I YEAR OF 3 YEAR LL.

B
SEMESTER - I
ODD SEMESTER

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SUBJECT : ENGLISH
SUBJECT CODE : TA1A

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 SYLLABUS
TA1A - ENGLISH
Unit - I Prose
1. The Divisions of the Law
2. Mechanism of Scholarship
3. Methods of Study
4. Case Law Technique
5. Working out Problems
6. Moots and Mock Trials from Learning the Law by Glanville Williams
7. Part-1: Keeping the streams of Justice Clear and Pure from The Due Process of Law by Lord
Denning
Unit - II Linguistics
1. Phonetics - Speech Sounds - Vowels, Diphthongs & Consonants Transcription
2. Language Acquisition - Uses and Problems, Language Register, Jargon, Dialectal Variation of
Language

Unit - III Logic

General Principles of Logic - Deductive and Inductive Logic, Syllogism, Rules of Syllogism;
Proposition, Distribution of Terms and Fallacies.
Unit - IV Essays
Essay Writing on topics of Legal Interest
Books for Reference:
1. Glanville Williams : Learning the Law (141h Edition)
2. Lord Denning : The Due Process of Law
3. David Annousamy : Answers to Language problems
4. K. Sreedhara Variari : Logic
5. W. Bedford Soloman : Pre-University Logic
6. Daniel Jones : English Pronouncing Dictionary
7. Sasikumar V. and
P.V. Dhamija, 1993 : Spoken English: A Self-earning Guide to Conversation Practice. 34th
Reprint Tata McGraw Hill, New Delhi.
8. Lewis, Norma, 1991 : Word Power Made Easy - Pocket Books
***************************

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 UNIT- I
PROSE
I. THE DIVISONS OF THE LAW

LAW

CIVIL CRIMINAL

Law is the element of society and also an essential medium of change. Knowledge of law
increases one understands of public affairs. Its study promotes accuracy of expression, facility in
argument and skill in interpreting the written word as well as some understanding of social values.
DISTINCTION BETWEEN CRIME AND CIVIL WRONG
 Civil law deals with the disputes between individuals, organizations, or between the two, in
which compensation is awarded to the victim.
 Criminal law is the body of law that deals with crime and the legal punishment of criminal
offenses.
The distinction does not lie in the nature of the wrongful act itself. In many cases, the same act may
be both a civil as well as a criminal wrong. For example if a cloak room employee runs away with a
bag entrusted to him, he commits the crime of theft and two civil wrongs namely the tort of
conversion and breach of contract. As a result two sorts of legal proceedings can be taken against
him, a prosecution for the crime and a civil action for the tort and breach of contract. The above
illustration clearly shows that the true distinction between a crime and a civil wrong resides not in
the nature of the wrongful act but in the legal consequences that may follow it.
In criminal proceeding there is a prosecutor prosecuting a defendant and the result of the
same prosecution, if successful, is the conviction and the accused may be punished by one of a
variety of punishments ranging from fine to death.
In civil proceedings the person instituting a suit is called plaintiff and the opposite party is
the defendant. The proceedings if successful, will result in judgment for the plaintiff by way of
order for payment of compensation, specific performance, declaration of title, recovery of
possession, injunction etc.

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THE CLASSIFICATION OF CIVIL WRONGS
CIVIL WRONGS

BREACH OF CONTRACT TORTS BREACH OF TRUST

 Breach of contract implies failure on the part of one of the parties to perform his part of legal
obligations arising out of the contract.
 Contract need not be in a formal document. It can be oral also. Every time a transaction is
made a contract is entered.
 Tort is a civil wrong independent of contract. It includes such wrongs as assault, battery,
false imprisonment, trespass, conversion, defamation, negligence and nuisance.
 A trust is an obligation enforced by courts. A trustee who fails to fulfill his obligation is liable
for the breach trust.
QUASI CONTRACTUAL OBLIGATION
Another type of civil obligation called the quasi contractual obligation. In quasi contact,
though the parties are not liable in contract, they are liable for injustice. For example, if ‘A’ pays
some amount to ‘B’ by mistake thinking that ‘A’ owes the amount to ‘B’ it can be recovered as the
law treats it as if B had contracted to repay it.
SUBSTANTIVE AND ADJECTIVAL LAW:
A distinction cutting across between civil and criminal law is that between substantive
and adjectival law. Substantive law lays down people’s rights, duties, liabilities, and powers.
Adjectival Law relates to the enforcement of rights and duties. It is mainly concerned with
procedural laws. For example, civil procedure, Criminal procedure and Evidence.
THE TITLE OF CASES:
Criminal trials are differently named based on the two main divisions of crimes as
 Indictable offences
 Summary offences
Indictable offences are more serious offences triable in the crown court. Trials on
indictment are in the name of the Queen or the King who is on the throne. Reg (Regina) or Rex
respectively both conveniently abbreviate to ‘R’. Thus Reg V Sikes or Rex V Sikes may both be
written R V Sikes. In some types of criminal cases the title of the cases will not contain Reg or Rex

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before V, but will contain the name of a private person. This happens when the case is tried
summarily before magistrates i.e. justices of peace.
Civil cases will usually be cited by the names of the parties (e.g) Rylands V Fletcher. If
the Queen or the King as representing the Government, is a party, she is, in civil cases called
“The Queen” and similarly with the King, thus British Coal Corporation V The King.
COURTS WITH CIVIL JURISDICTION
The Courts with original jurisdiction are the High Courts and County Courts.
The High Court is divided into three divisions:
High Court

