estate of the deceased
1. By the will of the deceased.
2. By a decree of court or
3. By agreement between the deceased and the claimant.
A claimant may have right to receive maintenance, out of an estate. Such estate or part of such
estate may be transferred. Now the right to maintenance can be enforced against the transferee. But
the transferee is liable only. (1) when the transfer is gratuitous or (2) when he has knowledge of the
maintenance claim against the property. Thus an innocent transferee for consideration and without
notice of maintenance claim is protected. This principle is reproduced in Sec. 28 of the Act from Sec.39
of Transfer of Property Act.
PARSI MATRIMONIAL LAW
Chief Parsi Matrimonial Courts
For the purpose of hearing units under the Parsi Marriage and Divorce Act, 1936 Special Courts
constituted in the presidency Towns of Calcutta, Madras and Bombay the State Government set up
such Special Courts in the fit places in their Territories. The Special Courts in the Presidency Towns
shall be called the Chief Matrimonial Courts. Their Jurisdiction is the ordinary Original Civil Jurisdiction
of the High Court. Generally the Chief Justice of the High Courts shall be the Judge of the Parsi Chief
Matrimonial Court. The Chief Justice may also appoint some other Judges of the High Court to act as
judges of the parsi Chief Matrimonial Court:
District (Parsi) Matrimonial Court :
The State Government may alter the local limits of Jurisdiction of any District Parsi Matrimonial
Court. If the State Government feels that any District Matrimonial Court is unnecessary, it may include
it within the jurisdiction of the Chief Parsi Matrimonial Court. Sometimes any district may be brought
within the jurisdiction of one District Parsi Matrimonial Court. In altering the jurisdiction of the Matrimonial
Courts, the Parsi population in a particular area is taken into consideration.
Delegates :
In Trial of Matrimonial cases under the Act the judge shall be aided by seven delegates. The
delegates shall be appointed by the State Government and they shall be Parsis. Their number in the
case of High Court is below 30 and in the case of District Court is below 20. The object of delegates is to
give the local Parsis an opportunity of expressing their opinion.
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The appointment of a delegate shall be for ten year. But he shall be eligible for reappointment for
the like term. The Office as a delegate becomes vacant (1) when he completes his term of office (2) when
he resigns his office (3) when he becomes incapable or unfit to continue in office (4) when he ceases to
be a parsi (5) when he is convicted of an offence under Indian Penal Code (6) when he is declared an
insolvent when vacancy arises it is filled up by the State Government.
The judge shall select the delegates to aid him in trial of cases, from the District in due rotation.
Before such selection party to the suit may challenge any three of the delegates. In case of such
objections, the delegates next are selected to be the judge.
Jurisdiction :
Sec. 29 states the courts in which suits to be brought. All suits must be filed in the court within
whose jurisdiction the defendant resides. When the defendant has left the territory, the suit must be filed
in the court at the place where the plaintiff and the defendant last resided together. However; with court’s
permission the suit may be filed (1) In the Court at the place where the plaintiff resides or (2) at the place
where the plaintiff and the defendant last resided together.
INDIAN DIVORCE ACT, 1869
1. Dissolution of Marriage
Sections 10 to 17 deal With dissolution of marriage. Any husband may present petition to the
District Court of High Court for dissolution of the marriage on the ground that the wife is guilty of adultery.
Any wife may present petition to the District Court or High Court for dissolution of the marriage on
the ground that the husband after the marriage has :
1. Changed his profession of Christianity.
2: Gone through a form of marriage with another woman.
3. Is guilty of bigamy with adultery.
4. Is guilty of incestuous adultery.
5. Is guilty of marriage with another woman with adultery.
6. Is guilty of rape, sodomy or bestiality.
7. Is guilty of adultery coupled with cruelty. The cruelty by itself must be enough for dissolution.
8. Is guilty of adultery coupled with desertion, without reasonable excuse for two years.
When the husband filed the petition for dissolution on the ground of adultery, he shall make the
adulterer a co- respondent. The court may excuse him from doing so (1) if she wife is leading the life of
a prostitute (2) the name of the adulterer is unknown to the husband, in spite of his efforts (3) or if the
adulterer is dead.
Every decree of dissolution passed by the High court shall be in the first instance a decree in Nisi.
The decree in Nisi is absolute after expiry of a period fixed by the order of the High court being not less
than 6 months. The petitioner must file a petition to have the decree in Nisi made resolute, after expiry
of the prescribed period. During the period (any person) can oppose the decree being made absolute on
grounds of conclusion or material effects. The Court may take the decree absolute, or reverse the decree
in Nisi or may require further enquiry.
Every decree for a dissolution made by a District Judge is subject to confirmation by the High Court
for confirmation shall be heard by two Judges of the High Court. Confirmation of the decree shall be
made only after expiry of the duration prescribed by the High Court, not less than six months.
Nullity of Marriage (Section 18 and 18)
Any husband or wife may present a petition to the District Court or to the High Court for declaration
that the marriage is null and void. Such declaration is made on any of the following grounds.
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1. The respondent was impotent at the time of the marriage and at the time of filing the petition.
2. The parties are with in the prohibited degree of consanguinity or affinity.
3. Neither party was a lunatic or an idiot at the time of marriage.
4. The former husband or wife of either party was living at the time of marriage, the former
marriage being in force.
The High Court may pass a decree of nullity of marriage on the ground that the consent of either
party was obtained by force or fraud. District Court’s decree shall be confirmed by the High Court.
Judicial Separation
Husband or wife may obtain a decree for Judicial Separation on the following grounds. (1)
Adultery or cruelty or desertion without reasonable excuse for two year, or more. The petition for Judicial
Separation may be made either to the District or to the High Court. The Court shall grant the decree if it
is satisfied with the truth of the petition. (2) and if there is no legal ground to refuse the decree.
Consequences : The wife, after Judicial Separation shall be deemed spinster with respect to after
acquired property. She can freely dispose of her property and when she dies intestate, the property shall
be inherited by her heirs. At the time of such inheritance the husband is deemed to be dead.
The wife, after Judicial Separation is deemed spinster also for purpose of contract and suing. If
alimony is ordered to be paid to the wife by the husband, during Judicial Separation, husband is liable for
the necessaries supplied to the wife, if he fails to pay the alimony.
Reversal : When a decree for Judicial Separation is obtained in the absence of the respondent,
the respondent may file petition for reversal of the decree. If desertion was the ground of such decree,
reasonable excuse for the desertion must be proved. The court must be satisfied that the decree was
wrong. The reversal shall not affect the rights or remedies of third parties against the wife or the husband.
RESTITUTION OF CONJUGAL RIGHTS (section 32)
Either the husband or the wife may sometimes withdraw from the society of the other, without
reasonable excuse. Then the separated spouse can file a petition for the remedy of Restitution of
Conjugal Rights. The petition may be filed before the High Court or the District Court. The Court grants
the remedy (1) when it is satisfied with the truth of the contents in the petition, (2) when there is no legal
ground for refusing the remedy.
SPECIAL MARRIAGE ACT 1954
Solemnization of Marriage Under The Act (Secs. 4 to 14)
The following conditions should be fulfilled for the special marriage under the Act
1. Neither party has a spouse living,.
2. Neither party is an idiot or lunatic.
3. The male has complete the age of 21 years and the female the age of eighteen years.
4. The parties are not within the degrees of prohibited relationship. However custom governing
the parties may permit such marriage.
Notice : The parties to the intended marriage shall give notice of the marriage in the form prescribed.
It must be given to the marriage officer of the district. One or both of the parties to the marriage must
have resided for a period of not less than 30 days immediately prior to the notice.
The Marriage Officer shall keep the notice with the records of his office. He shall also enter a
true copy of the notice in the Marriage Notice Book. The Marriage Book shall be open for inspection
to the public without fee. The Marriage Officer shall be publish a copy of the Notice, by affixing it to a
conspicuous place of the office. When either of the parties is not permanently residing in the district, the
Marriage Officer shall send a copy of the Marriage Notice to the Marriage Officer of the district where the
party is permanently residing. The Marriage Officer receiving the copy shall also publish it in his office.
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Objection : Before expiry of 30 days from the date of publication of the Marriage Notice, any
person may object to the performance of the marriage. Objection must be on the ground that the intended
marriage is contravening the conditions prescribed by the Act. If there is no such objection, the marriage
may be solemnized after the expiry of 30 days from the date of publication of notice.
When objection is raised it is recorded by the Marriage Officer in the Marriage Notice Book. It is
signed by the person raising the objection. The Marriage Officer shall enquire into the objections within
30 days from the date of objection. If he upholds the objection he can refuse to solemnize the marriage.
Either party to the marriage may prefer an appeal to the District Court against the order of refusal passed
by the Marriage Officer. The appeal should be filed within 30 days from the date of the order. The order
of the District Court shall be final.
Registration : At the time of solemnization of marriage, the parties to the marriage, and three
witnesses must sign a declaration in the presence of the Marriage Officer, The Declaration is countersigned
by the Marriage Officer. The Marriage may be solemnized at the office of the Marriage Officer, or at
e place within reasonable distance which the parties desire. When it is outside the office additional
payment of fees is required. The marriage may be solemnized in any from chosen by the parties. Under
all forms the following declaration must be made by the parties in the presence of the Marriage Officer.
“I take the to be may lawful wife or husband”.
After the marriage is solemnized the Marriage Officer shall enter the marriage in the Marriage
Certificate Book. Such, certificate shall be signed by the parties to the marriage and three witnesses. This
Certificate is the conclusive proof the fact of marriage under the Act. When marriage is not solemnized
within 3 months new Notice of Marriage should be given, and the entire procedure should be followed:
1. Restitution of Conjugal Rights (Sec. 22)
The wife or the husband may withdraw from the society of the other, without reasonable excuse.
In such case the separated spouse may petition to the Court for the remedy of Restitution of Conjugal
Rights. The District Court shalt grant the remedy (1) when it is satisfied with the truth of the contents in
the petition, (2) and when there is no legal grounds for refusing the remedy.
2. Judicial Separation (Sec. 23)
Either party to the marriage may file a petition for Judicial Separation, to the District Court. The
grounds for Judicial Separation are :
1. Any of the grounds in sub-Section (1) of section 27 (Divorce)
2. Failure to comply with the decree for Restitution of Conjugal Rights.
The Court grants the remedy -
1. when it is satisfied with the truth of the contents in the petition; and
2. when there is no legal ground to refuse the remedy.
After the judicial separation there is no obligation upon either party to cohabit with the other.
However either party may later file a petition for rescinding the decree for Judicial Separation. The Court
rescinds the decree if it considers it just an reasonable to do so.
3. Divorce (Sec. 27 and 28)
Either the husband or the wife may present a petition for divorce to the District Court on the following
grounds.
1.a. The respondent has committed adultery Since the solemnization of marriage.
b. The respondent has deserted the petitioner without cause for a period of at least three years
immediately prior to the petition.
c. The respondent is undergoing a sentence of imprisonment for seven years or more for an
offence in the Indian Penal Code. In this case the respondent must have completed 3 years
of imprisonment before the presentation of the petition.
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d. The respondent has treated the petitioner with cruelty, since the solemnization of the marriage.
e. The respondent has been incurably of unsound mind for a continuous period of not less than
three years immediately prior to the petition.
f. The respondent has been suffering from leprosy, for a period of not less than 3 years
immediately prior to the petition. The disease must not have been contracted from the
petitioner:
g. The respondent has been suffering from venereal disease in a communicable form for a
period of not less than 3 years, immediately prior to the petition. The disease must not have
been contracted from the petitioner.
h. The respondent has not been heard of as being alive for a period of seven years or more, by
those who would naturally have heard of him or her, if he or she had been alive.
2 a. If there is no resumption of cohabitation between the parties to the marriage for a period of
one year or more, alter the passing of the decree for Judicial Separation:
b. If there is no restitution of conjugal rights between the parties to the marriage, for a period of
one year or more, after the passing of the decree for Restitution of Conjugal Rights.
c. When the husband is guilty of rape, sodomy or bestiality after the solemnization of the
marriage.
Divorce of Mutual Consent :
Both parties together may present a petition to the District Court for Divorce by Mutual consent.
The Court grant divorce.
1. if they lived separately for a period of one year or more; and
2. if they are not able to live together; and
3. if they mutually agree to have the marriage dissolved.
Within two years and after one year from the date of presentation of the petition, the parties should
make a motion. On such motion the Court shall hear the parties and grant the decree of Divorce if the
contents of the petition are true. The divorce take effect only from the date of the decree of divorce.
The petition for divorce can be presented only after three years from the date of entering the
certificate of marriage in the Marriage Certificate Book. However the District Court may entertain
premature petitions.
1. When there is exceptional hardship to the petitioner; or
2. There is exceptional depravity on the part of the respondent.
Sometimes permission for premature petitions is obtained from the District Court through
misrepresentation or concealment of the nature of the case. In such case the District Court passes the
decree on condition that it shall take effect only on the expiry of 3 years, or dismisses the petition for
divorce. In deciding premature petitions for divorce -
1. The court regards the interests of the children of the marriage; and
2. The Court also regards the possibilities or reconciliation between the parties.
The divorced persons may remarry after one year (10 from the date of the decree of divorce; or (2)
from the date of confirmation of the decree by the appellate Court.
Void Marriages (Sec. 24)
A marriage solemnized under the Act is void, and a decree of nullity may be obtained from the
Court.
1. If the condition prescribed for the valid, marriage under the Act are violated. (refer to conditions)
2. if the respondent is impotent at the time of marriage and the time of filling the petition.
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3. Marriages registered under Sec. 15 of the Act are deemed to be marriages solemnized under
this Act. They are void, if the condition in Sec. 15 are not fulfilled.
Voidable Marriages (Sec. 25)
Marriage solemnized under the Act is voidable on the following grounds
1. If the marriage is not consummated owing to the willful refusal of the respondent.
2. If the respondent was at the time of marriage pregnant by some person other than the
petitioner:
3. If the consent of either party to the marriage was obtained by coercion or fraud.
In the case of conditions (2) -
a) the petitioner must be ignorant of the pregnancy at the time of marriage.
b) petition must be filed within one year from the date of marriage.
c) marital intercourse with the consent of the petitioner should not take place after discovering
the ground for nullity.
In the case of condition (3) -
a) petition should be filed within one year from the time of cessation of force, or from the time of
discovery of the fraud.
b) the petition should not live with the respondent with free consent, after cessation; of coercion
or discovery of fraud.
MOHAMMEDAN LAW
INTRODUCTION
1. Conspectus :
The place of personal law in the Indian Legal System.
Mohammedan. Law applied in India to Mohammedans in some matters only. Hence application
with respect to (a) persons, (b) topics.
Conspectus of Islamic Law - one of the great legal systems of the world -today.
Islamic conception of religion and law, divinely ordained and basically immutable.
Wider in scope than Western Law. Mohammedan Law is more strictly religious and has undergone
less of secularization than Hindu Law.
2. Origin of Islam :
Hindu Law & Mohammedan Law are so immediately connected with religion that they cannot be
deserved from it.
Origin of Islam - advent of the Prophet and his Mission the rise and spread of Islam as a complete
code of life. Death of Prophet 632 A.D. events following Muslim world divided on the issue of succession
Shias and Sunnis.
3. Sources of Mohammedan Law.
Classical Sources :
The Koran : Ipsissima verba of God communicated in its final form through a single human channel.
Primary source in point of time and importance. Differs from a code in form and context.
The Traditions (Sunna or Hadith): What the prophet said and did and what was done in his presence
without his disapproval.
125 FAMILY LAW - I

Ijma : Agreement of the jurists among followers of Mohammed in a particular age on a question of
law.
Qiyas : Reasoning by analogy.
Additional Sources :
Pre Islamic customs of the Arabs.
Local Usages.
Justice, Equity and Good Conscience.
Schools of Mohammedan Law :
Division into great sects and each sect, into different sub-sects, or schools origin of the different
schools.
Sunni Law : Hanafi, Maliki, Shafi, Hanbati; the Hanafi School - Abu Haneefa and his 2 disciples,
primary authorities and texts, the Hedaya and Fatawa Alamgin.
Shia Law : Ithna-Asharias, Istamailyas, Zaidyas. The “Sharaya-ul Islam”.
APPLICATION OF MOHAMMEDAN LAW
1. General Principles
“If each sect has its own rule according to Mohammedan Law, that rule should be followed with
respect to the sect”.
Change of sect on sub-sect. Effect of marriage. Law of the sect or sub-sect, to which defendant
belongs.
Presumption :
1) Parties to a suit or proceeding are sunnis.
2) A Sunni is governed by Hanafi Laws.
3) A shia is governed by Ithna- Ashari Law.
2. Persons : Who is Mohammedan?
“The essential doctrine of the Mohammedan religion is that there is but one god and Mohammed is
his prophet” - Naratakata v. Parakkal 45. Mad 986.
Any person who acknowledges the unity of God and the Prophetic mission of Mohammed is a
Mohammedan, Jiwan Khan v. Habib AIR 1933 Loh (PC).
Mohd. by birth : “In strict Mohd. Law if either parent is a Mohd. the child presumed a Mohd. “In India,
under ordinary circumstances, a child takes his father’s religion”. (P.C. in skinner v. Order).
Mohd. by Conversion : Formal profession of Islam is necessary and sufficient Abdul Razack v. Aga
Mohd: (1893) 21 M.I.A. 54.
But the change of religion must be made honestly without any intent to cannot a fraud on the law.
Apostasy : Express and implied. Effect under Islamic Law, Statutory provision - Freedom of Religion
and shariat Act.
3. The Muslim Personal Law (Shariat) Application Act, 1937.
Objects and Reasons
1. To ensure certainty and definiteness
2. There was difficulty of ascertaining and administering customary law.
126 FAMILY LAW - I

3. To improve the position of women.
4. Shariat is in the form of a variable code.
Preamble
To make provisions for the application of the Muslim Personal Law (Shariat) to Muslims in the
provinces of India.
Section 2 : Notwithstanding any customs or usage to the contrary, in all questions (save questions
relating to agricultural land) regarding intestatable succession, special property of females, including
personal inherited or obtained under contact or gift or any other provision of personal law, marriage,
dissolution of marriage, including Talak, Lia,. Zihar, Lion, Khula and Mubaraat, maintenance, dower,
guardianship, gift, honests and trust properties and wakfs (other than charities and charitable institutions
and charitable and religious endowments) the rule of decision where the parties are Muslims shall be the
Muslim Personal Law (Shariat).
Section 3:
(1) Any person who satisfies prescribed authority.
(2) (a) that he is a Muslim, and
(b) that he is Competent to contract within the meaning of Sec. 121 of the Indian contract
Act 1872; and
(c) that he is a resident of a province of India, may by declaration in form and field before
the prescribed authority declare that he desires to obtain the benefits of the provisions
of Sec. 2 shall apply to the declarant and all his minor children and their descendants
as if in addition to the matter enumerated therein adoption, wills and legacies were also
specified.
Section 3(2): Provides for an appeal against an order of the prescribed authority refusing to accept
a declaration under sub section (a).
Section 4 : Confers power on the provisional Government to make rules to carry into effect the
provisions of the Act.
Section 5 : (Later repealed by the Dissolution of a Muslim Marriage Act of 1939) the District Judge
may, on petition made by a Muslim named woman, dissolve marriage on any ground recognized by
Muslim Personal Law (Shariat)
Section 6 : Repeals provisions of Acts and Regulations specified in so far as they are inconsistent
with the provisions of the Act. Sec. 16 of the Madras Civil Courts Act 1873 is specified.
MUSLIM LAW OF MARRIAGE (NIKHA)
Nikha - Civil contract - no religious ceremony is necessary to bring about the relationship.
Capacity :
1. Completion of 15 years on attainment of puberty.
2. Dower
3. Consent
4. Sound mind.
There are 3 kinds of marriage.
1. Valid Marriage (Shahih)
2. Void Marriage (Batil)
3. Irregular Marriage (Fasid)
127 FAMILY LAW - I

DOWER (MAHR)
Dower is any amount of money or property given to a wife by her husband as a mark of respect in
which the wife is held by the husband.
The different kinds of Dower are;
1) Prompt Dower.
1. Specified Dower
2) Deferred Dower:
2. Proper Dower
LAW OF DIVORCE (TALAK)
Different ways in which the marriage may be dissolved under Mohammedan Law.
I. Husband Divorcing Wife :
1. Talak Ahasan
2. Talak Hasan
3. Talak-ul-biddat.
II. Divorce by Mutual Consent
1. Khula
2. Mubaraat
III. Judicial Divorce at Instance of wife
1. Procedure of Lien.
2. Talak by Tafweez.
3. Impotence of Husband.
4. New ground recognized by the Dissolution of Muslim Marriages Act 1939.
VI. Other modes of Divorce
1. Zihar
2. kula
ACKNOWLEDGMENT OF PATERNITY (IKFAR)

A Muslim parent i.e. father recognizes the paternity of his legitimate child by way of acknowledgment
- Doctrine Acknowledgment of Paternity.
Guardianship of Person
1. Concept of Minority according to Mohammedan Law.
2. Relative rights of father and mother with regard to the custody of infant children.
3. Principles applicable to the custody of female children under Mohammedan Law.
4. Principles applicable to the custody of male infants.
Guardianship of Property
1. Legal guardians of the property of a minor.
2. Powers of alienation of the guardian over the minor’s property.
3. De facto guardian and his powers:
128 FAMILY LAW - I

Law of Maintenance
Maintenance of wife, children and parents application of Sec.125 Cr.P.C to Muslims Shah Bano’s
case. The appellant Mohd. Ahmed Khan married Shah Bano Begum, the respondent in 1932 and
begotten 3 sons & 2 daughters. In 1975 the appellant seen the respondent out of the house. In 1978 the
respondent filed a petition before the Magistrate for maintenance U/S: 125 Cr.P.C. claiming Rs. 800/-
p.m. In November, 1978 the appellant divorces the respondent by irrevocable Talak. His defence before
the Magistrate was that she had ceases to be his wife by reason of talak, and that he had already paid
maintenance at the rate of Rs. 240/- p.m. for 2 years and that he had already deposited Rs: 3000/- in the
count being the deferred dower payable to her. In August 1979 the Magistrate directed the appellant to
pay Rs. 25/- p.m. by way maintenance to the respondent. The respondent appealed to the High Court
for enhancement of maintenance amount as according to her the appellant was earning Rs. 60,000/-
per year. The High Court enhanced the maintenance to Rs. 179.20 p.m. The husband appealed to the
Supreme Court. A bench of 5 Judges including the Chief Justice Y.V. Chandrachud held that Sec. 125
Cr.P.C. is applicable to Muslims also. This decision was not liked by a section of Muslims Community.
In order to maintain status quo and at the same time not to derogate the Supreme Court Judgement,
the parliament passed Muslim women’s (Protection of Rights on Divorce Act) 1986. According to this
all the husband’s lability to pay maintenance to the divorced wife extends up to the period of iddat
only. Thereafter he need not pay maintenance. This Act also makes the provision of Sec. 125 Cr.P.C.
applicable to Muslims if both the husband and wife give their consent for the petition for maintenance
being tried under Sec. 125 Cr. PC. Thus this Act retains both orthodox view of personal law and the
progressive and liberal view expressed by the Supreme Court in Shah Bano’s case.5.
**********
129 FAMILY LAW - I

5. LAW OF CRIMES
CHAPTER - I
THE CONCEPT OF CRIME
Crime as a Public wrong:
An Act committed (or) omitted in violation of ‘Public Law’ Forbidding or commanding it.- Blackstone.
Crime as a Moral wrong
Garafalo, an eminent Criminologist, defines Crime in terms of immoral and anti-social acts.
- “Crime is an immoral and harmful act that is regarded as Criminal by public opinion because
it is an injury to so much of the moral sense as is possessed by a community a measure which is
indispensable for the adaptation of the individual to society.”
Crime as a Conventional wrong
A noted Criminologist, Edwin H. Sutherland, defines Crimes in terms of criminal behaviour He says
“Criminal behaviour is behaviour in violation of the Criminal Law”.
Crime as a Social Wrong:
John Gillin gives a sociological definition of crime.
He says, “Crime is an act has been shown to be actually harmful to society...”
Crime as a Procedural wrong:
“A wrong which is pursued by the Sovereign or his subordinates is a Crime”
- Austin.
Keny modified Austin’s definition and stated crimes are wrongs whose sanction is punitive, and
is in no way remissible by any private person, but is remissible by the crown alone, if permissible at all.
Crime as a legal wrong:
When a Penal statute prescribes Punishment for an illegal act or illegal omission, it becomes crime.
Section 40 of the Indian Penal Code simply states:
“Except in the chapters and Sections mentioned in clauses two and three of this section, the word
‘ offence’ denotes a thing made punishable by this code... or under any special or local law”.
However, one can understand what constitutes, a crime, by the following two essential attributes-
a) Crime is an act of Commission or an act of omission on the part of a human being, which is
considered harmful and prohibited by state.
b) the transgression of such harmful acts is sanction of punishment.
CONSTITUENT ELEMENTS OF CRIME
Criminal guilt would attach to a man for violations of Criminal law. However, the rule is not absolute
and is subject to limitations indicated in the Latin maxim, ‘ actus non facit reum, nisi mens sit rea’. It
signifies that there can be no crime without a guilty mind.
Actus reus + mens rea = crime
a) Actus reus : (Act or omission)
The word actus connotes a ‘deed’, a physical result of human conduct. The word reus mens
forbidden by law’. The word actus reus, may, therefore be defined as ‘Such result of human conduct as
the law seeks to prevent.

130 LAW OF CRIMES
b) Mens rea
The another one important essential of a crime is mens rea or evil intent. There can be no crime
of any nature without an evil mind. Every Crime requires a mental element. No act of the person was
punishable unless the same is done with evil intent.
Strict responsibility in Criminal law:
Crimes of Strict liability are those in which guilty mind is excluded. The exclusion of mens rea from
statutory offences is justified on the ground that such laws are enacted by the legislature to preserve and
protect social and economic interest of the society, which require strict adherence to such laws. Such
offences are termed as offences of strict liability or absolute liability.
Mens rea in statutory offences:
‘No mens rea-No Crime’ this doctrine has been applied to all common law crimes in England
without any reservations. Application of this doctrine to statutory crimes is fully discussed in two leading
English cases.
1. R.v. Prince (1875) LR 2 CCR 154.
2. R.v. Mrs. Talson (1889) 23 QBD 168.
In R v. Prince Henry was tried for having unlawfully taken away an unmarried girl named Annie
Philips, below the age of 16 years, out of the lawfulll possession and against the will of her father,
Under the belief that she was eighteen; That is the crime under section 55 of the offences against
the person Act 1861 (English law) The House of lords’ should not consider the mental status of the
accused, they were set aside the accused’s plea (absence of Criminal intention).
Mens rea in Indian Penal Code:
The word mens rea is a technical term, it is not directly used in the Indian Penal Code; The draftman’s
alternatively used various terms for mens rea such as
Intentionally - Ref.- Sec 300 IPC
Fraudulently - Ref. the topic - offences against the property in I.P.C.
-Knowingly (or) Knowledge - Ref Sec. Sec 26 IPC
- maliciously (or) Malice - Voluntarily, dishonestly,
Wantonly - rashly etc.,
If no such element is incorporated in the definition of crime, it is presumed that the legislature has
done it intentionally and hence the doctrine of mens rea does not apply.
Mens rea in statutory offences in India:
Ref. case law:
Srinivasa Mills v. Emperor A.I.R. 1947 SC
State of Maharastra v. M.H.George A.I.R. 1965 SC 722.
CHAPTER - II
GENERAL DEFENCES
A person is presumed to know the nature and consequences of his act, and is therefore, responsible
for it in law. However, there are some exceptions to this. A man may be excused from Punishment, either
on the ground of the absence of the requisite ‘mens rea’ for the Commission of a Crime or on some other
ground recognised by law. Such Provisions have been dealt with in chapter IV of the Indian Penal Code
(Ref. sections 76 to 106). Though there are 32 Sections in this chapter it contains 7 heads.
131 LAW OF CRIMES

Mistake of fact:
The common law Principles “ignorantia facit excusat, ignorantia juris non excusat” - ignorance of
a fact is excused or is a defence but ignorance of law is no excuse have been embodied in Section 76
and 79 of the IPC.
The act of the Police Officer in the illustration to Sec.76 in arresting Z in place of Y for whose
arrest, in fact no warrant was issued, does not make him guilty of wrongful confinement. (In Dakhi singh
Case 1955 Cri L.J.905) a suspected thief who was arrested, escaped from custody. The Police Officer,
not being able to capture him fired at him. In doing so another person was hit and killed. A justification
under this section can not be accepted. So Mistaken belief in execution of duty is no defence under this
Provision. Ref. Case: State of West Bengal v. Show Mangal Singh (AIR 1981 SC 1917)
Section 79 is a bit different from Section 76, though the language employed is particularly similar
except the word “justified” used therein. As the Section runs. Nothing is an offence which is done by a
person who
i) is justified by law (or)
ii) who by reason of a mistake of fact and not by reason of a mistake of law
iii) in good faith.
iv) believes himself to be justified by law to do it.
Ref. Case: Chirangi v. State (1952-Cri L.J. 1212 M.P.)
Mistake of Law:
Mistake of law is no excuse to a crime
Ref. Case: State of Maharastra v. M.H.George (A.I.R.(1965 SC 722)
CAPACITY OF THE PERSON AND CRIMINAL LIABILITY
Infancy (or) Act of Child:
a) under Seven years of age (Section 82.)
b) Above 7 and under 12 years Section 83.
Sections 82 and 83 of the IPC given Protection to a child a particular age from Criminal Prosecution
and punishment. This is based on the Principle that an infant is incapable of distinguishing between right
and wrong.
Section 82 grants absolute immunity to a child below seven years of age on the ground that such
a child is ‘doli incapax’ that is, incapable of doing a criminal act
Defence of Insanity:
Ref.Case: MC. Naughten’s case (1843)
Defence of intoxication (Drunkenness)
Under Modern English law, in order that drunkenness can be pleaded as an excuse, it must be
involuntary and not voluntary drunknenness.
Ref.Case Law:
D.P.P. VS. Beard (1920 A.C.479)
Attorney General for northern Ireland v. Gallachar (1961 Alle R.299)
Law of Intoxication in India : (Sec. 85 and 86)
Ref. Case Law: Basu dev v. State of Pepsu (A.I.R.1956 SC 488)
Consent: (Sec. 87 to 91 IPC)
The word consent has not been defined under the Penal Code. But consent has been considered
a good defence in a Criminal case.
132 LAW OF CRIMES

Ref. Case Law: R.v. Williams (1923) 1 K.B.340
R.v. Genevan (1934) 2 K.B498
Sec. 87 does not protect causing death or grievous hurt consent however, may help in reducing
the offence of murder to the culpable homicide (Exception V to Sec 300). Immunity i.e. Fencing, Boxing.
Sec. 88 Provides for protection to doctors and surgeons. If a medical practitioner is not qualified
section 88 will afford no protection. Ref. Case Sukaroo Kabiraj’s case.
Sec. 89 of the IPC provides for protection in those cases where consent for causing harm to
persons of unsound mind or an infant below 12 years of age, is given by parents or guardians with the
prescribed or permissible limit.
Ref. Case: Nankee v. Emperor (A.I.R. 1935 All 916).
Section 90 IPC:
This section lays down specifically that a consent is not valid if the same is obtained under fear of
injury or a misconception of fact.
Ref. Case: Poonai Fattemah v. Emporer 1896 12 WR(Cr) 7
Section 91 IPC
Causing of miscarriage (unless caused in good faith for the purpose of saving the life of a woman)
is an offence independently of any harm which it may cause or be intended to cause to the woman.
Therefore, it is not an offence by reason of such harm and the consent of the woman or of her guardian
to the causing of such miscarriage does not justify the act.
Ref. Case: R. v. Dudley and stephens. (1884. 14 QBD 273.)
Section 92 IPC :
Necessity - Implied consent (with good faith)
Ref. Case Law: Simbhu Narain v. Emperor A.I.R. 1923 All 546.
Compulsion - Sec. 94 IPC
Ref. Case law: D.P.P. v. Lynch 1975 (1) All E.R.9(3)
R.v. Home (1986) 1 All E.R. (C.A.)
R.v. Burke and Clarkson (1986) 1 All E.R. 836
Triviality (Sec. 95 IPC)
“De Minimis Non Curat Lex”.
Law does not take notice of trifles.
Ref. Case law- Veeda menezes v. Yusuf khan. (A.I.R.1966 S.C.1773)
RIGHT OF PRIVATE DEFENCE
(Sec. 96 to 106 IPC)
It is a right inherent in man and is based on the premise that the foremost duty of man is
to protect himself. But the right of private defence as provided in the code is to be exercised within certain
limits though the Indian law is wider that its English counter part.
Ref. Case law:
- R. v. Rose (1884 15 cox CC-540).
- Viswanath v. State of U.P. (A.I.R. 1960 SC 67)
- Amjad khan v. State (AIR 1952 SC 165)
- Deo narain v State of U.P. (A.I.R. 1973 SC)
Section 96 of the IPC gives statutory recognition to the right of private defence.
Section 97 and 99 IPC
133 LAW OF CRIMES
The right of Private defence to defend one’s body and property as well as the body and property of
another against certain specified offences granted by section 97 is not absolute but subject to the limits
and restrictions prescribed in Section 99. There is no right of private defence in cases in which there is
time to have recourse to the protection of the public authorities.
Section 100 IPC provides; when the right of Private defence of the body extends to causing death.
Ref. case law:
- Puran Singh v. State (AIR 1975 SC 1674 )
- Mancini v. D.P.P. (1942).
Section 101 IPC provides that in the absence of the circumstances laid down in Sec 100, the right
of private defence is limited to causing of any harm other than death. This right, again is subject to the
exceptions already death with under Sec. 99.
Section 102 IPC Commencement of the right of Private defence and its duration.
Ref Case: Kala Singh v. Emperor (AIR 1933 Lah 167)
Section 103 IPC discussed when the right of Private defence to property extends to causing death.
Ref. Case: Ismail v. Crown A.I.R. 1926 Lah 28.
Section 104 IPC
Ref. Case Law: Ramaswamy Chettiar case (1949 Mad 545)
This Sec. says that if the theft, mischief or criminal trespass does not answer the description given
in Sec. 103, then the right of private defence of property does not extend to causing death, but it extends,
subject again to Sec. 99 to voluntarily casing any harm other than death.
JURISDICTION
Territorial Jurisdiction:
Section 2 of the Indian Penal Code declares that every person shall be liable to punishment under
the code and not otherwise for every act or omission contrary to the provisions of the code of which he
shall be guilty within India.
Ref. case Law: Mobarak Ali v. The State of Bombay A.I.R. 1957 S.C.857.
The accused a Pakistani national while staying at Karachi, made false representations through
letters, telephone conversations and telegrams to the complainant at Bombay and induced the complainant
to part with money at Bombay. When the accused subsequently happened to come to Bombay he was
prosecuted for cheating.
Held that the offence was committed at Bombay even though the accused was not physically
present there and that the Court had jurisdiction to try him under S.2.
Jagannadadhas J. Observed “The use of the word” every person in Sec. 2 as contracted with
the use of the phrase any person in Sec. 3 as well as Sec. 4(2) of the Code Sec. 2 must be read with
the phrase every person at the commencement thereof. But this is far fetched and untenable. The
plain meaning of the phrase “Every person is that it comprehends all persons without limitation and
irrespective of nationality allegiance, rank, status, caste, colour or creed.
On the other hand a reference to S.3 of the Code clearly indicates that it is implicit therein that
foreigner who commits an offence within India is guilty and can be punished as such without any limitation
as to his corporeal presence in India at the time. For it is were not so, the legal fiction implicit in the phrase
‘as if such act had been committed within India’ in S.3 would not have been limited to the supposition that
such act had been committed within India but would have extended also to a fiction as to his physical
presence at the time in India.
134 LAW OF CRIMES

The code does apply to a foreigner who has committed an offence within India not withstanding
that he was corporeally present outside (it may also be noted that foreigners who initiate offence abroad
that take effect of Indian territory are liable to be punished under the code. Ref. case laws:
- Chotelal v. Emperor (36 bom 524)
- Mubarik Ali v. State of Bombay, (A.I.R. 1957 S.C. 857)
- Joyce v. D.P.P. (1946 A.C. 347)
CHAPTER III
JOINT LIABILITY
When a criminal act is committed by an individual it is easy to assess his liability for punishing
him. But when an offence is committed by means of several acts by several persons in furtherance of
common intention each of the accused who has participated is guilty of the whole offence. Section 34 of
IPC. Provides for such cases and lays down the principle of joint liability.
Sec. 34 reads when a criminal act is done by several persons in furtherance of the common
intention of all each of such persons is liable for the act in same manner as if it were done by him alone”.
Thus the section gives statutory recognition of the common sense principle that if several persons unite
with a common intention to effect any criminal object all those who assists in the accomplishment of that
object are equally, though some may be at a distance from the spot where the crime is committed.
The essential ingredients of Sec. 34 are
1. where a criminal act is done by several persons
2. in furtherance of common intention of all
3. each of such person is liable for that act in the same manner as if it were done by him alone.
The following two cases are illustrative of the application of the principle to joint liability.
Ref.Case Law:
1) Barendra Kumar Ghosh v. Emperor (1952 Cat 197P.O)
2) Mehboob Shah v. Emperor (Indus reiver act case) (A.I.R.1945 P.C.118)
3) Nachimuthu Gounder v. State of TamilNad (1947 Mad)
Corporate liability (Alterego - Doctrine)
Ref. Case Law:
- v. Briminghan and Glouchester Rly Co.
- Moore v. Bresler Ltd. (1944 All E.R.515)
- Vadivelu Arsuthir v. R. (1943 MCJ 445).
Vicarious liability in criminal law
Ref. case Law:
Ruvula Heri Prasada Rao v. The state (A.I.R. 1951 SC 204)
R. v. Prayagsingh.
135 LAW OF CRIMES

CHAPTER IV
STAGES OF CRIME
i) Intention
ii) Preparation
iii) Attempt
iv) Commission of crime.
INTENTION
It is the fist stage in the commission of the offence and known as mental stage. Indian Criminal law
also mere intention to commit an offence is not punishable. However, law in certain acts does take notice
of an intention to commit an offence.
i.e. waging war Sec. 121 - 123 IPC Sedition (Sec. 125 - A IPC).
PREPARATION
Preparation is the second stage in the Commission of a crime. Under the Indian penal code, mere
preparation to commit the following offences is punishable.
Ref:
- Sec. 122. 126. 399. 233. to 235 255 and 257 I.P.C.
- 242. 243. 266 and 474 I.P.C
ATTEMPT
The term attempt, however, means the direct movement towards the commission of Crime after
necessary preparations have been made next stage is commission of offence.
Preliminary crimes:
Abetment: Sec 107, 108, 108A and 109)
Constituents of abetment
i) by instigating
ii) by engaging in a conspiracy
iii) by intentionally aiding.
Ref.Case Law: Saju v. State of Kerala (2001)
Abetors classified in two categories.
i) Accessory before the Act instigation, Preparation, Attempt; Conspiracy...
ii) Accessory after the act.
Accessor after the Act.
The IPC does not recognise accessories after the fact except that it makes a substantive offence
of it in few cases
(Ref Sec. 130, 136, 201, 212, 216 and 216 A IPC)
Criminal conspiracy
Chapter V-A of the IPC has been added by criminal law (Amendment) Act 1913.
136 LAW OF CRIMES

Essential ingredients:
1. in the intention of two or more but in the agreement of two or more
2. to do an unlawful act
3. to do a lawful act by unlawful means.
Ref. Case Law
i. Fakkhruddin v. State of M.P. (AIR 1967 Sc)
ii. Lennart schusslar and antoher v. Director of Enforcement (AIR 1970 SC)
iii. Barindra Kumar Ghouse v. Emperor (Alipu conspiracy case)
iv. P.N. Talukdr v. S.R.Sarkar A.I.R. 1962 SC 876.
CHAPTER V
PUNISHMENT
OBJECT OF THE PUNISHMENT
The object of punishment is the prevention of crime, and every punishment is intended to have a
double effect, viz., to prevent the person who has committed a crime from repeating the act or omission
and to prevent other members of the society from committing similar crimes.
THEORIES OF PUNISHMENT
1. Retributive theory
This theory is based on the principle of an eye for an eye and a tooth for a tooth. It is based on
primitive nature of vengeance against the wrong doer. The Supreme Court has recently laid down that
an eye for an eye approach is neither proper nor desirable. Mandate of Section 354 (3) Cr.P.C. does not
approve of it.
2. Deterrent theory
According to this theory the punishment is awarded to deter people from committing the emotion of
fear plays a vital role in man’s life.
3. Preventive theory
This has also been called “Theory of disablement’ as it aims at preventing the crime by disabling
the criminal. In order to prevent the repetition of the crime the offenders are punished with death,
imprisonment for life or transportation of life.
4. Reformative theory
The object of punishment according to this theory should be to reform criminals. The crime is a
mental disease which is caused by different anti-social elements. Therefore, there should be mental cure
of criminals instead of awarding them severe punishment.
Ref.Case Law: Ediga Annama v. State of Andhra Pradesh (SC).
PUNISHMENT UNDER THE INDIAN PENAL CODE
The scheme of the punishment is laid down from Sections 53 to 75 of the Indian Penal Code out
of which five sections (Sections 56, 58, 59, 61 and 62) have already been repealed. Different types of
punishments, rules for their assessment and enhancement in subsequent offences, from the subject-
matter of this topic.
According to Section 53 of the Code the offenders are liable to the following punishments:
1) Death;
2) Imprisonment for life;
3) Imprisonment which may be rigorous, simple or solitary;
137 LAW OF CRIMES
4) Forfeiture of property;
5) Fine.
The Code as originally enacted, contained one more type of punishment known as “Transportation
for life”. This punishment has now been substituted by imprisonment for life. (Section 53 - A).
The following are the cases where death sentence may be awarded at the discretion of the Court;
a) Waging war against the Government (Section 121)
b) Abetment of mutiny.
c) Fabricating or giving false evidence as a result of which an innocent person suffers death.
d) Murder.
e) To abet an insane, minor or intoxicated to commit suicide (Section 305).
f) Dacoity with murder.
The maximum term of imprisonment that can be awarded should not exceed lifetime of the accused
and be not less than 24 hours.
The maximum term of imprisonment that can be awarded should not exceed lifeterm of the accused
and be not less than 24 hours.
Solitary confinement according to Section 73 should be awarded in the following manner:
If term of imprisonment is Solitary confinement should
not exceed
a)
6 months 1 month
b)
1 year 2 months
c) more than 1 year 3 months
Forfeiture of property under the Code was provided for in Sections 61 and 62 which were repealed
in 1921. However, under the following Sections the forfeiture of property can be ordered:
i) property used or intended to be used in committing depredations on the territories of a friendly
country.
ii) Property received with the knowledge that the same has been taken by waging war or
committing depredations under Sections 125 and 126 I.P.C. respectively.
iii) Property purchased by public servant who is legally prohibited to purchased or bid for such
property.
Fine: where no specific amount to be imposed as fine is mentioned, it shall be discretionary but not
excessive. If punishment awarded for offence is fine only or imprisonment with fine, court should direct
that in default of payment of the fine, the accused shall be imprisoned for a certain term which should
be in addition to the imprisonment already awarded (Sections 63 and 64). Sections 65 to 70 deal with
rule of imprisonment in default of fine. If offence is punishable with fine and imprisonment the term of
imprisonment in default of payment of fine should not exceed one fourth of the maximum term fixed for
the offence. If maximum term fixed for an offence is 2 years, in default of payment of fine should not
exceed one-fourth of the maximum term fixed for the offence. If maximum term fixed for an offence is 2
years, in default of payment of fine, imprisonment awarded should not be for a term exceeding 6 months.
As soon as payment of fine is made the prisoner shall be set free. If offence is punishable with fine only,
the imprisonment in default of payment of fine shall be simple in the following proportion:

138 LAW OF CRIMES

Amount of fine Term of Imprisonment
Upto Rs.50 Not more than 2 months
Upto Rs.100 Not more than 4 months
Exceeding Rs.100 Not more than 6 months
Fine imposed by the Court can be realized within 6 years or during imprisonment when the term
of the same is longer than 6 years. The death of a prisoner does not discharge him from liability and
his property will be liable for his debt. It has been laid down by the Supreme Court that limitation of
6 years prescribed under Section 70 does not apply to fine imposed for contempt of High Court. The
imprisonment in default is not a substitute of fine but it is punishment for default.
Death Sentence:
The Validity of death sentence as being violative of Articles 14, 19 and 21 of the constitution was
challenged for the first time in Jagmohan Singh V. State (1973). But the Court upheld the constitutional
validity of Section 302 of the Code. In the meantime the new provisions of the Cr.P.C., 1973 came into
being and as per Section 354(3) Judges will have to state special reasons in the judgement for inflicting
death penalty. The Court cannot remain silent spectators of what is happening around the society. So
the Supreme Court of India came forward with a new ruling about the awarding of death penalty rarest
of the rare case Policy in Bachan Singh V. State of Punjab (1980).
The following case examples considered as the rarest of rare cases by the Supreme Court.In Kehar
Singh V. Delhi Admn. (Indira Gandhi murder case), the accused killed Indra Gandhi while standing on
guard duty by firing from carbine, releasing about 25 bullets. Convicting the accused the Court said that
it was the most foul and senseless assassination as persons duty bound to protect the life of the Prime
Minister have themselves become the assassins. Even the preparation for execution of this egregious
crime do deserve the dread sentence of the law. It is one of the rarest cases where extreme penalty of
death was called for.
The accused raped and brutally killed his niece, a 7 year-old girl, it was held that undoubtedly it falls
in the category of rarest of rare cases.
Laxman Naik, v. State, 1994
CHAPTER VI
SPECIFIC OFFENCES
OFFENCES AGAINST THE STATE

Sedition Sec. 124 A
Ref. Case Law: Queen, Emperor v. Bala Gangadhar Tilak (22 Bom 112)
Crime against the State
Sedition is a Crime against the State. Bringing or attempting to bring into hunted or contempt or
exciting or attempting to such act or attempt may be done by words spoken or written by signs (Ganesh
D.Savarkar case) by visible representation, the Act must be international excite disaffection towards the
Govt. of India.
Ref Case: Kedar Nath v. State of Bihar (AIR 1963 SC)
139 LAW OF CRIMES

OFFENCES AGAINST PUBLIC PEACE (or) OFFENCES AGAINST PUBLIC TRANQUILLITY:
Unlawful assembly (Sec 141 IPC)
Unlawful assembly together with its cognate offences section 141 to 145, 149 to 151 157 and 158
of the IPC.
Ref Case :
Dilip Singh v. State of Punjab (AIR 1953 SCJ 532)
State v. Nadhu Pande (1969 (2) SCC 207)
Musakhan v. State (1977 SC)
Sukha v. State (AIR 1965 SC 513)
The Combination of five or more persons who are cited in their purpose of committing a crime
(illegal object) that is called unlawful assembly.
Rioting (Sec 146 IPC)
When a particular State of an unlawful assembly is accompanied by use of force or violence it is a
riot.
Affray (Sec. 159 and 160)
Affray generally called as offence against public tranquility.
When two or more persons fight in a public place and disturb the public peace, they are said to
commit an offence of affray. Sec. 160 Punishment for Affray.
Offences against public administration- Bribery
Section 161 - Speaks about the public servant taking gratification other then legal remuneration in
respect of an official Act.
The Provisions contained in IPC were felt to be deficient to control corruption, the parliament in
1947 enacted the prevention of Corruption Act. The PCA 1947 was amended. The PCA, 1988 envisages
widening the scope of the definition of the public servant and omitting the provisions of Sec. 161 to 165
A IPC.
Ref. case :
Dalpat Singh v. State of Rajasthan (AIR 1969 SC)
Man Sankar Prabha Sankar v. State of Gujarat (AIR 1970- Guj 97)
Tirlock chand jain v. State of Delhi (AIR 1977 SC 665)
Rs. Nayak v. A.R.Antulay
Personating a public servant (Sec 170 IPC )
Wearing garb (or) conveying taken used by public servant with fraudulent intent (Sec 171)
personating a public servant and doing or attempting to do an act in such assumed character under color
of office is punishable.
Offences against Administration of Justice giving and fabricating false evidence
This part ‘“of false evidence and offences against public justice” composing 39 Sections i.e. Section
191 to 229 can be roughly divided into the following eleven groups.
Ingredients ( Sec 191 IPC)
1) A person must be legally bound (a) by an oath or by an express provision of law to state the
truth (or) (b) to make a declaration upon a subject
2) He must make a false statement
3) He must take a false statement
4) He must (a) know or believe it to be false (or) (b) must not believe it to be true.
140 LAW OF CRIMES

Fabricating false evidence (Sec 192)
The area covered by the section is as wide as to cover any offence committed with an intent to
injury another by creating a false background in any judicial proceeding.
Ref Case Law: Santakh Singh v. Izhar Hussain (1973 SCC Cril J 828)
CHAPTER VII
OFFENCES AGAINST PERSONS
Culpable Homicide and murder (Sec 299 and 300 IPC)
Sections 299 and 300 of the Indian Penal Code provide for the offence of culpable Homicide and
murder respectively. The distinction between culpable homicide and Murder had been clearly explained
by Melvill J. in R. v. Govinda (1876 I Bom 344).
Fact: The accused kicked his wife aged 12, and also stuck her several times with his fist on her
back; as a result of which she fell down. There upon he put his knee on her chest and gave blows with
his fist on her face, which resulted in extravagance of blood in the brain as a result of which she died.
Melvill. J. held that it was culpable Homicide not amounting to murder under Sec. 299 IPC.
Melvill J. brought out the distinction between culpable Homicide and murder by analyzing section
299 and 300 as follows:
Section 299 Section 300

Whoever causes death by Doing an act. Culpable. (Except in the cases herein after Excepted)
Homicide is murder, if the act by which death is
a) with the intention of causing death caused is done.
1) with the intention of causing death
(or)
2) If it is done with the intention of causing such
b) with the intention of causing such bodily bodily injury as the offender knows be Likely
injury as is likely to cause death. to cause the death of the person to whom the
harm is caused.
(or)
3) If it is done with the intention of causing bodily
injury to any person and the bodily injury
intended to be inflicted is sufficient in the
ordinary course of nature to cause death.
c) with the knowledge that he is likely by such
4) If the person committing the act knows that it
act to cause death
is so-imminently dangerous that it must in all
probability cause death or such bodily injury
as is likely to cause death, and commits
such an act without any excuse for incurring
the risk of causing death or such injury as
aforesaid.

A comparison of clause (b) and 3 shows that the offence is culpable Homicide, the bodily injury
intended to be inflicted is likely to cause death, it is murder, if such is sufficient in the ordinary course
of nature to cause death. The distinction is fine but appreciably. It is a question of degree of probability.
Practically, it will generally resolve itself into a consideration of the nature of the weapon used. A blow
from a fist or a stick on a vital part may be likely to cause death, a wound from a sword in a vital part is
sufficient in the ordinary course of nature to cause death.
141 LAW OF CRIMES

In interpreting the third clause of Sec. 300 it has been expressed that the proper view to take is that
the bodily injury suffered by the deceased and found sufficient to cause death should be actually intended
by the Supreme Court in Virsa Singh v. The State. The accused after a dispute with the deceased thrust
several times with a spear in the abdomen of the deceased and caused gaping wounds. The accused
was charged with the offence of murder under section 300 thirdly. The medical evidence proved that the
injuries were sufficient to cause death in the ordinary course of nature. The session judge convicted him
for murder and ordered a life sentence.
On appeal to the Supreme Court the Court observed the prosecution must prove the following
facts before it can bring a case under Sec. 300, thirdly. Firstly, it must establish quite objectively that
a bodily injury is present; secondly, the nature of the injury must be proved. Thirdly, it must be proved
that there was an intention to inflict that particular bodily injury that is to say, that it was not accidental or
unintentional, or the some other kind of injury was intended. Fourthly, it must be proved that the injury of
the type just described made up of the three elements set out above is sufficient to cause the death in
the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing
to do with the intention of the offender.
Exception 1 of Section 300
Section 300 provides for grave and sudden provocation as a mitigating factor under Exception-1.
When an accused causes death under the influence of a grave and sudden provocation the law views
him with leniency as he is deprived of the power of self - Control and he is liable only for culpable
Homicide not amounting to murder. The explanation to exception I states that suddenness or gravity of
the provocation is a question of fact.
In Nanavathi v. State of Maharashtra (A.C. 1962 SC.695) the wife of the accused confessed to him
that she had illicit intimacy with the deceased who was not present there. After this the accused drove
his wife and children to a cinema, left them there went to his ship. Took a revolver on a false pretext,
loaded it with six rounds, did some official business there was drove his car to the office of the deceased
and then to his flat went straight to the bedroom of the deceased and shot him dead. Three hours has
elapsed between the time when he left his house and the murder took place. The Supreme Court held
that the facts did not attract the provisions of Exception-1, as there was sufficient clearly showed that
the murder was a deliberate and calculated one. In other words the evidence showed that the accused
regained his self-control and killed the deceased deliberately.
Ref. Case Law: Murugesan v. State of T.N (1993) Cri L.J.2565); Sompal v. the State (1977 Cri.
L.J.2) Exception 2 (sec 300)
Subba Rao. J. observed in Nanavathi Case “The Indian Law, relevant to the present enquiry may
be stated thus:
(1) The test of grave and sudden provocation is whether a reasonable man belonging to the
same class society as the accused placed in the situation in which the accused was placed
would be so provoked as to lose self-control.
2) In India words and gestures may also under certain circumstances, cause grave and sudden
provocation to an accused so as to bring his act within the first Exception to S.300 of the
Indian Penal Code.
(3) The mental back ground created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden
provocation for committing the offence.
142 LAW OF CRIMES

II. Exception :
This exception reduces murder in all Cases in which death has been caused by an excessive use
of the right of Self-defence provided the act has been done in good faith without pre meditation and
without any intention of doing more harm than was necessary for the purpose of such defence.
Munney Khan v. State of Madhya Pradesh (A.I.R.1971 Sec. 1491): Yogendra morarji v. State of
Rajasthan (A.I.R. 1980 SC)
III. Exception:
Bonafide Act of Public servant in excess of powers given to him.
State of West Bengal us. S.M.Singh (AIR 1981 Sc 1917)
IV. Exception:
Death caused in sudden fight without premeditation in the heat of passion.
1. Budhwa v State of Madya Pradesh (AIR 1954 SC)
2. Transferred Malice in Murder case
3. Public prosecutor v. Suryanaryana Moorthy (AIR 1912)
4. Burden of proof in murder case
5. Wollimington v. D.P.P. 1935 AC 462)
6. Ramadas v. State of Maharastra (1997 2 SCC 124)
7. Provocation on murder case:
8. R v. Duffy (1949) ALL ER 932
9. Homes v. D.P.P. (1946 - AC 588)
10. D.P.P. v. complin (1978) 2 All E.R
11. Sec 304 A IPC
12. Tukaram Sitaram v. State (1971 Crl. L.J. 767)
V. Exception:
Culpable Homicide is not murder where death is caused to the person above the age of 18 years
suffers death or takes the risk of death with his own consent.
Sec 302 IPC punishment for murder (Ref case Kaliappa Gaudan’s case (1938 / 57 mad 158) Sec
303 IPC- punishment for live convict
Ref case Mithu v. State of Punjab 1983 SC 473
Sec. 304 IPC Punishment for culpable homicide not amounting to Murder
Ref Case R v. Sengoda Goundar 1916 AIR); R v. Palani Goundan (1919 Mad 547)
Sec 307 IPC Attempt to murder
Sec 308 IPC Attempt to culpable homicide
Sec 306 IPC abetment to commit suicide
Sec 309 IPC Attempt to commit suicide
Ref case law relating to suicide cases
143 LAW OF CRIMES

1. Maruti Shriputi Dubey v. State of Maharastra (1987 Cr.L.J.743)
2. Chenna Jagadeeswar v. State of A.P 1988 Cr.L.J. 549)
3. P.Rathinam v. Union of India (1994)
4. Gain Kaur v. State of Punjab
Constitutional validity of the Death penalty
1. Jagmohan singh v. State of UP (A.I.R. 1973 SC 947)
2. Ranjit Sing v. Union territory chandigarh
Sec 310 Thugs special Provisions for Dacoit gang (Ref. Criminal Tribes Act.)
Sec 312 Miscarriage Ref medical termination Act 1971
Hurt and grievous hurt (Sec 319 and 320 IPC)
Hurt: Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Grievous hurt: The following kinds of hurt only are designated as ‘grievous’
i) Emasculation - To emasculate means to deprive of virile procreative power.
ii) Permanent privation of the sight of either eye.
iii) Permanent privation of the hearing of either ear.
iv) Privation of any member or joint.
v) Destruction or permanent impairing of the powers of any member or joint.
vi) Permanent disfiguration of the head or face.
vii) Fracture (or) dislocation of a bone or tooth.
viii) Any hurt which endangers life or which causes the sufferer to be, during the space of twenty
days, in severe bodily pain, or unable to follow his ordinary pursuits (Sec.320)
Case law Ref: Naib Singh v. State of Punjab (1986 Cri.L.J.2061 SC)
Types of Kidnapping
1. From India (sec.360)
2. From lawful guardianship (361)
Ingredients of Kidnapping
1. Takes or entices a minor or any person of unsound mind.
2. Person taken or enticed away should be below 16 years of age if male, 18 years of age if
female or a person of unsound mind.
3. The taking or enticing should be from the keeping of the lawful guardian.
4. Taking or enticing should be without the consent of such guardian.
Ref.Case Law: R.v. Prince (L.R.2 CCR); Varadarajan v. State of Madras
Abduction (Sec. 362 IPC)
Wherever by force compels, or by any deceitful means induces, any person to go from any place,
is said to abduct that person
144 LAW OF CRIMES

RAPE- (SEC 375)
Definition of the Rape
A man can commit Rape
1) against her will
2) Without her consent
3) with her consent obtained by putting her in fear of death or of hurt.
4) with her consent when the man knows that he is not her husband and that consent is given
under a false belief.
5) with her consent when she was insane (or) intoxicated stage (case law cablin’s case)
6) with or without her consent when she is under 16 years of age.
(Ref. case law State of Karnataka v. Krishnappa (2000))
Exception
Sexual intercourse by husband his own wife if she is above 15 years of age is not rape if she is
under 15 years of age it is rape.
Explanation
Penetration is sufficient to constitute the offence of rape.
-Case law Allens case (1839)
Husband can be guilty of abetment
-Lord Audbey’s case
Men’s rea in rape case D.P.P.v. Morgan
Abetment by inducement R v. Cogan (1975)
The Criminal law (Amendment Act 1983 introduced new Sections in IPC Ref. Thukkaram v. State
of Maharastra (1980)
Sec 376 A Marital rape (Ref case Ram kumar v. State of H.P. 1946)
Sec 376 B - Rape by public servant
Sec 376 C - Rape by Jail Authorities.
Sec 376 D Rape by staff of the hospital.
Sec. 376 (2) (2) (i) to (iii) custodial rape
Sec. 376 (2) (g) - Gang rape
Ref Case - Arun Kumar v. State of U.P.; Balwant Singh case (1987)
376 (2) (8) - Rape on minor girl (under age of 12 )
Ref Case - State of A.P. v. Bodem Sundara Ra (AIR 1996)
Attempt to commit rape:
Mohan lal v. Jammu Kasmir (1998 Cri L.J. 667)
Un natural offence (Sec 377 IPC)
Un natural offence is voluntarily having carnal intercourse against the order of nature with any man,
woman, (or) animal.
145 LAW OF CRIMES

Ref case law - Grija Devi v. State (2000);
3. Bestiality - Khandu v. Emperor (A.I.R.1934)
4. Sodomy - Chitranjit singh case.
Outraging the modesty of a woman (Sec 354 IPC)
Outraging the modesty of a woman is an offence provided there is use of assault or criminal force
with the intention for the purpose or knowing it likely that he will thereby outrage her modesty. The
offence under this Section different from rape and is of seriousness than the one under section 376.
Ref Case Law - Major Singh Case
K.P.S. Gill v. Rupan Deol Bajaj (1995)
Criminal force and Assault: Sec. 350 and 351 IPC)
Ref: Durga Charan Naik v. State of orissa (AIR 1966 SC 1775)
Offence against human Freedom: (Wrongful restrain and wrongful Confinement )
Wrongful Restraint:
Ingredients:
i) Voluntarily obstructs any person.
ii) So as to prevent him from proceeding in any direction in which that person has a right to
proceed.
Wrongful Confinement:
Ingredients:
i) Wrongful restraint of a person.
ii) In a manner as to prevent him from proceeding beyond certain circumscribing.
Ref case : Nilabati Behera v. State of orissa (AIR 1993 SC 1960)
Rudul Shah v. State of Bihar (AIR 1983 SC 1086)
CHAPTER IX
OFFENCES AGAINST PROPERTY
THEFT (SEC 378 IPC)
Ingredients:
1. Movable property
2. It should be in the possession of another person.
3. The accused should move such property in order to take it out of his possession.
4. He should do so without his consent.
5. Intended to take the property dishonestly.
Ref Case law- K.N.Mehra v. State of Rajasthan A.I.R. (1975 SC 369)
EXTORTION (Sec. 383 IPC)
Extortion is a form of theft in aggravated stage.
146 LAW OF CRIMES

Ingredients
1. The accused should threaten any person with any injury to that person or another.
2. The person put in fear should be induced.
a. to deliver any property
b. to deliver any valuable security
c. or anything which may be converted into valuable security
d. accused should have acted dishonest intention.
ROBBERY (Sec 390 IPC)
Theft to become Robbery
1) The accused should cause or attempt to cause death or hurt or wrongful restraint or fear of
instant death instant hurt or instant wrongful restraint.
2) He should use such force or employ violence for one of three purposes.
a) In order to commit theft.
b) In the course of committing theft.
c) In carrying away or attempting to carry away stolen property.
3) The accused should cause such hurt violently
Ref case Laws: Kushomathton v. State of Bihar (AIR 1980 SC)
Smith v. Desmound (1965) All E.R.976
DACOITY - (Sec 391 IPC)
1) When five or more persons can jointly commit or attempt to commit robbery.
2) With common intention.
3) Person present and aiding such Commission or attempt liable for dacoity.
Attempt is equivalent with commit in Dacoity attempt to commit dacoity is Dacoity itself.
Ref Case Law: Shyam Behari v. State of UP AIR 1957
Sec 403 IPC Misappropriation Case law: R v. Sita
Section 405 IPC Criminal Breach of Trust
Ref Case law- Pratiba Rani v. Suraj Kumar AIR 1986 C 628) R.K.Dalmia v. Delhi Administration.
Sec. 410 IPC Receiving Stole Property.
Ref case Sheonath v. State of UP (1970 A.I.R)
Sec. 415 IPC cheating
Ingredients
1. The accused should decive another person .
2. The person decieived should be indused to deliver any property to any person or consent to
be detention of property by any person.
3. The accused should have acted dishonestly and fraudulently.
147 LAW OF CRIMES

Dishonest obtaining of Property by deception
I) the accused should deceive another person
II) The person deceived should be induced to do or omit to do anything which act or omission
either causes or likely to cause injury to that person in body, mind reputation or property.
III) The accused should have acted intentionally.
Aggravated forms of cheating.
Cheating by personation Sec. 419 IPC
Ref Case Laws : R v. Appusamy (1886) 12 Mad (3)
4. Krishna moorthy v. State of A.P (1965)
5. Sushil Kumar Datta v. state 1985 Cri. L.J. 1948
6. Sec. 420 IPC cheating and thereby dishonestly inducing delivery of property.
MISCHEIF (Sec 425 IPC)
1) Wrongful loss or damage to the public (or) any person be intended or be likely.
2) Any property should either be destroyed or any such change should occure in any property,
or in the situation thereof destroys or diminishes its value or utility or affects it injuriously.
Case Law reference Sir Ram v. Emperor.
Criminal Trespass (Sec. 441 IPC)
As regards criminal trespass the entry upon other’s land must be made with a guilty intent mentioned
in section 441.
House breaking is an offence u/sec 445 IPC
CHAPTER X
OFFENCES RELATING TO MARRIAGE Sec. 493 to 498 IPC
- Mock marriage sec 493 and 496
- Rambilas Singh v. State of Bihar (AIR 1989 SC 1593)
- Bigamy - Section 494, 495 and 496 Ms. Tolson’s case
- Kawall Ram v. Himachal Pradesh (AIR 1966 SC 614.
- Sarla Mudgal v. Union of India AIR 1995 SC
- Lily Thomas v. Union of India AIR 2000
Adultery - Section 497
A married man having sexual intercourse with (i) an unmarried woman (ii) or with a widow or a
married women whose husband consents to it or iv) with a divorced woman, commits no offence under
this section.
Ref Case: Yusuf Abdul Aziz v. State of Bombay
Justice Malimatti committee and Madavamenon committee reports.
Nanavathi v. State of Maharastra,.
Sowmithri Vishneu v. Union of India (AIR 1985 SC 1618)
148 LAW OF CRIMES
Elopment (Sec 498)
The Section Punishes any person who
a) takes or entires away or conceals or detains the wife of another man from that man or from
any person having the care of her on behalf of that man.
b) with knowledge that she is or having reason to believe that she is a wife of another
man, and c) with intext that she may have sexual intercourse larith any person.
1. Alamgir v. the State of Bihar 1959 SCJ 457.
2. Ramanarayana Karup (1936) 39 Bom LR 61
Dowry Death (304 B)
This Section was added by Dowry Prohibition (Amendment) Act 1983. The object of this section to
is prevent increasing number of dowry death in India and to provide stringent punishment for the same.
Under this Section ‘Dowry death’ is punishable and it should occure within 7 years of marriage.
Lichhama Devi v. State of Rajasthan (1988 - SCC 456)
Delhi Aministration v. laxman Kumar (1985-4-SCC 476)
Cruelty 498-A
This section was inserted by the Criminal law (Amendment) Act 1983 as observed by the Supreme
Court of India in B.S.Joshi v. State of Haryana (2003) the object of introducing chapter XX-A in the IPC
was to prevent torture to a woman by her husband or by relatives of her husband.
Ref Case:
Ramesh Kumar v. State of Punjab (1986) Cri. L.J.2087
Ashok Kumar v. State of Haryana 1986 Cri.L.J. 1963
Constitutional Validity Challenged
Inder Raj Malik and others. v. Mrs. Sunitha Malik 1986 Cri. L.J. 1510.
OFFENCES RELATING TO RELIGION
Sec. 295 IPC
Destroying, damaging or defiling any place of worship or object with intent to insult.
Ref Case: S.Veerbhadran Chettiar v. E.V.Ramaswami Naicker. AIR 1958 SC 1032.
Sec 295 A
Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its
religion or religious feelings:
Ref Case:
Acharya Ramesh v. Naval Thakur 1990 Cri L.J. 2511.
Ram ji lal Modi v. State of U.P. A.I.R. 1957 SC 620.
Sant Das Maheswari v. Babu Ram A.I.R. 1969 All 436.
Disturbing religious assembly (296)
- Trespassing on burial places (297)
- Uttering words etc., with deliberate intentent toward religious feelings (298) also
offences under this head.
149 LAW OF CRIMES
Defemation (Sec. 499 to 502 IPC)
Ref Case : Merivale v. Carson,
Natigam P.Ramaswamy v. M.Karunanithi
Criminal intimation (Sec. 503 IPC)
Ref Case: Ramesh Chandra Arora v. The State (AIR 1960 Sec 154.
Insult the modesty of women IPC Sec. 509
Ref: case: Mohammed Kassim Chisty case.
511 IPC Attempt to commit offence.
Ref case: State of Maharastra v. Mohammed Yakub (A.I.R. 1980 SC 1111)
OBSCENITY
Section 292, 293 and 294 speak of obscenity. The sections prohibit and punish sale of obscene
books or obscene objects, doing of any obscene act or reciting or uttering any obscene songs, ballads
or words.
Ref. case law: R v. Hicklin (1868) - (Hicklin test)
AMENDMENTS TO THE INDIAN PENAL CODE(45 OF 1860):

1. After section 29, the following section shall be inserted, namely:—
Electronic record-”29A. The words “electronic record” shall have the meaning assigned to them in
clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000.”.
2. In section 167, for the words “such public servant, charged with the preparation or translation of
any document, frames or translates that document”, the words “such public servant, charged with
the preparation or translation of any document or electronic record, frames, prepares or translates
that document or electronic record” shall be substituted.
3. In section 172, for the words “produce a document in a Court of Justice”, the words “produce a
document or an electronic record in a Court of Justice” shall be substituted.
4. In section 173, for the words “to produce a document in a Court of Justice”, the words “to produce
a document or electronic record in a Court of Justice” shall be substituted.
5. In section 175, for the word “document” at both the places where it occurs, the words “document or
electronic record” shall be substituted.
6. In section 192, for the words “makes any false entry in any book or record, or makes any document
containing a false statement”, the words “makes any false entry in any book or record, or electronic
record or makes any document or electronic record containing a false statement” shall be substituted.
7. In section 204, for the word “document” at both the places where it occurs, the words “document or
electronic record” shall be substituted.
8. In section 463, for the words “Whoever makes any false documents or part of a document with intent
to cause damage or injury”, the words “Whoever makes any false documents or false electronic
record or part of a document or electronic record, with intent to cause damage or injury” shall be
substituted.
150 LAW OF CRIMES

9. In section 464,—
‘Explanation 3.—For the purposes of this section, the expression “affixing digital signature” shall
have the meaning assigned to it in clause (d) of subsection (1) of section 2 of the Information
Technology Act, 2000.’.
10. In section 466,—
(a) for the words “Whoever forges a document”, the words “Whoever forges a document or an electronic
record” shall be substituted;
(b) the following Explanation shall be inserted at the end, namely:— ‘Explanation.—For the purposes
of this section, “register” includes any list, data or record of any entries maintained in the electronic
form as defined in clause (r) of sub-section (1) of section 2 of the Information Technology
Act, 2000.’.
11. In section 468, for the words “document forged”, the words “document or electronic record forged”
shall be substituted.
12. In section 469, for the words “intending that the document forged”, the words “intending that the
document or electronic record forged” shall be substituted.
13. In section 470, for the word “document” in both the places where it occurs, the words “document or
electronic record” shall be substituted. In section 471, for the word “document” wherever it occurs,
the words “document or electronic record” shall be substituted.
14. In section 474, for the portion beginning with the words “Whoever has in his possession any
document” and ending with the words “if the document is one of the description mentioned in
section 466 of this Code”, the following shall be substituted, namely: —
“Whoever has in his possession any document or electronic record, knowing the same to be forged
and intending that the same shall fraudulently or dishonestly be used as a genuine, shall, if the
document or electronic record is one of the description mentioned in section 466 of this Code.”.
15. In section 476, for the words “any document”, the words “any document or electronic record” shall
be substituted.
16. In section 477A, for the words “book, paper, writing” at both the places where they occur, the words
“book, electronic record, paper, writing” shall be substituted.
17. Section 166A- After section 166 of the Indian Penal Code, the following section shall be inserted,
namely:-
“ Whoever, being a public servant, -
(a) knowingly disobeys any direction of the law which prohibits him from requiring the
attendance at any place of any person for the purpose of investigation into an offence or
other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law
regulating the manner in which he shall conduct such investigation, shall be punished with
imprisonment for a term which may extend to one year or with fine or with both.”
18. In section 509 of the Penal code, for the words “shall be punished with simple imprisonment for a
term which may extend to one year, or with fine, or with both”, the words “shall be punished with
simple imprisonment for a term which may extend to seven years and shall also be liable to fine
which may not be less than Rs.1000” shall be substituted.
151 LAW OF CRIMES
The Criminal Law Amended Act,2010 added the term sexual assault and amended Sec.166,
sec.375,sec.374,376B,376C,376D and Sec.509 .The Criminal Law Amendment Act,2013 has added
the following provisions:1)Insertion clause 7 to original sec.100 relating to throwing acid would amount
to grievous hurt 2) Sec 166 A Public Servant disobeying direction under law3) Punishment for non
treatment of a victim .3) Sec.228 A insertion of Figures and words 4) Sec.326 A (Voluntarily causing
grievous hurt by the use of acid & 326 B (Voluntarily throwing or attempt to throw acid 5) Sec.354 A
(Sexual Harassment and Punishment for Sexual Harassment 6)354 B( Assault or use of criminal force
with intent to disrobe 7) Sec. 354 C (Voyurism) 8) 354 D (Stalking) 9) Sec.370 (Trafficking of persons)
10) Sec 370 A (Exploitation of Trafficked person) 11) Sec.375 Expanded explanation of term Rape. 12)
Sec.376 Punishment for Rape 13) Sec.376 A (Punishment for causing death or resulting in persistent
vegetative state of a victim) 14) Sec.376 B (Sexual Intercourse by the husband upon his wife during
separation) 15) Sec .376 C Sexual Intercourse by the person in authority 16) Sec.376 D( Gang Rape)
17) Sec.376 E (Punishment for repeat offenders) 18 ) Sec.509 (Punishment).
**********
152 LAW OF CRIMES

II SEMESTER
1. LAW OF CONTRACTS-II
INDEMNITY
Definition
According to dictionary meaning, Indemnity is protection against loss, otherwise It is a security
against, or Compensation for loss etc. According to Sec. 124 of the Indian Contract Act, a contract of
indemnity means “a contract by which one party promises to solve the others from loss caused to him
by the conduct of the promise or himself or by conduct of any other person”. For instance, a contract to
indemnify B against the consequences of any proceedings which C may take against B in respect of a
certain sum of 200 rupees. This is a Contract of Indemnity. The person who promises to indemnify is
known as “indemnifier” and the person in whose favour such a promise is made is known as indemnified
or indemnity holder.
England
Under english law the word indemnity carries a much wide meaning than given to it under the
Indian Contract Act. It includes a contract to save the promise from a loss, whether it be caused by
human agency or any other event like an accident and fire.
The definition of Contract of Indemnity as given in the Indian Contract Act is not exhaustive. It
includes (a) express promises to indemnity; and (b) cases where the loss in caused by the conduct of
the promisor himself or by the conduct of any other person. It does not include (a) implied promise to
indemnity; and (b) cases where loss arises from accident and events not depending on the conduct of
the promisor or any other person.
Principles of equity
According to the rules evolved by the Court of equity that the indemnity-holder can now compel the
indemnifies to save him from the loss in respect of liability against which indemnity has been promised.
In India, it has been held that Sec. 124 and 125 of the Contract Act are not exhaustive of the law of
indemnity and the Courts here would apply the same equitable principles that in England do. (Gajanan
Moreshwar v. Moreshwas Madan / AIR / 1942 Bam. 302).
Sec. 125 deals with rights of Indemnity-holder (i.e. indemnified) when sued. According to it, an
indemnity holder is entitled to recover from the promisor (i.e. indemnifier).]
Right of indemnity holder when sued
(1) all damages which he may be compelled to pay in any suit in respect of any matter to which
the promise to indemnify applies;
(2) all costs which he may be compelled to pay in bringing or defending such suits. But the
indemnified should have acted as any prudent man would act under similar circumstances in
his own case, or with the authority of the promisor (indemnifier); and
(3) all sums which he may have paid under the terms of any compromise of any such suits. The
compromise should not be contrary to the orders of the promisor (indemnifier) and should be
prudent or authorised by the promisor.
Rights of Indemnifier
The Indian Contract Act is silent regarding the rights of the indemnifier (promisor) in a contract
of indemnity. It may be said, on the authority of the English Law, that the rights of the indemnifier are
analogous to the rights of a surety.
153 LAW OF CONTRACTS - II
Time of commencement of the indemnifier’s liability:
The Indian Contract Act (Sec. 125) does not state the time of the commencement of the indemnifier’s
liability under the contract. Different High Courts have been observing different rules in this connection.
Some High Courts have held that the indemnifier is not liable until the indemnified has incurred an actual
loss. Others have held that the indemnified can compel the indemnifier to make good his loss even before
he actually discharged his liability. (Osman Jamal & Sons v. Gopal, (1919) 56 Cal. 262). respectively and
Burkley L.J. v. Richardson Exparte etc. Re (1911) 2 K.B. 705.
Indemnity is not given by repayment after payment. Indemnity requires that the party to be
indemnified shall never be called upon to pay.
The latter view, which is based on equitable principles, has now almost come to stay
Implied indemnity dealt with Sec. 59, 145, 164 and 222 of the Contract Act.
Sec. 59: Application of payment where debt to be discharged is indicated.
Sec. 145: Implied promise to indemnify surety.
Sec. 164: Bailors responsibility to bailee.
Sec. 222: Agent to be indemnified against consequences of lawful acts.
Distinction between Indemnity and Guarantee
Indemnity Guarantee
1. In a contract of indemnity, there are parties In a contract of guarantee there are three
to contract namely the indemnifier (promisor) parties to the contract viz. the creditor the
and the indemnified (promisee). principal, debtor and the surety.
2. The liability of the indemnifier to the The liability of the surety to the creditor is
indemnified is primary and independent. collateral or secondary the primary liability
being that of the principal debtor.
3. There is only one contract in the case of There are three contracts one between the
a contract of indemnity (i.e.) between the principal debtor and the creditor the second
indemnifier and the indemnified. between the creditor and the surety, and the
third between the surety and the principal
debtor.
4. It is not necessary for the indemnifier to act It is necessary that the surety should give the
at the request of the indemnified. guarantee at the request of the debtor.
5. The liability of the indemnifies arises only There is usually an existing debt of which is
on the happening of contingency. guaranteed by the surety.
6. An indemnifier cannot sue a third party for A surety on discharging the debt due by the
loss in his own names, because there is no principal debtor steps in to the shoes of the
privity of contract. He can do so only if there is creditor. He can proceed against the principal
an assignment in his favour debtor in his own right.

CONTRACT OF GUARANTEE
1. A Contract of Guarantee is a tripartite agreement which contemplates the principal debtor, the
creditor and the surety. If there is a triangular relationship in which the following three collateral
contracts may distinguished -
(a) As between creditor and principal, there is a contract out of which the guaranteed debt arises;
(b) As between surety and creditor, there is contract by which surety guarantees to pay principal’s
debt in case of his principal debtor default.
(c) As between surety and principal debtor there is a contract that principal debtor shall indemnify
surety in case surety pays in the event of a default by principal debtor, this is a implied
contract.
Sec. 126 defines “Contract of guarantee - A contract of guarantee is a contract of perform the
promise or discharge the liability of a third person in case of his default.” A guarantee may be either oral
or written.
According to English Law contract (guarantor) must be in writing and signed by the person to be
charged with. (Sec. 4 of the statute of frauds 1677).
2. Essentials and nature of guarantee
(1) The contract of guarantee requires the concurrence of all the three parties to a contract of
guarantee viz. the principal debtor, the creditor and the surety.
(2) The primary liability in some person. There must be a primary liability in some person other
than the surety. The word liability in Sec. 126 means ‘a liability which is enforceable at law. If
that liability does not exist, there cannot be a contract of guarantee. But a guarantee given for
the debt of a minor is an exception to this rule. The primary liability in a contract of guarantee
is that of the principal debtor, the liability of the surety is secondary. It arises only when there
is a default by the principal debtor.
(3) Benefit to the principal debtor is sufficient consideration. For the surety’s promise, it is not
necessary that there should be direct consideration between the creditor and the surety, it
is enough that the creditor has done something for the benefit of the principal debtor. (Sec.
127).
A contract of guarantee must have all the essential elements of a valid contract.
All the parties must be capable of entering into a valid contract, though the principal debtor
may be a person suffering from incapacity to contract. In such a case, the surety is regarded
as the principal debtor and is liable to pay personally even though the principal debtor (eg.
when he is a minor) is not liable to pay.
(4) The consent of the surety should not have been obtained by misrepresentation or concealment.
If the guarantee has been obtained that way, the guarantee is invalid. (Sec. 142 & 143). (eg.)
if a cashier has been found guilty of embezzlement but this fact is not disclosed when a surety
has been made to guarantee the future conduct of the cashier, the surety will not be liable as
such under this circumstances.

3. Liability of Surety: (Sec. 128)
The liability of the surety is co- extensive with that of the principal debtor, unless it is other wise
provided by the contract.
(a) The surety’s liability is co- extensive with that of the principal debtor mans that his liability is
exactly the same as that of the principal debtor. For instance, the principal debtor make a
default in the payment of a debt of Rs.10,000/-, the creditor may recover from the surety the
sum of Rs.10,000 plus interest becoming due thereon as well as the amount spent by him in
recovering that amount.
(b) Limitation: If the principal debtor’s liability is reduced (eg.) after the creditor has recovered
a part of sum due from him out of his property the liability of the surety is also reduced
accordingly. In Narayan Singh v. Chatter Singh, it has been held that the liability of an
agriculturist who was the principal debtor, was scaled down under the Rajasthan Relief of
Agricultural Indebtedness Act, 1957. The effect of scaling down the principal debtor’s liability
was that the surety’s liability has also been reduced accordingly.
(c) If the principal debtor’s liability is affected by illegality, so is also that of the surety. Therefore
where the liability of the principal debtor is held to be not enforceable on the ground of the
contract being illegal, there is no question of surety being made liable.
(d) If the principal debtor happens to be a minor and the agreement made by him is valid, the
surety too cannot be made liable in respect of the same because the liability of the surety is
con-extensive with that of the principal debtor.
(e) If the guarantee is only for a part of the entire debt, then the surety is liable for only that part
(eg.) the debt amount is Rs.10,000/-, the guarantee amount is for Rs.7000/-, the surety is
liable only for Rs.7,000/-.
4. Kinds of Guarantee
The function of a contract of guarantee is to enable a person to get a loan or goods on credit, or
an employment. A guarantee may therefore be given for (i) the repayment a debt; (ii) the payment of
the price of the goods sold on credit; and (iii) the good conduct or honesty of a person employed in a
particular office. In the last case the guarantee is called a fidelity guarantee.
A guarantee may be given for an existing or a future, debt or obligation. In the former case it is
called retrospective guarantee and in the latter case, prospective guarantee.
A guarantee may be in respect of a single transaction or in respect of a number of transactions.
Two type of guarantee are (1) Specific guarantee (2) Continuing guarantee.
Specific guarantee: When a guarantee extends to a single transaction or debt, it is called a
specific or single guarantee. It comes to an end when the guaranteed debt is duly discharged or the
promise is duly performed.
Continuing guarantee: When a guarantee extends to a series of transactions, it is called continuing
guarantee (Sec.129). The liability of the surety in case of a continuing guarantee extends to all the
transactions contemplated until the revocation of the guarantee.

Revocation of a continuing guarantee: A continuing guarantee can be revolved as to future
transactions in two ways.
(1) By notice - Sec. 130: A continuing guarantee may at anytime be revoked by the surety as to
future transaction, by notice to the creditor.
(2) By death of surety - Sec. 131: The death of the surety operates, in the absence of any
contract to the contrary as a revocation of a continuing guarantee, so far as regards future
transactions.
The liability of the surety for previous transaction however remains.
(3) By Novation - Sec. 62: Substitution of a new contract of guarantee for an old between same
or different parties.
5. Discharge of surety from liability
When the liability of surety, which he had undertaken under a contract of guarantee, is extinguished
or comes to an end, he is said to be discharged from liability. The modes of discharge of a surety, as
recognised by the Indian Contract Act are as under :
(1) Revocation by surety - Sec. 130
(2) By death of surety - Sec. 131
(3) By variance in the terms of contract - Sec. 133
Any variance made without the surety’s consent in the terms of contract between the principal
debtor and the creditor, discharges the surety as to transactions subsequent to the variance.
Illustration: ‘C’ agrees to appoint ‘B’ as his clerk to sell goods at yearly salary, upon as becoming
surety to ‘C’ for ‘B’s duly accounting for money received by him as such clerk, Afterwards, without ‘A’s
knowledge or consent, ‘C’ and ‘B’ agree that ‘B’ should be paid by commission on the goods sold by him
and not by a fixed salary. ‘A’ is not liable for subsequent misconduct of ‘B’.
(4) Discharge of surety by release of discharge of principal debtor - Sec. 134: The surety is
discharged by any contract between the creditor and the principal debtor, by which the principal debtor
is released or by any act or omission of the creditor, the legal consequence of which is the discharge of
the principal debtor. But the surety is not discharged by operation of law.
The omission of the creditor to sue within the period of limitation does not discharge the surety.
Illustration: A contracts with ‘B’ for a fixed price to build a house for ‘B’ within a stipulated time, ‘B’
supplying the necessary timber, ‘C’ guarantees A’s performance of the contract. ‘B’ omits to supply the
timber, ‘C’ is discharged from his suretyship. (Sec.128 and Sec. 140 also noted for this point).
(5) Discharge of surety when creditor compounds with gives time to or agree not to sue, principal
debtor - Sec. 135: A contract between the creditor and the principal debtor by which the creditor makes
a composition with or promise to give time to or not to sue, the principal debtor, discharged the surety,
unless the surety assents to such contract.
According to this Section a contract between the creditor and the principal debtor discharges the
surety in the following three circumstances:
(i) When the creditor makes composition with the principal debtor;
(ii) When the creditor promises to give time to the principal debtor; and
(iii) When the creditor promised not to sue the principal debtor.

It may be noted that in the above stated circumstances, the surety is discharged if the creditor and
the principal debtor make such contract without the consent of the surety. If such a contract is made with
the consent of the surety, he would not be discharged.
(6) By creditor’s act or omission impairing surety’s eventual remedy - Sec. 139: If the creditor does
any act which is inconsistent with the right of the surety or omits to do an act which his duty to the surety
requires him to do, and the eventual remedy of the surety himself against the principal debtor is there by
impaired, the surety is discharged. If the surety’s eventual remedy is not impaired against the principal
debtor, the surety is not discharged. (Dalichand v. State AIR 1976 Raj 113).
Illustration: B contracts to build a ship for ‘C’ for a given sum to be paid by installments as the work
reaches certain stages. A becomes surety to ‘C’ for B’s due performance of the contract. ‘C’ without the
knowledge of ‘A’, prepays to ‘B’ the last two installments. A is discharged by this prepayment.
(7) By loss of the security the creditor - Sec. 151: If the creditor loses or without the consent of the
surety, parts with any security given to him at the tie o the contract of guarantee, the surety is discharged
from liability to the extent of the value of security. If there are two or more debts each secured by separate
security, the surety for one of the debt is not discharged of the creditor loses or parts with the security or
securities relating to other debts.
For instance, the seller of the goods allows the buyers to take away the goods without insisting for
the payment of the price for the same, the surety who guarantees the payment of the price by the buyer,
is discharged from his liability.
(8) By novation - (Sec. 62) Substitution of a new contract of guarantee for an old, one either
between different parties the consideration for the new contract being the mutual discharge of the old
contract. The original contract of guarantee is such a case comes to an end.
(9) By invalidation of contract: (Sec.142): (a) Guarantee obtained by misrepresentation. (Sec. 143)
(b) Guarantee obtained by concealment. (Sec.144) (c) Guarantee on contract that creditor shall not act
on it until a co-surety joins. (d) Failure of consideration.
6. Rights of Surety
(a) Against the principal debtor:
(i) Right of subrogation - (Sec. 140) The surety upon or payment or performance of all that
he is liable for is invested with all the rights which the creditor had against the principal
debtor. (The surety steps into the shoes of the creditor)
(ii) Right of indemnity - (Sec. 141) He is entitled to recover from the principal debtor
whatever sum he has rightfully paid under the guarantor, but no sum which he has paid
wrongfully.
(b) Against the creditor:
Right to securities with the creditor - (Sec. 141) According to which a surety is entitled to
the benefit of every security which the creditor has against the principal debtor at the time
when the contract of suretyship is entered into. It means that the surety has not right to those
securities which the creditor obtained from the principal debtor after making the contract of
guarantee.
In the above point English law is different from Indian law. According to English law, a surety
is entitled to the benefit of even those securities which the creditor has received after making
the contract of guarantee.