The Queens Division The Chancery Division Family Division

(Common Law) (Equity) (Probate, Divorce)
A civil trial in the High Court is before a single judge, generally sitting without a jury. The
judges may sit in London or Provinces. High court cases outside London are often taken by
Deputy High Court Judges or plain Barristers. The less important civil cases are tried in the county
courts. Appeals from both the High Courts and the County courts lie to the Court of appeal. The
Court of appeal generally sits with three members, and there will be several such courts in action at
the same time. When an appeal is taken to the court of appeal either from the High Court or from the
County court, a further appeal lies, with leave, to the House of Lords. However the system of two
appeals is subject to criticism among the jurists.
A civil case may go on appeal direct from the High Court to the House of Lords under the
“Leap Frog” procedure introduced by the Administration of Justice Act 1960. This can happen
with the consent of the parties and on certificate from the judges, if the case involves the
interpretation of the legislation or is governed by a previous decision of the court of appeal or
House of Lords which one of the parties wishes to overturn.
COURTS WITH CRIMINAL JURISDICTION
The Crown court is the main criminal court in England. It was created by The Courts Act
1971. A criminal trial in the crown court is always by jury. The court is normally presided over by
a circuit judge or recorder who controls the trial and directs the jury; but it may also be
constituted with a High Court Judge. Appeal from the crown in the criminal cases lies to the court
of appeal (criminal division). The appeal may be on law or fact or against sentences,

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 But only the defendant can appeal and not the crown. On a successful appeal against conviction
the court will quash the conviction; but it may substitute a conviction of some other offences of which
the jury could have convicted. From the court of appeal a further appeal lies in important cases with
leave, to the House of Lords. The lower appellate court must certify that a point of law of general
public importance is involved and it must appear to the House of Lords that the point ought to be
considered by the House.
Summary offences i.e. crimes not triable on indictment, are triable without a jury by magistrate’s
courts. Many crimes though falling within the category of indictable offences can be tried in
magistrate’s courts if certain conditions are satisfied; they are said to be triable both ways. Appeals

from Magistrate’s courts in criminal cases are similar to those in civil cases. The defendant may
appeal to the crown court, which rehears the whole case, there is no jury, but at least two magistrates
sit with the judge or recorder. A case may also be stated on a point of law for the decision of a
divisional court of the Queen’s Bench Division and a further appeal may be taken from the divisional
court, subject to restrictions, to the House of Lords. An appeal by way of case stated is open not only
to the defendant but also to the prosecutor, whereas in trials on indictment there is no appeal from
an acquittal.

The Supreme Court of United Kingdom:

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 The Supreme Court of United Kingdom was established by part 3 of the Constitutional Reforms
Act 2005 and started work on 1st of October 2009. It assumed the judicial function of the House of
Lords which were executed by the lords of appeal in ordinary, commonly called Law Lords. It is
the apex court in all matters under English Law, Northern Irish Law and Scottish Civil Law. It is
the Court of last resort and the highest appellate court in the United Kingdom. It is located in
Middlesex Guildhalls, London.
Important Essay Questions (10 Marks)
1. What are the major divisions of law classified by Glanville Williams? (May 2010)
2. Bring out the difference between civil law and criminal law and explain the hierarchy of
courts in England. (May 2012)
Short Answers (5 Marks)
1. Differentiate civil and criminal law with examples. (May 2014)
2. Substantive and Adjectival law. (May 2011), ( May 2012), (May 2015)
3. Titles of cases. (Nov 2013), (Nov 2014)
Reference:
https://www.judiciary.uk/
https://www.judiciary.uk/wp-content/uploads/2016/05/international-visitors-guide-10a.pdf
https://en.wikipedia.org/wiki/Law_of_the_United_Kingdom
https://www.cilex.org.uk/about_cilex/about-cilex-lawyers/what-cilex-lawyers-do/the-uk-legal-
system
https://www.ifes.org/sites/default/files/2016_ifes_hierarchy_of_laws.pdf

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 2. THE MECHANISM OF SCHOLARSHIP
A library is a collection of sources of information and similar resources, made accessible to a
defined community for reference or borrowing. As a student of law must learn to use legal materials by
making the best use of law library besides taking lecture notes must always consult the concerned
authorities by referring to the latest publications. Besides familiarizing with the law reports and statute
books, a lawyer should get to know his way about the library as a whole, together with its catalogues
and books of reference.
THE LAY OUT OF THE LAW LIBRARY:
There will probably be a catalogue of contents of the library or a card index near the entrance to
the library.
 Subject Catalogue
 Authors Catalogue
In fact there may be two such catalogues or indexes one arranged alphabetically under authors and
another arranged by general subjects. They are both open to the use of readers. There may be different
methods adopted by different libraries and the students must learn to have access to materials by
adopting themselves to the methods followed in them.
Reference Section (or) Special Section:
 Bibliographies
 Dictionaries
 Law reports
 Statutes
 Periodicals
This section is usually called as the reference section and it may be classified on the basis of special
subjects such as constitutional law, international law, criminal law etc. Most of the rest of the
library will be taken up with law text books.
LAW REPORTS:
Law reports are reports of more important cases decided by the superior courts. Not all
cases are reported: only those of legal interest”
Williams exhaustively deals with the practice of reporting the English cases very old and new.
Pre - 1865 reports were produced briefly by private reports under their own names. Most of them have
been reprinted in a series known as the English reports, abbreviated as E.R.

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In 1865 there commenced the semi official law reports published by the incorporated council of law
Reporting.
At present they are published in three series:
 Queen’s Bench Division (Q.B.),
 Chancery Division (Ch),
 Family Division (Fam).
The decision of the House of Lords will be reported in a separate series called the Appeal Cases
(A.C.). The Appeal Cases includes judgments from the Supreme Court (and, previously, the House of
Lords), the Privy Council and, occasionally, the Court of Justice of the European Union.
 Weekly Law Reports (W.L.R) @
 The Times Law Reports( T. L. R) – (Annually)
 All England Law Report ( All. E.R)
 Criminal appeal Reports (C.A.R or Cr.App.R)
 Justice of the peace Report( J.P)
STATUTES:
Statutes constitute important source material for lawyers. Statutes are amended from time
to time, so that often the law has to be gathered by reading two or more statutes side by side.
This difficulty is often overcome by consolidating both original Act and the amending Act. But then
the problem is that a consolidating statute does not set out the common law. The process of setting out
both statute and common law as a single, well-ordered body of law is called codification. The main
body of a statute is divided into sections and sections may be sub-divided into subsections.
Thus it is seen that law library is a very useful guide for a lawyer in as much as it familiarizes
him with the techniques of finding the treasure of knowledge necessary to become a successful lawyer.
How to find a reference?
Name of the case
 1865- Law Reports Index
 1949- Law Reports Digest
Abbreviations:
(http://www.legalabbrevs.cardiff.ac.uk/).
Electronic searching:
http://www.Supremecourt.gov.uk/.

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Scottish decisions
Law report- Sessions cases
3 Series – 1 volume (1.Supreme Court 2. Privy Council 3.Court of justiciary)
 Scots Law Times (1893)
 Scottish Criminal Case Reports ( SCCR)
 Scottish Civil Law Reports( SCLR) 1980s
 Cambridge Law Journal(C.L.J)- 3/yr
 Current Legal Problems(C.L.P)- Annually
 Oxford Journal of Legal Studies (O.J.L.S)
Important Essay Questions:
1. Write an essay on Glanville William’s Mechanism of Scholarship
Reference:
http://14.139.60.114:8080/jspui/bitstream/123456789/719/19/Using%20a%20Law%20Library.pdf
http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/09._research_methodology/15._use_of_
law__library_in_legal__research_/et/5799_et_15_et.pdf
https://www.manupatrafast.com/

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 3. METHODS OF STUDY
Glanville Williams is Stressed importance learning Methods to study. As law student should have
two important aims. His primary is to become a lawyer and the secondary aim is to pass law
examinations with good credit.
In order to achieve both the goals one has to read cases either in the original law reports or in
case books and also to read text books. It is through applying oneself to cases that one gets, to
understand how legal problems present themselves and how legal argument is conducted. That
understanding is important whether one’s object is to solve examination problems or to give sound
opinions on points of legal practice.
There is a difference between preparation for practice and preparation for examinations
 The practitioner needs is a grasp of general legal principles, a sound knowledge
of practice and procedure, an ability to argue and general knowledge of-where to find
the law he wants.
 To shine at examinations, on the other hand, one must not only know how to argue
and be able to display a firsthand knowledge of the sources; one must also be able to
memories a considerable number of rules and authorities.
 Copies of statutes are now allowed to be used in some law examinations. It is indeed
not to lower the standard of the examinations but to raise it, for it means that the
examinations can be made more truly a test of intelligence and lawyerly ability..

READING TEXT BOOKS:

Repeated reading of text books is essential for a law student to understand and assimilate the
legal materials. When a book on an unfamiliar subject is read for the first time it is rather heavy
going and one seems not to remember much of it. The second reading is both interesting and easier
and more is remembered. It is better that a student reads the book a third fourth and fifth time.
Learning by heart is best performed in short periods distributed over as long a time as possible. For
example, it is better to devote one hour a day to revision than six hours at a stretch in once a week.
Learning can be Increased by sleep or rest period. When every reading is followed by an
attempt to recall the efficiency of learning and retention is enormously enhanced. Tests have
shown that when time is distributed between reading and recall, fifty percent more is remembered
than when the same time is spent merely in reading the passage over and over.

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READING CASE BOOKS:
The use of case books has two advantages. First, the case book saves him the trouble
making his own notebook of cases. Secondly it does something to remove the immaterial facts
thus helping in the search of facts that are legally material. However, it must be remembered that
the use of case books by no means dispenses with the need for reading the original reports. For
example, there may be latest cases, not covered by the case book, which the student may be keen to
read in reports.

LECTURE AND CLASSES:

The lecture method as a means of instruction has several merits. Lectures can quicken
interests. The lecturers can give the basis and essentials of the subject and elucidate the broad
principles. By varying his emphasis a lecturer can make “himself more easily understood than
the toneless words of a book can. Moreover, a lecturer can bring textbooks up-to-date and in a
small class he can solve the individual difficulties. However, average lectures are of not much use
and it is waste of time to sit through such lectures and to make notes mechanically without thinking.

DISCUSSION CLASS:
The discussion class generally called a class supervision or tutorial is considerably more
important and useful than an average lecture. The discussion which is centered on legal problem
is more beneficial to the students. In the discussion classes the students must entirely participate
by attempting to work out problems rather than remaining passive listeners
Taking Notes
Cornell system for taking Notes:
"Loose leaf" really describes any kind of paper or book that is available in single sheets, unbound.
Its "leaves" are "loose" and not bound in notebook or book form.
Notes taken in this form can be rearranged and expanded at pleasure. Finally, the author suggests
that the law students need to have a grasp of history in the study not only of constitutional but of
pure legal history.