(c) Right against the co-sureties:
Sec.146: The co-sureties are in the absence of any agreement to the contract liable to
contribute equally.
Illustration: A, B and C are sureties to D for the sum of Rs 3,000/- lent to ‘E’. E makes
default in payment. A, B and C are liable as between themselves, to pay Rs. 1000/- each.
Illustration (Contract to the Contrary): A, B and C are sureties to D for sum of Rs. 1,000/- to
E and there is a contract between A, B and C that A is to be responsible to the extent of one
quarter, B to the extent of one quarter and C to the extent of one half. E makes default in
payment. As between the sureties, A is liable to pay Rs. 250/-, B is Rs. 250/- and C is Rs.
500/-.
Sec.147: If they are bound in different sums, they are liable to pay equally as far as the limits
of their respective obligations permits.
BAILMENT
Contract of Bailment are also a special class of contracts. The word Bailment is derived from the
French world ‘bailer’ which means ‘to deliver’. Sec. 148 defines bailment as under:
1.Bailment, bailor and bailee defined:
A bailment is the delivery of goods by one person to another for some purpose upon a contract
that they shall, when the purpose is accomplished be returned or otherwise disposed of according to the
directions of the person delivering them. The person delivering the goods is called the bailor, the person
to whom they are delivered is called the bailee.
Sometimes there may be bailment even without a contract, (eg) when a person finds goods
belonging to another, a relationship of bailor and bailee is automatically created between the finder and
owner (eg.) B is armaments having been stolen and recovered by the Police, disappeared from Police
custody. Held the state was liable the contract of bailment having been implied. (B. Asavva K.D. Patil v.
State of Mysore, 1977 SC).
2. Essential of Bailment:
1) Contract;
2) Delivery of goods for some purpose;
3) Return of the goods after the purpose is achieved or their disposal according to the bailor’s
directions.
Delivery: Means transfer of possession of the goods from one person to another.
This is called actual delivery. Delivery need not always be actual. It may sometimes be a
constructive or symbolic delivery.
Transferring of the key of the godown may be deemed to be delivery of goods.
Classification of Bailment:
1) Bailment for the benefit of the bailor;
2) Bailment for the benefit of the bailee; and
3) Bailment for the mutual benefit of the bailor and bailee.
Bailment may also be classified into (1) Gratuitous bailment and (2) Non-gratuitous bailment
for reward. (Sec. 150 - Bailors duty to disclose)

3. Distinction between bailment and pledge:
(1) Bailment is a wider term. It includes pledge. Pledge is a kind of bailment, where the goods are
delivered by one person to another as a security for payment of a debt or performance of a
promise. It means that if the goods serve as security, it is pledge, where as when the goods
are given for some other purpose, for example a watch is given for repair, it is bailment.
(2) In the case of default by the pawnor to repay the debt, the Pawnee may, after giving notice to
the pawnor sell the goods pledged with him (Pledge). The bailee may how ever either retain
the goods or sue for his charges (Bailment).
If the owner maintains control over the goods, there is no bailment. (Kaliaperumal v. Visalakshi,
AIR 1938, (Mad)Pg - 32)
4. Duties of Bailee:
(1) Duty to take reasonable care of the goods bailed. (Sec. 151-152)
(2) Duty not to make unauthorised use of the goods bailed. (Sec. 153-154)
(3) Duty not to mix bailor goods with hi own goods. (Sec. 155-157)
(4) Duty to return the goods on fulfillment of the purpose. (Sec. 159-161, 165-167)
(5) Duty to delivery to the bailor increase or profit on the goods bailed. (Sec.163)
(6) Not to set up adverse title.
Rights of Bailee:
(1) To recovers necessary expenses incurred on bailment. (Sec.158)
(2) To recover compensation from the bailor. (Sec. 164)
(3) Right to have an lien on the goods bailed. (Sec. 170-171)
(4) Right of suit against wrongdoer. (Sec. 180)
(5) Right of Remuneration.
Duties of the Bailor:
(1) Bailor duty of discloser. (Sec. 150)
(2) To bear extra-ordinary expenses of bailment.
Rights of Bailor:
(1) To receive back the goods.
(2) Right to indemnify the bailee.
5. Lien:
A right to retain possession of the goods. Two types (1) Particular lien (Sec.170) and (2) General
lien (Sec. 171).
A Particular lien is one which is available to the bailee against only those goods in respect of which
he has rendered any service involving the exercise of labour or skill (Particular purpose). Otherwise
called as Special lien.
A General lien means the right to retain all the goods or any property of the bailor or other party
until all the claims of the holder are satisfied. This is a right to retain the property of another for general
balance of account.

The right of Particular lien has been recognised not only in favour of a bailee but in some other
cases also which are as under:
(i) Lien of finder of goods. (Sec. 168)
(ii) Pawnees or pledgee’s lien. (Sec. 173-174)
(iii) Agents lien. (Sec. 221)
(iv) Unpaid seller’s lien. (Sec. 147, Sale of Goods Act, 1930)
(v) Partner’s lien. (Sec. 52, Indian Partnership Act, 1932)
Lien how lost: The right of lien is a right to retain possession of the goods, and therefore, this right
can be exercised so long as the bailee continues in possession. Once the bailee parts with the possession
his right to lien comes to end. If the bailer’s right of lien has ended by parting with the possession, it is
not revived if he happens to get the possession again.
Termination of bailment: (1) On the expiry of the period; (2) On the achievements of the object; (3)
Inconsistent use of goods; (4) Destruction of the subject matter; (5) Gratuitous bailment.
6. Pledge or Pawn:
Pledge is also a special class of contract. Pledge is a kind of bailment of goods with a special
purpose.
According to Sec. 172, The bailment of goods as security for payment of a debt or performance
of a promise is called pledge. The bailor is in this case called Pawnor. The bailee is called the Pawnee.
Rights of Pawnee:
(1) Right to retain the goods pledged. (Sec. 173-174)
(2) Right to recover extraordinary incurred by him. (Sec. 175)
(3) Right to suit to procure the debt and sale of the pledged goods. (Sec. 176)
(4) Right against the true owner when the pawner’s title is defective.
Right to Pawnor
(1) Right to redeem - Sec. 177 - Right of redemption of the goods also includes a right to any
accretion to the goods pledged. (Profit)
(2) This is a debtor pledges his shares of a certain company with a bank and during the period
of pledge the company issues books shares and right shares, the Pawnor on redemption will
be entitled to such bonus and right shares also.
7. Pledge by non-owners:
The general rule is that it is the owner who can ordinarily create a valid pledge. But in the following
cases even a non-owner can create a valid pledge:
(1) Pledge by a Mercantile agent. (Sec. 178)
(2) Pledge by person in possession under voidable contract. (Sec. 178A - Phillips v. Brooks)
(3) Pledge by person with a limited interest (Sec. 179)
(4) Pledge by seller in possession after sale. (Sec. 30(1) - Sale of Goods Act)
(5) Pledge by buyer in possession after sale. (Sec. 30(2) - Sale of Goods Act)

AGENCY
(1) Sec. 182: Defines the terms Agent and the Principal:
An ‘agent’ is a person employed to do any act for another or to represent another in dealings with
their person. The person for whom such act is done, or who is so represented is called the ‘principal’.
In an agency one person (Principal) employs another person (Agent) to represent him or to act on
his behalf, in dealing with a their person.
Rules of Agency:
(a) Whatever a person competent to contract may do himself, he may do through an agent.
(b) He who does through another does by himself. The acts of an agent therefore are the acts of
the principal. This is however subject to certain conditions.
Creation of Agency:
The relationship of principal and agent may be created by the following situations:
(1) By actual authority being conferred on the agent to act on behalf of the principal. Such authority
may be either Express or Implied. (Sec. 187). Authority is said to be express when it is given
by words, spoken or written. An authority is said to be implied when in is to be inferred from
the circumstances of the cases.
(2) By agents authority to act on behalf of the principal in a situation of emergency; (Agency of
necessity) (Sec. 189)
(3) By the conduct of the principal, which creates on agency on the basis of the Law of Estoppel
(Implied agency) (Sec. 237)
(4) By ratification of the agent’s act by the principal, even though the same has been done
without the principal prior authority. (Sec. 196-200)
(5) By presumption of agency in husband-wife relation.
2. Distinction between Agent and Servant and Independent contractor:
An agent is a person employed for the purpose of bringing the employer into legal relation with
another party.
A servant on the other hand is a person employed to work under the immediate control and direction
of his master and he does not necessarily create relations between his employer and their person.
The principal has the right to direct what work the agent has to do; But a master has further right so
direct how the work is to be done.
Agent and Independent contractor:
A agent is bound to act in the matter of the agency subject to the directions and control of the
principal. Whereas an independent contractor merely undertakes to perform certain specified work or
produce a certain specified result in his own way and independently of the employer’s control.
3. Who may employ agent? (Sec. 183):
Any person who is of the age of majority according to the Law to which he is subject and who is of
sound mind may employ an agent.
Who may be an agent? (Sec. 184: As between principal and third person, any person may become
an agent; but no person who is not of the age of majority and of sound mind can become an agent. So
as to responsible to his principal according to the provisions in that behalf herein contained.
Kinds of Agent:
Depending on the kind of authority given to the agent to act on behalf of the principal, the agent are
of various kinds.
(a) Auctioneers: He is mercantile agent. An auctioneer is an agent whose business is to sell
goods or other property by auction (i.e.) by open sale. The authority vested in him is to sell the
goods only and not to give warranty ties on behalf of the seller, unless expressly authorised
in that behalf.
(b) Factors: A factor is a mercantile agent who is entrusted with the possession of goods for the
purpose of the sale. He has also power to sell goods on credit and also receive price from the
buyer.
(c) Broker: A broker is an agent who as an authority to negotiate the sale of purchase of goods
on behalf of his principal with a third person. Unlike a factor he himself has no possession of
the goods. He merely makes the two parties to enter into the contract. He gets his commission
whenever any transaction materialises through his efforts.
(d) Commission Agent: A commission agent is a person who buyers or sells goods in the
market on behalf of his employer on the best possible terms and who receives commission
for his labours.
(e) Delcredere Agent: He is a mercantile agent, who on the payment of some extra commission
known as delcredere commission, guarantees the performance of contract by the third
person. If in such a case the third person, for instance fails to pay for the goods supplied to
him, the principal can bring an action against the delcreder agent for the same. The liability of
the delcredere agent, like that of a surety, is secondary and the same arises if the third part
fail to apply to the principal what is due under the contract.
Delegation of authority:
When an agent has undertaken to perform certain duties personally, he is not allowed to delegate
his duties to another person. The rule is contained in the Maxim Dele gat us Nonpotest Delegare. Which
means that an agent to whom some authority has been delegated cannot further delegate that authority
to another person (i.e.) he cannot appoint a sub agent.
Exceptional situations when a sub-agent can be validly appointed:
(i) when there is a custom of trade to that effect, the agent may employ a sub-agent;
(ii) when the nature of agency so requires, an agent must employ a sub-agent;
(iii) when the principal, expressly or impliedly agrees to the appointment of a sub-agent for doing
certain work, which has been otherwise assigned to the agent, a sub-agent may be validly
appointed. (Sub-agent defined under Sec. 191).
Sub-agent: According to Sec. 191 a ‘Sub-agent’ is a person employed by, and acting under
the control of, the original agent in the business of agency. A sub-agent therefore is the
agent of the original agent. The relation of the sub-agent to the original agent is as between
themselves that of agent and principal.
Substituted agent: Sec. 194 explains the relation between the principal and substituted agent;
A substituted agent is a person who is named by the agent, holding an express or implied
authority from the principal act for the principal. He is the agent of the principal though he is
named at the request of the principal by the agent.

Sub-agent and Substituted agent distinguished:
One thing common between a sub-agent and substituted agent is that their appointment ismade by
the agent and not by the principal.
Differences:
(1) A sub-agent is the agent’s agent, where as a substituted agent is the principal’s agent, in
conducting the agency work.
(2) A sub-agent is not responsible to the principal, except in case of fraud or wilful wrong. A
substituted agent is directly responsible to the principal for his act.
(3) After appointing a sub-agent, the agent continues to be responsible for the acts of the sub-
agent towards the principal. An agent’s responsibility on the other hand, as over when he
names a substituted agent. He then goes out of the picture.
4. Ratification (Sec. 196-200):
Sec. 196: Where acts are done by one person on behalf of another, but without his knowledge or
authority, he may elect to ratify or to disown such acts. If he ratifies then, the same effects will follow as
if they had been performed by his authority.
Essential of valid ratification:
1) The act should be done on behalf of another person. (Sec. 196, K.M.& Co. v. Durant)
2) Principal should be in existence and competent to contract. (Kelner vx. Baxter)
3) Ratification may be express or implied. (Sec. 197)
4) Ratification with full knowledge of facts. (Sec. 198)
5) Ratification of the whole transaction. (Sec. 199)
6) Ratified act should not be injurious to a third person. (Sec. 200)
7) Ratification within a reasonable time.
8) The act to be ratified must be lawful and not void or illegal or ultravirus in the case of a
company.
9) Ratification must be communicated to the part who is sought to be bound by the act done by
the agent.
10) Ratification can only be of the acts which the principal has power to do.
11) Ratification dates back to the date of the act of the agent. (effect of ratification) The doctrine
of relations back (Botton partners v. Lambert; Watson v. Davier)
5. Rights of an Agent:
1. Right to remuneration. (Sec. 219)
2. Right to retain sums. (Sec. 217 & 218)
3. Right of lien on principals property. (Sec. 221)
4. Right to be indemnified. (Sec. 222-224)
5. Right of compensation.
6. Right of stoppage in transit.

6. Duties of an Agent:
1. Duty not to delegate his duties. (Sec. 190)
2. Duty to follow principal’s directions. (Sec. 211) (Lilley v. Doubleday)
3. Duty to show proper skill and care. (Sec. 212)
4. Duty to render proper accounts. (Sec. 213)
5. Duty to communicate with principal. (Sec. 214)
6. Duty not to deal on his own accounts. (Sec. 215 & 216) (De Dussche v. Alt)
7. Duty to pay sums received for principal. (Sed. 217 & 218)
8. To protect and preserve the interests of the principal in case of his death or insolvency.
9. Not to use information obtained in the course of the agency against the principal.
10. Not to make secret profits from agency.
11. Not to set an adverse title.
7. Relations of Principal with third parties:
Sec. 226 makes the provision regarding the enforcement and consequences of contracts entered
into through an agent.
Ostensible or apparent authority is the authority of an agent as it appears to others.
Position of Principal and Agent in relation to Third Parties:
1. Named principal - where the agent contracts as agent for a named principal the principal is
(a) liable for the acts of the agent with third persons provided the act are done within the
scope of his authority and in the course of his employment as an agent.
(b) liable for the misrepresentations made or frauds committed by the agent in the course
of employment. (Sec. 238)
(c) bound the notice given to or information obtained by the business of the principal and
for the admissions made by the agent.
2. Un-named principal - The principal is liable for the contracts of the agent unless there is a
trade custom or a term express or implied to the effect which makes the agent personally
liable.
3. Undisclosed principal - The agent is bound by the contract. He may be sued on it and he has
the right to sue a third party. The principal too has the right to intervene and assert his position
as an undisclosed party to the contract.
Personal liability of agent:
An agent is personally liable where -
1) The contract expressly provides.
2) The agent acts for a foreign principal.
3) He acts for a concealed principal.
4) He acts for a principal who can not be sued.
5) He signs a contract in his own name.

6) He acts for a principal not in existence.
7) He is liable for breach of warranty.
8) He receives or pays money by mistake or fraud
9) His authority is coupled with interest.
10) The trade usage or custom makes him personally liable.
8. Termination of Agency (Sec. 201-210):
Various modes of the termination of agency -
i) By revocation of agent’s authority.
ii) By renunciation of the business of agency by the agent.
iii) By the completion of the business of agency.
iv) By the death or insanity of either the principal or the agent.
Irrevocable agency or agency coupled with interest: (Sec. 202)
Where the agent has himself an interest in the property which forms the subject matter of
the agency, the agency cannot, in the absence of an express contract, be terminated to the
prejudice of such interest.
When an agency cannot e put an end to it is said to be an irrevocable agency.
SALE OF GOODS
1. Definition and essentials of sale (Sec. 4 of Sale of Goods Act)
A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the
property in goods to the buyer for a price.
i) Bilateral contract
ii) Money consideration
iii) Goods
iv) A contract of sale may be absolute or conditional.
Distribution between sale and agreement to sell:
1) Sale makes the buyer the owner of the goods. He acquires a jus in rem, that is a right against
the goods. If the seller refuses to deliver the goods, the buyer may sue for recovery of the
goods by specific performance.
An agreement to sell in a contract pure and simple. The business rights are only personnel
against the seller, that is a just in personam. He can sue only for damages for breach and not
for recovery of the goods.
2) In a sale, the risk of loss, if any, of the goods is on the buyer. But in an agreement to sell, the
seller remains the owner of the goods and he runs all the risks.
3) In a sale, if the buyer commits default, the seller may sue him for the price, that is for specific
enforcement of the contract. In an agreement to sell, the seller’s only remedy is to due for
damages for breach.

Agreement to sell and hire purchase
1) A hire purchase agreement entitles the hirer only to possession of the goods. He cannot
accordingly pass a good title to any buyer from him. But a person who receives possession
under an agreement to buy is able to pass a good title to a bonafied purchases from him.
2) A hirer cannot claim the benefit of implied conditions and warranties created by the Act,
unless it becomes a sale. But the conditions implied under the Hire Purchase Act 1972 do
apply.
3) The Hire Purchase Act is applicable only to hire purchase contract.
4) Sales Tax is not leviable on a hire purchase until it becomes a sale.
Agreement to buy imports a legal obligation to buy (Helby v. Mathews; Lee v. Butler)
Sale and contract of work and labour:
Where the contract to print on paper to be supplied by the printer was held to be not of sale. It is
contract of work and labour. If the result of transaction is the passing of an article for a price it is a sale.
(Lee v. Griffin; Robinson v. Graves)
2. Subject matter of contract: (Sec. 6)
The subject matter of contract must be goods defined under Sec. 2(7) of the Act.
The goods may be either existing goods owned or possessed by the seller, or future goods. Future
goods can defined in the Act as goods to be manufactured or produced or acquired by the seller after the
making of the contract of sale.
3. Goods perishing after agreement to sell: (Sec. 8)
An agreement to sell specific goods become void if subsequently the goods, without the fault of
the seller or buyer, Law perished or become so damaged as no longer to answer their description in the
agreement, provided this happen before the risk has passed to the buyer. (Howell v. Coupland)
Sec.9 lays down the determination of the price.
Sec.10 - Agreement to sell at valuation.
The parties may agrees to sell and buy goods on the terms that the price is to be fixed by the
valuation of the third party.
4. Conditions and Warranties:
Sec. 12(1) lays down the stipulations in a contract of sale with reference to goods may be conditions
or warranties.
Sec. 12(2) - A condition is a stipulation essential to the main purpose of the contract, the breach of
which gives rise to a right to treat the contract as repudiated. (Baldry v. Marshall).
Sec. 12(3) - A warranty is a stipulation collateral to main purpose of the contract, the breach of
which gives rise to a claim for damages but not to right to reject the goods and treat the contract as
repudiated. (Harrison v. Knowler and Faster)
Implied condition
i) Conditions as to title (Sec. 14) : Rowland v. Diwall; Niblett v. Confectionar’s materials to
Sec.14. An implied condition on the part of the seller that in the case of a sale, he has a right
to sell the goods and that in case of an agreement to sell, he will have a right to sell the goods
at the time when the property is to pass.

ii) Sale by description (Sec. 15): Where there is a contract of sale of goods by description there
is an implied condition that the goods shall correspond with the description. (Varley v. Whipp;
Necholson and Venn v. Smith Marriott; Moore & Co.v. Landauer & Co.)
iii) Sale by sample (Sec. 17): In the case of a contract for sale by sample there is an implied
condition (a) that the bulk shall correspond with the sample in quality; (b) that the buyer shall
have a reasonable opportunity of comparing the bulk with the sample; and (c) that the goods
shall be free from any defect, rendering them unmerchantable which would not be apparent
on a reasonable examination of the sample.
Principle of Caveat emptor - (Buyer beware) :
The seller is not bound to supply goods which should be fit for any particular purpose or which
should posses any particular quality. It is the buyer’s duty to select goods for his requirement. (Ward v.
Hobbs)
Exceptions to the rule caveat emptor:
1) Fitness for buyer’s purpose. (Grand v. Austraslian Knitting Mills; Re Andrewyle & Co.
2) Merchantable quality. (Godley v. Perry; Jonew v. Just; Summer Permain & Co. v. Webb Co.;
Priest v. Last; Frost v. Aylasbary Dairy Co. Ltd.
3) Conditions implied by trade usage.
4) Express terms.
Implied Warranties:
i) Quiet possession. (Sec. 14(b) - Rowland v. Diwall; Niblett v. Confectioner’s Materials Co.;
Mason v. Burningham.
ii) Free form encumbrance. (Sec. 14(c))
PASSING OF PROPERTY
Significance of passing of property:
Property in goods is said to pass to the buyer when he acquires proprietary rights over them. Many
right and obligations of the parties are linked with passing of property. One of the most important effects
is that risk prima facie passes with property, that is to say, that the goods are at the risk of the party in
whim the property is.
Specific goods:
General rule is that property passes as soon as the contract is made (Sale of Specific Goods).
The basic conditions relating to such sales are laid down in Sec. 20, 21 and 22. (i) Specific goods (ii)
Deliverable state (iii) unconditional contract.
Sale approval: (Sec. 24)
Sale of unascertained goods (Sec. 18 and 23)
Transfer of risk: (Sec. 26)
“Risk prima facie passes with property”. In other words, the goods are at the risk of the party in
whim the property is “risk” and “property” go together. (Sterns Ltd. v. Vickers Ltd.). “The two are not
inseparable”. Sometimes the “risk” may be in one party and “property” in another. (Demby Mamilton
& Co. Ltd. v. Barden Endeavour Wires Ltd). Risk and property may be separated by a trade custom
(Bevinton v. Dale). Risk and property may be separated by a term of the contract.

TRANSFER OF TITLE
There are two principles, first is the protection of property (no one can give a better title than
he himself possesses), the second is the protection of commercial transactions. The first principle is
enshrined in the ancient maxim nemodat quo non habet, which means that no one can transfer a better
title than he himself has.
Exceptions to nemo dat quod non habet:
1) Estopped (Sec. 27)
2) Sale of mercantile agent (Sec. 27)
3) Sale by joint owner (Sec. 28)
4) Sale by person in possession under voidable contract (Sec. 29): Phillips v. Books; Cundy v.
Linsay; Ingram v. Little; Lawis v. Averay; Car and Universal Finance Co. Ltd. v. Caldwell.
5) Seller in possession after sale (Sec. 39(1)): Staffs Motor Quarantee Ltd. v. British Wagon Co.
Ltd.
6) Buyer in possession (Sec. 30(2))
Rules as to delivery (Sec. 36):
i) Place of delivery
ii) Time for delivery
iii) Delivery by attornment
iv) Time for tender of delivery
v) Expenses of delivery
Contracts involving sea routes:
i) FOB - Free on Board
ii) CIF - Cost, Insurance, Freight
iii) Exship
RIGHTS OF UNPAID SELLER AGAINST GOODS

Definition of unpaid seller: (Sec. 45)
When the whole of the price has not been paid or tendered; when a bill of exchange or other
negotiable instrument has not been received as conditional payments, and the condition on which it was
received has not been fulfilled by reason of the dishounur of the instrument or otherwise.
Rights against goods:
1) Lien (Sec. 47)
2) Stoppage in transit (Sec. 50)
3) Resale (Sec. 54)
A lien on goods for price while he is in possession of them; in case of insolvency of the buyer a
right of stoppage of goods in transit after he has parted with the possession of them; a right of resale as
limited by the Act.

Right against the buyer:
1) Suit for price (Sec. 55)
2) Damages for non acceptance (Sec. 56)
3) Damages for the breach (Sec. 60)
4) Suit for interest.
AUCTION SALE - (SEC. 64)
An auction sale is complete when the auctioneer announces its completion by the fall of the hammer
or in other customary manner, a sale by auction is a public sale where different intending buyers try to
outbid each other. The goods are ultimately sold to the highest bidder.
PARTNERSHIP
Definition of partnership : (Sec.4:)
Partnership is the relation between persons who have agreed to share the profit of a b u s i n e s s
carried on by all or any of them acting for all.
Essential features of a partnership :
(1) An agreement: See 5 of the Partnership Act declares that the relation of partnership arises
from contract, not from status.
When the partnership agreement is in writing it is called the deed of partnership.
(2) A partnership can exist in business and business alone.
(3) Sharing of profits and losses: The object of the partnership must be to make profit. Profit
means net profit (i.e.) excess of returns over outlays the excess of what is obtained over the
cost obtaining it. Profit must be distributed among the partners in an agreement ratio. Sharing
of profit also involves sharing of loss which in fact is negative profit.
(4) Mutual agency: The business of partnership may be carried on by “all the partners or any of
them acting for all”. Thus if the person carrying on the business acts not only for himself but
for other also, so that they stand in the position of principals and agents, they are partners.
(Cos v. Hickman)
Distinction between Partnership and Co-ownership:
1. A partnership can arise only by agreement; A co-ownership may arise in any other way.
2. Business is necessary for existence of a partnership; Co-ownership can exist with out it.
3. Partners are mutual agents, Co-owners are not.
4. A co-owner can sell his share without the consent of the others, but a partner cannot.
5. A co-owner can sue for partition of the joint estate. A partner can sue his co-partners for
dissolution and accounts.
Partnership and Joint Family:
1. A joint family cannot be created by contract. It always arises by operation of Law. A partnership
cannot arise without contract.
2. A person becomes the member of the joint family and gets an equal share in assets and
profits by the mere fact of birth. But a new partner cannot be admitted into a partnership
except with the consent of all the partners.
3. Partners are overtual agents, the members of a family are not. The manager or karta of the
family is the only representative of the family.
4. The liability of a partner is personal as well as joint. A member is not personally liable for
business obligations of the family. Only his share of assets and profits is liable.
5. The remedy of a co-partner is a suit for partition, that of a partner for dissolution and accounts.
Partnership and Company :
1. A company is a legal person, but partnership in a collection or an aggregate of the partners.
2. Companies are usually created with liability of members limited by shares or guarantee, but
partners have to trade with unlimited liability.
3. The shares of a company are freely transferable but the partners of a firm doe not have the
right to sell their shares without the consent of the other partner.
Duties of Partners :
1. Duty of absolute good faith (Sec. 9)
2. Duty not to compete (Sec. 16(b))
3. Duty of due diligence (Sec. 12(b) and 13(b))
4. Duty to indemnify for fraud (Sec. 10)
5. Duty to render true accounts (Sec. 9)
6. Proper use of property (Sec. 15 and 16(a))
7. Duty to account for personal profits (Sec. 16)
Rights of Partners :
1. Right to take part in business (Sec. 12(a))
2. Majority rights (Sec. 12(c))
3. Access to books (Sec. 12(d))
4. Right to indemnity (Sec. 13(e))
5. Right to profits (Sec. 13(b))
6. Right to interest on capital (Sec. (13(c) and 13(d))
7. Right to remuneration (Sec. 13(a))
Minor as Partner : (Sec. 30)
1. A person who is a minor according to the Law to which he is subject may not be a partner in
a firm, but with the consent of all the partners for the time being, he may be admitted to the
benefits of partnership.
2. The minor has the right to receive his agreed share of the property and of the profits of the
firm as may be agreed upon, and he may have access to and inspect and copy any of the
accounts of the firm.
3. Such minor’s share is liable for the acts of the firm, but the minor is not personally liable for
any such act.

4. Such minor may not sue the partners for an account or payment of his share of the property
or profit of the firm, save when severing his connection with the firm, and in such case the
amount of his share shall be determined by a valuation made as far as possible in accordance
with the rules contained in Sec. 48.
5. On attaining majority he has to decide within six months whether he shall remain in the
firm or leave it. Within this period he should give public notice that he has elected to become
or that he has elected not to become a partner. If he fails to give any notice, he automatically
becomes a partner on the expiry of six months.
If he becomes a partner his rights and liabilities will be similar to those of a full fledged partner.
If he elects not to become a partner -
a) his rights and liabilities shall continue to be those of a minor up to the date of public
notice;
b) his share shall not be liable for any acts of the firm done after the date of the notice;
c) he shall be entitled to sue the partners of his share of the property and profits.
Duration of Partnership: A partnership may be for a fixed time, where no provision is made by
the partners for the duration of the partnership it is a partnership at will, when a person becomes a
partner with another person or persons in a particular adventure or undertaking it is known as Particular
Partnership.
Authority of a Partner: The authority of a partner means the right of a partner to bind the firm by
his acts. This authority of the partner to bind the firm may be an express authority or implied authority.
Where there is no partnership agreement or where the agreement is silent, Sec. 19(1) provides that the
act of a partner, which is done to carry on, in this usual way, business of the kind carried on by the firm
binds the firms. This authority of a partner is called his implied authority.
Types of Partners:
1) Actual partner: is one who becomes a partner by an agreement and is actively engaged in the
conduct of the business of the partnership.
2) Sleeping partner: is one who does not take an active part in the conduct of the business of
the firm. He is however liable for all the debts of the firm.
3) Partner in profit only: is one who gets a share in profits only and is not to contribute towards
losses. He is however liable to outsiders for all the debts of the firm.
4) Partner by estoppel or holding out: Any one who by words spoken or written or by conduct
represents himself or knowingly permits himself to be represented as a partner in a firm is
liable as a partner in that firm to any one who has on the faith of any such representation given
credit to the firm whether the person representing himself or represented to be a partner does
nor does not know that the representation has reached the person so giving credit.
5) Nominal partner: is one who binds him name to the firm without having any real interest in it.
He is liable to outsiders for all the debts of the firm.
Authority in emergency (Sec.21): A partner has authority in an emergency, to do all such acts for
the purpose of protecting the firm from loss as would be done by a person of ordinary prudence, in his
own case, acting under similar circumstances and such act bind the firm.

The requirements of the Sec. 21:
1. There should be an emergency.
2. The partner should have tried to protect the firm from loss threatened by the emergency.
3. The act must be reasonable in the circumstances.
Liability of the firm for wrongful acts of a partner (Sec. 26): Where, by the wrongful act or
omission of a partner acting in the ordinary course of the business of a firm, or with the authority of his
partners loss or injury is caused to any third party or any penalty is incurred, the firm is liable therefore to
the same extend as the partner.
Liability for misappropriations (Sec. 27): Where -
1) a partner acting within his apparent authority receives money or property from a third party
and misapplies it; or
2) a firm in the course of its business receives money or property from a third party and the
same is misapplied by any of the partners, the firm is liable to make good the loss.
The liability of the firm arises when the money or property is received by a partner with his “apparent
authority” of by the firm “in the course of business”.
Partnership property (Sec. 14): Subject to contract between the partners the property of the firm
includes all property and rights and interests in property originally brought into raw stock of the firm or
acquired, by purchase or otherwise, by or for the firm or for purpose and in the course of the business
of the firm, and includes also the good will of the business. The first rule property originally brought in,
second, property subsequently acquired.
Retirement of partners - (Sec. 31, 32, 33, 34 & 35) :
Mode of retirement
1. By consent (Sec. 31)
2. By agreement (Sec. 32)
3. By notice (Sec. 32)
4. By insolvency (Sec. 34)
5. By death (Sec. 35)
6. Expulsion (Sec. 33)
An Out-going partner means a partner who has retired form a firm and the business is continued
by the remaining partners.
In-coming partner: in new partner can be admitted into a firm with the consent of all the partners.
DISSOLUTION
When a firm is put to an end as between all the partners, that is called dissolution.
Sec. 39: The dissolution of partnership between all the partners of a firm is called the dissolution
of the firm.
Mode of dissolution:
1. By consent (Sec. 40)
2. By agreement (Sec. 40)

3. Compulsory dissolution (Sec. 41)
4. On the happening of certain contingencies (Sec. 42)
5. By notice (Sec. 43)
6. By Court (Sec. 44)
Compulsory dissolution:
a) Insolvency;
b) Illegality of business.
Contingent dissolution:
a) Expiry of term;
b) Completion of business;
c) Death of partner;
d) Insolvency of partner.
By Court:
a) Insanity of the partners;
b) Permanent incapacity;
c) Misconduct;
d) Persistent breach of agreement;
e) Transfer of interest;
f) Perpetual losses;
g) Just and equitable.
Winding up (Sec. 46): Right of partnership to have business wound up after dissolution.
On the dissolution of the firm every partner on his representative has the right to have the property
of the firm applied in payment of debts and liabilities of the firm and to have the surplus distributed among
the partners in accordance with their rights.
Mode of settlement of accounts - (Sec. 48) : In settling the accounts of a firm after dissolution,
the following rules shall, subject to agreement by the partners
a) Losses, including, deficiencies of capital shall be paid first out of the profits, next out of the
capital and lastly if necessary, by the partners individually in the proportions in which they
were entitled to share profits.
b) The assets of the firm, including any sums contributed by the partners to make up deficiencies
of capital, shall be applied in the following manner and order:
i) in paying the debts of the firm to third parties;
ii) in paying each partners rateably what is due to him from the firm or advances as
distinguished from capital;
iii) in paying each partners ratably what is due to him on account of capital;
iv) the residue, if any, shall be divided among the partners in the proportions in which they
were entitled to share profits.

Sale of Goodwill - (Sec. 55) (after dissolution) : In settling the accounts of a firm after dissolution
the goodwill shall, subject to contract between the partners be included in the assets, and it may be sold
either separately or along with other property of the firm.
Registration of firms :
Procedure of registration: The application has to state the following particulars.
1) Name of the firm;
2) The place or principal place of business of business of the firm;
3) The names of any other places when the firm carries on business;
4) The date when each partner joined the firm;
5) The name in full and permanent addresses of the partners;
6) The duration of the firm.
Registration of firm is not compulsory. It is optional and there is no penalty for non-registration. Yet
registration becomes necessary at one time or other because Sec. 69 seriously states the effect of non-
registration of the firms.
1. A partner of an non-registered firm cannot sue the firm or his present or past co- partners for
the enforcement of any right arising from a contract or conferred by the Partnership Act.
2. An unregistered firm cannot sue any third party for the enforcement of any right arising from
contract.
CONSUMER PROTECTION
History of Consumer Protection Movement in India:
The Consumer Protection Act, 1986 was enacted as a result of widespread consumer protection
movement. On the basis of the report of the Secretary General on Consumer Protection dated 27.5.1983,
the United Nations Economic and Social Council recommended that the world Governments should
develop, strengthen and implement a wherent consumer protection policy taking into consideration of
guidelines set out therein. The Governments were to further provide adequate infrastructure including
the bodies as well as financial facilities to develop, implement and monitor consumer protection policies.
The introduction of new products in the developing countries was to be assessed in relation to the
local conditions having regard to the existing production, distribution and consumption patterns of the
country or region concerned. With reference to the consumer movement and international obligations
for protection of the rights of the consumer provision has been made in the said Act with the object of
interpreting the relevant law in a rational manner and for achieving the objective set forth in the Act.
The interpretation should be in a rational manner so as to achieve the object of the 1986 Act and
not in a technical manner.
Aims and Objects of the Act:
The Act is dedicated as its preamble shows, the provide for better protection of the interests of
consumers and for that purpose to make provision for the establishment of consumer councils and other
authorities for the settlement of consumer disputes and other connected matters. In the statement of
objects and reasons it is said that the Act seeks to provide speedy and simple redressal to consumer
disputes. A quasi-judicial machinery is sought to be set up at the district, state and central levels. The
quasi-judicial bodies will observe the principles of natural justice and have been empowered to give
reliefs of a specific nature and to award, whereas appropriate, compensation to consumers penalties for
non-compliance of orders given by the quasi-judicial bodies have also been provided.
Definitions:
Complainant - (Sec. 2(b)) : means
i) a consumer; or
ii) any Voluntary Consumer Association registered under the Companies Act, 1956; or under
any other law for the time being in force;
iii) the Central Government or any State Government who or which make a complaint;
iv) one or more consumers, where there are numerous consumers having the same interest
Complaint - (Sec. 2(1)(c)): means any allegation in writing made by a complainant.
Consumer - (Sec. 2(1)(d)) : means any person who
i) buys any goods for a consideration which have been paid or promised or partly paid and
partly promised;
ii) hires or avails of any services for a consideration.
Sec. 2(1)(d) of the Consumer Protection Act 1986 in two parts, one in reference to a consumer who
purchase goods and the second in reference to a person who hires service.
Consumer dispute - (Sec. 2(1)(e) : means a dispute where the person against whom a complaint
has been made, denies or disputes the allegations contained in the complaint.
Defect - (Sec. 2(1)(f)) : means any fault, imperfection, short coming or inadequacy in the quality,
nature and manner of performance which is required to be maintained by or under any law for the time
being in force as is claimed by the trader in any manner what so ever in relation to any goods.
Deficiency - (Sec. 2(1)(g)) : means any fault, imperfection, shortcoming or inadequacy in the
quality, nature and manner of performance which is required to be maintained by or under any law for
the time being in force or has been undertaken to be performed by a person in pursuance of a contract
or otherwise in relation to any service.
Restrictive Trade Practice - (Sec. 2(1)(nn)) : means any trade practice which requires a consumer
to buy, hire or avail of any goods or as the case may be, services as a condition precedent for buying,
hiring or availing of others goods or services.
Service - (Sec. 2(1)(o)) : means service of any description which is made available to potential
users and includes the provision of facilities in connection with banking, financing, insurance, transport,
processing supply of electrical or other energy; board or lodging or both (housing construction)
entertainment amusement or the purveying a news or other information, but does not include the
rendering of any service free of charge or under a contract of personal service.
Unfair Trade Practice - (Sec. 2(1)(r)): means a trade practice which for the purpose of promoting
the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or
deceptive practices.
Consumer Protection Councils:
1) Central Consumer Protection Council - (Sec. 4)
2) State Consumer Protection Council - (Sec. 7-8)
Central Consumer Protection Council shall consist of the following members namely:
(a) the Minister-incharge of consumer affairs in the Central Government who shall be its
chairman; and
(b) such members of other official or non-official members representing such interests as may be
prescribed.
The membership has been thus left to the rule - making power of the Government. The consumers
protection rules were promulgated in 1987. The membership of the council is given in Sec. 3 of the
Rules. It is to be composed of 150 members.
Procedure of Central Council has to observe the procedure in regard to the transaction of its
business partly as prescribed by Sec. 5 and partly by rules.
Object of the Central Council : (Sec.6)
The object of the Central Council shall be to promote and protect the rights of the consumers.
(1) The right to be protected against marketing of goods and services which are hazardous to life
and property; (Sec. 6(a))
(2) The right to be informed about the quality, quantity, potency, purity, standard and price of the
goods or services, as the case may be, so as to protect the consumer against unfair trade
practices; (Sec. 6(b))
(3) The right to be assured, wherever possible, of access to a variety of goods and services at
competitive prices; (Sec. 6(c))
(4) The right to be heard and to be assured that consumers interests will receive due consideration
at appropriate forums; (Sec. 6(d))
(5) The right to seek redressal against unfair trade practices or restrictive trade practices or
unscrupulous exploitation of consumers; (Sec. 6(e)) and
(6) The right to consumer education. (Sec. 6(f))
State Consumer Protection Councils: (Sec. 7)
The State Government may by notification, establish with effect from such date as it may specify
in such notification, a council to be known as the Consumer Protection Council referred to as the State
Council.
The State Council shall consist of the following members namely:
(a) the minister-incharge of consumer affairs in the State Government who shall be its chairman;
(b) such member of other officials or non-official members representing such interests as may be
prescribed by the State Government.
The State Council shall meet as and when necessary but not less than two meeting shall be held
every year.
Objects of the State Council: (Sec. 8)
The objects of every State Council shall be to promote and protect within the State the rights of
consumers laid down in clauses (a) to (f) of Section 6.
Consumer Disputes Redressal Agencies (Sec. 9)
(1) District Forums - established by State Government.
(2) State Commission
(3) National Commission - established by Central Government.
Composition of the District Forums: (Sec. 10)
Each District Forum consist of
(a) a person who is, or has been or is qualified to be a District Judge, who shall be its president;
(b) two other members, who shall be persons of ability, integrity, and standing and have adequate
knowledge or experiment of or law shown capacity in dealing with, problems relating to
economics, law, commerce, accountancy, industry, public affairs or administration, one of
whom shall be a woman.
Every member of the District Forum shall hold office for action of five years or up to the age of 65
years whichever is earlier and shall not be eligible for re-appointment.
The salary or honorarium and other allowances as may be prescribed by the State Government.

Jurisdiction of the District Forum - (Sec. 11)
District Forums enjoy jurisdiction to entertain complaints where the value the goods or services and
the compensation, if any, claimed does not exceed Rs. 5 lakhs.
The Territorial Jurisdiction: For the purpose of complaints -
a) Complaint may be filed at the place where the opposite party or each of the opposite
parties actually or voluntarily resides or carries on business or has a branch office or personally
work for gain; or
b) At the place where any of the opposite parties falls in the above category provided that in
reference to others either permission of the district forum is taken or they have acquiesced in
the matter;
c) At the place where the cause of action wholly or in part arises.
State Commission : (Sec. 16)
The commission which have to be constituted at State levels have to consist of the following
members:
a) a person who is or has been a Judge of a High Court - He will be the president of the
commission.
b) Two other members, who shall be persons of ability, integrity and standing and have adequate
knowledge or experience of or have shown capacity in dealing with problems relating to
economics, law, commerce, accountancy, industry, public affairs or administration. One of
them has to be a women.
Jurisdiction - (Sec. 17)
1) To certain complaints where the value of the goods or services and compensation, if any,
claimed exceeds Rs.5 lakhs but does not exceed rs. 20 lakhs.
2) To entertain appeals against the orders of any District Forum within the State.
3) To call for the records and pass appropriate orders in any consumer dispute which is pending
before or has been decided by any district forum within the State.
National Commission: (Sec. 20)
Composition - (Sec. 20)
a) A person who is or has been a Judge of the Supreme Court, to be appointed by the Central
Government who shall be its president.
b) Four other members who shall be persons of ability, integrity and standing and have adequate
knowledge or experience of or have shown capacity in dealing with problems relating to
economics, law, commerce, accountancy, industry, public affairs or administration. One of
them has to be a women.
Jurisdiction - (Sec. 21)
1) (Original Jurisdiction) To entertain - (i) complaints where the value of the goods or services
and compensation if any claimed exceeds rupees 20 lakhs; (ii) appeals against the order of
any State Commission.
2) (Appellate Jurisdiction) To calls for the records and pass appropriate orders in any consumer
dispute which is pending before or has been decided by any State Commission where it
appears to the National Commission that such State Commission has exercised a jurisdiction
not vested in it by law or has failed to exercise a jurisdiction so vested, or has acted in exercise
of its jurisdiction illegally or with material irregularity. (Supervisory Jurisdiction). (Original,
Appellate, Review and Revision).

Power and Procedure applicable to the National Commission - (Sec. 22)
The National Commission shall, in the disposal of any complaints or any proceedings before it
have - (a) the power of a Civil Court as specified in Sub-Section (4), (5) and (6) of Sec. 13; (b) the power
to issue an order to the opposite party directing him to do any one or more of the things referred to in
clauses (a) to (i) of Sub-Section 1 of Section 14.
And follow such procedure as may be prescribed by the Central Government.
Appeals - (Sec. 23): From any decision of the National Commission an appeal leis to the Supreme
Court. Thirty day’s time from the date of the order is allowed for the purpose. The Supreme Court may
permit an appeal even after the expiry of the prescribed period if there was a sufficient cause for not
being able to file an appeal within time.
Finality of Orders- (Sec.24): Where no appeal has been preferred, the order of a District Forum,
the State Commission or National Commission shall not admit a complaint unless it is filed within two
years from the date on which the cause of action has arisen.
Period of Limitation - (Sec. 24-A(1)):
(1) The District Forum, The State Commission or National Commission shall not admit a complaint
unless it is filed within two years from the date on which the cause of action has arisen.
(2) A complaint may be entertained after the period specified in Sub-Section(1), if the complainant
satisfies the District Forum, State Commission and National Commission as the case may be
that he had sufficient cause for not filing the complaint within such period.
Enforcement of Orders - (Sec.25): By the forum, State and National Commission - Every orders
made by the District Forum, the State or National Commission may be enforced by the District Forum,
State or National Commission as the case may be, in the same manner as if it were a decree or order
made by a Court in a suit pending therein and it shall be careful for the District Forum, State or National
Commission to send in the event of its liability to execute it, such order to the Court within the local limits
of whose jurisdiction -
a) in the case of an order against a company the registered office of the company is situated, or
b) in the case of an order against any other person, the place where the person concerned
voluntarily resides or carries on business or personally works for gain, is situated.
and thereupon, the Court to which the order is so sent, shall execute the order as if it were a decree or
order sent to it for execution.
Dismissal of Frivolous or Vexations Complaints - (Sec. 26) : Where a complaint instituted
before the District Forum, the State or National Commission, as the case may be if found to be frivolous
or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that
the complainant shall pay to the opposite party such cost not exceeding Ten thousand rupees, as may
be specified in the order.
Penalties - (Sec. 27): Where a trader or a person against whom a complaint is made fails or omits
to comply with any order made by the District Forum, State or National Commission as the case may be
such trader or person shall be punishable with imprisonment for a term which shall not be less than one
month but which may extend to three years, or with fine which shall not be less than two thousand rupees
but which may extend to ten thousand rupees, or with both.
Competition law
Competition is a process of economic rivalry between market players to attract customers.
Competition also refers to a situation in a business environment where businesses independently strive
for the patronage of customers in order to achieve their business objective. Free and fair competition is
one of the pillars of an efficient business environment.