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"Loose leaf" notes taking system:

Using Short Hands:

H- Husband Er- Employer b.f.(p)- bonafide (purchaser)
T- Tenant Ee- Employee CPS- Crown Prosecution Service
W- Wife B/e- bill of exchange DPP- Director of Public Prosecutions
L- Landlord A/P- Act of Parliament c.q.t- cestui que trust
Important essay Questions:
1. Describe the methods of study recommended by Glanville Williams. (Nov 2011)
2. Discuss the methods of studying from textbooks and from case books as pointed by
Glanville Williams. (Nov 2012)
Short Answers:
1. Text books (May 2010)
2. Lectures and classes. (Nov 2013), (May 2015)
Reference:
https://www.routledge.com/rsc/downloads/Essential_Study_Skills_for_Law_Students_FINAL_PDF
.pdf
https://files.eric.ed.gov/fulltext/ED345666.pdf

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 4. CASE LAW TECHNIQUES
In English legal system previous decisions are followed within more or less well -de fined limits. The
like cases shall be decided alike and therefore mentioned as precedents. A decision on a point of law
followed as the correct exposition of law in subsequent decisions is called a precedent on the point.
A judicial precedent speaks in England with authority. It is not merely evidence of the law but a
source of it and the courts are bound to follow the law that is so established.
Case law Techniques

Ratio Decidendi Obiter Dictum

Distinction between Ratio decidendi and Obiter dicta:

As it is the ratio decidendi that is reason for the decision of a case that alone creates a binding
precedent, it is very essential to understand the distinction between ratio decidendi and obiter dicta.
Ratio decidendi:
“Ratio decidendi” means that legal principle which has been formulated and applied in deciding
a point of controversy in the cases. It is not everything said in a judgment that is reckoned as law
. Only the ratio decidendi therein forms law. The ratio decidendi of a case can be de fined as the
material facts of the case plus the decision thereon. What facts are legally material depends on the
particular case. However, in the process of interpreting a decision for the purpose of extracting the
Ratio, a judge may be restrictive or non restrictive.
Glanville Williams, for better illustration of the way ratio decidendi is extracted, cites a case
that is Wilkinson vs. Downton, decided in 1897. In this case, the defendant represented to the plaintiff
that her husband was smashed up in an accident and was lying with both legs broken. All this was
false. The effect of the statement on the plaintiff was a violent shock to her nervous system resulting
in weeks of suffering and medical care. The essential facts of the pith of the judgment were “The
defendant by way of what was meant to be a joke told the plaintiff that the latter’s husband had
been smashed up in an accident . The plaintiff who has previously been of normal health, suffered a
shock and serious illness. The decision was that the defendant was liable not perhaps for the tort of
deceit but because the defendant had willfully done an act calculated to cause physical harm to the
plaintiff and had in fact caused such harm. However from the whole thing that is material facts plus
the decision, the wider ratio that can be extracted is “whoever willfully does an act which is calculated
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to and does cause physical harm is liable in tort”. The above ratio in Wilkinson’s case was applied in
a subsequent case in 1919 that is Janvier vs. Sweeney, wherein the defendant threatened to arrest
and prosecute the defendant, a foreign servant girl, if she did not give certain information.
Obiter dicta:
Obiter dictum is a mere saying by the way, a chance remark, which is not binding upon future
courts. To be more precise, obiter dictum is a legal principle discussed in the judgment but not
applied to the case. It may be respected according to the reputation of the judge, the eminence of
the court and the circumstances in which it came to be pronounced. The reason for not regarding
an Obiter dictum as binding is that it was probably made without consideration of the cases on the
point. In some cases a judge may illustrate his general reasoning with reference to hypothetical
situations and the law which he considers to apply to them. These observations, though not binding,
are important because they not only help to rationalize the law but also suggest solutions to problems
not yet decided by the courts.

DIVERGENT OPINIONS:
The extraction of ratio decidendi becomes more complicated when different members of
a composite court express different opinions. Where the opinion of different judges differs so
greatly that there is no majority for any single view, all that can be done, to ascertain the ratio
decidendi, is to add up to the facts regarded as material by any group of judges whose votes
constitute a majority, and to base the ratio on these facts.

THE HIERARCHY OF AUTHORITY - BINDING FORCE OF PRECEDENTS:

The general rule is that every court is bound to follow any case decided by a court above it in
the hierarchy. When the appellate court reverses or overrules a case decided by the court below, the
case so reversed or overruled loses all authority.
Reversal means the same case is decided the other way in appeal, whereas overruling takes
place when a decision of a lower court is considered in a different case taken on appeal and held to
be wrongly decided.
In 1966 the House of Lords, departing from its earlier practice, declared that it would not be
bound by its own decision. The court of appeal generally, binds itself both on civil and on
criminal sides. However, in exceptional cases it can refuse to follow its own previous decisions. Such

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situations arise where the earlier decision was inconsistent by inadvertence or otherwise, an earlier
decision that has been overruled by the House of Lords or where the earlier decision was Per
Incuriam (i.e) by oversight - non - consideration of a relevant statute, contrary to the provisions of the
statute or non - consideration of a relevant decision of the House of Lords.
As a special rule the Criminal Division of Court of Appeal sitting as a full court of five
judges, instead of the usual three can overrule its own previous decision rendered against the
defendant. But the court is bound by its own decision rendered in favor of the defendant on a point
of substantive law.
The decisions of the Divisional Courts are binding precedents for magistrates courts in other
cases. Also, Divisional Courts bind themselves. However, in criminal cases they exercise the same
freedom as the Court of Appeal.But the Divisional Court does not bind the Crown Court judges
who try cases with juries because they do not form part of the same judicial hierarchy. The
Crown Court is the branch of the Supreme Court having equal status with the High Court therefore
with a Divisional Court of the High Court.
Single judges of the High Court trying civil cases bind County Courts and the magistrates is in
their jurisdiction but they do not absolutely bind other High Court judges. One High Court judge
may refuse to follow another judge. This may result in conflict of decisions which have to be settled
by the Court of Appeal. Decisions of court inferior to the High Court do not create binding
precedents, nor do they bind themselves.

CIRCUMSTANCES AFFECTING THE WEIGHT OF A DECISION AS A PRECENDENT:

There are certain circumstances that increase or diminish the authority of a decision as the
binding precedent. The eminence of the particular judge or judges, reserved judgment, frequently
followed judgments, judgments creating expectations in commercial or proprietary matters are the
important factors that add to the authority of a decision. Among the circumstances that diminish the
authority of a decision are the presence of the strong dissenting judgment; the fact that majority do
not agree in reasoning but only in their result; the failure of counsel to cite an inconsistent case in
argument etc. The above circumstances are not relevant if the case is absolutely binding on the court
before which it is cited and if it is incapable of being distinguished. But they are of great
importance if the case is not binding or if on the facts of the later case it is capable of being
distinguished or extended at the pleasure of the court.

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 A judge is not under any obligation to decide a case in a particular way when he is free. He then
has to choose between notions of justice, convenience, public policy, morality, analogy and so on. He
has to balance too opposing needs in the law; the need for stability and certainty and the need for
changes.
Important Essay Questions
Elucidate the case law technique as discussed by Glanville Williams. (Nov 2010)
Short Answers
Ratio decidendi ( May 2012), ( Nov 2012), (Nov 2014)
Obiter dicta (May 2013)
Reference:
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsre
dir=1&article=3448&context=ylj
https://link.springer.com/chapter/10.1007%2F978-1-349-13153-2_10
https://www.law.kuleuven.be/apps/jura/public/art/21n3/vong.pdf

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 5. WORKING OUT PROBLEMS
“I scarce think it is harder to resolve very difficult cases in law, than it is to direct a
young gentleman what course he should take to enable himself so to do.”
—Sir Roger North, On the Study of the Laws.
[Since much of the value of this chapter must depend upon the concrete illustrations it gives, I have
been forced to assume the reader’s knowledge of a certain amount of elementary law. He should
postpone reading it until he has made a start with the study of a case-law subject like Constitutional
Law, Criminal Law, Contract or Tort.]
 The object of including problems in the examination paper is to discover legal ability.
 It is not easy even for an intelligent candidate in the heat of the examination to show the
calm judgment that a problem requires. It is, therefore, most important to train oneself in
problem answering beforehand.
 In doing so the student will not merely be preparing in the best possible way for his
examination: he will also be developing his mind as a working instrument and
preparing himself for legal practice.
 The technique of solving academic problems is almost the same as the technique of
writing a legal opinion upon a practical point.
 The chief difference is that in practical problems the material facts often lie buried in
a much larger mass of immaterial detail, while the examination problem contains
comparatively little beyond the material facts.
 If the student is studying under a tutor or supervisor an adequate number of problems
will be supplied to him. If not, he will have to buy or otherwise get sight of copies of past
examination papers.
 Perhaps the most important piece of advice with problems, as with all examination
questions, is to read every word of the problem.
 Almost every word has been put in for a purpose and needs to be commented upon. In
the law of contract, for instance, the word “orally” or “verbally” or “on the telephone,”
in describing the formation of a contract for the sale of land, will invite discussion
of section 40 of the Law of Property Act 1925. Even if you are of opinion that a fact
stated in the problem is immaterial, you should not (in general) pass it by in silence but
should express your opinion that it is immaterial, and, if possible, give reasons.

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 However, there is no need to deal in this way with an argument that, if raised, would
not receive a moment’s serious consideration from the court.

FACTS STATED IN THE PROBLEM ARE CONCLUSIVE

A common query on the part of the learner, when he reads an examination problem is: “How
could such facts ever be proved?” The teacher’s answer is that the student must assume this
proof. The student should not assume facts contrary to those stated in the problem for the purpose
of giving the examiner a piece of information for which he did not ask. Also, there is generally
no need to assume facts that go clean beyond those given in the problem: had the examiner wanted
a discussion of such facts he would have inserted them himself.
Here is an example of a problem in criminal law where the examiner clearly wanted to
confine the facts to a narrow compass. X and Y, discovering that Z intended to commit a burglary in
A’s house, arranged together to persuade him to steal therefore certain articles for them. Have X, Y
or Z committed an offence?
The fact that the question is thrown into the perfect tense shows beyond doubt that no other
facts than those stated in the first sentence are to be assumed. The question is: have they on those
facts alone committed an offence? An answer that assumes that X and Y have persuaded Z to steal, or
that Z has stolen, will therefore miss the mark. The correct answer to the question is that X and Y
are guilty of conspiring to incite (or, indeed, of conspiring to commit) burglary or theft. (There are
technical points relating to the charge that need not be considered here.)

OMITTED FACTS
Although supplementary facts should not, in general, be added to a problem, the case is
different with what may be called omitted facts. One of the marks of a competent lawyer is his
ability to know what gaps there are in the facts of his case. The solicitor, for example, when
interviewing a client has to draw from him by questions many legally relevant facts that the client
has not thought of disclosing. In order to test the candidate’s perspicacity a problem may
deliberately omit something that is important. Always look for such omissions and state how your
answer will be affected by the presence or absence of the fact in question. Here is a simple
illustration from the law of tort.
B is A’s employee. Discuss A’s liability for an accident caused by B’s negligence in the following

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cases:
(i) B, when driving A’s van, picks up his friend C and gives him a lift to the station.
An accident happens by B’s negligence. [etc..]
Two vital facts are omitted from this casually stated problem. First, we are not told who was
injured. We are to understand that owing to B’s negligence an injury was sustained either by C or
by some other user of the highway. But the answer may differ according as the person injured was
C or some other user of the highway. This distinction should therefore be taken, and each of the two
possibilities discussed separately.
Secondly, we are not told whether the station lay on or near B’s proper route, or whether it
was so much off the route that every yard he went was a yard away from his employment and not
to it. This distinction, coupled with the previous one, yields four possible combinations of fact,
each needing discussion.