In the recent years the Indian economy has been one of the best performers and is on high growth
path. Infusion of greater degree of competition can play a catalytic role in unlocking the fuller growth
potential in many critical areas of the economy. In the interest of consumers, and the economy as
whole, it is necessary to promote an environment that facilitates fair competition outcomes in the market,
restrain anti-competitive behavior and discourage market players from adopting unfair trade practices.
Therefore, competition has become a driving force in the global economy.
With the pursuit of globalization and liberalization of the economy. Introduction of the Act was a key
step in India’s march towards facing competition – both from within the country and from international
players. The Act is not intended to prohibit competition in the market. What the Act primarily seeks
to regulate, are the practices that have an adverse effect on competition in the market(s) in India. In
addition, the Act intends to promote and sustain competition in markets, protect consumer interests, and
ensure freedom of trade in the market(s) in India. At the heart of the Act are various activities that will
be prohibited as being anticompetitive. The activities comprise: (a) Anti-competitive arrangements; (b)
Abuse of dominant position; and (c) Mergers and acquisitions that have an appreciable adverse effect
on competition in India.
Competition Commission of India is a body of the Government of India responsible for enforcing
The Competition Act, 2002 throughout India and to prevent activities that have an adverse effect on
competition in India. The Competition Act, 2002, as amended by the Competition (Amendment) Act,
2007, follows the philosophy of modern competition laws. The Act prohibits anti-competitive agreements,
abuse of dominant position by enterprises and regulates combinations (acquisition, acquiring of control
and merger and acquisition which causes or likely to cause an appreciable adverse effect on competition
within India.
To achieve its objectives, the Competition Commission of India endeavours to do the following:
Make the markets work for the benefit and welfare of consumers. Ensure fair and healthy competition in
economic activities in the country for faster and inclusive growth and development of economy. Implement
competition policies with an aim to effectuate the most efficient utilization of economic resources. Develop
and nurture effective relations and interactions with sectoral regulators to ensure smooth alignment of
sectoral regulatory laws in tandem with the competition law. Effectively carry out competition advocacy
and spread the information on benefits of competition among all stakeholders to establish and nurture
competition culture in Indian economy.
Previously we use to have Monopoly Restrictive Trade Practices Act, 1969 which would regulate
unfair trade practices. This act is repealed by the Competition Act,2002.
**********

2. PROPERTY LAW
INCLUDING - TRANSFER OF PROPERTY ACT AND EASEMENT ACT.
TRANSFER OF PROPERTY
Immovable Property
The provision of Section 3 of the Transfer of Property Act, 1882 does not provide for a comprehensive
definition of ‘immovable property’, however, it only mentions that ‘immovable property’ does not include
standing timber, growing crops, or grass. Thus the definition only points out certain kinds of property to
be not considered as an immovable property and further classifies certain kind of properties which can
be considered to be immovable property.
Attestation
Meaning of ‘attested’. The term ‘attested’ in this section means that a person has signed the
document by way of testimony of the fact that it was executed. Attestation is stated in Section 3 of the
Transfer of Property Act. In order to constitute valid attestation the essential conditions are:
(1) there must be two attesting witnesses,
(2) each must have seen the executant sign or affix his thumb mark to the instrument,
(3) each of the two attesting witnesses must have signed the instrument in the presence of the
executant.
Notice
The last paragraph of the section 3 states under what circumstances a person is said to have notice
of a fact. He may himself have actual notice or he may have constructive notice to be imputed to him
when information of the fact has been obtained by his agent in the course of business transacted by the
agent for him.
(a) Express or actual notice:
An express or actual notice of fact is a notice whereby a person acquires actual knowledge of
the fact. It must be definite information given in the course of negotiations by a person interested in the
property.
(b) Constructive Notice:
It is a notice which treats a person who ought to have known a fact, as if he actually does know it. In
other words, a person has constructive notice of all facts of which he would have acquired actual notice
had he made those enquiries which he ought reasonably to have made.
Doctrine of Fixtures
A fixture is something fixed.In Transfer of Property Act, a fixture is a chattel which is affixed to the soil
or land. But a chattel by merely being affixed to the land will not become an immovable property. There
are two things which have to be considered for arriving at the point whether a chattel is an immovable
property. This can be called the Doctrine of Fixtures.
(1) Mode of annexation
If the chattel remains on the land by its own weight and is not affixed to the land there is a presumption
that it is only a movable property. Here the criteria is the intention to make whether it a fixture or not. If
the intention was to make it part of the land it is treated as a fixture.
If the chattel is fixed to the land by means of nails or such things the presumption is that it is a fixture
and become an immovable property.
(2) The Purpose for Annexing
The tenure of beneficial enjoyment of the land is a necessary criterion to hold whether the chattel
is an immovable property.
181 PROPERTY LAW
If the purpose of annexation is the permanent beneficial enjoyment of the land the presumption is
that it is a fixture.
Definition of Transfer of Property (Section 5)
Transfer of Property has been defined in Section 5 of the Transfer of Property Act meaning ‘an act
by which a living person conveys property, in present or in future to one or more other living persons and
“to transfer property” is to perform such act’.
What may be transferred: (Section 6)
Property of any kind may be transferred, except as otherwise provided by this Act or by any other
law for the time being in force.
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a
legacy on the death of a kinsman, (Spes successionis),
(b) A mere right of re-entry for breach of a condition subsequent
(c) An easement,
(d) An interest in property restricted in its enjoyment to the owner personally,
(dd) A right to future maintenance,
(e) A mere right to sue,
(f) A public office, nor can the salary of a public officer, whether before or after it has become
payable,
(g) Stipends allowed to military, naval, air-force and civil pensioners of the Government and
political pensions,
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected
thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the
Contract Act, 1872, or (3) to a person legally disqualified to be transferee,
(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right
of occupancy, the farmer of an estate in respect of which default has been made in paying
revenue or the lessee of an estate under the management of a Court of Wards, to assign his
interest as such tenant, farmer or lessee.
Spes Successionis
Property of any kind may be transferred, except as otherwise provided by this Act, or by any other
law for the time being in force:
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining
a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be
transferred.
Illustration
A has a wife B and a daughter C. C in consideration of Rs. 1,000 paid to her by A, executes a
release of her right to share in the inheritance to A’s property. A dies and C claims her one-third share
in the inheritance. B resists the claim and sets up the release signed by C. The release is no defence,
for it is a transfer of spes successionis, and C is entitled to her one-third share but is bound to bring into
account the Rs. 1,000 received from her father.
Rule against alienability: (Section 10)
Section 10 of the Transfer of Property Act provides that if a property is transferred subject to a
condition or limitation restraining the transferee’s right of parting with or disposing his interest in the
property absolutely, then such a condition is void. This general rule is referred to as the rule against
inalienability. Therefore, any condition that restrains alienation is considered void.
It must be noted that a right of transfer is incidental to and inseparable from beneficial ownership
of the property. So a restraint on alienation which may be an absolute one is a void one. Partial restraint
is not void.
182 PROPERTY LAW
Exceptions
In the case of transfer of property by way of Lease there can be absolute restraint. The lessee may
be restrained from alienating the property. In England the law recognised that a married woman can
enjoy the fruits of the property only when she is in the status of a wife. She cannot transfer the same
when in the status of a married woman. It was later abolished. The rule is still in force in India.
Repugnant conditions: (Section 11)
Repugnant conditions are those that are inconsistent with the nature of the interest transferred.
Section 11 prohibits the imposition of any condition directing the transferee to apply or enjoy in a particular
manner, any interest that is transferred absolutely in a particular manner. Such conditions or directions
are void and the transferee is entitled to receive property as if such a condition did not exist in the first
place. These conditions are inconsistent with the nature of the interest transferred. Therefore, they are
called repugnant conditions.
Illustration:
A and B enter into a sale deed for a piece of land. The terms of the sale deed provides that the
piece of land should be used for the purposes of starting a factory for the manufacture of jute textiles
only. This condition is invalid. B can enjoy the land in any manner that he chooses and the sale deed
itself continues to be valid.
The exception to this rule is that if the transferor owns another piece of immovable property, he
may, for the benefit of that property, impose a restriction on the enjoyment of that by him. In such a case,
the restriction on the enjoyment of the interest would be valid.
Transfer for benefit of Unborn Persons: (Section 13)
Section 13 explains about Transfer for benefits of unborn and represents the common law rule
against remoteness of limitation. “Gift to an unborn child is unknown to Hindu Law” observed in Tagore
V. Tagore. Whilby V. Minshell the rule laid down in this case it was held that if the property is transferred
to a person, it cannot be further granted to an unborn of that unborn child.
The Conditions required to create an interest in favour of unborn person
1. There must always be an estate for life
2. The unborn person should come into existence on or before the expiry of the prior estate
3. The whole Remainder in the estate must be conferred on the unborn person
4. The vest of the estate must not be postponed beyond a life or lives in being and minority of the
unborn person that is to say. it cannot be deferred to a longer period then what is necessary for
him to attain Majority ( section 13 and 14 ).
Rule against perpetuity: (Section 14)
The word “perpetuity” means for (almost) ever. As a term used in the Act, it means an inalienable
and indestructible interest in the property or interest, which cannot vest till a remote period of time.
No transfer of property can operate to create an interest which is to take effect after the life-time
of one or more persons living at the date of such transfer, and the minority of some person who shall
be in existence at the expiration of that period, and to whom, if he attains full age, the interest created
is to belong. Cadell v. Palmer and Thelluson v. Woodford, according to the rule every estate or interest
must vest, if at all, not later than 21 years after the determination of some life in being at the time of the
creation of such estate or interest and not only must the person to take be ascertained but the amount of
his interest must be ascertained within the prescribed period.
Transfer to class of persons: (Section 15)
If, on a transfer of property, an interest therein is created for the benefit of a class of persons with
regard to some of whom such interest fails by reason of any of the rules contained in sections 13 and 14,
such interest fails [in regard to those persons only and not in regard to the whole class].
183 PROPERTY LAW
It has been held by the Supreme Court that although no interest could be created in favour of an
unborn person but if gift was made to a class of series of person some of whom were in existence and
some were not, it was valid with regard to the former and invalid as to the latter; Raj Bajrang Bahadur
Singh v. Thakurain Bakhtraj Kuer, (1953) SCR 232.
Direction for accumulation: (Section 17)
Where a testator issues a direction separating the income from ownership of property so as to
form a separate fund or so as to postpone the beneficial enjoyment of property is called “Direction for
Accumulation”. In Indian law, limits within which a direction may be made for accumulation given (a) the
life of the transferor, or (b) a period of 18 years from the date of transfer.
• The direction for accumulation may be express or implied
• A direction for accumulation may be void under the perpetuity rule, if the accumulation is
directed for a period excess of that allowed by the perpetuity rule.
• A direction for accumulation may be void for repugnancy
Exceptions:
(i) The payment of the debts of the transferor or any other person taking any interest under the
transfer; or
(ii) The provision of portions for children or remoter issue of the transfer or of any other person
taking any interest under the transfer; or
(iii) The preservation or maintenance of the property transferred.
Vested and Contingent Interests
Vested and contingent interests are dealt with in the Transfer of Property Act under Sections 19 to
23.
Vested Interests: (Section 19)
In a transfer, when an interest is created in favour of a person without specifying the time in which
it is to take effect, or specifying that it shall take effect on the happening of an event which is certain to
happen, such an interest is said to be vested unless the terms of the transfer indicate a contrary intention.
It depends upon the happening of the event which must happen, i.e. certain event. It is not defeated by
the death of the transferee.
Illustration:
A may transfer ownership to B but retain a life interest in the estate. In such a case, the life estate of
A is a particular estate, as it is a specific part of the owner’s interest and the interest of B is the remainder.
The remainder is obviously what is left out after carving out the particular estate. The remainder is seen
as vested when the only obstacle between securing possession is the existence of the particular estate.
Therefore, in the above example, B’s remainder interest is vested in him and he can take possession the
moment the particular estate ends.
The primary requirement for a vested interest to take effect is that it must not be subject to a
condition precedent. It can only be subjected to a condition that relates to an event that is certain to
happen by its very nature. If there is a condition precedent and it relates to an event, which is uncertain,
then it ceases to be a vested interest and becomes a contingent one.
Contingent Interests: (Section 21)
A contingent interest is one that is created on a transfer that will take effect only on the happening
or non-happening of a specified uncertain event. As you may be aware, such an interest is regarded as
a contingent interest, one whose existence is contingent or dependent on the occurrence of an uncertain
event. If the event occurs, the interest becomes vested. If the event does not occur, the interest does not
get vested. Contingent Interest depends upon the happening of the uncertain event.
184 PROPERTY LAW

Illustration:
‘A’ transfers property to ‘B’ for life and then to ‘C’ on the completion of college graduation.
Here, C’s interest is dependent on her graduating from college. This is a specific uncertain event.
Therefore, her interest is a contingent interest.
Exception:
Where a person is entitled to an interest on attaining a certain age and is also given the income
arising from such interest before he attains the age or the income is directed to be applied for his benefit,
then the interest is not contingent.
Although it is uncertain that a person may attain that age, his interest is considered to be vested by
virtue of the above exception when the interim income is also transferred to him absolutely.
Conditional Transfer: (Section 25)
Transfer upon an impossible condition is void. A conditional transfer may be defined to be a transfer,
the existence of which depends upon the happening or non happening of some uncertain event by which
it is either to take place or to be defeated. There are two kinds of conditions:
(i) Condition Precedent and (ii) Condition Subsequent.
Illustration:
A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.
Fulfillment of Condition Precedent: (Section 26)
Where the terms of a transfer of property impose a condition to be fulfilled before a person can take
an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially
complied with.
Illustrations:
(a) A transfers Rs.5000 to B on condition that he shall marry with the consent of C, D, and E.E
dies. B marries with the consent of C and D.B is deemed to have fulfilled to condition.
(b) A transfers Rs.5, 000 to B on condition that he shall marry with the consent Of C, D and E.B
marries without the consent of C, D and E, but obtain their consent after the marriage. B has
not fulfilled the condition.
Doctrine of cypres
Abbreviated form of cy pres is “as far as possible.” The name of a rule employed in the construction
of such instruments as trusts and wills, by which the intention of the person who executes the instrument
is effectuated as nearly as possible when circumstances make it impossible or illegal to give literal effect
to the document.
Illustration:
A transfers Rs.1 0, 000 to B on condition that he shall marry with the consent of C, D and E. E dies.
B marries with the consent of C and D. B is deemed to have fulfilled the condition, as far as possible
under the Doctrine of cypres.
Law leans in favour of vesting and against divesting: (Section 26)
Law favour vesting. Section 26 provides, where a settler or testator imposes certain condition
precedent and such conditions are performed, the law leans in favour of vesting the property to the
transferee. If the condition is clear it cannot be evaded. Where the intention of the transferor may be
given effect in full it should be given effect in full. But where incapable of being acted upon literally or
where its literal performance would be unreasonable or in excess of what the law allows, the intention of
the donor or transferor is to be carried out by cypres.
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Fulfillment of Condition Subsequent: (Section 29)
A condition subsequent is one which destroys or divests the right upon the happening of an event.
Condition subsequent refers to an event or state of affairs that brings an end to something else. A
condition subsequent is often used in a legal context as a marker bringing an end to one’s legal rights
or duties. A condition subsequent may be either an event or a state of affairs that must either (1) occur
or (2) fail to continue to occur.
Illustration:
A transfers Rs.500 to B to be paid to him on his attaining majority or marrying, with a proviso that,
if B dies a minor or marries without C’s consent, the Rs.500 shall go to D. B marries when only 17 years
of age without C’s consent. The transfer to D takes effect.
Rule of Acceleration: (Section 27)
The rule of acceleration applies to both immovable and movable transfer of property. It arises
on the failure of prior interest in the estate. If that prior interest is failed whether by the death of a prior
beneficiary or for any other reason, the reason for postponement goes and the subsequent interest is
accelerated.
Where the prior interest is valid and fails, due to the valid condition being not fulfilled, then the
doctrine acceleration comes into play.
Illustration:
A transfers Rs.5, 000 to B on condition that he shall execute a certain lease within 3 months after
A’s death, and if he should neglect to do so, to C. B dies in A’s lifetime. The disposition in favour of C
takes effect.
Doctrine of Election: (Section 35)
It is an exception to Latin Maxim “Nemo dat quod non habet” - “No one can convey better title than
what he has”. The principle given in Section 35 is that the person who takes the benefit must also bear
the burden.
Illustration:
A has one acre land worth Rs.1 ,00,000 in a district. A’s father B wanted to give that land to his
daughter C as a gift. B proposes that B would give Rs.1 ,50,000 to A, if A consents to give the land to his
sister C. Then it is A to elect whether to retain the property or to receive the gift of Rs.1 ,50,000 and to
transfer the land to C. however, there should not be any compulsion, threat, coercion, undue influence
against A by B. If A elects the gift of Rs.1,50,000 he is to benefit Rs.1 ,50,000 and C with one acre land.
This is called Doctrine of Election
In the leading case Cooper v. Cooper, the House of Lords held that since the testatrix was not the
owner of the property, her attempt to dispose of it by her will when she had no longer a disposing power
over it raised a case of election against the persons who taking under her will, had an interest in that
property. Maitland made observation in this case is that a person who takes the benefit under the deed
must give full effect to that instrument under which he takes the benefit.
Covenants: (Section 40)
Section 40 should be read along with section 11 of the transfer of property act. An agreement
creating an obligation contained in a deed. Covenants may be used to serve the purpose of a bond. A
covenant is said to run with the land, or with the reversion, when either the liability to perform it, or the
right to take advantage of it, passes to the assignee of the land, or the reversion, as the case may be.
Restrictive Covenant:
A restrictive covenant is a type of real covenant, a legal obligation imposed in a deed by the seller
upon the buyer of real estate to do or not to do something. Such restrictions frequently “run with the land”
and are enforceable on subsequent buyers of the property. It is also called as negative covenant.
186 PROPERTY LAW
Restrictive covenants may arise from many sources, and may be registered against titles or
included in leases. E.g., some covenants exist for safety purposes, such as a covenant forbidding
the construction of tall buildings in the vicinity of an airport or one restricting the height of fences on
corner lots (so as not to interfere with drivers sight lines).
In the leading case, Tulk v. Moxhay, the Court granted the injunction restraining the Moxhay-
defendant and ordered not to construct the building in that vacant site.
Affirmative Covenant:
Affirmative covenant is also called a “Positive Covenant”. A positive covenant never runs with the
land either in law or in equity. Affirmative covenants are collateral. They are not annexed to the land, and
do not run with the land. The positive covenants are burden on covenanter. It is not enforceable by law.
In Austerberry v Corpn of Oldham, A sold his vacant land adjoining to his house to B with a covenant
that B should construct a road from the main Municipality Road to A’s door and also should keep it in
repair, for the convenience of A. B sold the site to C. C had notice of the covenant to repair of road. But
C refused to repair the road. The Court of Appeal held that C holding that the repair covenant could not
be enforced against C.
Doctrine of holding out: (Section 41)
It is also called doctrine of ostensible owner. It is also an exception to the latin maxim “nemo dat
quod non habet”.
No one can transfer to another, a right or title greater than what he himself possess. “No man
can give that which has not”. The transferor should have title to the property or authority to transfer it.
This has been enunciated in Section 7. To the rule that no person can confer a better title than he has,
exceptions are recognized on equitable grounds by the rule of estoppels the true owner is precluded
from putting forward title to the property.
Doctrine of feeding the grant by estoppels: (Section 43)
The object of the doctrine is to protect the bona fide transferee. The transferor, who has promised
more than he can perform, must make good his contract when he acquires the power of performance.
This doctrine permits the acquisition of title by means of estoppel.
Illustration:
A, a Hindu, who has separated from his father B, sells to C fields, X,Y and Z, representing that A
is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by on
the partition; but on B’s dying, A as the heir obtains Z. C, not having rescinded the contract of sale, may
require A to deliver Z to him.
Essential conditions:
(i) The transferor should have made a fraudulent or erroneous representation that he is authorizes
to transfer the property;
(ii) The transfer is for consideration;
(iii) The transferor subsequently acquires the interest which he had professed to transfer;
(iv) The transaction should not have been forbidden by law.
Improvements made by bonafide holder under defective title: (Section 51)
This is an option given to the real owner either to pay compensation for the improvement or to
sell his interest in the property to the bonafide holder under defective title. The important conditions of
Section 51 are:
i) The person evicted under a prior title must have been a transferee,
ii) He must have made certain improvement on the property, and
iii) Such improvements must have been made by him in good faith.
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In Narayana Rao V. Besavarayappa, the Supreme Court held that the defendant is entitled for Rs.
19,000 and which should be paid by the plaintiff, for the defendant’s improvements made with good faith.
Doctrine of Lis Pendens: (Section 52)
“Lis Pendens” generally means “pendency of a suit in a Court”. It embodies the principle that
the subject matter of the suit should not be transferred to third party during the pendency of the suit.
The transferee is bound by the result of the suit in a case when such property is transferred during the
pendency of the suit.
This doctrine aims at the final adjudication of the dispute. Nothing new should be brought in litigation.
It helps to prevent multiplicity of suits.
The essential condition for the application of this doctrine is that the right to immovable property
must be directly and specifically in question in the suit. The doctrine is mainly based upon the principles
of equity, justice and good conscience. It is applicable to all cases between co-heirs. It applies to ex-parte
judgments, compromise decrees etc. It applies to both voluntary transfers and involuntary transfers. The
doctrine is contained in Section 52 of the Transfer of Property Act. The suit must be pending in a court of
competent jurisdiction. So if the suit is filed in a court not of competent jurisdiction, it is not a suit pending
as per Section 52 of the Transfer of Property Act.
Illustration:
A has some property. He mortgaged that property to Bin 1997. B filed a case against A in the
competent court for the recovery of money in March 1999. During the pendency of the case, A sold the
said property to C. The sale transaction between A and C has been prohibited under the Doctrine of Lis
Pendens, as it affects B’s right. The leading case is Bellamy v. Sabine
Fraudulent Transfer: (Section 53)
Every transfer of immovable property is made with intent to defraud the creditors, the transfer is
voidable at the option of the creditor so defeated or delayed.
Doctrine of part performance: (Section 53A)
Where the contract as not registered or the transfer following upon the contract has not been
completed according to law and the transferee has in part performance of the contract, taken possession
of the property or the transferee, being already in possession, continued in possession in part performance
of the contract and has done some executes in furtherance of the contract, then the transferor will not
be allowed to evict the transferee from the property. The equity recognized in Sec.53A is passive equity.
In Maddison v. Alderson it was held that “In a suit founded on such part-performance, the defendant
is really charged upon the equities resulting from the acts done in execution of the contract and not
(Within the meaning of the Statute) upon the contract itself, if such equities were excluded, injustice of a
kind which the statute cannot be thought to have had in contemplation, would follow.”
The section has been described by Privy Council, and the Supreme Court in U N Sharma v.
Puttegowdas, as a partial importation of the English equitable doctrine of part performance. By
virtue of this section, part performance does not give rise to equity, as in English equity in two respects:
(1) there must be a written contract; and
(2) it is only available as a defence.
The following are the essential elements for the application of the doctrine:
(i) An act of part performance must be an act done in performance of the contract.
Accordingly, acts previous to the agreement do not constitute part performance, e.g.,
making of arrangement for the payment of the purchase price.
(ii) The act relied on a performance must be unequivocally, and in their nature, referable to
contract as that alleged.
In Indian Law, the Supreme Court has elaborately considered the requirements for the application
of the doctrine of part performance in Govindarao v Devi Salal AI R (1982) SC 989.
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SPECIFIC TRANSFERS
Section 54 to 137 of the Transfer of Property Act provides specific transfers such as sale, mortgage,
lease, exchange, gift, etc.
SALE
Sections 54 to 57 dealt with Sale.
Definition: (Section 54)
Sale is a Transfer of Ownership in exchange for a price paid by promised or part paid and part
provided price means money and money only.
Essentials:
i) The parties
ii) The subject matter
iii) The transfer or conveyance and
iv) The price or consideration
Sale how Made:
Such transfer in the case of tangible immovable property of the value of one hundred rupees
and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered
instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer
may be made either by a registered instrument or by delivery of the property. A contract for sale does not
create any interest in or change in such property.
Rights and liabilities of buyer and seller: (Section 55)
In the absence of a contract to the contrary, the buyer and the seller of immovable property
respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or
such of them as are applicable to the property sold:
Obligations of Seller:
The seller is bound -
(a) to disclose to the buyer any material defect in the property or in the seller’s title;
(b) to produce to the buyer on his request for examination all documents of title relating to the
property which are in the seller’s possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in
respect to the property or the title;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance
of the property when the buyer tenders it to him for execution at a proper time and place;
(e) to take as much care of the property and all documents of title between the date of the
contract of sale and the delivery of the property;
(f) to give, the buyer, or such person as he directs, such possession of the property as its nature
admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the
sale.
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Rights of Seller:
The seller is entitled to -
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of thewhole of
the purchase-money, to a charge upon the property in the hands of the buyer, any transferee
without consideration or any transferee with notice of the non¬payment, for the amount of the
purchase-money, or any part thereof remaining unpaid, and for interest on such amount or
part from the date on which possession has been delivered.
Obligations of Buyer:
The buyer is bound-
(a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property
of which the buyer is aware,
(b) to payor tender, at the time and place of completing the sale, the purchase-money to the
seller or such person as he directs:
Rights of Buyer:
The buyer is entitled-
(a) to the benefit of any improvement in, or increase in value of, the property, and to the rents and
profits thereof;
(b) to accept delivery of the property
Doctrine of Marshalling (Section 56)
Right of Marshalling in claimed by subsequent purchaser in the absence of contract to the contrary.
MORTGAGE
Sections 58 to 99 of Transfer of Property Act 1882, deals with Mortgage. A mortgage is a transfer
of an interest in specific immovable property as security for the repayment of a debt.
Definition: [Section 56 (a)]
Mortgage is a transfer of interest in specific immovable property for the purpose of securing loan, an
existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.
Mortgagor, Mortgagee and Mortgage money
The person who transfers the interest in property is called the mortgagor. The person who receives
it is named the mortgagee. Mortgage money is the amount for which the property is transferred as a
security.
Characteristics of Mortgage
Given below are the general characteristics or elements of a mortgage.
a. Interest should be transferred
b. Specific immovable property
c. Transfer for securing a debt
Types of Mortgage
Mortgages are generally divided into six. They are:
1. Simple Mortgage
2. Mortgage by Conditional Sale
3. Usufructuary Mortgage
4. English Mortgage
5. Mortgage by deposit of title deeds
6. Anomalous Mortgage
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Remedies for the various kinds of Mortgages
• Section 58(b) Simple mortgage remedies given to simple mortgage are (i) Money suit on
personal covenant and (ii) Judicial Sale
• Section 58(c) Mortgage by conditional sale - remedy to mortgage - foreclosure preventing
mortgage or from redeeming the property.
• Section 58 (d) Usufractory Mortgage remedy to mortgage - to remain in possession till the
mortgage debt is paid.
• Section 58 (e) English mortgage - remedies to mortgage - (i) Suit a personal covenant (ii)
Judicial Sale (iii) Private Sale.
• Section 59(f) Mortgage by deposited of title deeds - Remedies to mortgage - (i) Suit on
personal covenant (ii) Judicial Sale.
• Section 59(g) Anamolous Mortgage - it is a combination of two or more mortgages. Remedy
to mortgages. It depends upon the contract between the parties
Rights and Liabilities of Mortgagor
1. Section 60 - Rights of mortgagor to redeem.
2. Section 60A - Obligation to transfer to third party instead of re-transference to mortgagor
3. Section 60-8 Right to inspection and production of document
4. Section 61- Right to redeem separately or simultaneously
5. Section 62 - Right of usufructuary mortgagor to recover possession.
6. Section 63 - Accession to mortgaged property
7. Section 63A - Improvements to mortgaged property
8. Section 64 - Renewal of mortgaged lease.
9. Section 65A - Mortgagor’s power to lease.
10. Section 66 - Waste by Mortgagor in possession.
Rights and Liabilities of Mortgagee
1. Section 67 - Rights to foreclosure or sale
2. Section 67A - Mortgagee when bound to bring one suit on several mortgagees
3. Section 68 - Right to sue for mortgage-money.-
4. Section 69 - Power of sale when valid.
5. Section 69A - Appointment of receiver.
6. Section 70 - Accession to mortgaged property.
7. Section 71 - Renewal of mortgaged lease
8. Section 72 - Rights of mortgages in possession
9. Section 73 - Right to proceeds of revenue, sale or compensation on acquisition.
10. Section 77 - Receipt in lieu of interest
191 PROPERTY LAW

Doctrine of consolidation:
A mortgagee who holds two or more distinct mortgages upon different parcels of land made by the
same mortgagor, if the mortgages are no longer redeemable at law but are redeemable only in equity,
may, within certain limits, and against certain persons, “consolidate” them, that is, treat them as one, and
decline to be redeemed as to any unless he is redeemed as to both or all. Consolidation is founded on
the equitable maxim that he who seeks equity must do equity.
The whole doctrine of consolidation, whatever may have been the particular circumstances under
which it has been applied to different cases, arises from the power of the court of equity to put its own
price upon its own interference as a matter of equitable consideration in favour of any suitor.
Doctrine substituted security: (Section 73)
If any property is substituted in the place of original security, substituted property becomes the
security to the mortgagee.
Right of redemption:
The most important right possessed by the mortgagor is the right to redeem the mortgage. Under
this section, at any time after the principal money has become due, the mortgagor has a right on payment
or tender of the mortgage-money to require the mortgagee to reconvey the mortgage property to him.
The right conferred by this section has been called the right to redeem and a suit to enforce this right
has been called a suit for redemption. In English Law, the mortgagor’s right to redemption contained in
for Equity of redemption. This remedy is available to the mortgagor only before the mortgagee has filed
a suit for enforcement of the mortgage. Subsequent to the filing of the suit, this remedy is not available.
Clog on Redemption:
The right of redemption is, therefore, in evadable in the sense that it cannot be denied to the
mortgagor even though he may by express contract abandon his right to redeem the property. Equity in
its insistence upon the principle that a mortgage is intended merely to afford security to the lender has
held an agreement which prevents redemption as void.
Lord Lindley in Stanley v. Wilde, expounded the principle as under: “The principle is this- a
mortgage is a conveyance of land or an assignment of chattels as securities for the payment of a debt
or the discharge of some other obligation for which it is given. That is the idea of a mortgage; and the
security is redeemable on the payment or discharge of such debt or obligation, any provision to the
contrary notwithstanding. Any provision inserted to prevent redemption on payment or performance of
the debt or obligation for which the security was given, is what is meant by a clog or fetter on the equity
of redemption and is, therefore, void. It follows from this that ‘once a mortgage always mortgage’.
Doctrine of Priority: (Section 78 & 79)
The determination of the relative rights and priorities of successive assignees of the same or
overlapping rights has been a serious problem for the Courts. When there are two or more competing
equitable interests, the equitable maxim qui prior est tempore potior est jure (he who is earlier in time is
stronger in law) applies. This means that the first in time prevails over the others.
Madras High Court in Duraiswami Reddi v. Angappa Reddi held that the prior transferee would
be entitled to enforce his rights though his document is registered later and even if the subsequent
transferee entered into transactions bona fide without knowledge of the first transaction. It was held
that this result was implicit and was a direct consequence of the combined operation of Section 47 of
the Registration Act and Section 48 of the Transfer of Property Act. It is also observed that the right of
priority of the first transferee would be postpones only if the later transferee establishes any informative
circumstances like fraud, estoppels or gross negligence.
192 PROPERTY LAW

Exceptions:
There are some exceptions to the above principle. They are
1) Fraud;
2) Misrepresentation; and
3) Gross Negligence.
Doctrine of Marshalling: (Section 81)
Marshalling refers in law to an arrangement. It is dealt within Section 81 of the Transfer of Property
Act, India. In this there will be one common debtor who has taken loan from more than one creditor.
Suppose A being the owner of two properties mortgages both of his properties viz 1 and 2 to X.
Later A mortgages 2nd property alone to Y. Here if X proceeds to realise the debt due to him by A by way
of loan from 2nd property, Y can compel X to proceed first against 1 st property and then if the debt is not
satisfied, to the 2nd property. Thus Section 81 of the Transfer of Property Act protects the subsequent
mortgagees from prior mortgagees with respect to property mortgaged to them.
Doctrine of Contribution: (Section 82)
If several properties belonging to several persons are mortgaged to secure a debt due to taking of
a loan, the law says that each property should contribute towards the debt in proportion to its value. This
is called the doctrine of contribution.
This doctrine is contained in Section 82 of the law of Transfer of Property. This law refers to the
scheme of rateable distribution.
If some persons takes a loan from one person by mortgaging their separate properties which
may be of different values and the mortgagee/creditor realises the loan amount from only one of the
properties, the owner of such property can compel the other property owner to contribute in proportion to
its value for the amount realised by the mortgagee.
For example if the property X belongs to A and the property Y belongs to B, and A and B jointly
executes a mortgage of both the properties for securing a loan taken from C. Later C realised the debt
from property X alone. In this case B must contribute rateably in proportion to the value of his property
Y. Here A can claim contribution from B.
Doctrine of Subrogation: (Section 92)
Subrogation means substitution. If the property is subject to two or more mortgages, and the
subsequent mortgagee redeems the earlier mortgage, the doctrine of subrogation enables a person
to stand in the shoes of an earlier mortgagee whom he has paid off and claim to be entitled to all the
remedies open to that creditor respect of the securities held by him.
Subrogation is the substitution of one person in the place of another with respect to a lawful claim,
demand or right against a third party, so that the substituted party succeeds to the rights of the other,
or “stands in the shoes of” the other, with respect to the claim against the third party. A person’s right
to be subrogated to the rights of another generally arises when that person, acting pursuant to some
obligation, pays the debt of the other.
The doctrine of subrogation is based on considerations of equity and good conscience and is
granted as a means of placing the ultimate burden of the debt on the person who should bear it.
Kinds of Subrogation:
1) Legal Subrogation - arises by the operation of law
2) Conventional Subrogation - arises by an agreement
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Doctrine of Tacking: (Section 93)
The owner of an immovable property may mortgage his property to others for securing the repayment
of the loans advanced or to be advanced. Doctrine of Tacking is a special doctrine which arises in certain
type of transaction during the mortgage.
In this doctrine, the owner of an immovable property can mortgage his property to other for securing
the different advances made. Here the same property is mortgaged again and again.
Illustration:
A may mortgage his immovable property with B for a loan. He can mortgage the same property
to other people for loans from such persons. He can again mortgage the same property subsequently
with B for a fresh advancement of money. Here the rule of priority in case of realization rests with B; but
only for the first advancement he made. He can claim the second advancement after the claims of other
persons.
Charge: (Section 100)
Where immovable property of one person is, by act of parties or by operation of law, made security
for payment of money to another, and the transaction does not amount to a mortgage, the latter person
is said to have a charge on the property; and all provisions in respect of ‘simple mortgage’ will apply to
such charge.
Kinds of Charges:
1) Charges by act of parties and
2) Charges by operation of law Floating Charge
A security (i.e. mortgage, lien, etc.) that has an underlying asset or group of assets which is subject
to change in quantity and value. Corporations can use floating charges and it does not affect their ability
to use the underlying asset as normal. An equitable charge on the assets for the time being of a going
concern. It attaches to the subject charged in the varying conditions. It happens from time to time.
Specific Charge:
A floating charge becomes a specific charge when a receiver is appointed or possession is taken
of any property compromised in the charge, or a winding up commences. It is said to “crystallize” and
preferential debts thereupon become payable. Only if the company fails to repay the loan and/or goes
into liquidation, does the floating charge become “crystallized” or frozen into a fixed charge. At that point
the lender becomes the first-in-line creditor to be able to draw against the underlying asset and/or its
value to recoup its loss on the loan.
LEASE
Sections 105 to 117 dealt with lease.
Lease is a transfer or right to enjoy the immovable property for a certain time, express or implied
or the perpetuing the consideration of the price paid or promised or of money a share of crop, services
or any thing or value, to be rendered periodically or on specified occasions to the to the transferor by the
transferee, who accepts the transfer on such terms.
The person who transfers the right is called the lessor and the person to whom the right is transferred
is called the lessee. Whether an instrument operates as a lease or a licence is a matter not of words but
of substance.
194 PROPERTY LAW

Section 106
In the absence of a contract or local law or usage of the contrary, a lease of immovable property for
agricultural or manufacturing purposes shall be deemed to be a lease from year to year by its six month’s
notice expiring with the end of a year of the tenancy, and a lease of immovable property for any other
purpose shall be deemed to be a lease from month to month, terminable, by fifteen day’s notice expiring
with the end of a month of the tenancy.
Rights and Liabilities of the Lessor
a) The lessor is bound to disclose to the lessee any material defect in the property, with reference
to its intended use, of which the former is and the latter is not aware, and which the latter
could not with ordinary care discover;
b) the lessor is bound on the lessee’s request to put him in possession of the property
c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved
by the lease and performs the contracts binding on the lessee, he may hold the property
during the time limited by the lease without interruption.
Tenancy - at - Will:
A lease which is silent as to duration of term would be void as a lease, but if the lessee has taken
possession, a tenancy-at-will is created. It arises by implication of law in cases where a person takes
possession of the premises with the consent of the owner. It may also arise by an express agreement
to let for an indefinite period for compensation accruing from day to day. The tenant in such a case is
not a trespasser and his only liability is to pay compensation for use and occupation. A tenancy-at-will is
terminable by either party. Ademand by the landlord for possession is sufficient to terminate his tenancy-
at-will..
Tenancy by sufferance
It arises by implication of law when a person who has been in possession under a valid lease
continues in possession even after the expiration of the lease without the consent of the lessor. Thus, a
tenant holding over after the expiration of the term is a tenant at sufferance. A tenancy at sufferance is
terminated at any time by the landlord entering without notice or demand.
Tenancy by Holding Over:
The expression ‘holding over’ means retaining possession. There is a distinction between a tenant
continuing in possession of a property after the determination of lease without the consent of the landlord,
and a tenant doing so with the consent of the landlord. The former is called a tenant by sufferance in
common law. On the other hand, the latter is called a tenant holding over a tenancy at will. In fact, a
lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The
assent of the landlord to the continuance of the tenancy after the determination of the tenancy agreement
would create a new tenancy.
If Lessee remains in possession of the Premises or any part thereof after the expiration of the term
hereof with the express written consent of Lessor, such occupancy shall be a tenancy from month to
month at a rental in the amount of the last monthly rental plus all other charges payable hereunder, and
upon the terms hereof applicable to month-to-month tenancy.
195 PROPERTY LAW

Determination of lease: (Section 111)
A lease is determined by
(i) expiring of time,
(ii) by proper notice to quit,
(iii) by forfeiture
(iv) by merger
Determination of lease by forfeiture: [Section 111 (g)]
According to the provision, a lease of an immovable property determines by forfeiture in the
following cases:
1. Breach of Express Condition
2. Disclaimer or denial of the landlord’s title
3. Insolvency of the lease
This right of determination of lease by forfeiture, as defined under Section 111 (g), however, can
be waived by the lessor.
Section 112 of the Transfer of Property Act, 1882 lays down the provision regarding the waiver of
forfeiture.
Section 117 - Exemption of leases for agricultural purposes.
Distinction between a lease and a license
(1) A lease is a transfer of an interest in land whereas the license does not create any interest in
land in favour of the licensee.
(2) A lease can sue a trespasser in his own name but a licensee cannot do so.
(3) A lease can be assigned, but a license cannot be assigned.
(4) A lease cannot be revoked until the term, but a license, subject to certain exceptions, can be
revoked.
EXCHANGE
Sections 118 to 121 dealt with exchange.
In an exchange, the ownership of one thing is transferred in consideration of the ownership of the
thing taken in exchange. When two persons mutually transfer the ownership of one thing for the ownership
of another, either thing or both things being money only, the transaction is called an “exchange”.
A transfer of property in completion of an exchange can be made only in manner provided for the
transfer of such property by sale.
Right of party deprived of thing received in exchange: (Section 119)
If the party deprived of thing received in exchange, such other party is liable to him or any person
claiming the range for loss caused thereby, or at the option of the person so deprived, for the return
so deprived, for the return of the thing transferred, if still no possession of such other party or his legal
representatives or a transferee from him without consideration.
Rights and liabilities of the parties: (Section 120)
Rights and liabilities of the parties are precisely those provided for the parties in a transaction of
sale. Each party to an exchange has a dual capacity. He is a seller as to that which he gives and buyer,
as to which he takes.
Section 121 - On an exchange of money, each party thereby warrants the genuineness of the
money given by him.
196 PROPERTY LAW
GIFT
Sections 122 to 129 dealt with gift.

Gift is the transfer of certain existing movable or immovable property made voluntarily and without
consideration, by one person called the donor, to another, called the done, and accepted by or on behalf
of the done. A gift is complete only on acceptance by or one behalf of the done. So there can be no
unilateral gift.
Parties to the Gift:
The parties in gift are known as donor and donee. The person who transfers the property by way
of gift to another is known as donor. The person in whose favour property is transferred by gift is known
as donee.
Elements of gift
• There must be transfer of ownership of the property
• The transfer must be of an existing property
• Both movable and immovable property can be transferred.
• The transfer must be voluntarily.
• The transfer must be gratuitous or without consideration.
• The property must be accepted by or on behalf of the person to whom it is
transferred.
Revocation of Gift: (Section 126)
The following are the conditions where a gift may be revoked:
(1) that the donor and donee must have agreed that the gift shall be suspended or revoked on
the happening of a specified event;
(2) such event must be one which does not depend upon the donor’s will;
(3) the donor and donee must have agreed to the condition at the time of accepting the gift; and
(4) the condition should not be illegal, or immoral and should not be repugnant to the estate
created under the gift. Such a gift deed can be cancelled only by resorting to legal remedy in
a competent court of law.
Onerous Gift: (Section 127)
Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the
donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the
extent of the property comprised therein. Onerous gift refers to a gift that is subject to conditions. These
conditions are imposed on the recipient of the gift. Sometimes, onerous gift takes the nature of a sale
because it involves the element of consideration. Some features of onerous gift are:
1. The onerous gift is subject to certain charges or obligations imposed on the donee by the
donor;
2. The donee is at liberty to accept any transfer of gift which is beneficial to him/her and refuse
any gift which are onerous to the donee.
197 PROPERTY LAW

‘Onerous gift’ is a gift made subject to certain charges imposed by the donor on the donee. The
principle behind this is that he who accepts the benefit of a transaction must also accept the burden
of the same. This section, being an embodiment of a rule of equity, applies equally to Hindus and
Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is sufficient; there need
not be any separate and express acceptance of the onerous condition also at the same time. The
acceptance of the gift will carry with it the acceptance of the onerous condition also, even though at the
time of the gift the donee was not aware of such condition, specially where the onerous condition is of a
trifling nature (payment of Rs. 5 as monthly maintenance to a certain person for life).
Universal Donee: (Section128)
The essential condition to constitute a universal donee is that the gift must consist of the donor’s
whole property. If any portion of the donor’s property, no matter whether it is moveable or immovable,
is excluded from the operation of the gift or the endowment, the donee is not a universal donee. This
concept is embodied in Section 128 of the Transfer of property Act. Where a Mohamedan made a gift of
the whole of his estate to his son and directed him to pay his debts, the son was a universal donee and
he was liable to pay all debts of the donor. There is no rule of Mohamedan law which conflicts with the
provisions of this Section.
Donatio Mortis Causa:(Section129)
A donatio mortis causa (Latin, meaning “gift on the occasion of death”) is a gill. made during
the life of the donor which is conditional upon, and takes effect upon, death. It is separate and distinct
from both a normal inter vivos gift, under which title passes immediately to the transferee, and from a
testamentary gift, which takes effect under the provisions of a properly executed will.
There are three requirements for a valid donatio mortis causa, the gift must have been made in
contemplation of, though not necessarily in expectation of, death;
1. the subject matter of the gift must have been delivered to the donee; and
2. the gift must have been made under such circumstances as to show that the property is to
revert to the donor if the donor should recover
ACTIONABLE CLAIM
Sections 130 to 137 dealt with actionable claim
Actionable claim means a claim to any debt, other than a debt secured by mortgage of immovable
property or by hypothecation or pledge of movable property.
Illustrations
(i) A owes money to B, who transfers the debt to C. B then demands the debt from A, who, not
having received notice of the transfer, as prescribed in Section 131, pays B. The payment is
valid, and C cannot sue A for the debt.
Notice to be in writing, signed: (Section 131)
Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his
agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the transferee or his
agent, and shall state the name and address of the transferee.
Liability of transferee of actionable claim: (Section 132)
The transferee of an actionable claim shall take it subject to all the liabilities and equities and to
which the transferor was subject in respect thereof at the date of the transfer.
198 PROPERTY LAW
EASEMENT
Definitions:
Easement is a right which one man can have in the property of another without being entitled to the
ownership or possession thereof.
Easement: (Section 4)
An easement is a right which the owner or occupier of certain land possesses, as such, for the
beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to
prevent something being done, in or upon, or in respect of certain other land not his own. Dominant and
servient heritages and owners The land for the beneficial enjoyment of which the right exists is called the
dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability
is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Indian Law on Easements:
In India, the term “easement” has a much wider cannotation than it has under the English or
American Law. The Indian Easements Act 1882 deals with the provisions for easements. A right of
easement is a reasonable restriction on the powers of alienation of an owner of immovable property.
Essentials of Easements:
The essential ingredients of a right of easement are as follows:
(1) There must be two tenements, the dominant and the servient;
(2) These two tenements must be owned by two different persons;
(3) The right of easement must be possessed for the beneficial enjoyment of the dominant
tenement;
(4) The right should entitle the dominant owner to do and continue to do something, or to prevent
and continue to prevent something being done, in or upon or in respect of the servient
tenement;
(5) That something must be of certain or well defined character and be capable of forming the
subject matter of a grant;
(6) The right claimed as an easement should not be so large as to amount to an interest in the
land itself, as by conferring exclusive use of the property.
Classification of Easements:
1. Affirmative and negative easements.
2. Continuous and discontinuous easement (Section 5)
3. Apparent and non-apparent.
4. Permanent and limited (Section 6)
5. Subordinate easements (Section 9)
6. Accessory easements (Section 24)
7. Easement of necessity (Section 13)
8. Quasi easement (Section 13)
9. Natural rights or natural easements (Section 7) and
10. Customary easements (Section 18)
199 PROPERTY LAW

Acquisitions of Easements
The several modes in which easements may be acquired are as follows:
1. Express grant
2. Implied grant (Sections13 & 14)
3. Imparted grant
4. Presumed grant
5. Statutory prescription (Sections 15 to 17)
6. Local Custom (Section 18)
7. Transfer of dominant tenement (Section 19) and
8. Status.
Extinction, Suspension and Revival of Easements: (Sections 37-51)
How are easements extinguished? State the circumstances under which Easements can be revived.
Easements are extinguished in the following ways:
1. By the dissolution of the right of servient owner in his heritage except when it is imposed by
a mortgagor in accordance with Section 10 (Section 37)
2. By release by the dominant owner expressly or impliedly. It may be released as to part only
of the servient heritage (Section 38)
3. By revocation by the servient owner in exercise of a power reserved by him in this behalf.
(Section 39)
4. On expiration of the limited period, it is for a fixed period or on fulfillment of the contingent
condition, if it is contingent (Section 40)
5. On termination of necessity, if it is an easement of necessity (Section 41)
6. By its being useless (Section 42)
7. By permanent change in the dominant heritage, if the burden on the servient owner is thereby
increased and cannot be reduced by the servient owner without interfering with the lawful
enjoyment of the easement (Section 43)
8. By the permanent alteration of the servient tenement by superior force (Section 44)
9. By the complete destruction of either heritage dominant of servient (Section 45)
10. By unity of ownership i.e. when the same person becomes entitled to absolute ownership of
both the heritages (Section 46)
11. By non-enjoyment for a period of 20 years (Section 47)
Suspension of easement: (Section 49)
An easement is suspended when the dominant owner becomes entitled to possession of the servient
heritage for a limited interest therein, or when the servient owner becomes entitled to possession of the
dominant heritage for a limited interest therein.
Easements can be revived in the following ways:
1. If it is suspended easement, it revives when the cause of suspension is removed before the
right is extinguished by 20 years non enjoyment.
2. If it is extinguished under Section 46 by unity of ownership, it is revived if the grant or bequest
by which the unity of ownership was produced it set aside by a decree of a competent court
except in the case of an assessment of necessity which is revived when the unity ceases from
any other cause.
3. If it is extinguished because of destruction of either heritage, it is revived when the destroyed
heritage is restored or rebuilt on the same site before expiry of 20 years.
200 PROPERTY LAW

Quasi Easements:
Apparent and continuous easements which are necessary for the enjoyment of the dominant
tenement in the state in which it was enjoyed at the time when it was severed from the servient tenement
are called Quasi easements. Before such severance they are only the ordinary rights of property and
assume the character of rights of easement on such severance only provided they fulfill certain specified
conditions, i.e,
i) they are apparent; ii) they are continuous; iii) they are necessary for the enjoyment of the
tenement.
Easement of necessity:
Easement of necessity means an easement without which the property cannot be enjoyed at all. It
does not mean an easement which is merely necessary to reasonable enjoyment of the property.
Customary Easements:
An easement may be acquired by virtue of a local custom. Such easements are called “Customary
Easements”
Kinds of Customary Easements are
i) Easements of pasturage,
ii) Easements of religious observances,
iii) Easements of privacy and
iv) Easements of sports and recreation.
Distinction between Licence and Easement:
1. An easement is a right appertaining to property whereas a licence is only a personal right.
2. An easement is a right in rem but a licence is a right in personam.
3. Easement cannot be revoked at the will of the grantor, whereas licence may be
revocable by the licensor at his will.
4. An easement may be heritable, but a licence generally cannot become heritable.
5. An easement is acquired either by assertive enjoyment or by a negative covenant, whereas
a licence is a permissive right.
6. An easement may positive or negative in character, but a licence is always positive in
character.
7. An easement can be assigned, with the property to which it is annexed whereas a
licence cannot be assigned.
Benami Transactions:
Benami means with out name. It is a Persian word. In Benami transactions a property is purchased
in some one else name. The benami transaction is done by transfering property to one person for the
consideration paid by another person.The person in whose name the property purchased is not the real
beneficiary but merely represents the real owner. In 1973, the Law Commission of India after studying
various acts and prevailing benami system recommended formulating an act to tackle this issue due
to whichBenami transactions (Prohibition )Act1988 was enacted by the Parliament.is an act of the
Parliament that prohibits benami transactions and the right of the right to recover property held in
benami. It came into force on 5th September 1988. However there are lot of loop holes in the act .Steps
have been taken government of India introduced Benami transaction (Prohibition) Bill 2011 and the
amendment bill in 2015 . This amendment bill if becomes an act would curb corruption. Still light of the
day has to be seen.
**********
201 PROPERTY LAW

3. CONSTITUTIONAL LAW - I
Constitution of India
India became independent of the British rule in August 1947, One of the most important tasks that
the new nation had to take was to give itself a Constitution. It did so in 26th November 1949.
What is a Constitution?
A constitution is a set of rules by which the people of a country are governed. It says how the
government should work and what its powers and duties are. And it guarantees or, promises the people
important rights like justice and freedom. It also tells people what their rights are and what they can and
cannot do. The constitution is higher than all other laws in the country. All laws passed by a country have
to be in line with its constitution.
Classification of Constitution
History
The Fundamental Rights and Directive Principles had their origins in the Indian independence
movement, which strove to achieve the values of liberty and social welfare as the goals of an independent
Indian state. The development of constitutional rights in India was inspired by historical documents such
as England’s Bill of Rights, the United States Bill of Rights and France’s Declaration of the Rights of
Man.[2] The demand for civil liberties formed an important part of the Indian independence movement,
with one of the objectives of the Indian National Congress (INC) being to end discrimination between
the British rulers and their Indian subjects. This demand was explicitly mentioned in resolutions adopted
by the INC between 1917 and 1919. The demands articulated in these resolutions included granting
to Indians the rights to equality before law, free speech, trial by juries composed at least half of Indian
members, political power, and equal terms for bearing arms as British citizens.
The experiences of the First World War, the unsatisfactory Montague-Chelmsford reforms of 1919,
and the rise to prominence of M. K. Gandhi in the Indian independence movement marked a change in
the attitude of its leaders towards articulating demands for civil rights. The focus shifted from demanding
equality of status between Indians and the British to assuring liberty for all Indians. The Commonwealth
of India Bill, drafted by Annie Beasant in 1925, specifically included demands for seven fundamental
rights - individual liberty, freedom of conscience, free expression of opinion, freedom of assembly, non-
discrimination on the ground of sex, free elementary education and free use of public spaces. In 1927,
the INC resolved to set up a committee to draft a “Swaraj Constitution” for India based on a declaration
of rights that would provide safeguards against oppression. The 11-member committee, led by Motilal
Nehru, was
constituted in 1928. Its report made a number of recommendations, including proposing guaranteed
fundamental rights to all Indians. These rights resembled those of the American Constitution and
those adopted by post-war European countries, and several of them were adopted from the 1925 Bill.
Several of these provisions were later replicated in various parts of the Indian Constitution, including the
Fundamental Rights and Directive Principles.
In 1931, the Indian National Congress, at its Karachi session, adopted a resolution committing
itself to the defence of civil rights and economic freedom, with the stated objectives of putting an end to
exploitation, providing social security and implementing land reforms. Other new rights proposed by the
resolution were the prohibition of State titles, universal adult franchise, abolition of capital punishment
and freedom of movement. Drafted by Jawaharlal Nehru, the resolution, which later formed the basis for
some of the Directive Principles, placed the primary responsibility of carrying out social reform on the
202 CONSTITUTIONAL LAW - I
State, and marked the increasing influence of socialism and Gandhian philosophy on the independence
movement. The final phase of the Independence movement saw a reiteration of the socialist principles
of the 1930s, along with an increased focus on minority rights - which had become an issue of major
political concern by then - which were published in the Sapru Report in 1945. The report, apart from
stressing on protecting the rights of minorities, also sought to prescribe a “standard of conduct for the
legislatures, government and the courts”.
During the final stages of the British Raj, the 1946 Cabinet Mission to India proposed a Constituent
Assembly to draft a Constitution for India as part of the process of transfer of power. The Constituent
Assembly of India, composed of indirectly elected representatives from the British provinces and Princely
states, commenced its proceedings in December 1946, and completed drafting the Constitution of India
by November 1949. According to the Cabinet Mission plan, the Assembly was to have an Advisory
Committee to advise it on the nature and extent of fundamental rights, protection of minorities and
administration of tribal areas. Accordingly, the Advisory Committee was constituted in January 1947
with 64 members, and from among these a twelve-member sub-committee on Fundamental Rights was
appointed under the chairmanship of J.B. Kripalani in February 1947. The sub-committee drafted the
Fundamental Rights and submitted its report to the Committee by April 1947, and later that month the
Committee placed it before the Assembly, which debated and discussed the rights over the course of the
following year, adopting the drafts of most of them by December 1948. The drafting of the Fundamental
Rights was influenced by the adoption of the Universal Declaration of Human Rights by the U.N. General
Assembly and the activities of the United Nations Human Rights Commission, as well as decisions of the
U.S. Supreme Court in interpreting the Bill of Rights in the American Constitution. The Directive Principles,
which were also drafted by the sub-committee on Fundamental Rights, expounded the socialist precepts
of the Indian independence movement, and were inspired by similar principles contained in the Irish
Constitution. The Fundamental Duties were later added to the Constitution by the 42nd Amendment in
1976.
What is Federation ?
A Federation (Latin: foedus, foederis, ‘covenant’), also known as a Federal state, is a political
entity characterized by a union of partially self-governing states or regions united by a central (federal)
government. In a federation, the self-governing status of the component states, as well as the division of
power between them and the central government, are typically constitutionally entrenched and may not
be altered by a unilateral decision of the latter. The form of government or constitutional structure found
in a federation is known as Federalism. It can be considered the opposite of another system, the unitary
state.
Essential Characteristics of the Federation
Distribution of powers: An essential feature of a federal Constitution is the distribution of powers
between the Central Government and the Governments of the several units forming the federation.
Supremacy of the Constitution: The Constitution is binding on the Federal and the State
Governments. The Central Government as well as the State Governments derives their powers from the
Constitution. Also, neither of the two Governments should be in a position to override the provisions of
the Constitution related to the powers and status enjoyed by the other.
Written Constitution: The Constitution must be necessarily a written one. This is basically to
avoid any doubt about the supremacy of the Constitution as well as to clearly demarcate the powers
between the Centre and the State governments.
Rigidity of the Constitution: This feature is a corollary to the supremacy of the Constitution.
Rigidity does not mean unamendability of the Constitution, but simply means, the power of amending
the Constitution, especially the regulating status and powers of the Federal and the State Governments,
should not be confined exclusively either to the Federal or to the State Governments.

Authority of the Courts: There must be an authority that can prevent the Federal and State
Governments from encroaching upon each other’s powers. Secondly, there should be a final Supreme
Court which should not be dependent upon the Federal or State Governments and should have the last
word in matters involving Constitutional affairs.
Difference Between a Federation and Confederation
Federation is a close association (legal) between two or more units, while Confederation is a loose
association of two or more States.
In a Federation, units normally do not have the right to secede (as in India and Pakistan), but in
the case of a Confederation, the States always enjoy the right to secede (e.g. CIS, erstwhile USSR). A
Federation is a sovereign body, while in a Confederation the units or the States are sovereign.
In a Federation, there exists a legal relation between the Federation and its people, but in
Confederation, the people are the citizens of the respective of the Confederation. The following are the
provisions in the Indian Constitution which are not strictly federal in character:
In the USA and Australia, the states have their own Constitutions which are equally powerful as the
federal Constitution, but in India, there are no separate Constitutions for the member States.
India follows the principle of uniform and single citizenship, but in the USA and Australia, double
citizenship is followed.
In the USA, it is not possible for the Federal Government to unilaterally change the territorial extent
of a State but in India, the Parliament can do so even without the consent to the State concerned (Art 3).
Thus, the States in India do not enjoy the right to territorial integrity.
If the President declares national emergency for the whole or part of India under Art. 352, the
Parliament can make laws on subjects, which are otherwise, exclusively under the State List. The
Parliament can give directions to the States on the manner in which to exercise their executive authority
in matters within their charge. The financial provisions can also be suspended.
Under Art. 155, the Governor of a State is appointed by the President and the former is not
responsible to the State Legislature. Thus indirectly, the Centre enjoys control over the State through the
appointment of the Governor.
If financial emergency is declared by the President under Art. 360. on the ground that the financial
stability or credibility of India or any of its units is threatened, all the Money Bills passed by the State
Legislatures during the period of financial emergency are also subject to the control of the Centre.
Under Art. 256, the Centre can give administrative directions to the States, which are binding on the
latter. Along with the directions, the Constitution also provides measures to be adopted by the Centre to
ensure such compliance.
Under Art. 312. All India Services officials “lAS, IPS and IFS (forest)” are appointed by the Centre,
but are paid and controlled by the State. However, in case of any irregularities by the officer, States
cannot initiate any disciplinary action except suspending him/her.
Judges of the High Courts are appointed by the President in consultation with the Governors under
Art. 217 and the States do not play any role in this. Thus, apart from certain provisions which are biased
towards the Union, the Constitution of India, in normal times, is framed to work as a federal system.
But in times of war and other emergencies, it is designed to work as though it were unitary. The
federal Constitutions of the USA and Australia, which are placed in a tight mould of federalism, cannot
change their form. They can never be unitary as per the provisions of the Constitution. But, the Indian
Constitution is a flexible form of federation a federation of its own kind. That is why Indian federation is
called federation sui generis. Prof K C Wheare described the Constitution of India as ‘Quasi Federal’
and remarked that Indian Union is ‘a unitary State with subsidiary Federal features rather than a Federal
State with subsidiary unitary features’. Granville Austin described Indian Federalism as ‘Co-operative
federalism’. Dr B R Ambedkar said that Indian Political system is both “Unitary as well as federal according
to the requirements of time and circumstances”.
How was India’s Constitution framed?
The Indian Constitution was framed or, put together by the Constituent Assembly of India.
The Assembly had over 300 members, From the many communities of India. They included lawyers,
Constitutional experts and leading politicians like; Jawarharlal Nehru [The first Prime Minister of India]
and Dr. Rajendra Prasad [The first President of India]. The Constituent Assembly met 11 times, Over 165
days between 1946 and 1949.
In August 1947, the Drafting Committee was set up, under Dr. B.R.Ambedkar. This Committee’s
job was to write the Constitution. On 26 November 1949, the final Draft of the Constitution was adopted
by the Constituent Assembly.
The Indian Constitution
The Constitution of India came into force on 26 January 1950. It is the longest written constitution
in the world. It has so far been amended, or changed, 94 times.
The Preamble to the Constitution says that it is from the people of India that the constitution gets it
authority. It also states that the aim of the Constitution is to ensure justice, Freedom and equality for the
citizens of India and the unity of nation.
The Fundamental Rights, which are a part of the Constitution, guarantee “civil liberties” to the
people of India; that is, citizen have the right to freedom of speech and expression, to equality before the
law and against discrimination based on religion, race, caste, or gender. They have the right to practise
their own religion. All communities have the right to preserve and use their own language and script.
Most importantly, All citizens have the right to move a court of a law in case any of the fundamental rights
have been denied to them.
Unique Features of the Indian Constitution
There are some unique features of the Indian Constitution. These features are mentioned below:
The Indian Constitution is said to be “framed by the People of India”. The Constituent Assembly
formed for drafting the constitution of assembly was framed by the people belonging to all parts of the
society. This Constituent Assembly is considered to be a representative body of people living in the
country.
Sovereignty of the people is another unique feature of the Indian Constitution. According to the
Constitution, people of the country are the supreme authority. Earlier, the supreme power was in the hand
of the British Parliament. The term “Sovereignty” connotes that the people of India are not subordinate
to any other external authority.
The Constitution of India renders the republican form of polity in the country. During British era, the
king was the Head of the State.
The Indian Constitution also provides for a secular polity in India. The term “Secular” implies that
in the country, there would be no discrimination on grounds of religion. There should be equal respect
for all religions.
Fundamentals Rights and Duties of the citizens of India is another unique feature of the Indian
Constitution, which was absent in the previous constitutions. Fundamental Rights were mentioned in
the constitution at the time of its adoption in 1949. The provision for Fundamental Duties was included
through the Constitution (Forty Second Amendment) Act, 1976.
The Indian Constitution has provision for the Directive Principles of State Policy. These principles
and policies are included in the Chapter IV of the constitution. These rights cannot be enforced by the
courts of law, but these are fundamental principles, awareness of which should be there among people
and the government.
The Indian Constitution has provision for judicial review of the Acts of both the State Legislatures
and the Union Legislature and the activities of the Union and State executives, so that authority of the
legislative and executive branches are not misused.
Provision for the universal adult franchise is another unique feature of Indian Constitution. In this
provision, all adult citizens of the country has right to vote.
The Indian Constitution has given recognition of Hindi as the official language of the country. Earlier,
English was the only official language of India. Apart from Hindi, the Constitution has also recognized 17
other Indian languages as regional languages.
Unique Blend of Rigidity and Flexibility is another feature of the Indian Constitution. The Constitution
can be amended for revising the laws mentioned in it. Amendments to Constitution can be made through
various procedures.
Features of the Indian Constitution
The features of the Indian Constitution are mentioned below:
1. Indian Constitution is a comprehensive document including 395 Articles and twelve Schedules.
2. The Indian Constitution has a provision of a full-fledged Parliamentary Democracy.
3. There is the provision for federal form of polity in India in the Constitution of India.
4. The Constitution of India encourages affirmative action to be taken by the State to improve
the conditions of the weaker sections of society.
5. There are emergency provisions made in the Indian Constitution. There are provisions for
national emergency, financial emergency and failure of constitutional machinery.
6. The constitution has also made provision for some Independent Agencies to perform various
functions assigned to them. The Election Commission, the Comptroller and Auditor General
and the Union and State Public Service Commissions are three such agencies.
7. Longest written Constitution
8. Partly Rigid and Partly Flexible
9. A Democratic Republic
10. Parliamentary System of Government
11. A Federation
12. Fundamental Rights
13. Secular State
14. An Independent Judiciary
15. Single Citizenship
The PREAMBLE
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constituent India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, Faith and worship;
EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the
dignity of the individual and the unity and integrity of the NATION;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
Features of Indian Constitution include most of the aspects of the Western legal systems and runs
on the system of the liberal democracy. The most important aspect of the features of Indian Constitution
is the tendency to eradicate inequality that the traditional social relations have given birth to. The prime
feature of the Indian Constitution is to look after the social welfare of the people of the nation. There are
elaborate explanations that are given to enhance the social relationships and this is one of the prime
reasons that many famous scholars have regarded the features of Indian Constitution as the motivating
factors behind the ever “changing and rebuilding society” of India.
One of the special features of the Indian Constitution is the steady concentration of power in the
hands of the Prime Minister and his office. Although there is a wide range of ethnic groups and caste
races that are distributed allover the land, the ultimate power resides in the hands of the Prime Minister.
OBJECTIVES RESOLUTION The underlying principles of the Constitution were laid down by
Jawaharlal Nehru in his Objectives Resolution: India is an Independent, Sovereign, Republic; India shall
be a Union of erstwhile British Indian territories, Indian States, and other parts outside British India and
Indian States as are willing to be a part of the Union; Territories forming the Union shall be autonomous
units and exercise all powers and functions of the Government and administration, except those assigned
to or vested in the Union; All powers and authority of sovereign and independent India and its constitution
shall flow from the people;
THE UNION AND ITS TERRITORY
Article 1: Name and territory of the Union
(1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule.
(3) The territory of India shall comprise -
(a) the territories of the States;
(b) the Union territories specified in the First Schedule; and
(c) such other territories as may be acquired.
Article 2 : Admission or establishment of new States
Parliament may by law admit into the Union, or establish, new States on such terms and conditions
as it thinks fit.
Article 2a : Sikkim to be associated with the Union
Article 3: Formation of new States and alteration of areas, boundaries or names of existing States
Parliament may by law -
(a) form a new State by separation of territory from any State or by uniting two or more States or
parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State:
Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the
recommendation of the President and unless, where the proposal contained in the Bill affects the area,
boundaries or name of any of the States, the Bill has been referred by the President to the Legislature
of that State for expressing its views thereon within such period as may be specified in the reference or
within such further period as the President may allow and the period so specified or allowed has expired.
Explanation I: In this article, in clauses (a) to (e), “State” includes a Union territory, but in the
proviso, “State” does not include a Union territory.
Explanation II: The power conferred on Parliament by clause (a) includes the power to form a new
State or Unionterritory by uniting a part of any other State or Union territory to any other State of
Union territory.
Article 4 : Laws made under articles 2 and 3 to provide for the amendment of the First and the
Fourth Schedule and supplemental, incidental and consequential matters
(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment
of the First Schedule and the Fourth Schedule as may be necessary to give effect to the
provisions of the law and may also contain such supplemental, incidental and consequential
provisions (including provisions as to representation in Parliament and in the Legislature or
Legislatures of the State or States affected by such law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be in amendment of this Constitution for the
purposes of article 368.
While discussing certain facts about India it is necessary to mention about the Indian states and the
union territories which stands as an integral and inseparable parts of the country called India.
There are 28 Indian states, six union territories and a National Capital territory. The 28 states have
their own government and the union territories are under the rule of the central government of India.
Each state is further sub divided into districts and further the districts are divided into tehsils and villages.
Each state has its own administrative, judicial and legislative capital city or town. The place from
where the executive government operates is called the administrative capital, the city where the legislative
assembly stands is called the Legislative capital of the state and the city where the territorial high court
of the state is situated is called the judicial capital of the state
With a difference, Pondicherry though a union territory it has a government of its own. The national
capital of India, Delhi still stands different from the rest as it is categorized as a special region which is
neither a state nor a union territory and has an elected government of its own
The Constitution of India is set in a way where there is an unbiased distribution of legislative powers
between the state legislatures and the Parliament. The boundaries of Indian states were reorganized as
per the States Reorganization Act of 1956. The states were roughly divided on linguistic lines and as per
the opportunity of amendment in the Indian Constitution, the primarily segmented three types of states
were joined into a single type of state. Several changes in the state boundaries have occurred since the
Independence of India in the year 1947. Recently, in November 2000, three new states were introduced,
which were cut out from Madhya Pradesh, Bihar and Uttar Pradesh and the new states were respectively
known as, Chattisgarh, Jharkhand and Uttaranchal. While discussing facts about India, the Indian states
and the union territories needs a special mention.
The union oflndia is a federal Union, with a distribution of powers, of whihcthe judiciar is the
interpreter, Although there has beenconsiderable controvers whether India isor is not a federation and
although some writeres have called it quasi federal, still it would seem to suggest that Indian Constiution
is Federal,Special Reference of 1956(AI R 1965 SC 745)
CITIZENSHIP
CITIZENSHIP
The Constitution provides for single citizenship. There is no separate citizenship of states. According
to the Constitution the following three categories of persons are entitled to citizenship:(1) persons
domiciled in India(2) refugees who migrated to India from Pakistan(3) Indians living in other countries.
Acquisition and Termination of Citizenship
Rules regarding acquisition and termination of Indian citizenship have been laid down in
the Citizenship Act of 1955. A person can acquire citizenship of India in five ways:
(1) Citizenship by birth
(2) Citizenship by descent
(3) Citizenship by registration
(4) Citizenship by naturalization
(5) Citizenship by incorporation of territory
Loss of Indian Citizenship
(1) Renunciation
(2) Termination
(3) Deprivation
The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections
of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the
duties of the citizens to the State. These sections comprise a constitutional bill of rights for government
policy-making and the behaviour and conduct of citizens. These sections are considered vital elements
of the constitution, which was developed between 1947 and 1949 by the Constituent Assembly of India.
The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined
in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed or gender.
They are enforceable by the courts, subject to specific restrictions.
The Directive Principles of State Policy are guidelines for the framing of laws by the government.
These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles
on which they are based are fundamental guidelines for governance that the State is expected to apply
in framing and passing laws.
The Fundamental Duties are defined as the moral obligations of all citizens to help promote a
spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV-A of the Constitution,
concern individuals and the nation. Like the Directive Principles, they are not legally enforceable.
FUNDAMENTAL RIGHTS
Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians,
and prevent the State from encroaching on individual liberty while simultaneously placing upon it an
obligation to protect the citizens’ rights from encroachment by society. Seven fundamental rights were
originally provided by the Constitution - right to equality, right to freedom, right against exploitation,
right to freedom of religion, cultural and educational rights, right to property and right to constitutional
remedies. However, the right to property was removed from Part III of the Constitution by the 44th
Amendment in 1978.
The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles
based on equality of all members of society. They act as limitations on the powers of the legislature
and executive, under Article 13, and in case of any violation of these rights the Supreme Court of India
and the High Courts of the states have the power to declare such legislative or executive action as
unconstitutional and void. These rights are largely enforceable against the State, which as per the wide
definition provided in Article 12, includes not only the legislative and executive wings of the federal and
state governments, but also local administrative authorities and other agencies and institutions which
discharge public functions or are of a governmental character. However, there are certain rights - such
as those in Articles 15, 17, 18, 23, 24 - that are also available against private individuals. Further, certain
Fundamental Rights - including those under Articles 14, 20, 21, 25 - apply to persons of any nationality
upon Indian soil, while others - such as those under Articles 15, 16, 19, 30 - are applicable only to citizens
of India.
The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for
the protection of public interest. In the Kesavananda Bharati v. State of Kerala case in 1973,the Supreme
Court, overruling a previous decision of 1967, held that the Fundamental Rights could be amended,
subject to judicial review in case such an amendment violated the basic structure of the Constitution. The
Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment,
passed by a two-thirds majority of each House of Parliament The imposition of a state of emergency may
lead to a temporary suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of
the President. The President may, by order, suspend the right to constitutional remedies as well, thereby
barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental
Rights, except Articles 20 and 21, during the period of the emergency. Parliament may also restrict the
application of the Fundamental Rights to members of the Indian Armed Forces and the police, in order to
ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article
33.
Basic structure of Constitution:
It means that the constitution is the Supreme law of the land and any law in consistent there
with is void. The term refers to “the power of a court to inquire whether a law executive order or other
official action conflicts with the written constitution and if the court concludes that it does, to declare it
unconstitutional and void.”
The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In
Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a
parliamentary enactment invalid. On the contrary every court is constrained to enforce every provision”
of the law of parliament.
Under the constitution of India parliament is not Supreme. Its powers are limited in the two ways.
First, there is the division of powers between the union and the states. Parliament is competent to pass
laws only with respect to those subjects which are guaranteed to the citizens against every form of
legislative encroachment.
Being the guardian Fundamental Rights and the arbiter of-constitutional conflicts between the
union and the states with respect to the division of powers between them, the Supreme Court stands in
a unique position where from it is competent to exercise the power of reviewing legislative enactments
both of parliament and the state legislatures.
The basic structure doctrine is an Indian judicial principle that the Constitution has certain basic
features that cannot be altered or destroyed through amendments by the parliament. As part of these
“basic features”, the fundamental rights granted to individuals by the constitution cannot be abridged or
abrogated by an amendment of parliament. The doctrine thus forms the basis of a limited power of the
Indian Supreme Court to review and strike down, constitutional amendments enacted by the parliament
which conflict with or seek to alter this “basic structure” of the constitution.
The basic structure doctrine was first articulated by Chief Justice Sarv Mittra Sikri in the landmark
decision of Kesavananda Bharati v. State of Kerala (Case citation: AIR 1973 SC 1461). Previously,
the Supreme Court had held that the power of parliament to amend the constitution was unfettered.
However, in this landmark ruling, the court held that while parliament has “wide” powers, it did not have
the power to destroy or emasculate the basic elements or fundamental features of the constitution.
Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has
since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary
among these was the imposition of a state of emergency by Indira Gandhi in 1975, and the subsequent
attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was
decided, the apprehension of the majority bench that elected representatives could not be trusted to act
responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the
Indian National Congress’ majority in central and state legislatures, proved that in fact such apprehension
was well-founded. In Indira Nehru Gandhi v. Raj Narain, a Constitutional Bench of the Supreme Court
used the basic structure doctrine to strike down the 39th amendment and paved the way for restoration
of Indian democracy.
The basic structure doctrine applies only to the constitutional amendments. It does not apply to
ordinary Acts of Parliament, which must conform to the entirety of the constitution and not just to its
“basic structure”.
Suspension of Fundamental Rights
During the period of emergency, as declared under the either of the two categories discussed
above, the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the
Constitution. Theterm ‘State’ is used here in the same sense in which it has been used in the Chapter on
Fundamental Rights. It means that the power to suspend the operation of these Fundamental Rights is
vested not only in Parliament butalso in the Union Executive and even in subordinate authority. Further,
the Constitution empowers the President to suspend the right to move any court of law for the enforcement
of any of the Fundamental Rights. It means that virtually the whole Chapter on Fundamental Rights can
be suspended during the operation of the emergency. However, such order are to be placed before
Parliament as soon as possible for its approval. But Art. 20 and Art.21 can not be suspended.

Judicial review and fundamental rights:
Article 13 provides for judicial review of all legislation in India.
The power of Judiciary to review and determine validity of a law or an order may be described as
the power of “Judicial Review.”
Judicial Review has two prime functions:
(1) Legitimizing government action; and
(2) To protect the constitution against any undue encroachment by the government.
The most distinctive feature of the work of United States Supreme Court is its power of
judicial review. As guardian of the constitution, the Supreme Court has to review the laws and
executive orders to ensure that they do not violate the constitution of the country and the valid
laws passed by the congress.
The power of judicial review was first acquired by the Supreme Court in Marbury v. Madison
case. (1803)
Right to Equality
The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14-
16, which collectively encompass the general principles of equality before law and non-discrimination,
and Articles 17-18 which collectively further the philosophy of social equality. Article 14 guarantees
equality before law as well as equal protection of the law to all persons within the territory of India.
This includes the equal subjection of all persons to the authority of law, as well as equal treatment of
persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes,
provided there is a reasonable basis for the same, meaning that the classification is required to be non-
arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as
have a rational relation to the object sought to be achieved by the classification.
Supreme Court decision on Right to Equality: Article 14.
In State of West Bengal v. Anwar Ali Sarkar, (AIR 1952SC 75), Patanjali Sastri. CJ, has rightly
observed that the second expression is corollary of the first and it is difficult to imagine a situation in
which the violation of the equal protection of laws will not be the violation of the equality before law. Thus
in substance the two expressions mean one and the same thing.
The Rule of law required that no person shall be subjected to harsh, uncivilized or discriminatory
treatment even when the object is the securing of the paramount exigencies of law and order, Rubir
Singh v. Union of India, (AIR 1983 SC 65)
Equal law should be applied to all in the same situation, and there should be no discrimination
between one person and another. As regards the subject, matter of the legislation their position is the
same, (State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75), Thus, the rule is that like should
be treated alike and not that unlike should be treated alike, Raghubir Singh, V, State of Haryana, ( AI R
1980 SC 1087)
The rule of law embodies in Article 14 is the basic feature of the India Constitution and hence it
cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution,
Indra Gandhi v. Raj Narain, AIR 1975 SC 2299.
The equality before the law is guaranteed to all without regard to race, colour or nationality.
Corporation being juristic persons are also entitled to the benefit of Article 14. Chiranjit lal v. Union of
India, AIR 1951 SC 41.
In Sanjeev Coke Mgf. Co. v. Bharat Cooking Coal Ltd, (1983) 1 SCC 147.the Supreme court has
held that” where Article 31-C comes in, Article 14 goes out”.
Article 14 forbids class legislation but it does not forbid reasonable classification. The classification,
however, must not be arbitrary, artificial or evasive but must be based on some real and substantial
distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation.
Article 14 applies where equals are treated differently without any reasonable basis. But where equal
and unequal’s are treated, differently, Article 14 does not apply.( R.K. Garg v. Union of India, AIR 1981
SC 2138, Re Special Courts Bill, AIR 1979 SC 478, Air India v. Nargesh Meerza, AIR 1981 SC 1829.
R.C. Cooper v. Union of India, AIR 1970 SC 564, Ameeroonisa v. Mahboob, AIR 1953 SC 91).
No contract can be made to depend on upon the statute or colour of the hair. Such a classification
will be arbitrary, Anwar Ali’s case, AIR 1952 SC 75.
The classification made by the legislature need not be scientifically perfect or logically complete,
Kedar Nath v. State of West Bengal, AIR 1953 SC 494
Mathematical nicety and perfect equality are not required, Kameshwar Singh v. State of Bihar, AIR
1954 SC 91.
Equality before the law does not require mathematical equality of all persons in all circumstances.
Equal treatment does not mean identical treatment, Similarity, not identity of treatment is enough, (Sate
of Bombay v. F. N. Balsara, AIR 1951 SC 318)
There can be discrimination both in the substantive as well as the procedural law. Article 14 applies
to both, State of West Bengal v. Anwar Ali, AIR 1952 SC 75.
If the classification satisfies the test laid down in the above propositions, the law will be declared
constitutional. The question whether a classification is reasonable, and proper or not, must, however, be
judged more on commonsense than on legal subtleties, Sagir Ahmad v. state, AIR 1954 All 257.
New Concept of equality Protection against arbitrariness: Natural Justice - In E.P. Royappa v.
State of Tamil Nadu, AIR 1974 SC 555, the SC challenged the traditional concept of equality which was
based on reasonable classification and has laid down a new concept of equality.
In Maneka Gandhi v. Union of India, Justice Bhagwathi again quoted with approval the new concept
of equally propounded by him in the E. P. Royappa’s case.
In International Airport Authority case, AIR 1978 SC 597 Bhagwati J reiterated the same principle.
In O.S. Nakara v. Union of India, AIR 193 SC 130, the SC struck down rule 34 of the Central
Services (Pension) Rules, 1972 as unconstitutional on the ground that the classification made
by it between pensioners retiring before a particular date and referring after that date was not
based on any rational principle and was arbitrary and violative of Article 14 of the Constitution.
In Suneet Jatleyv v. State of Haryana, (1984) 4 SCC 396 - The reservation of 25 seats for admission
to M.B.B.S. and B.O.S. course for students who were educated from class I to VIII in common rural
schools was held to be violative of Article 14 and the classification between rural educated and urban
educated students was held to be invalid.
In Mithu v. State of Punjab, AIR 1983 SC 473 - The the validity of cinematograph Act, 1952, a
classification between U and A certificate was held to be a reasonable as the treatment of motion picture
on a different footing.
In Nishi Maghu v. State of Hand K, AIR 1980 SC 1975 - The court held the classification made
on the basis of regional imbalance was vague in absence of identification of areas suffering from such
imbalance and accordingly selection of candidate for admission to MBBS course from this category was
arbitrary and violative of Article 14 and invalid under the constitution of India.
In Ajay Hasia v. Khalid Muhib, AIR 1981 SC 487 - The court struck down the rule prescribing high
percentage of marks for oral test, i.e. allocation of one-third of total marks for oral interview was plainly
arbitrary and unreasonable and violative of Article 14 of the Constitution.
In Arti Sapru v. J&K, AIR 1981 SC 1009, SC held that the allocation of 30 percent marks for the
viva-voce for admission to the medical college was excessive, but in Lila Ohar v. Rajasthan, AIR 1981
SC 1777, where 25 percent of the marks were allotted for interveiw for the selection of munsifs in the
Rajasthan Judicial Service it was held that the selection were not illegal.
In O.K. Bakshi v. Union of India, (1993) 3 SCC 662, the SC held that the test evolved in Ajay Husia
and Ashok Kumar adav v. State of Haryana (1985( SCC 417, cannot be applied in every case and
particularly in selection of professionals. The above rule cannot be applied for matters of grant of license
by a custom house agent where the duties, responsibilities, and functions are very special demanding
not only a higher degree of probity and integrity but also intellectual skills, adaptability, judgment and
capacity to take prompt decisions in conformity with the law, rules and regulations. In case of selection
of professionals higher marks for oral test can be allotted.
In Air India v. Nargesh Meerza, AIR 1981 SC 1829 - SC struck down the Air India and Indian Airlines
Regulations on the retirement and pregnancy bar on the services of air hostesses as unconstitutional on
the ground that conditions laid down there were entirely unreasonable and arbitrary.
In A.V.S. Nachane v. Union of India, AIR 1982 SC 1126, the popularly known as LlC Bonus case
the SC upheld the constitutional validity of LlC amendment Act, 1981 and the Ordinance preceding it and
the rules framed thereunder relating to bonus payable to Class III and IV employees. The Act and the
rules had changed the basis for fixation of dearness allowance and bonus and took it out of the purview
of the Industrial Disputes Act. There was no material to show that the rules were violative of Article 14.
In K. Nagaraj v. State of AP., (1985) 1 SCC 524 - The validity of A. P. Public Employment
(Regulation of Conditions of Service ordinance which reduced the age of retirement of all
Government employees from 58 to 55, the court held that the reduction of age of retirement was not
arbitrary and unreasonable and violative of Article 14 as it was taken by the Government after due
considerations and with a view to providing employment opportunities to younger sections of society.
In Surendra Kumar v. State of Bihar, AIR 1985 SC 87, the SC quashed the nomination of candidates
by the Bihar Government for admission to medical colleges in the States of J and K as violative of Article
14 on the ground that no basis of selection was indicated for nominating candidates.
In Pradeep Jain v. Union of India (1984) 3 SCC 654 - The SC held that the wholesale reservation
of all seats in the MBBS and BDS courses made by State Government of Karnataka, Uttar Pradesh
and Union Teriroty of Delhi on the basis of domicile or residence within the State or on the basis of
institutional preference for student who have passed the qualifying examinations excluding all students
not satisfying the residence requirement, regardless of merit, was unconstitutional and as being violative
of Article 14 of the Constitution.
In Y. Sreenivas Rao v. Veeraiah, AIR 1993 SC 929, the court held that the policy of the government
to prefer an uneducated person over an educated person amounts to allowing premium on ignorance,
incompetence and consequently inefficiency, and therefore unconstitutional.
In Indian council of Legal Aid and Advice v. Bar Council of India, (1995) 1 SCC 732 - The validity
of new Rule 9, added by the Bar Council of India in Bar Council Rules which barred the entry of persons
who have completed the age of 45 years on the date of application for enrolment as and advocate was
challenged as discriminatory and unreasonable and violative of Article 14, the SC held the rule to be
arbitrary and unreasonable.
In Maharashtra Mambhai v. Vashim (1995) 5 SCC 730 - The SC held that denial of grants-in-aid
to recognized private law colleges while extending such benefits to other faculties viz, Arts, Science,
Commerce, Engineering, Medicine etc, by the State of Maharashttra is discriminatory and violation of
Article 14 of the Constitution.
Arbitrary Action: State liable to pay compensation to a Citizen: In Lucknow Development Authority
v. M.K. Gupta, (1994)1 SCC 243 - SC held that if loss is caused to a citizen by the arbitrary actions of
State employees the State is liable to pay compensation to him. Under our constitution sovereignty is
vested in the people.