TWO POINTS OF TECHNIQUE

Some examiners conclude the statement of facts in a problem with the direction to discuss it:
others adopt the mannerism of requesting you to advise one of the parties. This second form of
question does not mean that you are expected to bias your answer in favour of the particular party; the
legal advice you give in your answer will generally be the same whichever party you are supposed to
be advising.
However, there may be some practical advice to be given to the party you are supposed to be
advising, and you should certainly comply with the examiner’s direction as far as you are able. By
the way, do not use the second person in your answer—make the answer impersonal, thus you
should say “X is liable,” not “You are liable.”
If the examiner has exercised his fancy by using fictitious names, like Tomkins, you are perfectly
entitled to abbreviate them to the initial letter—unless, of course, two parties in the same problem
Have the same initial letter.

RULES AND AUTHORITIES

Giving reasons and authorities for an opinion is very important for Lawyer as well as student. If
student gives answer without any reason-the authority will not earn him marks. One of the most
important of a lawyer’s accomplishments is the ability to resolve facts into their legal categories.

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The student should therefore take pains to argue in terms of legal rules and concepts. It is a
common fault, particularly in criminal law, to give the impression that the answer is based wholly
upon common sense and a few gleanings from the Sunday newspapers.
The following illustration of a question and answer in criminal law may show this.
Q.—A fire-engine driven at full speed to a lire knocks down and kills somebody. Discuss the
criminal responsibility of the driver.

Student’s answer.—“If the driver has been careful he is not responsible. (1) It is a well-known
custom that as soon as the siren of a fire-engine is heard, other vehicles should pull up at the side
of the road, in order to afford free passage. It is therefore safe for a fire-engine driver to proceed at a
higher speed than would be possible for other drivers. Further (2) it is reasonable for a fire-engine to
proceed quickly to a fire, for life and property may be in danger. But I do not put much weight on
this second ground, for great as may be the importance of putting out a fire, it is not sufficiently
great to justify the driver in leaving a trail of destruction behind him.”
Upon reading this answer the examiner may well comment: “A commendable effort by an
intelligent student who has not read the textbook and knows no criminal law.” The answer, to be
complete, should have stated the crimes for which the driver may be prosecuted (manslaughter,
causing death by reckless driving, or, in the magistrates’ court, driving without due care and attention);
it should have stated the requirements of each crime, so far as relevant; and it should have pointed
out that the burden of proving these requirements beyond reasonable doubt lies on the prosecution. It
should also have discussed the possible defence of necessity, referring to it expressly by that
name, not vaguely as the last two sentences of the answer do. Put into this legal setting the answer
would have been first-class. It is bad style to begin an answer to a problem by citing a string of cases.
Begin by addressing yourself to the problem. If the law is clear, first state the law and then give
the authorities for your statement. If the law is not clear, first pose the legal question and then set out
the authorities bearing on it. The general lessons from this are in all legal problems use your
brain and have the courage to argue.
If a case falls midway between two authorities, this may indicate that there is a fundamental
conflict of principle between the two authorities, and that it is necessary to hold that one of them
was wrongly decided. Alternatively, you may come to the conclusion that there is a real distinction
between the authorities, and in this event the problem must be looked at from the point of view of

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general legal principle or public policy to decide whether it should be brought under the one head or
the other.
To sum up, when the problem is possibly distinguishable from the authority or authorities
nearest in point, a careful analysis of the possible distinction or distinctions should always be given.
This is particularly important if the authority in question has been doubted by judges or criticized
by legal writers.
When you have a number of cases to quote, it is generally best to quote the nearest authority
first and to allot it the most space; the other cases can be brought more casually into the discussion,
as you have time. When you have read a case in the reports or in a case book, do your best to convey
This fact is by referring to some apposite passage in the judgment or some other relevant detail of
the report which will indicate that you have not merely relied on a textbook. If you know that there
is no case bearing directly upon the problem, say so. The fact that the problem is not covered by
authority is in itself a valuable piece of information. If the authority for a proposition is a statute,
say this also, even though you have forgotten the name of the statute.

DOUBT
Where the law is doubtful, a categorical statement that the rule is one way or the other will earn few, if
any, marks. This is particularly important in answering problems. If the answer to the problem is
doubtful, say so, and then suggest what the answer ought to be. It is a mistake to simulate con fidence
where you have no certain knowledge.
After discussing a problem, try to avoid the weak conclusion that “A is perhaps liable.” Your
conclusion may be that if the facts are so-and-so, he is liable; if they are such and such, he is not.
Or, if the court follows Smith v. Jones, then A will be liable, but if it follows Robinson v. Edwards,
which is to be, preferred for reasons previously given, then A will not be liable. A point can often be
scored by demonstrating that the law applicable to a problem may depend upon the court before
which the case comes.

PROBLEMS ON STATUTES
A problem may be set on a statute as well as on a case. You must then recall the words of the
statute as best you can, apply them to the problem and, as in all problems, look for the “catch.” Here
is an illustration from constitutional law:

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 Aikenhead J., a judge of the High Court, is convicted of driving under the in fluence of
drink. Can he be dismissed from his judicial office, and if so by whom?
The attitude of students towards a problem like this varies. Some, though knowing the terms of
the Act of Settlement, or of the similar statute now in force, steer clear of the problem because they
are afraid of it. Others write down simply:
By the Act of Settlement 1701, “Judges’ Commissions [shall] be made quamdiu se bene
gesserint, but upon the Address of both Houses of Parliament it may be lawful to remove them.”10
Aikenhead J. can be removed under this provision.
A good lawyer, who reads carefully, ponders meanings and is prepared to discuss dif ficulties,
might be able to see this point in the problem even though he had read nothing upon it. When one
studies the literature one finds that, surprising as it may seem, the weight of legal opinion is in favour
of the second view; and it is not even clear what is the proper legal means that the Crown should
use to establish misbehaviour before dismissing a judge.