Rules of Natural justice implicit in Article 14 - In Central Indian Water Transport Corpn, Ltd, v.
BrooNatha, AIR 1986 SC 171, SC has held that Service Rules empowering the Government Corporation
to terminate services of permanent employees without giving reasons on three months notice or pay in
lieu of notice period is violative of Article 14. audi altem partem. (i.e. hear the parties).
Following the central Inland water decision the SC in Delhi Transport Corporation v. D.T.C. Mazdoor
congress, AIR 1991 SC 101, held that regulation 9 (b) of the Delhi Road transport authority which
conferred power on the authority to terminate the services of a permanent and confirmed employee by
non issuing of notice without assigning any reasons and without giving any opportunity of hearing was
wholly arbitrary, unreasonable and violative of Article 14 of the Constitution and therefore void.
In F.C.I. v. Kam Dhenu Cattle Feed Industries, (1993) 1 SCC 71 - In this case instead of accepting
higher bid in the tender FCI called all tenders to participate in the negotiation as the amount of the highest
bidder was insufficient, and the SC held that higher tender was superseded only by a significantly higher
bid with all tenderers giving them equal opportunity to compete. In contractual sphere as in all State
actions, the state and all its instrumentalities have to confine to Article 14 of which non-arbitrariness is a
significant fact.
In Mahesh v. Regional Manager, UPFC, (1993) 2 SCC 229 - The appellants plots against
hypothecation was sold in auction and the respondents offer after negotiation was accepted but before
accepting the tenders no notice nor an opportunity was given to the appellant. The appellant challenged
the action of the corporation and the SC held that the action of the corporation accepting the tender of
the respondents ignoring the appellant was unjust and unfair and no reasonable prudent would have
accepted such offer.
Exclusion of Rule of Natural Justice - In Madras City Wine Merchants Assn. v. State of T.N., (1994)
SCC 09 - It has been held that legislative action plenary or subordinate is not subject to natural justice
rules. Accordingly, the SC upheld the repeal of the Tamil Nadu liquor vnein in Bar Rules, 1992 under the
T. N. Prohibition act, 1937.
No distinction between quasi-judicial function and administrative function for purpose of
application of rules of natural justice
In D. K. Yadav v. JMA Industries, (1993) 3 SCC 254 - The SC court held that termination of the
service of a worker without giving reasonable opportunity of hearing is unjust, arbitrary and illegal. The
court held that the right to life enshrined under Article 21 of the Constitution includes the right to livelihood
and an order of termination of service of an employee visits with civil consequences of depriving of his
livelihood.
In Sukumar Mukherjee v. State of W.B., (1993) 3 SCC 724 - Challenged the validity of West Bengal
State Health Services Act, 1990 on the ground that it was discriminatory and violative of Article 14 of the
Constitution as the Act separates two services West Bengal Medical education service and West Bengal
Health service but the court held that the Act was not violative of Article 14.
In Director Generalof Police v.Mritynhoy Sarkar, AI R 1997 SC 249 - The respondents were
discharged on the ground of producing a fake list and no opportunity of representation in inquiry was
given to the respondent and the SC held that principles of the natural justice require that they should
have been given reasonable opportunity of representation in the inquiry to be conducted.
In Revathi v. Union of India, AI R 1988 SC 835 - The constitutional validity of Section 198 (2) Cr.
P.C. Section 497 which disables the wife from prosecuting her husband for the offence of adultery was
challenged on the ground that it was violative of Article 14 of the Constitution. The SC held that there was
no discrimination based on sex and these provisions were valid.
In Arti Gupta v. State of Punjab, AI R 1988 SC 481 - It has been held that reduction of minimum
qualifying marks from 35 to 25 in order to accommodate more SC’s and S1’s candidates to fulfill the
reserved quota is not arbitrary and violative of Article 14 of the Constitution.
In Bhagwanti v. Union of India, Air 1989 SC 2038 - It has been held that classification between
marriage during service and marriage after retirement for the purpose of giving family pension is arbitrary
and violative of Article 14 of the Constitution.
In P& T SC/ST Employees Welfare Association v. Union of India AIR 1989 SC 139 - The validity of
new policy of promotion was challenged where all employees whether belonging to the general category
or to the category of the SC’s and S1’s were to be promoted to a higher post on the completion of 16
years whereas under the old scheme SC’s and S1’s could get promotions to the higher cadre within 10
to 12 years and other to wait for 20 to 23 years. The court held that this was discriminatory and violative
of Article 14 as others who were similarly situated in other departments were allowed to enjoy it.
In Deepak Sibal v. Punjab University, AIR 1989 SC 903 - It was held that the classification between
the Governmentl Semi Government employees for the purpose of admission to the evening LLb classes
to the exclusion of the other employees was unreasonable and unjust and therefore the rule was struck
down as discriminatory and violative of Article 14 of the Constitution.
In A.N. Parasuraman v. State of Tamil Nadu, AI R 1990 SC 40 - Section 3 of th TN. Private
Educational Institutions (Regulation) Act made it mandatory for private educational institutions to obtain
permission of the competent authority for running them. It was held that the Act conferred unguided
power on the authority was therefore ultra vires and illegal.
In Mahabir Auto Store v. Indian Oil Corporation, (1990) 3 SCC 752 - The SC held that the mandate
of Article 14 also applies to exercise of State’s executive power under Article 298 in entering or not
entering in contrast with individual parties. The decision under Article 298 is an administrative decision
and can be challenged on the ground that it is arbitrary or violative of Article 14.
In Shrilekaha Vidyathi v. State of U.P., (1991)1 SCC 212 - The validity of UP Government Legal
Remembrancers Manual (1975) under which the government had terminated the appointment of all
District Government Counsels without assigning any reason was challenged as violative of Article 14
of the constitution, following the Mahabir Auto Stores caser the SC held that the termination of the
appointment of all D.G.C. without assigning any reason was arbitrary and violative of Article 14 of the
constitution.
In Charan Lal Sahu v. Union of India, (1990) 1 SCC 663 - The Constitutional validity of the Bhopal
Gas leak Disaster (Processing of claims) Act, 1985 was challenged. The Act empowers the Central
Government to take over the conduct of all litigations on behalf of the victims of Bhopal Gas Tragedy.
The validity of the Act was challenged on the ground that the deprivation of the claimants individual
rights to legal remedy against theUnion Carbide Company was violative of Article 14 of the Constitution.
The court held that the Act is valid as the State in a capacity parens patriae( parent of the country) for
protection of the disabled victims of Bhopal gas disaster is competent to represent the victims.
In Dr. K. Lakshmanan v. Stateof TN., (1996) 2 SCC 266 - The validity of the TN. Horse Races
(Abolition and wagering or Betting) Act 1974was challenged on the ground that the amended Act had
brought the horse racing within the definition of ‘gaming’ which was not prohibited by two earlier Acts.
It was held that the horse racing is neither gaming nor gambling as defined by the two act read with
the 1974 Acts, and, therefore, the penal provisions of these Acts are not applicable to the horse racing
which is a game of skill. There is no nexus between the Act of 1986 and the object contained in article
39(b)(c) of the Constitution. Therefore its protection is not available to the TN. Act. The court held that
the provisions of the Act of 1986 are discriminatory and arbitrary and as such violative of Article 14 of the
constitution and therefore liable to be struck down.
In Ankul chandra Pradhan v. Union of India, AIR 1997 SC 2814- It has been held that debarment
of persons who are in prison or police custody under Section 5 of the Representation of the peoples
Act, 1951, to vote in an election, but no of person under preventive detention is not discriminatory and
violative of Article 14 of the Constitution.
In Visaka v. State of Rajasthan, AIR 1997 SC 3014 - The SC has laid down exhaustive guidelines
to prevent sexual harassment of working women in places of their work until a Legislation is enacted for
this purpose.
Equal pay for equal work:
Randhir Singh v. Union of India. AIR 1982 SC 879.
SC has held that although the principle of equal pay for equal work is not contained in the constitution
as fundamental right but Article 14, 16 and 39(c) recognizes it.
FrankAnthony Public School Employee’s Association v. Union fo India, (1986) 4 SCC 707 - The
court struck down Section 12 of the Delhi School Education act as unconstitutional on the ground that
it was violative of Article 14 under which terms and conditions of service of employees of recognised
private School.Section 10 requires that the scales of pay etc, of the employees of recognised private
school must not be less than those of Government schools, Section 12 excludes the operation of section
80-11 to unaided minority schools. The court held that the teachers and employees of Frank Antory
Public School are entitled to parity of scales and other conditions of service with those available with their
counterparts in government schools.
Dhirendra Chamoli v. State of U.P., (1986)1 SCC 637 - It has been held that the principle of equal
pay for equal work is also applicable to casual workers employed on daily wages basis. Such denial
would amount to violation of Article 14.
Daily Rated Casual Labour v. Union of India, (1988) 1 SCC 122 - It was held that Classification
of employees into regular employees and casual employees for the purpose of payment of less than
minimum pay is violative of Articles 14 and 16.
F.A.I.C. and C.E.S. v. Union of India, (1988) 3 SCC 91 - The SC has held that different pay scales
can be fixed for government servants holding same post and performing similar work on the basis of
difference in degree of responsibility, reliability and confidentially and as such it will not be violative of the
principle of equal pay for equal work, implicit in Article 14.
Mewa Ram v. A. I. I. Medical Science, AIR 1989 SC 1256
The SC held that the doctrine of equal pay for equal works is not an abstract doctrine, it is open to the
state to prescribe difference scales of pay for different posts having regard to educational qualifications,
duties and responsibilities of the post.
Gopika Ranjan Chawdhary v. Union of India, AIR 1990 SC 1212 - The pay scales of the staff at
the headquarters were higher than those of the staff attached to the Battalion/units. It was held that
this was discriminatory and violative of Article 14 as there was no difference to the nature of the work,
the duties and responsibilities of the staff working in the Battalion/units and there those working at the
headquarters.
Basis of Classification:
Geographical classification:
Krishna Singh v. State of Rajasthan, Air1955 SC 795 - The validity of Marwar Land Revenue act,
1949, was challenged on the ground that it applied only to Marwar portion of the State of Rajasthan and
not to the whole of the State. SC held the law not to be violative of Article 14.
Ram Chadra v. State of Orissa, AIR 1950 SC 298:
Two Acts were passed to nationalize road transport. One Act applied to one part of the ‘state and
the other in other part of the State because the conditions differed materially in two parts. It was held
valid as the basis of classification was rational and based on intelligible differential.
Discrimination by the state in its own favour:
Sagir Ahmad v. State of UP, AIR 1955 SC 728 - Monopoly created by the State in its favour was
held not to be violative of Article 14.
Baburao v. Bombay Housing Board, AIR 1954 SC 153
A law which exempt the factories was held not to be discriminatory.
Article 14 and Taxation:
E.1. Tobacco Co, v. State of A.P.” AIR 1962 SC SC 1733 - A sales tax on viriginia tobacco but not
on country tobacco has been held to be valid.
Western India Theatre v. Cantonment Board, AIR 1959 SC 582 - Higher tax on more accommodation
and busy locality theater then the lesser accommodation and locality not so busy were held to be not
violative of the equal protection clause of Article 14.
Venakateshwar Theatre v. State of Andhra Pradesh, AIR 1993 SC 1947 - Tax was levied on
the basis of gross collection capacity per show and different percentage was prescribed depending on
the type of the theatre and the nature of the local area where it was situated. and the court held such
classification was not violative of Article 14.
Indian Express Newspapers v. Union of India, (1985) 1 SCC 641 - It has been held that the
classification of newspapers into small, medium and big newspapers on the basis of their circulation for
the purpose of levying customs, duty on newsprint is not violative of Article 14.
G.K. Krishnan v. State of Tamil Nadu, AIR 1974 SC 582 - The T.N. Government by a notification
under the Motor Vehicles Taxation Act, 1931 enhanced the tax on omnibuses from Rs, 30 to per seat
per quarter to Rs.1 00 per seat per quarter. The court held that the levy of enhanced taxation contract
carriages was valid and did not offend Article 14.
R. K. Garg v. Union of India, AI R 1981 SC 2138 - Popularly known as the Bearer Bond’s case,
the constitutional validity of the Special Bearer Bonds, Ordinance Act, was challenged on the ground of
violative of Article 14 of the Constitution. The court by 4-1 majority upheld the validity of the Ordinance
and the Act upon the ground that the classification made by the Act between persons having black
money and persons not having black money was based on intelligible differential having relation with the
object of the Act.
D.S. Nakara v. Union Of india, AIR 1983 SC 142:
Now there is no doubt that these concepts will playa significant role in judging the validity of a law
under Article 14.
State of Maharashtra v. Madukar Balkrishna Badiya, (1988) 4 SCC 290:
The validity of the Bombay Motor Vehicles Tax Act, 1958, as amended by the Maharahtra Act of
1987 and 1988 was challenged as violative of Article 14. The Act provided for levy of one time tax at 15
times the annual rate on all motor cycles and tricycles used or kept for use in the State. But provided
that in case of motor cycle sent or kept for use by a company or other commercial organization the rate
of tax was three times the rate. The difference between the tax rate was not without basis and as such
there was no discrimination.
Kerala Hotel and Restaurant Association v. State of Kerala, (1990) 2 SCC 502 - It was held
that classification made between the two type of hotels for the purpose of imposing tax was neither
discriminatory nor arbitrary and was based on intelligible differential and had a rational nexus with the
object sought to be achieved by the Acts.
In Secretary to Government of Madras v. P. R. Sriramulu (1996) 1 SCC 345 - The respondent had
challenged the validity of the Madras Court fees and Suits valuation Act, 1955, under which court fee was
levied on certain appeal was ad valorem at the rate of 7112 percent the total claims without any upper
limit on the ground that it was not only exhorbitant but wholly arbitrary, unreasonable, and unjustified
bearing no relationship to the cost of administration of justice and that in fact was not a levy of fee but
really a levy of tax. The SC held that the levy of court fee on an ad valorem fee of 7112 percent was valid.

Special courts and special procedure:
State of W.B. v. Anwar Ali, Air 1952 SC 75 - The court held that the procedure laid down by the Act
for the trial by the Special courts varied substantially from the procedure laid down for the trial of offences
generally by the Criminal Procedure Code.
But in Kathi Ranning v. State of Saurashtra, AIR 1952 SC 123 - The validity of a similar Act
was upheld on the ground that it had laid down proper guidelines for the exercise of discretion by the
executive to rare cases to Special Courts for trial.
In re Special Courts Biill, 1978: AIR 1979 SC 478 - The question was referred under Article 143(2)
for advisory opinion about the bill. The court held that apart from the requirement of Article 14 the law
must also satisfy the requirement of Article 21 and court found procedural defects in the Bill and the
Government accepted the procedural amendments to cure the defects and the court held that the Bill
was constitutional.
Administrative Discretion:
Re Kerala Education Bill, Air 1958 SC 956 - Gave a broad power to the Government to control
private schools. The court held that the power given to the Government to take over schools could be
exercised only for the purposes mentioned in the Bill and hence it was not hit by Article 14.
Organo Chemical Industries, v. Union of India, AI R 1979 Sc 1803 - The SC held that the power
conferred under Section 14-B of the Act on the Provident Fund Commissioner to impose damages on an
employer defaulting in payment of contributions to the provident fund was not unguided nor arbitrary and
hence not violative of Article 14.
Suman Gupta v, State f J. and K., (1983) 4 SCC 339 - The SC held that nomination of candidates
by the States for admission to the reserved cannot be left to the absolute discretion and uncontrolled
choice of the State Governments. Article 14 is violated to by powers and procedures which in themselves
result in unfairness and arbitrariness.
A single individual may constitute a class - Chiranjit Lal v. The Union of India, AIR 1961 SC 41 -
The SC held that a law may be constitutional even though it applies to a single individual, if, on account
of some special circumstances or reasons applicable to him and not applicable to others, that single
individual may be treated as a class itself, unless it is shown that there are others who are similarly
circumstanced.
Ammerunnisa Begum v. Mahboob, AIR 1953 SC 91 - The SC held the Act passed by the Hyderabad
legislature, namely the Wali-ud-Dowla Succession, Act, 1950 by which claims of on party i.e,. two ladies
in the private litigation regarding succession to the property of late Nawab of Hyderabad were dismissed
and the property was adjudged to the other party was unconstitutional on the ground that did not furnish
any reasonable basis for the discrimination made it. The court said that the continuance of a dispute
even for the long time between two sets of rival claimants to the property of a private person is not such
an unusual circumstance by itself justifying its differentiation from all other cases of such succession
dispute.
Ram Prasad v. State of Bihar, AI R 1953 SC 215 - The Bihar Sathi Land (Restoration) Act, 1950 to
evict the private lessees was held to be unconstitutional by the SC on the ground that the dispute was a
legal dispute between two private parties and it was a matter for determination by duly constituted courts
in accordance with normal procedure.
L.N.M. Institute of Economic development and Social Change v. State of Bihar, Air 1988 SC 1136 -
The SC held that the ordinance and the Act by which the Institute was taken over by the Government and
other similar institutes were left out were not violative of Article 14 and as such were neither discriminatory
nor arbitrary.
A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 - The SC by a majority of 5-2 held that by giving
direction the SC had unintentionally caused the appellant the denial of rights under Article 14 by denying
him the equal protection of law by being singled out for a special procedure not provided for by law.
Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth,
or any of them. This right can be enforced against the State as well as private individuals, with regard
to free access to places of public entertainment or places of public resort maintained partly or wholly
out of State funds. However, the State is not precluded from making special provisions for women and
children or any socially and educationally backward classes of citizens, including the Scheduled Castes
and Scheduled Tribes. This exception has been provided since the classes of people mentioned therein
are considered deprived and in need of special protection.
Supreme court decision on Article 15:
Article 15 (3) :
In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathswami Thirukoil (1996)
8 SCC 525- the court held that Article 2 (e) of CEDAW enjoins the SC to breathe life into the dry
bones of the Constitution, international conventions and the Protection of Human Rights Act and the
Hindu Succession Act to prevent gener-based discrimination and to effectuate right to life including
empowerment of economic, social and cultural rights to women.
Article 15 (4) -
Valsamma Paul (Mrs.) v. Cochin University. (1996) 3 SCC 545-
Acquisition of the Status of Scheduled Caste etc, by voluntary mobility into these categories would
play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15 (4)
and 16 (4).
Article 16 guarantees equality of opportunity in matters of public employment and prevents the
State from discriminating against anyone in matters of employment on the grounds only of religion,
race, caste, sex, descent, place of birth, place of residence or any of them. It creates exceptions for the
implementation of measures of affirmative action for the benefit of any backward class of citizens in order
to ensure adequate representation in public service, as well as reservation of an office of any religious
institution for a person professing that particular religion.
Supreme court decisions on Article 16 (4) -
Article 14 and 16 including Article 16 (4), 16 (4-A) must be applied in such a manner that balance
is struck in the matter of appointments by creating reasonable opportunities for the reserved classes
and also for the other members of the community who do not belong to reserved classes. Such view
has been taken in the Constitutional Bench decisions in Balaji v. State of Mysore, AIR 1963 SC 649,
Devadasan v. Union of India, AIR 1964 SC 179 and Sabharwal cases. Even in Indra Sawhney v. Union
of India, AIR 1993 SC 477, 1992 Supp (3) SCC 217,AIR 1993 SC 477 case, the same view has been
taken by saying that only a limited reservation not exceeding 50 is permissible.
Article 16 has been amended by the 77th amendment by which new clause 4-A was inserted to
overcome the SC dictum in Indra Sawhney case to the effect that there can be no reservation in the
mater of promotion.
In State of Madras v. Champakam Dorairajan, AIR 1950 SC 226, - Madras government had reserved
seats in State Medical and Engineering Colleges for different communities in certain proportions on the
basis of religion, race, and case. The State defended the law on the ground that purported to promote
the social justice for all sections of the people as required by Article 46 of the Directive Principles of
State Policy. The SC held tha law void because it classified students on the basis of caste and religion
irrespective of merit.
The practice of untouchability has been declared an offence punishable by law under Article 17,
and the Protection of Civil Rights Act, 1955 has been enacted by the Parliament to further this objective.
Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and
the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and titles of
nobility conferred by the British have been abolished. However, awards such as the Bharat Ratna have
been held to be valid by the Supreme Court on the ground that they are merely decorations and cannot
be used by the recipient as a title.
Right to Freedom
The Right to Freedom is covered in Articles 19-22, with the view of guaranteeing individual rights
that were considered vital by the framers of the Constitution, and these Articles also include certain
restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19
guarantees six freedoms in the nature of civil rights, which are available only to citizens of India. These
include the freedom of speech and expression, freedom of assembly, freedom of association without
arms, freedom of movement throughout the territory of India,freedom to reside and settle in any part
of the country of India and the freedom to practice any profession. All these freedoms are subject to
reasonable restrictions that may imposed on them by the State, listed under Article 19 itself. The grounds
for imposing these restrictions vary according to the freedom sought to be restricted, and include national
security, public order, decency and morality, contempt of court, incitement to offences, and defamation.
The State is also empowered, in the interests of the general public to nationalise any trade, industry or
service to the exclusion of the citizens.
Supreme court decisions under Article 19 of Constitution:
Romesh Thapper v. State of Madras, ( AIR 1950 SC124) - Freedom of speech and of press lay at
the foundation of all democratic organistion.
LlC v. Manubhai D. Shah(1992) 3 SCC 637 - Held that LlC is a state under Article 12 of the
Constitution of India. The LlC’s house magazine is financed from public fund and therefore its refusal to
publish the respondent’s rejoinder was unfair and unreasonable and arbitrary and was violative of Article
19 (1) (a) of the constitution.
Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615 - The National Anthem case, held expulsion
of children from School was violative of Article 19 ( 1) (a) of the constitution.
Cricket Association of Bengal case (1995) 2 SCC 161 - A citizen under Article 19 (1) has a right to
telecast and broadcast the views of listeners through electronic media televisios and Radio any important
event.
Tata Press Ltd, v Mahanagar Telephone Nigam Ltd, ( 1995) 5 SCC 139 - A commercial speech
(advt.) is a part of the freedom of speech and expression granted under Article 19 (1) (a) of the constitution.
Right to Privacy:
People’s Union for civil Liberties v. Union of India, (AIR 1997 SC568) - Telephone tapping is
violative under Article 19 (1) (a) where it comes within grounds of restrictions under Article 19 (2) CPI
(M) v. Bharat Kumar and others, (AIR 1998 SC 184) -The Kerala High court held that no political party
has right to call for bandh on the ground that it is part of its fundamental right of freedom of speech and
expression under Article 19 (1) (a). The Supreme Court upheld the Kerala High court’s decision.
Indian Express Newsprint v. Union of India (1985) 1 SCC 641 - The expression freedom of the
press has not been used in Article 19 but it is comprehended within Article 19 ( 1) (a).
Express Newspapers v. Union of India (AIR 1988 SC 578) - A law which imposes pre-censorship
or contains the circular or permits newspapers from being started or require the government to seek
government aid in order to survive was violative of Article 19 (1) (a).
Bennet Colemn and co v. Union of India (AI R 1973 SC 106) - The validity of the newsprint control
order which fixed the maximum number of ten pages was challenged as violative of fundamental right
guaranteed in Article 19 (1) (a) and Article 14 of the constitution, The court held that the newsprint policy
was not reasonable restriction within the ambit of Article 19 (2).
Sakal Papers Ltd, v. Union 0 India (AIR 1962 SC 305) - The daily newspapers (Price and control)
order, 1960, which fixed a minimum price and number of pages which a newspapers was entitled to
publish was, challenged as unconstitutional by the petitioner on the ground that it infringed the liberty of
the press. The court struck down the order rejecting the state’s argument.
Odyssey Communications (P) Ltd.,v. Lok vidayan Sanghathan, (1988) 3 SCC 410 - Urged to
restrain I and B Ministry from telecasting Honey Anonee on the ground it spread false or blind beliefs
and superstition against the members of public. The court held that terms and conditions imposed by the
Doordarshan is part of fundamental right of freedom os speech guaranteed under Article 19 (1) (a) which
can be curtailed only on the grounds mentioned in Article 19 (2).
Rajagopal v. State of T. N.(Auto Shankar case), (1994) 6 SCC 632 - The SC held that the government
has no authority in law to impose a prior-restraint upon the publication of defamatory material against its
officials.
K.A. Abbas v. Union of India, (AIR 1971 SC 481) - The petitioner’s film ‘Tale of four cities’ was
refused ‘U’ certificate, claimed equality of treatment. SC held pre-censorship of films was justified under
Article 19 (2) on the ground that films have to be so treated separately from other forms of art and
expression because a motion picture was able to stir up emotions more deeply than any other product of
art. Hence, the classification of films between two categories A and U was held to be valid.
Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC-1 - The court held that certificate
issued to the film Bandit queen upon conditions being imposed by the Appellate tribunal is valid.
The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20-22. The
scope of these articles, particularly with respect to the doctrine of due process, was heavily debated by
the Constituent Assembly. It was argued, especially by Benegal Narsing Rau, that the incorporation of
such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and
therefore it ought to be excluded from the Constitution altogether. The Constituent Assembly in 1948
eventually omitted the phrase “due process” in favour of “procedure established by law”. As a result,
Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance
with the procedure established by law, was, until 1978, construed narrowly as being restricted to
executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India
extended the protection of Article 21 to legislative action, holding that any law laying down a procedure
must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case,
the Supreme Court also ruled that “life” under Article 21 meant more than a mere “animal existence”;
it would include the right to live with human dignity and all other aspects which made life “meaningful,
complete and worth living”. Subsequent judicial interpretation has broadened the scope of Article 21
to include within it a number of rights including those to livelihood, clean environment, good health,
speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has
been made one of the Fundamental Rights under Article 21 A by the 86th Constitutional amendment of
2002.
Article 21 of Constitution of India:
Important decisions of supreme court of India under Article 21 of Constitution of India :
A. K. Gopalan v. State of Madras, AI R 1950 SC 27 - 5th and 14th Amendment to the US Constitution(
Scope of liberty is narrower in our Constitution than the US) - ( Maneka Gandhi v. Union of India (AIR
1978 SC 597) Personal liberty has inter-relationship between Article 19 and Article 21.
Kharak Singh v. State of U. P. (AI R 1963 SC 1295) - Agreeing with minority, Bhagwathi in Maneka
Gandhi, held Article 21 gives additional protection under Article 19.
Francis Colarie v. Union Territory of Delhi, ( AIR 1986 SC 746) - Held personal liberty includes right
to socialize with family members.

R.C. Cooper v. Union of India, (AIR 1970 SC 564) - (Bank Nationalisation case)issue was
relationship between repealed Article 19 ( 1) ( F) and 31 (2). However, main basis for establishing
relationship between Articles 14, 19 and 21 of the Constitution of India.
ADM Jabalpur v. Shukla, (AIR 1976 SC 1207) (Habeas Corpus case) -Article 21 was the sole
repositor of the right to life.
Satwant Singh v. Asst. Passport officer, New Delhi, ( AIR 1967 SC 1836) - SC further extended the
scope of Article 21 and held that ‘right to travel abroad’ was part of a person’s ‘personal liberty’ within the
meaning of Article 21 of the Constitution of India.
A.K. Roy v. Union of India, AIR 1982 SC - (NSC Case) - SC by 4-1 majority upheld the constitutional
validity of the NSA and the ordinance which preceded the Act. The court held that
Act was neither vague nor arbitrary in the provisons providing for detention of person on certain
grounds, as acting in a manner prejudicial to the defense of India, security of India, security of State and
to relations with foreign power.
Right to livelihood:
Olga Tellis v. Bombay Municipal Corporation, (AIR 1986 SC 180) - SC ruled that word life under
Article 21 included the’ right to livelihood ‘also.
Right to Shelter: Chameli Singh v. State of U.P. (1996) 2 SCC 54) - SC held the right to shelter is
a fundamental right under Article 21 of the Constitution of India.
Right to privacy: R.Rajagopal v. State of T.N., ( 1994) 6 SCC 632) - SC held right to privacy or right
to be left alone is guaranteed by Article 21 of the Constitution.
Right to Health and Medical Assistance:
Parmananda Kataria v. Union Of India, ( AI R 1989 SC 2039) - SC held that it is the Professional
obligation of all doctors whether government or priavate, to extend medical aid to the injured immediately
to preserve life without waiting legal formalities to be complied with by the police under Cr. P. C.
Paschim Bang Khet Mazdoor Samiti v. State of W. B. (1996) 4 SCC - SC held that denial of medical
aid by government hospital to an injured person on ground of non-availability of beds amounted to
violation of right to life under Article 21 of the Constitution.
Consumer education and Research centre v. Union of India, (AI R 1986 SC 424) - SC held that
the right to health and Medical care is a fundamental right under Article 21 of the Constitution as it is
essential for making the life of workman meaningful and purposeful with dignity of person.
Kirloskar Brothers Ltd, v. Employee’s State Insurance Corporation, (1996) 2 SCC 682 - SC held
that right to health is a fundamental right of the workmen.
State of Punjab v. Mohinder Singh Chawla( AI R 1997 SC 1225 - Court held that right to life under
Article 21 of the constitution includes the right to health and therefore the state employees are entitled to
medical reimbursement of expenses for treatment and room rent charges both in approved specialized
hospitals outside the Government hospitals.
Jolly Verghese v. Bank of Cochin,( AIR 1980 SC 470) - It has been held that arrest and detention
of an honest judgment debtor in civil prison who has no means to pay the debt in absence of mala fide
and dishonesty, violates Articles 11 of the International Covenant on civil and political rights and Article
21 of the Constitution.
Right to protective homes:
Vikram Deo Singh Tomar v. State of Bihar, (AIR 1988 SC 1782):
It was brought to the notice that the female inmates of the care Home Patna were compelled to
live in inhuman conditions in an old ruined building, SC held that ‘right to live with human dignity is the
fundamental right of every citizens and the state is under duty to provide at least minimum conditions
ensuring human dignity.
Right to die not a fundamental right under Article 21 - In Gian Kaur v. State of Punjab (1996) 2 SCC
648) a five judge Constitution bench of SC overruled the P, Rathinam’s case (1994) 3 SCC 394 - And
rightly held that right to life under Article 32 of Constitution does not include to right to die.
Right to get Pollution free water and air - Subhash Kumar v. State of Bihar, (AIR 1991 SC 420).
Held PIL is maintainable for ensuring against pollution free water and air which is included in the
right to live under Article 21 of the Constitution.
Protection of Ecology and Environmental Pollution: Rural Litigation and Entitlement Kendra v.,
State of U.P. (1985) 2 SCC 431) - The court ordered the closure of certain lime stone quarries on the
ground that there were serious deficiencies regarding safety and hazards in them.
Shriram food and fertilizers (1986) 2 SCC 176 - The SC directed the company manufacturing
hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living
in its neighbourhood to take all necessary safety measures before reopening the plant.
M.C. Mehta v. Union of India (1987) 4 SCC463 - The Supreme court ordered the closure of tanneries
at Jajmau near Kanpur polluting the inner Ganga (M.C. Mehta v. union of India (2) (1988) 1 SCC 471.)
Indian Council for Euro-Iegal action v. Union of India - (1996) 3 SCC 212 - SC held that if in a
action of private corporate bodies,a person’s fundamental right is violated the court would not accept the
argument that is not state within the meaning of Article 12 and therefore action must be taken against it.
Vellore citizens welfare forum v. Union of India ( 1996) 5 SCC 650 - PIL filed during allotment of
Housing pollution by enormous discharge of untreated effluent by the tanneries and other industries in
the State of T.N.
Article 47, 48A, 51 A(g) forms the constitutional mandate to protect and improve the environment.
The court suggested a constitution of ‘Green Bench’ by the Madras High court.
Right to education - Mohini Jain v. State of Karnataka ( 1992) 3 SCC 666 - Popularly known as
capitation fee case, SC has held that the right to education is a fundamental right under Article 21 which
cannot be denied to a citizen by charging higher fee known as the capitation fee.
Prisoner’s right under Article 21 - Babu Singh v. State of U.P. (AIR 1978 SC 527) - SC held that
refusal to grant bail in a murder case without reasonable ground would amount to deprivation of personal
liberty under Article 21 of the Constitution of India.
Right to free legal Aid - M.H. Hosket v. State of Maharashtra (AIR 1978 SC 1578) - SC held that if
a prisoner is unable to exercise his constitutional and statutory right of appeal including special leave to
appeal for want of legal assistance, there is implicit in the court under Article 142 read with Articles 21
and 39- A of the constitution the power to assign consent to the prisoner provided he does not object to
the lawyer named by the court.
State of Maharashtra v. Manubjhai Prajaji (1995)5 SCC 730 - The right to free legal aid and speedy
trail are guaranteed fundamental right under Article 21 and 39A.
Suk Das v. union Territory of Arunachala Pradesh ( 1986) 2 SCC 401 - SC held failure to provide
legal aid to an accused at the State cost, unless refunded by the accused vitiates trial.
Right against Solitary confinement - In Sunil Bhatra (no.1) v. Delhi Administration (AIR 1978 SC
1575) (AI R 1980 SC 1579) (2)
Question before SC was whether ‘solitary confinement’ imposed upon prisoner who were under
sentence of death was violative of Article 14, 19 and 20 and 21 of the Constitution. It was held that if by
imprisonment solitary confinement there is total deprivation of friendship against co-prisoner congling
and taking and by taken would offend Article 21 of the constitution. The liberty to move, mix, mingle
talk, share company with co-prisoners if substantially curtailed would be violative of Article 21 unless
curtailment has the backing of law.
Right to speedy trial: Hussainara Khatoon (no.1) v Home Sectrary. State of Bihar, (AIR 1979 SC
1360), Habeas Corpus Petition was filed by number of under trial prisoner who were in jails in the State of
Bihar for years awaiting the trial. The SC held that right to a speedy trial is a fundamental right is implicit
in the guarantee of life, and personal liberty enshrined under Article 21 of the Constitution.
In Sunil Bhatra (no.2) v. Delhi Administration, (AIR 1980 SC 1579) - Was held that the practice of
keeping under trials with convicts in the jails offended the test of reasonableness under Article 19 and
fairness under Article 21 of the Constitution of India.The court converted the letter into a Habeas Corpus
Petition and approved and reiterated the specific guidelines laid down by SC in Sunil Bhatra’s case( AI
R 1978 SC 1675) (no.1)
Right against handcuffing: In prem Shankar v. Delhi Administration (AI R 1980 SC 1535) - the
Supreme court added yet another projectile in its armoury to be used against the war of prison reform
and prisoners rights. Krishna Iyer, J delivering the majority judgment held that provisions in paras 26,22
that every under-trial would be handcuffed, were violative of Articles 14,19,21 of the constitutions,
Handcuffing should be resorted to only when there is ‘clear and present danger of escape’
In citizen for Democracy v. State of Assam (1995) 3 SCC 743 - The Supreme court expressed
serious concern over the violation of the law laid down by that court in Prem Shankar shukla’s case
against handcuffing of under trial or convicted prisoners by the police authorities.
Right against inhuman treatment:
In Kishore singh v. state of Rajasthan AIR 1981 SC 625 - The Supreme court held that the use of
third degree method by police is violative of Article 21 and directed the Government to take necessary
steps to educate the police so as to inculcate a respect for the human person. The court held the solitary
confinement for a long period of 8 to 9 months is violative of Articles 21, 19 and 14 of the constitution.
Right against delayed execution:
In T. V. Vaijeeswaram v. State of Tamil Nadu (AIR 1981 SC 643 ) - A two judge bench of the SC
held that delay in execution of death sentence exceeding 2 years would be sufficient ground to invoke
the protection of Article 21 and the death sentence would be commuted to life imprisonment. In Sher
Singh v State of Punjab, AIR 1983 SC 465, the three judge bench of the court agreed with this view that
prolonged delay in the execution of a death sentence was an important consideration for invoking Article
21.
In Trivenio Ben v. State of Gujarat( AIR 1989 SC 142) - A five judge bench of the SC has set
the matter at rest and held that undue long delay in execution of the death sentence will entitle the
condemned person to approach the court for conversion of death sentence into life imprisonment, but
before doing so the court will examine the nature of delay and circumstances of the case,
In Vincent Parikurlangara v. Union of India(1987) 2 SCC 165 - The SC held that the right to
maintenance and improvement of public health is included in the right ot live with human dignity enshrined
in Article 21 of the Constitution.
In National Human rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742, the SC
has held that the State is bound to protect the life and liberty of every human being whether he is a citizen
or non-citizen.
In People’s Union for Civil Liberties v. Union of India (AIR 1997 SC 8) - Popularly known as phone
tapping case the SC has held that telephone tapping is a serious invasion of an individual’s right to
privacy which is part of the right to life and personal liberty enshrined under Article 21 of the Constitution
and it should not be resorted to by the State unless there is pubic emergency or interest of public safety
requires.

Sentence of death and Article 21 :-
In Jagmohan Singh v. Uttar Pradesh (AIR 1973 SC 947) - The petitioner challenged the validity of
death sentence on the ground that it was violative of Articles 18 and 21 because it did not provide any
procedure. The five member Bench of the court held that capital punishment was not violative of Articles
13, 19 and 21 and was therefore constiutionally valid.
But in Rajendra Prasad v. State of UP AIR 1979 SC 916 - Krishna Iyer, J. held that capital punishment
would not be justified unless it was shown that the criminal was dangerous to the society. he held that
giving discretion to the judge to make choice between death sentence and life imprisonment on special
reasons under Section 34 (3) Cr.P.C. would be violative of Article 14 which condemns arbitrariness. But
this case was overruled in Bachan Singh v. State of Punjab, AIR 1980 SC 898.the SC 4-1 majority has
overruled the Rajendra Prasad’s decision and has held that the provision of death penalty under section
302 IPC as an alternative punishment for murder is not violative of Article 21. Article 21 of the Constitution
recognises the right of the State to deprive a person of his life or personal liberty in accordance with fair,
just and reasonable procedure established by valid law.
In Deena v. Union of India (1983) 4 SCC 645 - The court held that section 354(5) Cr.P.C. which
prescribed hanging as mode of execution lays down fair, just and reasonable procedure within the
meaning of Article 21 hence is constitutional.
In Attorney General of India v Lachma Devi, (AIR 1986 SC 467) - It has been held that the execution
of death sentence by public hanging is barbaric and violative of Article 21 of the Constitution.
In Triveniben v. State of Guraj, (AIR1989 SC 142) -It has been held that a person sentenced
to death is also entitled to procedural fairness till his last breath of life. Article 21 demands that any
procedure which takes away the life and liberty of such person must be reasonable, just and fair.
In Madhu Mehta v. Union of India (1989) 4 SCC 62 - Following Triveniben case the court directed
the death sentence to be commuted to life imprisonment as there were no sufficient reasons to justify
such long delay in disposal of the convict’s mercy petition.
In Joginder Kumar v. State of U. P. ( 1994) 4 SCC 260 - The SC has laid down guidelines governing
arrest of a persons during investigation.
In O.K. Basu v. State of W.B.(AIR 1997 SC 610) - The SC has laid down detailed guidelines to be
followed by the Central and State investigating and security agencies in all cases of arrest and detention.
Compensation under Article 21 -
Rudal Shah v. State of Bihar, (1983) 4 SCC 141 - The SC has held that the court has power to
award monetary compensation in appropriate cases where there has been violation of the constitutional
right of citzens.
In Bhim Singh v. State of Jammu and Kashmir (1988) 4 SCC 677 - The court awarded a sum of
Rs.50,000 to the petitioner as compensation for the violation of his constitutional right of personal liberty
under Article 21 of the Constitution.
In people’s Union for Democratic Rights v. Police Commissioner, Delhi Headquarter, (1989) 4 SCC
730 - A labourer was taken to the police station for doing some work, he was severely beaten when he
demanded wages and ultimately succumbed to the injuries. It was held that the State was liable to pay
compensation and accordingly directed to the Government to pay Rs, 75,000/-
In State of Maharashtra v. Ravikant S. Patil, (1991)3 SCC 373 - The SC directed the Delhi
Administration to pay RS.75,000/- as exemplary compensation to the mother of a 9 years old child who
died due to beating by the Police officer,
In Chiranjit Kaur v. Union of India(1994) 2 SCC 369 - An Army officer died in service due to negligence
of army officers resulting in great mental agony and physical and financial hardship to the widow of the
deceased and two minor children. The Court awarded the widow of the deceased a compensation of Rs.
6 lakhs as well as special Family Pension and children Allowance.
In Shakuntala Devi v. Delhi Electric Suppl Undertaking, (1995) 2 SCC 369 - The petitioner’s
husband died when he came into contact with the live electric wire while returning from the place of
his employment and got electrocuted. The court held the Delhi Electric Supply undertaking liable and
awarded compensation to the Widow and her minor children
In Kewal Pati v. State or UP (1995) 3 SCC 600 - The court has awarded compensation to the widow
of a convict who was killed in jail by a co accused while serving his sentence under section 302 IPC as
it resulted in deprivation of his life contrary to law and in violation of Article 21.
Compensation to persons killed in Fake encounter - In people’s Union for Civil Liberties v. Union
of India, AIR 1997 SC 1203- The SC held that killing of two persons in fake encounter by the police
was clear violation of the right to life guaranteed in Article 21 of the Constitution. And the defense of
sovereign immunity does not apply in such a case and the court awarded Rs, 1,00,000 as compensation
for each deceased. Following Nilbhati Behera v. State of Orissa,(1993) 2 SCC 746 the court held that
the provisions of Article 9(5) of the International Covenant on Civil and Political Rights, 1966, which
says’ anyone who has been victim of unlawful arrest or detention shall have an enforceable right to
compensation for enforcing fundamental rights are enforceable.
Compensation for Rape Victims:
In Delhi Domestic Working women’s Forum v. Union of India, (1995) 1 SCC 14 - Four domestic
women servants who were raped by seven army personnel in a runnig train while travelling by the Muri
Express from Ranchi to Delhi. The victims were helpless tribal women belonging to state of Bihar, the
court expressed serious conceren and suggested to remove the defects in criminal laws.
Interim Compensation - In Bodhisathwa Gautam v. Subhra Chakrborty, (1996) 1 SCC 490 - The SC
awarded an interim compensation of RS.1 000 per month to the victim of rape until her charges of rape
are decided by the trial court.
Sexual Harassment of Working women. In a land mark judgment in Vishaka v. State of Rajasthan,
AIR 1997 SC 3011 - The SC has laid down exhaustive guidelines to prevent sexual harassment of
working women in place of their work until a legislation is enacted for the purpose.
Article 20 provides protection from conviction for offences in certain respects, including the rights
against ex post facto laws, double jeopardy and freedom from self-incrimination. Article 22 provides
specific rights to arrested and detained persons, in particular the rights to be informed of the grounds
of arrest, consult a lawyer of one’s own choice, be produced before a magistrate within 24 hours of the
arrest, and the freedom not to be detained beyond that period without an order of the magistrate. The
Constitution also authorises the State to make laws providing for preventive detention, subject to certain
other safeguards present in Article 22. The provisions pertaining to preventive detention were discussed
with skepticism and misgivings by the Constitutent
Assembly, and were reluctantly approved after a few amendments in 1949. Article 22 provides
that when a person is detained under any law of preventive detention, the State can detain such person
without trial for only three months, and any detention for a longer period must be authorised by an
Advisory Board. The person being detained also has the right to be informed about the grounds of
detention, and be permitted to make a representation against it, at the earliest opportunity.
Right against Exploitation
The Right against Exploitation, contained in Articles 23-24, lays down certain provisions to prevent
exploitation of the weaker sections of the society by individuals or the State. Article 23 provides prohibits
human trafficking, making it an offence punishable by law, and also prohibits forced labour or any act
of compelling a person to work without wages where he was legally entitled not to work or to receive
remuneration for it. However, it permits the State to impose compulsory service for public purposes,
including conscription and community service. The Bonded Labour system (Abolition) Act, 1976, has
been enacted by Parliament to give effect to this Article. Article 24 prohibits the employment of children
below the age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child
Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for
employing, child labour, as well as provisions for rehabilitation of former child labourers.
Right to Freedom of Religion
The Right to Freedom of Religion, covered in Articles 25-28, provides religious freedom to all
citizens and ensures a secular State in India. According to the Constitution, there is no official State
religion, and the State is required to treat all religions impartially and neutrally. Article 25 guarantees all
persons the freedom of conscience and the right to preach, practice and propagate any religion of their
choice. This right is, however, subject to public order, morality and health, and the power of the State to
take measures for social welfare and reform. The right to propagate, however, does not include the right
to convert another individual, since it would amount to an infringement of the other’s right to freedom of
conscience. Article 26 guarantees all religious denominations and sects, subject to public order, morality
and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable
or religious purposes, and own, acquire and manage property in accordance with law. These provisions
do not derogate from the State’s power to acquire property belonging to a religious denomination. The
State is also empowered to regulate any economic, political or other secular activity associated with
religious practice. Article 27 guarantees that no person can be compelled to pay taxes for the promotion
of any particular religion or religious institution. Article 28 prohibits religious instruction in a wholly State-
funded educational institution, and educational institutions receiving aid from the State cannot compel
any of their members to receive religious instruction or attend religious worship without their (or their
guardian’s) consent.
Cultural and Educational Rights
The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights
of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting
them against discrimination. Article 29 grants any section of citizens having a distinct language, script
culture of its own, the right to conserve and develop the same, and thus safeguards the rights of minorities
by preventing the State from imposing any external culture on them. It also prohibits discrimination
against any citizen for admission into any educational institutions maintained or aided by the State, on
the grounds only of religion, race, caste, language or any of them. However, this is subject to reservation
of a reasonable number of seats by the State for socially and educationally backward classes, as well
as reservation of up to 50 percent of seats in any educational institution run by a minority community for
citizens belonging to that community.
Article 30 confers upon all religious and linguistic minorities the right to set up and administer
educational institutions of their choice in order to preserve and develop their own culture, and prohibits
the State, while granting aid, from discriminating against any institution on the basis of the fact that it is
administered by a religious or cultural minority. The term “minority”, while not defined in the Constitution,
has been interpreted by the Supreme Court to mean any community which numerically forms less than
50 of the population of the state in which it seeks to avail the right under Article 30. In order to claim the
right, it is essential that the educational institution must have been established as well as administered
by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the
educational institution established does not confine itself to the teaching of the religion or language of the
minority concerned, or a majority of students in that institution do not belong to such minority. This right
is subject to the power of the State to impose reasonable regulations regarding educational standards,
conditions of service of employees, fee structure, and the utilisation of any aid granted by it.
Right to constitutional remedies
Right to constitutional remedies empowers the citizens to move a court of law in case of any denial
of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it
is according to the provisions of the law of the country. If the court finds that it is not, the person will have