RELEVANCY
When answering a problem, never preface your answer with a general disquisition on the
department of law relating to the problem. Start straight away to answer the problem. Problems are
set chiefly to test your ability to apply the law you know, and the examiner will speedily tire of
reading an account of the law that is not brought into direct relation to the problem. Where the
problem contains several persons, say A and B as possible plaintiffs and C and D as possible
defendants, the best course is to begin your answer by writing down the heading: A. v. C. When
you have dealt with this, write (say) B.C, referring back to your previous answer for any points that
do not need to be repeated. Then you will deal with Av.D and B v. D.

QUESTIONS DIVIDED INTO PARTS

Questions are frequently divided into two or more parts, and this division raises dif ficulties of its
own for the inexpert candidate. Sometimes the problem begins with a common opening part
before branching out into its subdivisions. The following is an example:

‘A’ writes to ‘B’ offering to sell him his horse Phineas for £1000.
(i) B posts a letter accepting, but he misdirects it and in consequence it is a week late in

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 being delivered to A. Meanwhile A has sold Phineas to C.
(ii) B, after posting a letter of acceptance to A, sends A a telegram cancelling “my letter now
in the post.” The telegram is delivered to A before B’s letter. Discuss.
It should be obvious that in this type of problem (i) and (ii) are alternative possibilities, to be dealt
with separately; (ii) is not meant to follow upon and include the facts of (i). Yet I have known
students to suppose that this is all a single problem, to be disposed of in a single breath.
Another mistake that one student made with this particular problem was to suppose that the
opening sentence was itself a question, inviting a general disquisition on the legal nature of an offer.
This, of course, is not so.

THE OVERLAPPING OF SUBJECTS

In a problem on criminal law, make no statement as to the law of tort, unless of course the
question whether a crime has been committed involves a question of tort. Similarly, in a problem on
tort make no statement as to the law of crime, unless again the existence of a tort depends on the
law of crime.

THE ANSWERING OF PROBLEMS IN CRIMINAL LAW

Always consider all the possible crimes that have been committed, by all possible persons,
and all the possible defences open to them. By “possible” I mean “seemingly possible to an ignorant
person.” If you consider that such-and-such crime has not been committed, or that such-and-such
defence is not available (though an ignorant person might think it is), do not pass it by in silence
but state your opinion expressly. You should also give the reason for your opinion as shortly as
the importance of the point seems to require. The reason for this advice is that quite possibly the
question was set as a trap, and if you refrain from commenting upon the trap the examiner may think
that you have avoided it by good luck rather than good management. Never come to the defences
until you have stated the crime for which the defendant is in your opinion being charged. Start with
the responsibility of the perpetrator (principal), taking accessories afterwards. If you think that the
problem leaves open some question of fact, state the law according as the fact is present or absent.
If the outcome is clear you can say so - e.g. “D is guilty of murder.” But if the application of
law to fact is not clear, you need not state a definite opinion or even “submit” that the position is so-
and-so. For example, the question may state that the defendant shot at a burglar when a bystander

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 was standing dangerously close, and hit the bystander. It is not for you to say that the defendant
foresaw the possibility of hitting the bystander: that is for the jury. Never assume that the
defendant had a particular state of mind unless the question states that he had it. Instead, consider
whether there is any evidence for the jury (sufficient to require the judge to leave the case to the
jury); if there is, explain how the judge would direct the jury, and state whether a verdict of guilty
would be likely to be upheld or. upset on appeal. It is at these points in a jury trial that the legal
Opinion is important: a lawyer is not directly concerned with the work of the jury.
Often the problem will be found to fall short of one of the major crimes. In such a case it will
very frequently involve a lesser or lesser-known crime. The student should note these lesser or
narrower crimes very carefully when they are mentioned in his book. Here is a short list of them.

An Act that falls short may be:

of :
Manslaughter Assault and battery (O.A.P.A. 1861. s. 47). Offences under Road
Traffic Act 1972 as amended: section 1. causing death by reckless
driving; section 2’. reckless driving;
section 3. careless driving;
section 5. driving “under the influence.”
Excessive speed (Road Traffic Regulation Act 1967, s. 78A,
inserted by Act of 1972, s. 203).
Murder Abortion (O.A.P.A. 1861 s. 58). Child
destruction (Act of 1929).
Concealment of birth (O.A.P.A. 1861 s. 60). Infanticide
(Act of 1938).
Manslaughter (O.A.P.A. 1861 s. 5). Manslaughter on
account of diminished res¬ponsibility (Homicide Act
1957 s. 2).

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Attempted murder Assault and battery.
(Criminal Law Act Wounding, etc.. with intent (O.A.P.A. 1861 s. 18 as amended). Malicious
1981, ss 1,4) poisoning resulting in danger to life, etc. (O.A.P.A. 1861 s. 23).
Malicious wounding, etc. (O.A.P.A. 1861 s. 20).
Occasioning actual bodily harm by an assault (O.A.P.A. 1861 s. 47).
Malicious poisoning with intent to injure, etc. (O.A.P.A. 1861 s. 24).
Robbery (Theft Act 1968 s. 8).
Offence under Prevention of Crime Act 1953 or Firearms Act 1968. Possessing
an article with intent to commit an indictable offence against the person
(O.A.P.A. 1861 s. 64, as amended by C.L.A. 1967 Sched. 2).
Criminal damage Cruelty to animals (Protection of Animals Act 1911). Theft (Theft
(Criminal damage Act Act 1968).
1971) Using threat (Criminal Damage Act 1971 s. 2). Having
custody of article with intent (ibid. s. 3).
Theft Taking articles on public display (Theft Act 1968 s. 11). Taking motor-
(Theft Act 1968 s. 1) vehicle or other conveyance (Theft Act 1968 s. 12).
Obtaining property by deception (Theft Act 1968 s. 15).
Obtaining services by deception (Theft Act 1978 s. 1). Making off
without paying (Theft Act 1978 s. 3).
False accounting (Theft Act 1968 s. 17).
Corruption (Prevention of Corruption Act 1906 as amended). Being found on

Robbery private
Assault,premises for an
and battery: unlawful assaults;
aggravated purpose (Vagrancy Act 1824 Blackmail
carry¬ing weapons. s., 4).