to be freed. This procedure of asking the courts to preserve or safeguard the citizens’ fundamental rights
can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus,
mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared,
this right is suspended by the central government.
There are mainly five types of Writs-
(i) Writ of Habeas Corpus,
(ii) Writ of Mandamus,
(iii) Writ of Quo-Warranto,
(iv) Writ of Prohibition, and
(v) Writ of Certiorari.
(I) Writ of Habeas Corpus:
It is the most valuable writ for personal liberty. Habeas Corpus means, “Let us have the body.” A
person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court
to the detaining authority to produce the arrested person before it so that it may examine whether the
person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally
detained, it can issue orders for his release
(II) The Writ of Mandamus:
Mandamus is a Latin word, which means “We Command”. Mandamus is an order from a superior
court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is
issued to secure the performance of public duties and to enforce private rights withheld by the public
authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but,
which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary
power of a court to issue such writs.
(III) The Writ of Quo-Warranto:
The word Quo-Warranto literally means “by what warrants?” It is a writ issued with a view to
restraining a person from acting in a public office to which he is not entitled. The Writ of quo-warranto is
used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For
example, a person of 62 years has been appointed to fill a public office whereas the retirement age is
60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person
and declare the office vacant.
(IV) The Writ of Prohibition:
Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’. This Writ
is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ
issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction.
After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is
issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue
proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus
commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court
commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with
judicial or quasi-judicial powers. The Supreme Court can issue this Writ only where a fundamental right
is affected.
(V) The Writ of Certiorari:
Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to
some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper
consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing
the order already passed by an inferior court. In other words, while the prohibition is available at the
earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ
of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can
be resorted to only after the order or decision has been announced.
Directive Principles of State Policy
Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions given
to the State to guide the establishment of an economic and social democracy, as proposed by the
Preamble. They set forth the humanitarian and socialist instructions that were the aim of social revolution
envisaged in India by the Constituent Assembly. The State is expected to keep these principles in mind
while framing laws and policies, even though they are non-justiciable in nature. The Directive Principles
may be classified under the following categories: ideals that the State ought to strive towards achieving;
directions for the exercise of legislative and executive power; and rights of the citizens which the State
must aim towards securing.
Despite being non-justiciable, the Directive Principles act as a check on the State; theorized as a
yardstick in the hands of the electorate and the opposition to measure the performance of a government
at the time of an election. Article 37, while stating that the Directive Principles are not enforceable in
any court of law, declares them to be “fundamental to the governance of the country” and imposes an
obligation on the State to apply them in matters of legislation. Thus, they serve to emphasise the welfare
state model of the Constitution and emphasise the positive duty of the State to promote the welfare of the
people by affirming social, economic and political justice, as well as to fight income inequality and ensure
individual dignity, as mandated by Article 38 in order to ensure equitable distribution of land resources.
Article 39 lays down certain principles of policy to be followed by the State, including providing
an adequate means of livelihood for all citizens, equal pay for equal work for men and women, proper
working conditions, reduction of the concentration of wealth and means of production from the hands of
a few, and distribution of community resources to “subserve the common good”. These clauses highlight
the Constitutional objectives of building an egalitarian social order and establishing a welfare state, by
bringing about a social revolution assisted by the State, and have been used to support the nationalisation
of mineral resources as well as public utilities. Further, several legislations pertaining to agrarian reform
and land tenure have been enacted by the federal and state governments, in order to ensure equitable
distribution of land resources.
Articles 41-43 mandate the State to endeavour to secure to all citizens the right to work, a living
wage, social security, maternity relief, and a decent standard of living. These provisions aim at establishing
a socialist state as envisaged in the Preamble. Article 43 also places upon the State the responsibility
of promoting cottage industries, and the federal government has, in furtherance of this, established
several Boards for the promotion of khadi, handlooms etc., in coordination with the state governments.
Article 39A requires the State to provide free legal aid to ensure that opportunities for securing justice
are available to all citizens irrespective of economic or other disabilities. Article 43A mandates the State
to work towards securing the participation of workers in the management of industries The State, under
Article 46, is also mandated to promote the interests of and work for the economic uplift of the scheduled
castes and scheduled tribes and protect them from discrimination and exploitation. Several enactments,
including two Constitutional amendments, have been passed to give effect to this provision.
Article 44 encourages the State to secure a uniform civil code for all citizens, by eliminating
discrepancies between various personal laws currently in force in the country. However, this has remained
a “dead letter” despite numerous reminders from the Supreme Court to implement the provision. Article
45 originally mandated the State to provide free and compulsory education to children between the
ages of six and fourteen years, but after the 86th Amendment in 2002, this has been converted into a
Fundamental Right and replaced by an obligation upon the State to secure childhood care to all children
below the age of six. Article 47 commits the State to raise the standard of living and improve public health,
and prohibit the consumption of intoxicating drinks and drugs injurious to health. As a consequence,
partial or total prohibition has been introduced in several states, but financial constraints have prevented
its full-fledged application. The State is also mandated by Article 48 to organise agriculture and animal
husbandry on modern and scientific lines by improving breeds and prohibiting slaughter of cattle. Article
48A mandates the State to protect the environment and safeguard the forests and wildlife of the country,
while Article 49 places an obligation upon the State to ensure the preservation of monuments and
objects of national importance. Article 50 requires the State to ensure the separation of judiciary from
executive in public services, in order to ensure judicial independence, and federal legislation has been
enacted to achieve this objective. The State, according to Article 51, must also strive for the promotion of
international peace and security, and Parliament has been empowered under Article 253 to make laws
giving effect to international treaties.
Overview of Articles of Part IV:-
1. Art. 36: Provides the definition of the word “state”.
2. Art. 37: Non-justiciability of any provision contained in this part of the Constitution.
3. Art. 38: Mandates the state to strive for the social welfare of the people.
4. Art. 39: Lists the principles to be followed by the state while carrying out its policy, notably, to
provide adequate means of livelihood to people, distribution of resources and prevention of
concentration of wealth in few hands.
5. Art. 39A: Secures equal justice and free legal aid for the people.
6. Art. 40: Provides for organization of Village Panchayats.
7. Art. 41: Provides work, education and public assistance to unemployed, sick and old age.
8. Art. 42: Provides for just and humane conditions of work and maternity relief.
9. Art. 43: Provides for decent standard of life for all workers.
10. Art. 43A: Directs to provide participation of workers in management of industries.
11. Art. 44: Mandates a Uniform Civil Code for whole of the country.
12. Art. 45: Provides for free and compulsory education.
13. Art. 46: Directs to work for benefit for backward communities.
14. Art. 47: Mandates to raise the level of nutrition.
15. Art. 48: Directs to improve animal husbandry and agriculture.
16. Art. 48A: Provides for improvement for environment.
17. Art. 49: Provides for care of monuments.
18. Art. 50: Separation of Judiciary and Executive.
19. Art. 51: Lays down principles of International policy.
FUNDAMENTAL DUTIES
The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976,
upon the recommendations of the Swaran Singh Committee that was constituted by the government
earlier that year. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th
Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was
provided opportunities for education between the ages of six and fourteen years. The other Fundamental
Duties obligate all citizens to respect the national symbols of India, including the Constitution, to cherish
its heritage, preserve its composite culture and assist in its defense. They also obligate all Indians
to promote the spirit of common brotherhood, protect the environment and public property, develop
scientific temper, abjure violence, and strive towards excellence in all spheres of life Citizens are morally
obligated by the Constitution to perform these duties. However, like the Directive Principles, these are
non¬justifiable, without any legal sanction in case of their violation or non-compliance. There is reference
to such duties in international instruments such as the Universal Declaration of Human Rights and
International Covenant on Civil and Political Rights, and Article 51 A brings the Indian Constitution into
confirmity with these treaties.

Relationship between the Fundamental Rights, Directive Principles and Fundamental Duties
The Directive Principles have been used to uphold the Constitutional validity of legislations in case
of a conflict with the Fundamental Rights. Article 31 C, added by the 25th Amendment in 1971, provided
that any law made to give effect to the Directive Principles in Article 39(b)-(c) would not be invalid on
the grounds that they derogated from the Fundamental Rights conferred by Articles 14, 19 and 31. The
application of this article was sought to be extended to all the Directive Principles by the 42nd Amendment
in 1976, but the Supreme Court struck down the extension as void on the ground that it violated the basic
structure of the Constitution. The Fundamental Rights and Directive Principles have also been used
together in forming the basis of legislation for social welfare. The Supreme Court, after the judgment in
the Kesavananda Bharati case, has adopted the view of the Fundamental Rights and Directive Principles
being complementary to each other, each supplementing the other’s role in aiming at the same goal of
establishing a welfare state by means of social revolution.t’”? Similarly, the Supreme Court has used the
Fundamental Duties to uphold the Constitutional validity of statutes which seeks to promote the objects
laid out in the Fundamental Duties. These Duties have also been held to be obligatory for all citizens,
subject to the State enforcing the same by means of a valid law. The Supreme Court has also issued
directions to the State in this regard, with a view towards making the provisions effective and enabling a
citizens to properly perform their duties
Fundamental Right :
1. Part-III, containing Articles from 12 to 35 deal with Fundamental Rights.
2. The Fundamental Rights can be enforceable by a court against the State.
3. These are primarily aim at assuring political freedom to the citizens by protecting them against
the excessive State action.
4. The Fundamental Rights are given a pride of place by the Constitution makers.
5. The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by legislative
or executive act or orders, except to the extent provided in appropriate Article in Part III.
6. Grover Justice Supreme Court said: “where as the fundamental rights lay down the means by
which that goal was to be achieved.”
7. Fundamental rights occupy a unique place in the lives of civilized society and have been
variously described in judgment of the Supreme Court as “transcendental”, “inalienable” and
“personal”.
8. There are negative in character. The State is asked not to do certain things for the people.
Directive Principles of State Policy :
1. Part -IV, containing Articles from 36 to 50, deal with Directive Principle of State Policy.
2. The Directive Principles of State Policy can not be enforceable by any Court.
3. These are aimed at securing welfare, social and economic freedoms by appropriate State
action.
4. The Directive Principles are given a place of permanence by the Constitution makers.
5. The Directive Principles of State policies have to confirm and to run as subsidiary to the
Chapter of Fundamental Rights.
6. Grover Justice Supreme Court said: “Directive Principles prescribe the goal to be attained.”
7. The Supreme Court described the Directive Principles of State policy as “Conscience of our
Constitution”.
8. These are positive in character. The State is directed to take certain positive steps for the
welfare and advancement of the people.
**********
4. FAMILY LAW II
HINDU LAW
HINDU SUCCESSION ACT, 1956 HINDU JOINT FAMILY AND COPARCENARY
A Hindu joint family consists of a common ancestor, all the lineal male descendants of common
ancestor, wife or wives or widows, unmarried daughters of a common ancestor, unmarried daughter of a
lineal male descendants. The manager of such Hindu joint family is called KARTA.
Mitakshara and Dayabhaga schools having different types in the succession. But both schools
following the paternal system. Mitakshara school following vignaneshwara’s principles, while Dayabhaga
following Jimutavahana’s principles. The heritage followed by Mitakshara school is unabstructed heritage
which is also known as Apratibandha Daya. This is special feature of Mitakshara Joint family system.
The ancestral property of father is unobstructed heritage for the son. The unobstructed heritage is
for four lineal descendants including father (i.e.) son, son’s son, son’s son’s son. Son acquires this right
by birth. The father and son has equal share in the paternal ancestral estate. The property is said to be
coparcenary property, those persons having right by birth are known as coparceners of the property. In
this heritage share are flexible according to birth and death of the one of the coparceners.
Obstructed Heritage
The obstructed heritage is property in which a person gets a right not by birth but on the demise of
the last holder. Obstructed heritage is also called as obstructable heritage.
The Dayabhaga law does not recognise any property as unobstructed heritage. Under that system
all property devolves only as obstructed heritage. Dayabhaga coparceners are in the position of tenants
in common, each with a definite interest.
Right of Coparceners
1. Right to Joint Ownership,
2. Right to common use,
3. Right to enjoyment,
4. Right to survivorship,
5. Right to partition,
6. Right to challenge alienations,
7. Right to alienation,
8. Right to self acquisition,
9. Right to maintenance,
10. Right to marriage expenses.
Gains of Learning
Prior to the enactment of the Hindu Gains of Learning Act, 1930, the personal earnings and
acquisitions of the coparcener may be partiable throughout the life unless he separated himself from
the rest of the family, if he was originally equipped for the calling or career in which the gains were by a
special training at the expense of the patrimony.
Section 3 of the Gains of Learning Act, changed that position and under this, all gains of learning
whether made before or after the commencement of the Act constitute the self acquired property of the
acquirer. Changes in traditional law made by the Hindu Women’s Rights to Property Act, 1937.
232 FAMILY LAW - II
The Hindu Women’s Right to Property Act, 1937 came into force on 14th April, 1937. The Act put
one’s widow, the widow of a predeceased son and the widow of a predeceased son’s predeceased son
on the same level as the male issue of the last owner along with the male issue or in default of them.
In regard to the Hindu Mitakshara joint family property, the Act provided that that widow took place of
her husband. The Act further provided that in all cases the interest taken by the widow was only limited
interest. The Hindu Women’s Right to Property Act, 1937 was repealed by Section 31 of the Hindu
Succession Act, 1956.
Marumakkatayam and Aliyasantana
In the Malabar region of kerala and in the district of canara two similar systems of joint family
inheritance obtained known as Marumakkathayam and Aliyasantana. In both systems descendants was
traced in maternal line (female).
Under this traditional Malabar law, there are large families known as Tarwads, groups descended
in the female line from a common ancestress. A tarwad may consists of a number of branches called
Tawazhis.
Characteristic features
(1) Property was held in commensality by its members,
(2) It was impartiable except with the consent of all its members.
(3) Women was the stock of the descent.
(4) The management of the property was vested in the senior most male member, the other
members of family being entitled only to maintenance.
(5) The issue of male members were excluded from membership.
(6) The property was inalienable except necessity.
The senior most male member is known as Karanavan or Manager. In the absence of senior or any
male member, senior most female can become manager of the family.
In Aliyasantana, it was followed in Karnataka State, they were also following the maternal lineal
descendants as of Marumakkathayam but one difference was the senior most member either male or
female is the manager of the family.
STRIDHAN / WOMEN’S ESTATE
Stridhan
The property of a Hindu woman is called Stridhan. ‘Stri’ means woman, ‘dhana’ means property. It
is also known as woman’s estate. It includes movable and immovable properties. Prior to the Act, there
were several limitations in the right to property. The absolute power of alienation was not given to her.
Acquisition of Woman’s Estate
The Woman’s estate may be acquired in the following way
1. By inheritance
2. By device
3. By partition
4. In lieu of maintenance
5. By arrears of maintenance
6. By gift from any person
7. By her own skill
8. By her exertion
9. By purchase
10. By prescription
11. By mechanical arts
12. By compromise.
233 FAMILY LAW - II
The woman can alienate stridhan property to meet legal necessities only. They need not be actual
compulsion or necessity. It may be a kind of pressure which recognised by law.
KARTA
A senior most male member in a Hindu joint family is called ‘Karta’. ‘Karta’ is the head and manager
of the joint family. He plays a vital role. A women cannot became karta because she is not a coparcener.
When all sons are minor, then their mother can act as manager on behalf of Karta. The Karta’s position
is sui generis, which means ‘unique’. He is having some powers and is bound by some duties.
Powers :
1. Power to manage the family, its property and its business,
2. Power to enter in to contracts,
3. Power to discriminate between the members based on priority.
4. Power to refer the disputes to an arbitrator,
5. Power to repay debt and interest including time barred debt,
6. Power to contract debts,
7. Power to make gift.
Duties of Karta :
1. He must represent family
2. He must maintain all the members of the family
3. He must perform all the marriages of unmarried members.
4. He must prepare the accounts in case of partition.
5. He has to pay taxes and other dues on behalf of the family.
PARTITION
Partition means division. It puts an end to the joint interest. The share is proportionate to the
member of coparceners in the Hindu Joint family. Every coparcener including minor has right to partition
and entitled for a share in the joint family property. Females have no right to partition, however,
fathers wife, mother and grandmother have a right to claim a share. There may be partial partition as to
the property or persons. Partition is purely voluntary and may be partial too. Generally, the entire joint
family property of any kind may be divided but the separate property of the coparceners is not subject
of partition. A coparcener cannot donate his share to others without the consent of other coparceners.
However, he may renounce his share and make a gift in favour of other coparceners. An equal share
should be reserved for the child in the womb. Adopted son has equal right to share in the joint family
property where there is no natural born son to the adopter. If a son subsequently born to the adopter he
is not entitled to the same right to partition and the same share. Various schools allow different shares
to an adopted son as below.
1. In Bengal, 1/3rd of the estate,
2. In Benaras 1/4th of the estate,
3. In Bombay, Madras 1/5th of the estate.
Generally an illegitimate son is not entitled to partition to get his share but he is entitled only to
maintenance. After the enactment of the Hindu Succession Act, 1956, an illegitimate son cannot succeed
to his property.
Mode of Partition
a) Partition by suit
b) Partition by agreement
c) Oral Partition
d) Unilateral declaration
e) Partition by arbitration
234 FAMILY LAW - II
f) Partition by conduct
g) Automatic severance.
Any two or more members of joint family may reunite with an intention to have a common property.
Soon after reunion the status quo ante is fully restored.
Antecedent Debt
Antecedent Debt means preceding loan. The son has a pious obligation to repay his father’s debt.
The object behind the paying of antecedent debt is to protect the interest of the creditor or third person.
Pious Obligation
It means the moral or religious duty of sons to repay their father’s non - avyavaharika debts.
Their liability is limited only to joint family property. Under old law, the sons are personally liable even
for avyavaharika debts and their self - acquired property was liable. Hence the following debts are not
binding on the son
(i) Time - barred debts
(ii) Surety ship debts
(iii) Gaming debts
(iv) Avyavaharika debts.
Avyavaharika means illegal or immoral. Debt taken for illegal or immoral purpose is called
‘avyavaharika debt’.
Examples of avyavaharika debts:
(i) Illegal Debts
(a) Debts for smuggling
(b) Debts for committing a crime
(c) Debts for gambling
(d) Debts for drinking spirituous liquor.
(e) Debts for fines and tolls.
(f) Debts for wagering contracts.
(ii) Immoral debts
(a) Debts for prostitution
(b) Debts for keeping a concubine
(c) Debts for marriage of concubine’s daughter,
(d) Debts for bribing a Hindu woman to take his son in adoption
(e) Debts for gratifying his lust.
In Amritlal v. Jayantilal, AIR 1960 SC 964,
The father executed a mortgage in the course of speculation and incurred debt. Actually there was
no benefit or necessity to the estate. The court held that it was avyavaharika debt.
GENERAL RULES OF SUCCESSION
Legally succession means a chain of persons who have a right to take property. The Hindu
Succession Act, 1956 governs the rules relating to succession. The law of succession is classified into
two categories. They are
1. Testamentary Succession
2. Intestate Succession
1. Testamentary Succession
The testator is free to transfer his property by writing a will. A person who made the will is called
testator. He can determine a scheme of distribution of his property after his death. Therefore the
succession made by the testator by way of will is called testamentary succession.
235 FAMILY LAW - II
S.Sundaresa Pai v. Sumangala. T. Pai, 2002 AIR SC 317.
The court held that uneven distribution of property cannot make the will invalid.
Intestate Succession
Intestate means a person dying without making a will succession of property in the absence of will
is called intestate succession. Intestate succession is based on the law of inheritance. It prescribes the
rules relating to the distribution of property on the basis of relationship.
(i) Descendants
(ii) Ascendants
(iii) Collaterals
(iv) Agnates
(v) Cognates
(vi) Full Blood
(vii) Half Blood
(viii) Uterine Blood
The Hindu Succession Act, 1956 provides five categories of heirs of a hindu male.
Among them Class - I heirs are called ‘preferential heirs’. They are also known as ‘simultaneous
heirs’. The property of a male hindu dying intestate shall devolve as mentioned below::
Class - I

(S) - Predeceased
Class - II Heirs
Entry - I
Father
Entry - II
1. Son’s Daughter’s Son
2. Son’s Daughter’s Daughter
3. Brother
4. Sister
Entry - III
1. Daughter’s Son’s Son
2. Daughter’s Son’s Daughter
3. Daughter’s Daughter’ s Son
4. Daughter’s Daughter’s Daughter
236 FAMILY LAW - II
Entry - IV
1. Brother’s Son
2. Brother’s Daughter
3. Sister’s Son
4. Sister’s Daughter
Entry - V
1. Father’s Father
2. Father’s Mother
Entry - VI
1. Father’s Widow (step mother)
2. Brother’s Widow
Entry - VII
1. Father’s brother
2. Father’s Sister
Entry - VIII
1. Mother’s Father
2. Mother’s Mother
Entry - IX
1. Mother’s Brother
2. Mother’s Sister
General Rules of Succession in the case of males. ( Sec. 8 )
According to Section 8, the property of a male hindu dying intestate shall devolve as below.
a) Firstly, upon the heirs, being the relatives specified in Class - I of the schedule.
b) Secondly, if there is no heir of Class - I, then upon the heirs, being the relatives specified in
Class - II of the schedule.
c) Thirdly, if there is no heir.
General rules of succession to the property of females.
According to Section 14, any property possessed by a female Hindu whether acquired before or
after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
According to Section 15, the property of a Hindu female is categorized under the following heads.
1. The property inherited by a female from her father or mother,
2. The property inherited by a female from her husband or father - in - law.
3. The property obtained from any other source, by inheritance or otherwise.
According to Section 15 (1), the property of a Hindu female dying intestate shall devolve as per the
rules set out in section 16 of the Act. They are
a) Firstly, upon the sons and daughters, children of predeceased son or daughter, husband.
b) Secondly, upon the heirs of the husband,
c) Thirdly, upon the mother and father,
d) Fourthly, upon the heirs of the father and
e) Lastly, upon the heirs of the mother.
According to Section 16, the property of a Hindu female dying intestate shall devolve as per the
following rules. They are.
Rule 1 : According to this rule, the order of priority among the five groups of heirs mentioned in
section 15 (1) and its clauses (a) to (e). Heirs belonging to same group take simultaneously. This rule
however does not speak about the quantum of shares to be taken by any group.
237 FAMILY LAW - II
Rule 2 : According to this rule, where children and eligible grand children co exist the distribution
of property will be per stripes and not per capita.
Rule 3 : According to this rule, a legal fiction whereby property actually belonging to one deceased
person is presumed to be that of another deceased person who died earlier.
Dwelling House
Dwelling house means the house which is wholly occupied by the members of the family of intestate.
Dwelling house is included in property of a Hindu dying intestate and the intestate leaves behind both
male and female heirs (specified in Class - I of the schedule) who occupy the dwelling house any such
female heir cannot claim partition of the dwelling house unless and until the male heir choose to divide
their respective shares therein, but the female heir shall be entitled to a right of residence therein. In case
of a daughter even this right is restricted to such of the female heirs are unmarried or are widows have
been deserted by or separated from the husband.
Disqualifications
Section 24 to 28 deals with the disqualifications to inherit the property under Hindu Law. They are,
Sec. 24 - Certain widows remarrying may not inherit as widows.
Sec. 25 - A person who commits murder or abets the commission of murder shall be disqualified
from inheriting the property of the person murdered or any other property of the person murdered or any
other property in furtherance of the succession to which he or she committed or abetted the commission
of the murder.
Sec. 26 - A Hindu who has ceased or ceases to be a Hindu by conversion to another religion,
children born to him or her after such conversion and their descendants shall be disqualified from
inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at
the time when the succession opens.
Sec. 27 - If any person is disqualified from inheriting any property under this Act, it shall devolves
as if such person had died before the intestate.
Sec. 28 - No person shall be disqualified from succeeding to any property on the ground of any
disease, defect or deformity or save as provided in the Act, or any other ground whatsoever.
Escheat
Escheat means aversion to the state in the absence of the legal heirs. According to section 29, if
an intestate has left no heir qualified to succeed to his or her property shall devolve on the Government.
MUSLIM LAW
HIBA
The meaning of Hiba is gift. Hiba is a transfer of property made immediately without any exchange
by one person to another and accepted by or on behalf of the later.
Donor : The maker or founder of the gift.
Donee : One who receives the property or gift or he is beneficiary.
Gift to unborn person
The gift made to unborn person or not in existence, the that gift is not valid not yet in
existence.
How gifts are made : Offer and acceptance
1. Declaration of gift by the donors
2. Acceptance of gift by the done
3. Delivery of possession immediately
4. Registration (if the property is immovable then registration is compulsory)
Kinds of Gift
1. Conditional Gift
238 FAMILY LAW - II
2. Future Gift
3. Contingent Gift
Conditional Gift
X is the donor gives the immovable property Y is done he gave conditions to enjoy the property
during his life time, but no right to mortgage or lease or to sell this. This gift is totally invalid.
Future Gift
X donor gave agriculture property to Y donee. Its act of god. Its invalid.
Contingent Gift
May or may not happen. On the happening of the specified event.
Illustration
My mansion is thy raq ba. My manson is for you as a gift.
i. If I die it’s yours
ii. If you die it’s mine.
If the gift is like this then it’s invalid.
Exceptions
Delivery of possession immediately is not necessary
i. Guardian ( in case of minor )
ii. Where the donor and donee resides in the same house.
MUSHAA
Meaning of Mushaa is undivided share. Schedule of property is not mentioned. Classification of
Hiba or Classification of Gift
1. Sadaqa
2. Hiba - bil - iwaz
3. Hiba - ba - sharat - ul - iwaz
4. Areeat.
1. Sadaqa
Meaning of sadaqa is pious or charitable ( purposes ) Act.
A gives B Rs. 10,000 for purchasing books is called sadaqa.
Hiba is secular one. But this sadaqa is only for religious purposes.
2. Hiba - bil - iwaz
Hiba is a gift by donor to donee, iwaz - return gift by donee to donor. Hiba - bil - iwaz means gift with
return gift. Gift need not be exact price. It may be small amount. So, it is not a sale.
3. Hiba - ba - sharat - ul - iwaz
Hiba - ba - sharat - ul - iwaz means gift with stipulation ( compelling ), covenant or contract.
4. Areeat
Areeat means temporary licence to enjoy the profit. This is revocable at any time without any
payment.
WAKF
Wakf means detention or stoppage. A is a muslim having some property, suppose A dies the
property goes to son, grandson, great grandson and their legal heirs, without an extinction of family it is
given to the poor people.
Immediately dedicated to God that is to poor, orphans, widows. Wakif, the maker of the wakf owner
of the property.
Registration: Immovable property worth more than Rs. 100, then registration then its known as
‘wakfnama’. The transfer must be between two living persons (i.e. intervivos). There is no unending
period. Wakif has no right to cancel or to modify or revoke the wakf.
239 FAMILY LAW - II
Illegal Wakf
To delay or defeat creditors. If the wakif is having debt on his property. Musalman wakf validating
Act, 1913 explain this
Abdul Fata Mohammed v. Russomoy
Two muslim brothers makes wakf deed when there is total extinction of the family then only the
property goes to the people.
Privy council held that the deed “charity begins at home”. Muslims agitate this decision. If a Muslim
makes a wakf deed for his family that is a valid wakf. That wakf is called wakf - alal - aulad which means
family wakf.
MUTAWALLI
Manager or Superindent of the Wakf property. He is not the owner of the property. He is only the
servent of the God.
Powers
To protect and administer the Wakf property. He is not having power to sell, lease or mortgage the
Wakf property. Wakif himself may a mutawalli, a non- Muslim may also be appointed as mutawalli. Wakif
issues may also be called as mutawalli.
Remove of Mutawali
Once mutawalli is appointed, Wakif has no power to remove him from office. He may be removed
by court on the proof of misconduct. He has no power to transfer the office to another. He may appoint
agents.
Remuneration
Remuneration is fixed by the founder (i.e., discretion of the founder). Suppose he didn’t fix the court
will fix the amount not exceeding 1/10 th of the property.
Takia
Meaning of Takia is resting place or Tombor burial ground.
Kanka
Means religious institution founded by Holyman. He had some disciples.
Sajjadanashin
1. He is the head of the Kanka.
2. Divide the words in to two Sajjada and nashin. Sajjada means carpet used by Mohammedan
for prayer Nashin is sitting. Meaning is one who sits in prayer mat.
3. He is a religious teacher.
4. A female cannot be a Sajjadanashin.
5. The court may remove him for misconduct.
6. A minor cannot be Sajjadanashin.
Mujawar
Mujawar meant servant of Muslim mosque. Duty of Mujawar is sweeping the floor and keeping the
Dharga clean. A female may be a Mujawar.
Kazi
Meaning of Kazi is Judge. S.92 of C.P.C. defines what’s their work, powers, discretions and
procedures to be followed.
Wassiyat
Under Muslim law will is known as Wasiyat. A person who will is called testator. Will means strength
of mind. Tyabi defines will as legal declaration of the intention of a testator with respect to his property
which he desires to be carried after his death.
240 FAMILY LAW - II

Capacity to make a will:
1. Must be a Muslim.
2. Must be a major who has attained 18 years of age.
3. Must be person of unsound mind.
Forms of Will
Under Muslim law there is no particular for of a will. It need not be in writing. It may be either orally
or in writing. A written will is always be treated as a complete will.
Limitations to dispose the property
A Muslim is allowed of will to dispose only 1/3rd of the net assets after allowing for the debts and
funeral expenses of the testator. Any will made in favour of one of his heirs in voidable at the option of
his remaining heirs. Under Muslim law a man is not allowed to dispose of his whole property. His power
to dispose the property by will is limited in two ways.
1. He cannot bequeath more than 1/3rd of the net assets.
2. He cannot bequeath to his own heirs.
The testator who disposes of more than 1/3rd of the property can be legalized after obtaining the
consent of the remaining heirs. Such consent may be expressed or implied.
Under Muslim law a testator is not permitted to alter the provisions of the will executed by him. The
alteration in the will clearly indicated that the testator has changed his intention and therefore, the will be
treated as revoked.
HANAFI LAW OF INHERITANCE TABLE OF SHARES
Share as varied by special
Two or circumstances
Normal
more Condition under which
S.No. Shares share
collecti- he share is inherited
of one
vely
1. 1/2 when there is no child or child

- When there is a child
Husband 1/4 of son h./.s.
or child of son h./.s.

When there is a child 1/4 when there is no child or child
2. Widow 1/8 1/8
or child of son h./.s. of son h./.s.
When there is a child When there is no child or child of
3. Father 1/6 -
or child of son h./.s. son. Father inherits as a residuary
a. When there is a 1/3 in other cases a,b,c.
child or
child of son h./.s.
b. when there are
4. Mother 1/6 - brothers or sisters.
c. b
rothers or sisters
including full brother
or sister,consanguine
brother or sister.
True When there is a When there is no son and daughter
5. Grand 1/6 - child or child of his father, the grandfather inherits
Father son h./.s., father as residuaries
241 FAMILY LAW - II

True
6. Grand 1/6 - When no mother -
Mother
Daughter When son, she becomes residuary
7. 1/2 2/3 When no son
When no son, Only one daughter, son’s daughter

Son’s
8. 1/2 2/3 daughter son’s will take 1/6
Daughter
son
Uterine When no child, child -
1/3
9. Brother 1/6 of a son, Father or
true grandfather
When no child, child -
Uterine
10. 1/6 1/3 of a son, Father or
Sister
true grandfather
When no child, child With the full brother she becomes
Full
11. 1/2 2/3 of a son, father or residuary.
Sister
true grandfather
When no child, child But if there is only one sister,
Consan-
of a son, father or consanguine sister will take as
12. gunie 1/2 2/3
true grand-father, full (residuary) 1/6
sister
brother, full sister.
h.l.s. - how low soever
h.h.s. - how high soever.
Shia law of inheritance
Under shia law of inheritance 9 sharers are there as like Hanafi law of inheritance. Except True
Grandfather, True Grandmother and son’s daughter table of share is same.
INDIAN SUCCESSION ACT, 1925 - (WILL)
Will means a legal declaration of the intention of a testator with respect to his property, which he
desires to be carried into effect after his death. Will is a testamentary document. A will declares the
person’s intention to be performed after his death. Hence it will take effect only from the date of the
testator.
s.2(h) defines will. A legal declaration of the intention of a testator with respect to his property,
which he desires to be carried into effect after his death.
Essential characteristics of a will
1. Legal declaration by the maker
2. The declaration must relate to his property
3. It must take effect only after the death of the maker.
4. It must be revocable during the lifetime of the maker.
5. A competent person must execute it.
Capacity of making will
According to S.59 every person of sound mind not being a minor may dispose of his property by
will.
Codicil
Codicil mean s addition or supplement. It modifies a will. Codicil is an instrument dame in relation
will and explaining, altering or adding to its dispositions. Sometimes the maker of a will may prefer to alter
or amend the will executed by him. Law permits the maker to make alterations to the will.
242 FAMILY LAW - II
Types of legacies
1. Specific legacy (S.142)
2. Redemption of legacy (S.152)
3. Demonstrative legacy. (S.150)
Kinds of will
1. Sham will
2. Helograph will
3. Nungupative will
4. Conditional will
5. Contigent will
6. Privileged will
7. Unprivileged will
Domicile
Meaning of domicile is residence or place. S04 -19 of Indian Succession Act defines domicile.
This is applicable to
1. European by birth
2. Indian Christian
3. Parsi
4. Hindu by conversion
Kinds of domicile
S.7 to 8 - by birth i.e., origin
S.10 to 13 - domicile by choice
S.14 to 18 - domicile by operation of law.
PROBATE AND GRANT OF ADMINISTRATION
Probate means the copy a will certified under the seal of a court of competent jurisdiction with a
grant of administration to estate of the testator. (S.2(f))
Administrator means a person appointed by competent authority to administer the esgtagte of a
deceased person when there is no executor. (S.2(a))
Executor means a person to whom the execution of last will of a deceased person is, by the
testator’s appointment, confided. (S.2(c))
According to section 22 probate can be granted only to the executor appointed, expressly or
impliedly by the will. An application for probate is made by a petitioner to the district judge within whose
jurisdiction the testator at the time of his death had a fixed place of abode or had left some part of his
property.
According to section 223 probate cannot be granted to any person who is a minor or of unsound
mind or to any association of individuals.
According to section 227 probate of a will when granted establishes the will from the death of the
testator and renders valid all intermediate acts of the executor as such.
According to section 236 the letters of administration cannot be granted to any person who is a
minor or of unsound mind nor to any association of individuals unless it is a company.
SUCCESSION CERTIFICATE
Succession certificate means a certificate granted by the court with respect to any debts or securities
to which person has become entitled as result of succession to another. Security means any promissory
note, debenture, stock, any bond etc.
243 FAMILY LAW - II

S.371 the District Judge within whose jurisdiction the deceased ordinarily resided or found at the
time of his death, may grant a succession certificate.
A succession certificate can be granted in the following case.
1. When probate or letters of administration is not compulsory.
2. When the deceased is an Indian Christian.
3. When the deceased is a Mohammedan
4. When the decease is a Hindu and has left a will and probate.
5. When the Hindu joint family property passes by survivorship.
Where the law requires probate or letters of administration compulsorily, a succession certificate
cannot be granted.
The certificate shall specify the debts and securities and may empower the person to receive
interest or dividends or to negotiate or transfer or both to receive interest or dividends on and to negotiate
or transfer the securities any of them.
CHRISTIAN LAW OF INHERITANCE
Inheritance is of two kinds

Inteste Succession(leaving no will) Testamentary Succession(will)
1. Succession to male intestate (S.33)

1. If the deceased has left a widow, but no lineal descendants or collaterals, she takes the entire
estate - (Full estate)
2. If he has left no lineal descendants but there are ascendants or collaterals, she (widow) takes
/ share.
3. If there are lineal descendants she takes 1/3 rd of the property.
4. A widow may be excluded from inheritance by a valid contract made before her marriage.
2. Lineal descendants (issues)
1. In the presence of the widow the lineal descendants (i.e.,) children and
descendants of the children takes 2/3 rd of the property.
2. Otherwise they take whole of the estate.
3. If they are equal degree, they share equally.
4. If there are two children and three grandchildren by a predeceased child there will be three
shares. Each child will get one share and three grandchildren taking the share of the deceased
parent.
3. Father’s share
When there are no lineal descendants after deducting the share of the widow, the remaining share
goes to the father.
4. Mother’s share
If the father is dead, the mother takes whole of the property after deducting the widows half share,
when there are no brother, no sister and their children.
5. Brother, Sisters and their children
1. If the mother is also dead, brothers, sisters and their children takes the property.
2. Even if the mother is alive, she cannot exclude brothers, sisters and their children wholly.
244 FAMILY LAW - II

6. Nearest of kin
In the absence of lineal descendants, parents, brothers and sisters the relatives who are in the
nearest degree of kindred share equally after deducting the widow’s share.( 1/2 )
GIFTS
According to Section 122 of the Transfer of Property Act, Gift is the transfer of certain existing
movable or immovable property made voluntarily and without consideration by one person called the
donor, to another called the donee and accepted by or on behalf of the donee : such acceptance must be
made during the life-time of the donor and while he is still capable of giving and if the donee dies before
acceptance, he gift is void. But Section 129 of the same Act lays down : “Nothing in this chapter (on
Gifts shall be deemed to affect any rule of Mohammedan Law.” This clearly indicates that the definition
of gift under the Mohammedan Law considerably differs from that defined in Section 122 of the Transfer
of Property Act. This conflict between the definition of Gift under the two systems of law arises when the
term Hiba (term used in Mohammedan Law for Gift) is qualified by adjuncts importing consideration, that
is when Hiba is regarded partly as a gift as defined above and partly as sale or exchange.
Who can make a gift
Every Muslim of sound mind and not a minor may dispose of his property by gift. For the purposes
of ‘gift’ the age of majority of the donor is determined by the Indian Majority Act, 1875. According to
this Act every minor who has attained the age of 18 years becomes major unless the superintendence
of his property has been assumed by the Court of Wards, in which case a minor becomes a major on
completion of 21 years of age and not before. Under the Muslim Law it is immaterial whether the donor
is a man or a married woman. Hence she has the same right to make a gift as a man, and marriage does
not impose any disabilities provided that the subject- matter of the gift is one over which she possesses
absolute domination or right.
Besides the donor being a major and of sound mind, it is further essential that he (donor) should
have ownership of the subject matter of the disposition.
Ancestral and Self-acquired property
The Mohammedan Law does not make any distinction between ancestral or self-acquired property
or movable or immovable property. Anything over which dominion or the right of property may be
exercised, or anything which can be reduced into possession or which exists as a specific entity or as an
enforceable right, may form the subject of a gift. Thus, actionable claims and incorporeal rights may form
the subject of gifts equally with corporeal property. A gift, as distinguished from a will, may be made of
the whole of the donor’s property.
Essentials of a valid gift
Every Mohammedan of sound mind who has attained the age of puberty may make a valid gift. A
gift, as distinguished from a will, may be made of the whole of the property, and it may be made even to
an heir. It may be made orally or in writing. Even registration is not necessary. The provision of Section
123 of the Transfer of Property Act, which provides that a gift of immovable property must be effected
by a registered instrument, signed by the donor and attested by at least two witnesses, and that a gift of
movable property may be effected either by a registered instrument as aforesaid or by delivery do not
apply.
The essentials of a valid gift are
(a) That there must be a clear and unambiguous intention to make a gift by the donor.Where
there is no real bona fide intention to make a gift, the gift will be void. In Qa mar Uddin
v. (Mst) Hassan Jan, (1934), 16 Lah. 629, a gift of house was made by the donor to the donee
without delivering the title deeds; no mutation of name was effected and the donor continued
to pay the house—tax, it was held that the gift could not be said to be complete and valid as
all the requirements of Muslim law had not been fulfilled.
245 FAMILY LAW - II
(b) That there must be an acceptance of the gift express or implied, by or on behalf of the donee.
(c) That there must be delivery of possession of the subject of the gift by the donor to the donee.
Delivery of Possession
Under the Mohammedan Law it is absolutely essential for a valid gift that there should be a delivery
of such possession as the subject of the gift is susceptible of. The importance of delivery of possession
has been stressed by their Lordships of the Privy Council in Mohammad v Fakir Jahan (1922) 49 I.A.
195, where they observed. “The taking of possession of the subject- matter of the gift by the donee,
either actually or constructively is necessary to complete a gift.” Registration of a deed of gift does not
cure the want of delivery of possession. A recital in the deed of gift that possession has been given to a
minor nephew without the intervention of a father or a guardian was, on the facts, held to be insufficient
to support a gift as against the heirs of the donor. [Jumman v. Husain (1931) 129 I.C.].
The real test of delivery possession is to see whether the donor, or the donee reaps the benefit; if
the former is the case, possession is not transferred and if latter, it is transferred, and the gift is complete
as the donee is permitted directly or indirectly to receive the benefit [Ebrahim Alibhai Akuji v. Bai Asi,
(1933) 58 Bomb. 254]. The conduct of the parties concerned is the best guide to see whether a gift is
fictitious or otherwise. Thus where a donor makes a gift of the corpus of a property but reserves the
usufruct to himself and continues in physical possession of the property, the payment by the donee of
Government Revenue after date of gift in respect of the property amounts to constructive possession of
the property on the part of the donee and the gift is completed by such possession. But in Qamar Uddin
v. (Mst). Hassan Jan, (1934) 16 Lah. 629, a gift of a house was made by the donor to the donee without
delivery of the title deeds : no mutation of name was effected and the donor continued to pay the house
tax; it was held that the gift could not be said to be complete and valid as all the requirements of Muslim
Law had not been fulfilled.
In the following cases delivery of possession is not necessary : it is presumed in favour of the
donee.
1. No delivery of possession is required in the case of a gift by father to his minor child or by a
guardian to his ward. All that is necessary is to establish a bona fide intention to give.
The guardian referred to above is the guardian of the property of a minor. Therefore, when
father is the guardian of the property of his minor son, no transfer of possession is necessary.
Similarly no change of possession is necessary in the case of a gift by grandfather to his
minor grandson if the father is dead. But if the father is alive and has not been deprived of his
rights and powers as guardian, there must be a delivery of possession by the grandfather to
the father as guardian of his minor sons, otherwise the gift is not complete. As the mother is
not the guardian of the property or her minor son, there must be delivery of possession to the
legal guardian of her son.
2. No delivery of possession is required in the case of a gift by a husband to the wife and vice
versa, whether the property is used by them for their joint residence, or is let out to tenants in
this connection the observation of Sir M. Sausee, C.J. in Amina Bibi v Khatija Bibi, (1864), 1
BHCR 157 are very pertinent. His Lordship said, “The relation of husband and his legal right
to reside with her and to manage her property rebut the inference which in the case of parties
standing in a different relation, would arise from continued residence in the house after the
making of gift.” In Ma Mi v. Kallender Ammal, (1926) 54 I.A. 22, the gift was by husband to
the wife and mutation of names was effected. Their Lordships of the Judicial Committee
said, “It must, therefore, be taken that mutation was effected by Moideen (husband) himself,
and in the case of a gift of immovable property by a Mohammedan husband to his wife,
once mutation of names has been proved, the natural presumption arising from the relation
of husband’s and wife existing between them is that the husband’s subsequent acts with
reference to the property were done on his wife’s behalf and not on his own.” But no mutation
246 FAMILY LAW - II
of name is necessary, if the deed of gifts declares that husband delivered possession to the
wife, and the deed is handed over to her and retained by her. (Mohammad Sadiq v Fakhr
Jahan Begum, 1932 A.L.J. 663).
3. No delivery of possession is necessary where property gifted is incapable of physical
possession.
Modes of delivery of possession
(1) As regards movable property the gift is not complete unless the property has been actually
delivered.
(2) In the case of immovable property—
(a) Where the donor is in possession, a gift is not complete unless the donor physically
departs from the premises with all his goods and chattels and the donee formally enters
into possession.
(b) Where the property is in occupation of the tenants a request by the donor to the tenants
to attorn to the donee or by delivery of the title deed or by mutation in Revenue Register.
(c) Where the donor and donee both reside in the property in such a case no physical
departure of formal entry is necessary. In this case the gift may be completed by some
overt act by the donor indicating a clear intention on his part to transfer possession
and to divert himself of all control over the subject of the gift. (Shaik Ibrahim v. Shaik
Suleman, (1884) 9 Bom. 146).
(3) In the case of gift of immovable property by husband to wife—it is not necessary for the husband
to depart even temporarily provided it can be inferred from the surrounding circumstances
that he had real and bona fide intention to make a gift.
(4) In the case of gift by the father or other guardian to a minor or a lunatic, the declaration of gift
is sufficient to change the possession of the father or other guardian on his own account into
possession on the minor’s account.
(5) Where the subject-matter of a gift consists of shares in Zamindari villages and parcels of land
in the case of which physical possession is impossible the gift may be completed by mutation
of names and transfer of rents and incomes arising out from the property. Actual possession
is not necessary where the property gifted is not capable of being possessed physically.
(6) In the case of incorporeal property and actionable claims, the gift may be complete by an act
on the part of the donor showing a clear intention on his part to divert himself in praesenti of
the property and to confer it upon the donee.
(7) Where the subject of gift is already in possession of the donee as bailee the gift may be
completed by declaration and acceptance without formal delivery of possession.
Gift in future
A gift cannot be made of any property to be performed in future nor it can be made to take effect
at any future period. The rule is based on the principle that the object of the gift must be in existence at
the time of the gift.
Contingent gifts
A gift made to make effect on the happening of a contingency is void.
Gifts with a condition
When a gift is made subject to a condition which destroys the effect of the gift, the condition is void
and the gift will take effect as if no conditions were attached to it.
Illustrations
(a) A makes a gift of a house to B on condition that he shall not sell it, or that he shall sell it to a
particular individual, or that B shall give some part of it in iwaz or exchange.The condition is
void, and B takes an absolute interest in the house.
247 FAMILY LAW - II
(b) A makes a gift of certain property to B. It is provided by the deed of gift that B shall not transfer
the property. The restraint against alienation is void, and B takes the property absolutely.
Gifts to unborn persons
A gift made to a person not in existence at the date of the gift is not valid. Even when the gift to an
unborn person is made through a trust the gift is not valid. The only way in which a disposition may be
made to an unborn person is that by way of wake.
Gift of a life estate (Umra)
A umra or life grant is nothing but a gift with a condition. The donee gets an absolute interest in the
property and the condition is invalid.
Gift of an undivided share (Mushaa)
A mushaa is an undivided share in the property either movable or immovable. A valid gift may
made of an undivided share in property which is not capable of division.
A gift of an undivided share in the property which is capable of division is irregular, but not void.
The gift being irregular it may be perfected and rendered valid by subsequent partition and delivery to the
donee of the share given to him. Under the Shia Law gift of a Mushaa is valid even though the property
is capable of division.
Mushaa - The word ‘mushaa’ has been defined by Baillie as ‘an undivided part’ or share, a common
building or land. The general rule is laid down in the Hedaya :— ‘A gift of a part of a thing which is capable
of division is not valid unless the said part is divided off and separated from the property of donor; but a
gift of an indivisible thing is valid. Thus the property in which the donor has an undivided share, may be
(a) incapable of partition; or
(b) capable of partition.
Incapable of Partition
When the property in which the donor has an undivided share is capable of partition the gift is valid.
For instance, A who owns a house makes a gift to B of the house and of the right to use a staircase
used by him jointly with the owner of an adjoining house; the gift is valid since a staircase is incapable
of division.
capable of Partition
When the property in which the donor has an undivided share is capable of partition, the gift is
irregular, but not void. Such a gift may be perfected and rendered valid by subsequent partition and
delivery to the donee of the F.4 share given to him.
Exceptions
A gift of an undivided share (Mushaa), though it be a share in property capable of division, is valid
from the moment of gift, even if the share is not divided off an delivered, in the following cases:
(a) Where the gift is made by the one co-heir to another;
(b) Where the gift is of a share in a Zamindari or Taluka ;
(c) Where the gift is of a share in freehold property in a large commercial town;
(d) Where the gift is of a share in a land company.
(e) Periodical payments in the nature of life grants.
The High Court of Allahabad in Ahmedi Begum v. Abdul Aziz (1927) 49 All. 503 threw upon a
device to get over the doctrine of Mushaa, when it held that though a valid gift could not be made of an
undivided share in property which was capable of division, the difficulty might be overcome by the donor
selling the undivided share at a fixed price to the person to whom the gift was intended to be made, and
then releasing that person from payment of the debt representing the price.
In Muhammad Mumtaz v. Zubaida Jan, (1889) 16 I.A. 205 their Lordships of the Privy Council
remarked : “The doctrine relating to the invalidity of gift of Mushaa is wholly unadapted to a progressive
state of society and ought to be confined within the strictest rules.”
248 FAMILY LAW - II
Shafei and Shia Laws
Under Shafei and Shia Laws a gift of an undivided share in property whether capable of division or
not, is valid. The Shias only insist that the portion of the property gifted must be indicated with definiteness
and certainty.
Revocation of gift
A gift can be revoked before deliv-ery of possession because before delivery of possession a gift is
not complete. There is a conflict of opinion between the different schools of Muslim Law as regards the
power of donor to revoke as simple gift.
Hanafi Law
Gift may be revoked by the donor at any time before delivery of possession. It may be revoked after
the delivery of possession if a decree of a civil court cancelling the gift is obtained. In the following cases
a gift cannot be revoked after the possession has been delivered to the donee :-
1. When the gift is made by a husband to his wife and vice versa.
2. When the donee is related to the donor within the prohib-ited degrees.
3. When the donee is dead, and the subject-matter of the gift has devolved on the
donee’s heirs.
4. When the subject of the gift
(a) has passed out of the possession of the donee by gift, sale, or otherwise;
(b) has been lost or destroyed;
(c) has increased in value, whatever be the cause of in-crease and the increment is such
as is inseparable from the subject itself;
(d) has been so changed that it cannot be identified for instance when wheat is converted
into flour by grind-ing.
5. When the donor has received something in exchange (Iwaz), for instance a gift by a lady
in praesenti with consideration that the maintenance expenses during her life-time and her
funeral expenses after death would be met by the donee.
Shafei and Maliki Laws
Under the Shafei and the Maliki Laws, in the absence of any coercion or want of understanding, a
gift is irrevocable, whether the delivery of possession has taken place or not. Parents have the power to
revoke a gift made in favour of their children except in the following cases :-
1. When the subject of the gift has changed its original form or has disappeared in toto or in part,
or has been sold or ex-changed;
2. When the donee’s marriage has taken place in consideration of the thing given; and
3. When the donee is dead and the property has passed to his heirs.
Shia Law
The Shia Law differs from the Hanafi Law in the cases enumerated below :-
1. A gift to any blood relation, where within, the prohibited degree or not, is irrevocable after the
delivery of possession.
2. A gift by a husband to his wife and vice versa is revocable;
3. A gift may be revoked by mere declaration on the part of the donor without any proceedings
in Court.
Sadaquah is a gift made with the object of acquiring religious merit. Like Hiba, it is not valid unless
accompanied by delivery of possession; nor is it valid if it consists of an undivided share in property
capable of division. But unlike Hiba Sadaquah once completed by delivery, is not revocable, nor is it
invalid if made to two or more persons all of whom are poor.
249 FAMILY LAW - II
A Sadaquah can be distinguished from the waqf in the point that in case of a Sadaquah, the corpus
may be consumed; while in case of waqf, the income only canbe spent. [Gulam Ali v. Sultan Khan,
(1967) A.I.R. Ori. 55].
Hiba-bil-iwaz
It literally means a gift for next change. It is of two kinds, namely:
1. The trust hiba-bil-iwaz. i.e., hiba-bil-iwaz, as defined by older jurists, and
2. The hiba-bil-iwaz is followed in India.
1. The hiba-bil-iwaz
The true hiba-bil-iwaz consists of two acts, namely (a) hiba, and (b) iwaz not stipulated for at the
time of the hiba. Thus, if A without having stipulated for a return makes a gift of his house to B and
B in consideration of the house, without having promised it, subsequently makes a gift of Rs.10,000
to A, saying that it is the iwaz or return for the gift of the house, and delivers the said amount to A,
the transaction is a true hiba-bil-iwaz. and neither party can revoke it.
2. Hiba-bil-iwaz as followed in India
Hiba-bil-iwaz followed in India consists of only one act, the iwaz or exchange being involved in the
contract of gift as its direct consideration. Thus if in the above illustration “A says to B that he (A)
has given his house, to him (B) in consideration of his paying him (A). Rs.10,000” the transaction
will be a hiba-bil-iwaz of India. In fact, the hiba-bil-iwaz of India was introduced here by Muslim
lawyers in India as a device for effecting a gift of Mushaa in property capable of division.
The transaction is in reality a sale and has all the incidents and conditions of a sale. So, possession
is not essential to com-plete the transfer as it is in the case of a hiba, and an undivided share (Mushaa)
in property capable of division may be lawfully transferred by it.
There are two conditions necessary for the validity of the transaction, namely -
1. Actual payment of consideration on the part of the donee’ and
2. A bona fide intention on the part of the donor to divest himself in praesenti of the property and
to confer it upon the donee.
Hiba-ba-shart-ul-iwaz
It is a gift made with a stipulation for a return. To make the gift valid, it is essential that it should be
accompanied by deliveryof possession. Like hiba, the gift is also revocable under certain circumstances.
But the gift becomes irrevocable on delivery by the donee of the iwaz (return) to the donor.
Areeat
The grant of a licence resumable at the grantor’s option to take and enjoy the usufruct of a thing is
called the ‘Areeat’. It is a temporary licence to enjoy the profits so long as the grantor pleases and is not
a transfer of ownership as in the case of hiba.
Marz-ul-maut
The most accepted definition of Marz-ul-maut or death-illness is that it is one which, it is highly
proba-ble, will end fatally. (Baillie). Sir D.F. Mulla defines it an illness which includes apprehension of
death in the near future, in the person concerned and which actually results in his death.
An illness constitutes marz-ul-mau, if there is :
(a) the proximate danger to death, so that there is a pre-ponderance of apprehension of
death;
(b) some degree of subjective apprehension of death in the mind of the sick person ;
(c) some external indicia, chief among which would be inability to attend to ordinary avocations.
**********
250 FAMILY LAW - II
5. CLINICAL COURSE - I
PROFESSIONAL ETHICS & PROFESSIONAL ACCOUNTING
SYSTEM (INTERNAL)
Importance of Legal Profession
The Legal Profession plays a very important role in the administration of Justice. Lawyers assists
the court in arriving at a correct Judgement. Actually the law is very complicated. The language of acts
and regulations is often found very complicated and confusing and not easy to be understood. The
lawyers are not puppets compelled to obey the dictate of their clients. Where matters of good faith
and Honourable conduct are concerned. They are also responsible to the court for the fair and honest
conduct of a case, they are agents, not of man who plays them but are acting in the administration of
justice.
According to C. L. Anand has stated that ‘It has rightly been observed that a sound system of the
administration of justice should posses 3 ingredients, namely
i) A well planned body of laws based on wise concepts of social justice;
ii) A judicial hierarchy comprised of the Bench and Bar;
iii) The learned in the law and inspirited by high principles of professional conduct and
existence of suitable generation to ensure fair trial.
So the legal profession is a profession of great honour. It has been created not for private gain but
for public good: It is not money making occupation but a branch of Administration of Justice.
Legal Profession in Pre-British India
During the Hindu period the courts derived their authority from the king who was considered the
fountain head of justice. The King’s Court are superior to all other courts. The king was advised by his
councillors in hearing and deciding the case but he was not bound by their advise.
There is no mention in the Kautilya’s Arthasastra about the existence of legal profession and
therefore most probably such a class did not exist. But according to Justice Ashutosh Mukherjee legal
profession was in existence during the Hindu period.
During the Muslim period the litigants were represented by a body of persons known as Vakils The
court of the kings Administrations concerned determined who should be allowed to appear as Vakil in a
Zilla Court. During this period the legal profession was not an organised one. The Vakils acted more an
agent for principals then as lawyer:
Legal Profession during British period:
The East Indian Company was not interested in legal profession. And there was no uniform Judicial
system in the settlements of the East Indian Company.
First by a Charter of 1726 a uniform system in each Presidency Towns i.e., Bombay, Calcutta,
Chennai, created and Mayor Court was introduced. There was no specific regulation for the legal
practitioners and no provision for legal training. Many person having no knowledge of law were practising
law. After the Regulating Act 1773 and the Charter of 1774 there was much development of legal
profession.
The crown abolished the charter of 1774 and established Supreme court of Judicature at Calcutta
by issuing a charter and the mayor court were abolished.
As per clause II of the Charter of 1774, provided and contained as “We do further authorise and
empower the said Supreme Court of Judicature at Fort William in Bengal to approve, admit and enrol
such and so many Advocates and attorneys at law as to the said Supreme Court of judicature at Fort
William in Bengal seem meet, who shall be attorneys on record shall be and are hereby authorised to
251 CLINICAL COURSE - I
appear and act and plead and act for suitors of the said supreme Court of Judicature at Port Williams and
the said Advocates and Attorneys on reasonable ground to remove and no other persons whatsoever but
such Advocates and attorneys so admitted and enrolled shall be allowed to appear and plead or act in
the said Supreme Court, of Judicature of Fort Williams in Bengal for or on behalf of such suitors or any
of them.”
As per Clause II of Charter of 1774 it empowered Supreme Court to approve and cancel or remove
Advocates and attorneys at law on reasonable cause. They were authorised to appear and plead and
act for the suitors of the Supreme Court. This clause made it clear that no other person but advocates,
or attorneys so admitted arid enrolled could appeared plead or act in the Supreme Court.
The term ‘Advocate’ extended only to English and Irish Barristers and members of the faculty of
Advocates in Scotland and the term ‘Attorneys’ then meant only the British attorneys or solicitors. Thus
the Indian Legal Practitioners were not authorised to appear before the Supreme Court.
The company’s court are not organised one. In addition to company’s court Big Zamindars also had
courts exercising both civil and criminal jurisdiction.
Sadar Diwari Adalat to enroll pleaders for company courts.
Afterwards the Bengal Regulations XXVII of 1814 made provisions to organise legal profession
And Bengal regulation XII of 1833 was modified.
Soon after the legal practitioners Act 1846 was enacted this made certain provision that people of
any nationality or religion would be eligible to be pleaders and attorneys or Barristers enrolled in any of
her majesties courts in India would be eligible to plead in the company’s Sardar Adalat.
The Legal Practitioners Act 1853 authorised the Barrister and attorney of Supreme Court to plead
in the company court.
The most significant in the English period is the enactment of the Indian High Court Act 1861 . The
crown established High Court at each presidency towns.
The High Court of Judicature of Fort Williams in Bengal; was empowered to approve, admit and
enroll such advocates the High Court shall deem fit.
Legal Practitioners Act, 1879
In the year 1879 the legal practitioner Act was passed to consolidate and amended the law relating
to the legal practitioners it empowered an advocate or Vakil on the role of any High Court or pleader of
the Chief Court of Punjab to practice in all the courts subordinate to the court on the role of which he was
entered.
Under the legal practitioners Act 1879 the term legal practitioner has been taken to mean Advocates
Vakil or Attorney of High Court and pleader. This act was passed to I consolidate and amend the law
relating to legal practitioners, Advocates or Vakil on the role of the High Court can practise through India.
Section 13 of the Act empowered the High Court to suspend or dismiss pleader or Mukhtar guilty
of unprofessional conduct.
Section 5 - Deals with persons in the roll can practise.
Section 6 - Deals with suspensions dismissal of pleader or Mukthars.
Section 7 - Made provisions in respect of issuance of certificate
Section 13 - Dealt with powering of High Court reporting suspension of members.
Indian Bar Committees, 1923
In the year 1923 Under the Chairmanship of Sir Edward Chamier a Committee called dian Bar
Committee was constituted. The committee was to consider the issue as to organization of the Bar on all
India basis and establishment of an all India Bar Counsel for the High Court - The committee suggested
that in all High Courts a single grade of practitioners should be established and they should be called
Advocates.
It recommended Bar counsel to be constituted at all High Court. The High Court got power to take
disciplinary action against the Advocates for misconduct. It got powers to refer to the Bar Council before
to enquire and report. Every Bar Council consisted of 15 members. This system was present in all High
Courts.
• 10 members elected from among advocates
• 4 members nominated by High Court
• 1 member was Advocate General
Indian Bar Council Act, 1926
In the year 1926 the Indian Bar Council Act was enacted to give effect to the some of the
recommendations of the Indian Bar Committee. The main object was to provide for the constitution an in
corporation of Bar Counsel for certain courts.
1) To confer powers and impose duties as such court.
2) To amend the law relating to the legal practitioners of such courts.
The distinction between Advocates and Barrister, abolished under Section 10. The High Court got
power to reprimand, suspend or remove from practice of advocate for guilty of professional misconduct
and other misconduct based on complaint.
Legal Profession after Independence
In the year 1951 , All India Bar Committee appointed by Chairmanship of Justice S. R. Das. It
recommended to establish All India Bar Council and Branch in the each state, powers and vested with
Bar council for enrolment, suspension removed and the previous powers conferred on High Court is
removed.
A common roll to practice allover India.
Then Advocate Act in the year 1961 was enacted.
Advocates’ Act, 1961
Admission and Enrolment:
Section 16 to 12 deals with regarding qualification for admission and enrolment before the Bar
Council an Advocate.
Two Clauses (1) Senior Advocates and (2) Other advocates.
Senior Advocate:
1. Designated by virtue of his ability standing at the Bar or Special knowledge or experience
in law or he is deserving such distinction. The senior Advocates restriction deals in the Bar
Council of India and Chapter-I Part (VI) Under Section 49 (1) of Advocate Act.
2. Shall not appear without an advocate on record in Supreme Court or without an advocate.
Shall not accept any brief directly.
3. Shall not accept instructions to draft pleadings or affidavits, advises evidence or to do any
drafting work of an analogous in any court. Junior other Advocate pay him to fee which he
consider a reasonable one.
Eligibility for Admission on State Rules
1) Citizen of India or other Country permitted to practice:
2) 21 years age or above
3) Obtained a law decree
Sudeer-v. - Bar Council of India in this case AIR 1999 SC 1167.
Supreme Court held the Bar Council of India Rule providing for pre enrolment training and
apprenticeship is ultra-vires as per the rule making power of the Bar Council of India [.available fact
under the Advocate Act.
Haniraj L. Chulani v. Bar Council of Maharastra and Goa. The Supreme Court in this case held that
a person carrying on another profession not allowed to practice or enrol as advocate i.e., Doctor is not
violative of Article 21,14,19,18 of the Constitution of Law of India.
Indian council legal aid and advice v. BCI Supreme Court held (AIR 1995 Section 1691) the rule
departing person who have completed the age of 45 years is beyond the rule making power of Bar
Council of India.
Disqualification of Enrolment
Section 24-A Advocates Act that no person shall be admitted as Advocate.
1. If he is convicted of an offence involving moral
2. If he is convicted of an offence under the provision of the untouchability offence (Act 1958).
But after 2 years is elapsed since his release.
Section 30 Deals with right to practice through the termitary to which the advocates act extends all
courts including supreme court tribunal.
But this section have not been brought into effect by the Central Government. Hence the advocate
continue to be debated from appearing in many tribunals such as Industrial Tribunal, Family court etc.
Important Powers of Bar Council and Functions of Bar Council
1. To admit person an advocates on its rolls.
2. Preparation and maintenance of such rolls.
3. To entertain and determine cases of misconduct against advocates.
4. To promote, safeguard, privileges of advocates.
5. To promise and support law reforms supervision and counsel of other state bar.
6. To promote legal education:
7. To lay down standards of legal education.
8. To recognise degrees for enrolment.
Professional Ethics
1. Section 49 (1 ) (c) of the Advocates Act, 1961 empowers the Bar Counsel of India.
Duty to the Court
1. Advocate is required to conduct himself with dignity and self respect. Not to complaint
against judicial officer of grievances to be make complaint to the proper authorities.
2. To maintain respect to court and dignity of the judicial officer.
3. Not to influence the decision of the court by any illegal or improper means.
4. Prohibit private communication with Presiding Officer / Judge.
5. Not to encourage client unfair practice or from doing any thing in relation to the court.
6. To appear in the prescribed dress and his appearance shall always be presentable.
7. An advocate shall not either appearance in any way before a Court Trial if the role of any
member there of in related to advocate.
8. Not to wear bonds or grown in public places other then in court.
9. Not to appear if he got any receiving interest or he is a exercise a member on
director of a company or corporations.
Duty
Rule 11 to 33 deals duties of advocate to his client.
1. An Advocate is bound to accept any brief in special circumstances he may refuse to accept
a particular brief. S. J. Chaudry v. State (AI R 1996 SC 98) Supreme Court held that if
an advocates accepts the brief of a case attend day to day and if he fails and he does
not do so, he will be held liable for breach of professional duty. Shall not withdraw from
engagement.
2. If he does, notice to be given to the client and he is bound to refund such part of fee as has
not been spent.
3. If situation warrants in before in future if he happens to be witness he should not accept
the brief.
4. To make help and frank disclosure to his client relating to his conviction with the parties
any controversies likely to arise at the time of taking brief.
5. To uphold the interest of his client.
6. If a advocate appear for prosecution he should not conduct the case lead to conviction of
the innocent.
7. Advocate shall not commit directly or indirectly a breach of the obligation imposed by
Section 126 of Evidence Act professional communication.
8. Not to be a party to fermenting of litigation.
9. Only act on the instruction of client and not others.
10. The fee of an advocate depending upon the success of the suit is considered as opposed
to the public policy. Also not consistent fee or percentage of the benefit and will be arrived
by client.
11. Shall not buy or traffic in a stipulate for or agree to receive share or instruct in any actionable
claims
12. Not to bid or purchase any property he was professionally engaged.
13. To keep proper account for the money entrusted to him.
14. Any amount is received on behalf of client that should be given to him.
15. On demand from client a copy of the account to be furnished.
16. Rule 32 prohibits an advocate to lend money to his client for the purpose of any legal
proceedings or actions.
In V.C. Rangadurai V.D. Gopalan Supreme Court observed that the ratio between the advocate
and his client is purely personal involving highest personal trust and confidence. P.O. Gupta v. Ram
Murti (AIR 1998 SC 283)
An advocate purchased a property at a very low price from his client which is a subject matter of
litigation and sold the same to third person and made profit. He was held of professional misconduct.
Harish Chand Singh v. Tripathi a Senior Advocate appointed his own junior as Mukhtar of complaint
in consolidation case. He misguided his junior and tried to dispose of the property in favour of his own
father. Senior Advocate held guilty of professional misconduct.

Duty to Opponent
Rule 34 and 35 of BCI
1. Rule 34 provides that an advocate shall not in any way communicate or negotiate upon the
subject matter of controversy with any party represented by an advocate except through
that advocate.
2. Rule 35 deals that an advocate shall do his best to carry out all promises made to the
opposite party even though not reduced to writing or enforceable under the rules of the
court.
Duty to Colleagues
Rule 36; to 39 of BCI
1) Shall not solicit work or advertise (either direct or indirect) by way of circulars, advertisement,
(brokers), putting slide in cinema theatres.
The name board should be a reasonable size.
An Advocate not permit his name to be used in aid of or to make possible the unauthorised
practice of law by any agency.
Shall not accept a fee less than the fee taxable under the rules when the client is able to pay the
same R - 39 An advocate shall not enter appearance in any case in which there is already a vakalath
(Civil cases) or memo of appearance (Criminal Cases) filed by an advocate engaged for a party except
with his consent (change of vakalath)
Advocacy
Seven Lamps of Advocacy
A good advocate should possess some essential qualities and equipment.
1) Honesty: The nobleness of legal profession lies in honesty. Advocate should not do any
act which will lead to professional misconduct. He should disclose the real facts and legal
profession to his clients frankly.
2) Courage: An advocate must possess courage which is the quality that enables a person
to control fear in the face of danger, pain, misfortune, etc. He should not fear about the
executive and politicians. He must perform his duty to safeguard the interests of his client.
3) Industry: Industry is the quality of being hard-working; being always employed usefully.
Advocacy is an intellectual profession. Intelligence and knowledge will be sharpened with
hard-work and strenuous efforts.
4) Wit: Wit means clever and humorous expression of ideas; liveliness of spirit. Wit lessens
the work load of an advocate. It relaxes his mental strain.
5) Eloquence: Eloquence means fluent speaking and skilful use of language to persuade or
to appeal to the feelings of others. Eloquence attracts the attention of the listener.
6) Judgment: Judgment is an intellectual capacity, ‘the inspiration which enables a man to
translate good sense into right action’. An advocate could be in a position to judge the
merits and demerits of the case on hearing the brief and seeing the document. He should
inform his client the legal position openly after judging the issues.
7) Fellowship: Fellowship means the membership in friendly association or companionship.
8) (7+1) Tact: Tact means handling people and situations skilfully and without causing
offence. An advocate must be in a position to tackle and win his client, opponent party,
opponent advocate in a smoother way. An advocate should not quarrel with Court or loose
temper over trifle things in the Court and outside.
Other Rules
Rule 40 requires that every advocate to pay certain sum to the State Bar.
Duty to Render Legal Aid
Every advocate bear in mind that anyone genuinely in need of lawyer is entitled to legal assistance
even though he cannot pay for fully or adequately legal assistance.
To the indigent and oppressed is one of the highest obligations as an advocate owes to society.
Restriction on other Employment - Rule 47 to 52 BCI
An Advocate shall not personally engaged in any business but he may be a sleeping partner in a
business. An advocate who has inherited or succeeded by survivorship to family business may continue
it but may not personally participate in the management thereof.
Right to Lien
An Advocate can claim general lien upon the deeds and papers in his hands for the fee payable to
him but there is no general lien.
State v. Narsingh Nair (AIR 1955 Orissa Page 105) in the case it is held that an advocate in the
absence of an express agreement cannot claim a lien to hold, if until his own accounts are settled. (J.S.
Jafhar v. Mustafa H.M. Yusur (AIR 1993 SC Page 1335)
Advocate withdraw certain amount on behalf of his client from the court receiver but did not pay the
whole amount to the client. He was held guilty of professional misconduct.
Advertising
In the matter of thirteen advocate Alahabad AI R 1934 1067.
It is well recognized rule of etiquette in the legal profession that no attempt should be made to
advertise on self directly or indirectly. Such a course of action tends to dignify of the Hon’ble Profession.
In England no barrister is allowed to write to solicitors or even to brother practitioners on circuit
enrolling his services experience ability or work advertisement of all forms are considered to be highly
improper.
Professional or Other Misconduct
Section 35 of the Advocate Act provides for punishment for professional or other misconduct. On
receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its
roll has been guilty of professional or other misconduct, it will be referred to its disciplinary committee.
Misconduct: Means a dereliction of duty.
The Supreme Court explained the term misconduct in the following case.
State of Punjab v. Ramsingh AIR 1992 SC 2188.
Misconduct may involve moral turpitude it must be mis-proper or wrong behaviour unlawful
behaviour willful in character for bidden act a transgression of established definite rule of action or code
of conduct, but no mere error of Judgement, ,carelessness or negligence in performance of duty, the act
accompanied of bears for bidden quality or character. Professional misconduct are found in Section 10
of Indian Bar Council Act, 1926 and explained in Section 35 of the Advocates Act 1961 .
The expression professional misconduct has been well explained by the Supreme Court in the
following case
V.P. Kumaravelu v. BCI AIR 1997 SC 1014.
The court observed that whether negligence will amount to professional misconduct or not will
depend upon the facts of each case; gross negligence in the duties practice of sheds of delinquency and
would undoubtedly amount to professional misconduct.
Rama Bannerisi v. Ushapati Banerjee Mukhtar AIR 1958 Cal 692.
The Bar Council on receipt of complaint or otherwise is not transmit it to its disciplinary committee
but it is obligatory on the part of the council to see if there is reason to believe that an advocate on its
roll is guilty of unprofessional act. The requirement of ‘Reason to believe’ cannot be converted into a
formalized procedural road block. It being essentially a borrower against frivolous enquiries. It is implicit
in resolution of the Bar council when it says that it has considered the complaint and decided it to refer
the matter for the disciplinary committee that it has reason to believe as prescribed by the statute.
Kr. Amarsingh of Sahalpose - v. - Madanmohan Lal AIR 1956 Raj. 58
Charges of professional misconduct must be clearly proved and should not be inferred from ground
for suspicion or what may be the error of judgement or indiscretion.
Kasinath Ratho v. U.C. Patnaick AIR 1939 Pat. 343.
Proving facts and circumstances giving rise to give suspicion is not sufficient to establish a charge
fraudulent or grossly improper conduct in the discharge of professional duties.
Negligence without moral turpitude or delinquency may not amount to professional misconduct.
P.O. Khanfelkar v. Bar Council of MaharashtraAIR 1984 SC 110
There is a word of difference between giving of improper legal advise and giving of wrong legal
advice mere negligence unaccompanied by any moral delinquency in the part of a legal practitioner in
the exercise of this profession does not amount to professional misconduct.
Case amounting to professional misconduct
1. Executing vakalth himself by Advocate instead of the party
2. Money withdrawn with ulterior motive from the client account/ court proceedings.
3. Writing letter to magistrate / presiding officer.
4. Advising clients in the court room that they could not justice from the court.
5. Moving applicating before any court or authority without informing that a similar application
has been presented or rejected by any authority.
6. Not speaking the truth.
7. Making unfolded allegations against a Judge.
8. Tampering with witness is a serious offence for a advocate.
9. Making charges of bribery against judicial officers knowing it to be false.
10. Asking advocate clerk to take documents from record to his house / office.
11. Stating and invoking wrath of Gods in open court by a lawyer.
12. Suggesting to bribe the official in the court amounts to professional misconduct.
Eg. Asking clerk to give money to record clerk for supplying information with regard to
case.
13. Bringing influence on the judge to get decision in favour of the clients. Including prosecution
witness not to tell the truth.
Mahabir Prasad Singh v. Mis. Jacks Aviation Pvt. Ltd., (AIR 1999 SC P 287)
Boycott call resolution to boycott particular court. Advocate abstaining from court, reporting, next he
will not appear the court in further. Advocate not returned the brief. Advocate’s conduct is unprofessional
and unbecoming of status of advocates.
Authorities to empower to punish Professional Misconduct:
Under Section 38 of the Advocates Act on receipt of a complaint or otherwise State Bar Council
can sumato also if reason, is thereof that misconduct present, It will refer to the disciplinary committee.
Bar Council can constitute one or more disciplinary committee. The disciplinary committee consists
3 members.
Power (Punishment)
After giving notice, opportunity to the advocate the State Bar council may make the following orders:
1) If no prima facie case then dismiss the complaint.
2) Reprimand the Advocate; Suspend the advocate from practice for such period it may deem
fit.
3) Remove the name of the advocate from state roll of advocate.
The effected person can also file appeal to the Bar council of India from state Bar under section 37
of the Advocates Act.
Appeal to Supreme Court;
Under Section 38 of the Advocates Act appeal can be filed within 60 days to the Supreme Court.
Important cases of Misconduct
Prahlad Saran Gupta v. Bar Council of India (AIR 1977 SC 1338)
Prahlad Saran Gupta collected a sum of Rs. 16001- from the judgement debtor and not paid to the
Decree Holder But later deposited in the court before going appeal against the bar council disciplinary
proceedings.
Supreme Court held the Advocate / Appellant could be held that the end of justice would be met if
the punishment of reprimand is imposed on the appellants for his misconduct.
Hikmat Alikah - v. - Ishwar Prasad (AIR 1977 SC 864)
In this case an advocate was held guilty of an offence of attempting to commit murder and convicted
for it his name was removed from roll of advocates as he was unworthy of remaining in the legal profession.
P.O. Gupta v Ram. Murti AIR 1988 SC 283.
The Appellant Advocate practicing in Delhi. For professional misconduct he was suspended from
practice for one year. U/S 38 of the Advocate Act appeal before Supreme Court and the court upheld the
order of the state Bar Council suspending from practice for one year.
Oalal D.S. v. State Bank of India AIR 1993 SC 1608.
In this case the advocate misappropriated the amount paid towards filling of suit and professional
fees. The disciplinary committee found him guilty. On appeal also the Supreme Court declined to interfere
and thus upheld the order passed by Bar council of India.
Selected Opinions of the disciplinary Committee of the Bar Council of India on Professional
Misconduct:
Jagadish Singh and Others v. T.C.Sharma (BCI TR Case No. 47/1990)
Jagadish Singh and others were employees of a School in New Delhi. They approached T.C.
Sharma, Advocate and paid a fees, to file a case against their arbitrary dismissal from their School. The
allegation is that without filing the case the advocate has given a case number from the Administrative
Tribunal, which was found to be false. When the advocate refused to return the fees paid, complaint was
filed. Result: the Advocate was found guilty of misconduct.
Babulal v. Subash Jain (BCI TR Case No. 115/1986)
The complainant and the Respondent are advocates. The allegation is that though a practicing
lawyer, the respondent is also working as an Editor, Printer and Publisher of a weekly which fact was not
disclosed at the time of applying for enrolment. Though the respondent denied the allegation it was found
that the respondent actively carried on the business as alleged and which amounted to professional
misconduct.

Balswaroopsoni v. Babulalsoni (BCI D.C. Appeal No. 25/1992)
The Appellant is the son of the Respondent. The allegations in the complaint are that (i) a criminal
case pending against him (ii) he introduced him as a surety in a criminal case while acting as an advocate
and (iii) has withdrawn in a civil suit the amount deposited in complainant’s name. The appellant was
found guilty of professional misconduct.
Indure Ltd., v. Deo Raj Gupta (BCI TR Case No. 58/1993)
The Respondent is the advocate of the complainant company. The allegation is that the respondent
has not filed suits against two other companies but though he had informed the company as to compliance,
he had not filed any suit at all. Finally it was found to be proved beyond doubt and the respondent was
prohibited from practicing as an advocate.
Commissioner of Civil Supplies & Consumer Protection Dept v. V. Balakrishnan (D.C.
Appeal No.15/1995)
The appeal was against the order of the Bar Council of Tamilnadu giving benefit of doubt to the
respondent. The allegation is that he has sent telegrams to Revenue authorities misrepresenting the
order in writ petitions. Finally it was held that it was professional misconduct.
A. Banumurthy v. Bar Council of Andhra Pradesh (D.C. Appeal No. 3/1994)
The Appellant was compulsorily retired from Judicial Service for alleged corruption. Subsequently
he applied for resumption of practice. The State Bar Council suspended his practice for professional
misconduct for two years but on appeal the Bar Council of India has allowed the applicant to continue
practice on technical grounds.
Dr. D.V.P. Raja v. D. Jayabalan (BCI D.C. Appeal No. 43/1996)
The Bar Council of India held that the Disciplinary Committee of Bar Council of Tamilnadu has
powers to order on merits despite a resolution passed by the Bar Council that there was a prima facie
case against the respondent.
G.M.H. Irmani v. Iswarappa (BCI D.C. Appeal No. 30/1995)
The Bar Council of Karnataka as well as the Bar Council of India held that the complainant has not
proved his case against the Respondent for professional misconduct.
N.S. (Appellant) v. K.V. (Respondent) (BCI D.C. Appeal No. 14/1988)
Appellant is a Govt. pleader and the respondent is a senior advocate. At the time of going to the
Advocates Association they had an argument with regard to a mentioning before a judge of the High
Court and it was alleged that the appellant had used vulgar words against the complainant. Both the
State Bar Council and the BCI held that there was professional misconduct on the part of the Appellant.
P.R. (Complainant) v. V.I. (Respondent) (BCI D.C. Tr. Case No. 101/1988)
Complainant is a District Munsif and the respondent is a practicing advocate. The advocate filed a
contempt petition with serious allegations against the District Munsif. The Bar Council of Andhra Pradesh
held that filing the contempt petition against the presiding officer was professional misconduct. Pending
the proceedings the advocate was selected and appointed as District Munsif. Bar Council expressed its
inability to pass any order and forwarded the records to the High Court for necessary action.
Contempt of Courts Act, 1971
An Act to define and limit the powers of certain courts in punishing contempt of courts and to
regulate their procedure in relation thereto.

Legal history of Contempt of Courts
Prior to contempt of courts act 1926 the power of the court to punish for contempt was felt to
be uncontrolled power which was no doubt remedied by the Act of 1926 and the amending Act 1937.
Subsequently a committee was appointed to examine the law pertaining to contempt of courts and as a
result the present act was enacted.
Types of Contempt
As per Section 2(9) contempt of courts means civil contempt and criminal contempt.
As per section 2(b) of the Act Civil Contempt means: Wilful disobedience of any judgement,
decree, direction order writ or other processes of court or wilful breach of an undertaking given to a court.
Accordingly section 2(c) of the Act criminal contempt means: The publication whether by
words spoken or written or by signs or by visible representation or otherwise of any matter or the doing
of any other act whatsoever which;
i) Scandalizes or trends to scandalize or lowers or tends to lower the authority of any court
or prejudice or interfere or trends to interfere with the due course of any judicial proceeding
or interferes or trends to’ Interfere with or obstructs or trends to obstruct administration of
justice in any other manner.
Proceedings under contempt of courts act are summary in nature.
Contempt of court is not an offence within the meaning of section 4(2) of Cr. P.C. Merits of
the matter need not be gone into a contempt proceeding.
(V.G. Peterson v.. O.V Foreces) AIR 1963 SC 692.
Aim of Contempt Proceedings:
The aim is to deter men from offering any indignities to a court of justice. Ramakrishna Reddy v.
State of Madras AIR 1952 SC. 149.
Kinds of Contempts
There are many kinds of contempts, the main forms of contempt are
1) Insult to Judges
2) Attack upon judge proceedings
3) Comment on pending proceedings with tendency to prejudice fair trial obstruction to officers
of courts, witnesses in the parties.
4) Abusing the process of the court.
5) Breach of duty by officers connected with the court and scandalizing the judges of the
courts.
The following are certain examples of contempt with decided important case laws:
1. Stay of proceedings disobeyed:
When the superior courts order staying proceedings is disobeyed by the inferior court the
later court commits contempt of court. Bardakanta Misra V. Bhimsel Dixit AIR 1972 SC
2466
2. Speeches or Writings misrepresenting Court proceedings:
Speeches or Writings misrepresenting the proceedings of the court or prejudicing the
public or against a party or involving reflections on parties to a proceeding amount to
contempt of Court. Judge commenting in press about pending case. Where a sessions
Judge comments in press and television about the pending case it will amount to contempt
of court. Subash Chand v. S.M. Agarw.ala 1984 Cr. L. J. 481 (Delhi).
3. Shouting at Court: By shouting at the court is belittling the dignities of the court which cannot
ever be permitted as that would heard a dwindling of the faith of the public in affectioners of
the system itself. It is unwholes one for any member of the bar to lose his temper and bring
about a situation in the public court which can afford justifiable interference to be made of
the action being voluntary and intended at lowering the prestige of judiciary. State of A. P.
v. Saetharamaiah 1996 (2) ALT 992.
4. Advocate raising voice: An advocate raising voice in High pitch and annoying magistrate
even after waning will amount to contempt of court. Mohamed Ali v. Prasanna AI R 1995
SC454
5. Forging order of court.
(i) Threatening writ petitioners.
(ii) Police Officer obstructing execution of decree.
(iii) Jail superintendent not releasing the accused in spite of the order of the court.
(iv) Filing of false affidavit will amount to criminal contempt.
Afzal v. State of Haryana AIR 1996 Sc 2326.
Certain acts will not amount to contempt of court they are as follows Under Section-7 a person shall
not be guilty of contempt of court for publishing fair and accurate report of a judicial proceeding or any
state thereof.
Fair Criticism
It is open to anyone to express fair reasonable and legitimate criticism of any act or conduct of a
judge in his judicial capacity even to make a proper and fair comment on any decision given by him.
Innocent publication and distribution of matter: Fair reporting regarding disposal of case and
judgement of journalists. Rama Oayal Markaraha v. State of M.P. AIR 1978 SC 921
Punishment for Contempt of Court
Contempt of court may be punished with simple imprisonment for a term which may extent to 6
months or with time which may extend to Rs. 2000/- or with both. That the accused may be discharged
or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
Limitation for actions for Contempt
No court shall initiate any proceedings of contempt either on its own motion or otherwise after the
expiry of a period of one year from the date on which the contempt have been committed.
1. Jagadish singh and others v. T.C.Sharma
2. Babulal v. Subash Jain
3. Balaswaroopsoni v. Babulal soni
4. Indure Lt v. Deo Raj Gupta
5. Commissioner of Civil supplies and Consumer Protection Department v. Balakrishnan.
6. A.Banumurthy v. Bar Council of Andhra Prades
7. Dr.D.V.P.Raja v. Jayabalan.
8. G.M.Hirmani v. Ishwarappa.
9. N.S.(Appellant) v. N.V.(Respondent)
10. P.R.(Complainant) v. V.I.(Respondent)

11 Ashok kumar yadhav v. Bar council of India 19/1/2015.
12. C.Ravichandran Iyer v. Justice A.M.Bhatterjee(Disciplinary power of the bar council on
conduct of the judge)
13. Supreme Court Bar Association v. Union of India and others 17 th April 1998
14. An Advocate v. Bar Council of India and another 0n 29 th September 1998.
15. D.P.Chadha v. Tiriyugi Narain Mishra and others 5) December 2000.
Selected cases relating to Professional misconduct and contempt of court.
1. Pawan Kumar Sharma v. Gurdial Singh (AIR 1999 S.C.98)
2. Mahabir Prasad Singh v. M.s Jacks Aviation Pvt.Ltd.,(A.I.R.1999 S.C.287)
3. Supreme Court Bar Association v. Union of India( A.I..R.1998 S.C.1895)
4. P.D.Gupta v. Ramamurthy (A.I.R 1998 S.C.283)
5. Robtas Singh v. Commissioner Agra Division.(A.I.R.1997 S.C.278)
6. Harish Chander Singh v. S.N.Tripathi (A.I.R 1997 S.C.879)
7. Hikmatali Khan v. Iswar Prasad Aiyer (A.I.R 1997 S.C.864)
8. Prahalad Saran Gupta v. Bar Council of India (A.I.R 1997 S.C.1338)
9. Dr.Haniraj L Chusani v. Bar Council of Maharashtra( A.I.R 1996 S.C.1708)
10. In re Saxena and U.Saxena v. Hon’ble Chief Justice of India (A.I.R 1996 S.C.2491)
11. Sambhu Ram Yadhav v. Hanuman Das Khatry 2001 16 SCC 165
12. B.M.Verma v. Uttarkhand Regulatory Commission Appeal No.156 of 2007.
13. R.K.Anand v. Registrar of Delhi High Court 2009 85 SCC 106.
14. Harish Uppal v. Union of India 200 3 (1) ACC MR (SC) 1169.
15. J.S. Jadhav Mustafa v. Haji Mohammed Yusuf AIR 1993 SC 1608
(Note: The above said case laws are to be referred from journals).
ACCOUNTANCY FOR LAWYERS

Accountancy is the science, art and practice of an accountant. it is adiscipline which records,
classifies, summarisesand interprets financial information about the activities of a person or concern so
that intelligent decisions can be made about the future actions.
FUNCTIONS OF ACCOUNTING:
1. systematic record of transactions
2. communicating resuts to the interested parties
3. complinace with legal requirements
4. ascertain the financial position of individual
ADVANTAGES OF ACCOUNTING:
1. replacement of memory
2. evidence in court
3. settlement of taxation liability
4. comparative study
5. assistance to various parties
LIMITATIONS OF ACCOUNTING:
1. records only monetary transactions
2. no realistic information
3. personal bias of accountant affects the accounting statements
4. no real test of managerial performance
5. it lacks a uniform procedure
NEED FOR ACCOUNTANCY FOR LAWYERS:
Lawyers have to maintain accounts and for this they should have the knowledge of accounting due
to the following reasons:
1. as a member of the Bar Council, he should know its accounting.
2. he should know Legal services Authorities and Supreme Court Legal Services
Committee.
3. he should know the accounting of Advocates as per Supreme Court rules.
4. he shoild know the welfare fund accounting.
5. he should kow how to trepare his own accounts.
CASE LAWS:
1. Hikmat Ali Khan v. Ishwar Prasad Arya and Others (AIR 1997 SC 864)
The Supreme Court held that the conduct of Ishwar Prasad, an advocate was such that his name
should be removed from the state roll of advocates as he was found guilty of an offence of attempting to
commit murder and convicted for it and as he was unworthy of remaining in the profession.
2. Pawan Kumar Sharma v. Gurdial Singh (1998(7) SCC 24)
The court held that mere ownershipof the taxi cannot lead to any irresistible conclusion that he was
engaged in “taxi business” to constitute a misconduct.
3. Harish Chander Singh v. Suman Dondey (1999(2) SCC 215)
The court held that the disciplinary committee of bar council could not have held the advocate guilty
of charge of misappropriation especially without going the whole of accounts.
4. Hamiraj L. Chulani v. Bar Council of Maharashtra & Goa (AIR 1996 SC 1708)
The Supreme Court held that the rule made by the bar council restricting the entry of a person
already arrying on other profession is not arbitrary and at the same time it does not impose reasonable
restrictions.
*********

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DIRECTORATE OF LEGAL STUDIES

Chennai - 600 010

3 Year LL.B., Course Semester System

Printed at : ABNA TRADERS, Chennai - 45, Cell : 98400 16816.

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