(Theft Act 1968 s. 8) (Theft Act 1968 s. 21).

Obtaining Obtaining services by deception (Theft Act 1978 s. 1). Deception in
Property by relation to liabilities (Theft Act 1978 s. 2). False accounting (Theft
deception Act 1968 s. 17).
(Theft Act 1968 Offences under Trade Descriptions Act 1968.
ss. 15, 16)
Forgery Coining -Act Obtaining making
Theft; obtaining of valuable
property security (Theft Act 1968 s. 20(2)). False document
by deception.
1981 False trade description (Trade Descriptions Act 1 1968 s. I).

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Problems in criminal law often start with an inchoate crime—conspiracy, attempt or incitement.
Even though the problem shows that the full crime was consummated, the culprits may be convicted
of attempt or incitement, so that it may be relevant to mention these crimes—though normally, of
course, the indictment would be for the completed crime, not for a mere attempt or incitement. If
you mention the possibility of a conspiracy charge, it would be wise to add that the addition of
conspiracy counts when the crime is consummated must be specially justi fied. As for incitement, if
the crime is actually committed the inciter becomes an accessory to it. In other words, the difference
between (i) incitement and (ii) being a participant in a crime as one who has counselled or procured
it is that in (i) the main crime has not been (or need not have been) committed by the person so
incited, and in (ii) it has.

Important Essay Questions:

1. Write an essay on Glanville William’s Working out Problems
Important Short Answers:
1. Omitted facts. (Nov 2014)
2. Rules and authorities (Nov 2013)
3. Relevancy. (Nov 2013)
4. Problems on statues ( May 2011)

Reference:
http://scholar.harvard.edu/files/jsinger/files/psl.pdf
http://home.lu.lv/~tschmit1/Downloads/Schmitz_Cases-EULaw_introducti

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 6. MOOTS AND MOCK TRIALS

The literal meaning of the term ‘moot’ is subject to debate. “To moot” means to put forward
for discussion. Moots are legal problems in the form of the imaginary cases which are argued by
two student counsels, a leader and the junior, on each side with a bench of three judges or perhaps
only one representing the court of Appeal or sometimes the House of Lords.
 Participation in moots helps the law students in many ways. It gives them experience in
the art of persuasion and putting a case succinctly and intelligibly.
 Mooting not only gives practice in court procedure but helps to develop the self
confidence that every advocate should possess.

ARRANGEMENT OF MOOTS
The arrangement of moots is usually the responsibility of the students’ law society known
as the Moot Society. A law teacher or a practising lawyer usually presides on the bench. Law
students themselves also may preside on the bench. The moot should ideally have two separate
points for arrangement, one each for each of the two sides. The opposing counsel must be noti fied of
the main proposition and of all the authorities relied on by the counsel. The Master of Moots or other
organizer should also be informed of the authorities to be cited, in order that he may arrange for
such reports or case books which are available to be brought to the court room. Since the moot is
attended by an audience it is important to confine the proceedings to a reasonable length of time
between half an hour and 40 minutes.

MOOT COURT PROCEDURE

 In the court hall the counsels for the appellants are seated on the left side of the judge and
those for the respondents on the right side.
 The presiding judge calls upon the leading counsel for the appellant to argue the case
first and then calls his junior and after that the two counsels for the respondent argue the
case.
 The appellant is supposed to have a right of reply subject to the availability of time.
Alternatively, the speaking order can be leading counsel for the appellant; both counsels
for the respondent, junior counsel for the appellant who has the last word.

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  Both the counsels and the judge strictly follow the procedure and conduct of the court.
Counsels rise to their feet when addressing or being addressed by the court.
 In the course of the proceedings, interruption should be avoided as far as possible. ‘Learned
junior’; ‘learned friend’, ‘Learned judge’ etc are the phrases to be used to refer to the other
counsel. ‘My Lordship’ and ‘Your Lordship’ are the polite ways of addressing a judge.
 The difference between ‘My Lord’ and ‘Your Lordship’ is that the former is used in vocative
cases and the later is the mode of referring to the judge in the course of sentence (i.e) as a
polite substitute for ‘You’. Female judges are addressed as ‘My Lady’ or ‘Your Ladyship’.

 Another important etiquette to be followed in the proceedings is that a counsel may submit
and suggest as strongly as he likes and he may state law and fact, but he should not
express his own belief or opinion. As an advocate one is paid to present the client’s case
and not to offer a sincere opinion as a judge.

PRESENTATION OF THE CASE

Address to the court must be as brief as possible. Points must be enumerated and the part of
the argument that is left to junior must be clearly stated. Once the court appears to be convinced
on a particular point, argument on that point may be closed. The court may be appraised of all the
important points without waste of time. Eye contact of the judge is very important in order to make
sure that the argument is heard. Argument must be full of expression and reading must be avoided.
Reading out the long passages from text and treatises must be avoided and authorities must be
quoted with proper periods and emphasis.

CITATION OF CASES
Mooters are expected to produce authorities for the cases cited. The reports of cases or case
books must be produced in the moot. While citing the cases, reference must be pronounced in full,
not in abbreviated form. The facts of the case should be read in full unless the case is relied upon
only for an obiter dictum. Citation of a long list of cases is a monotonous thing and therefore the
author advises the mooters to limit it to six cases on each side. The object of a moot is to provide
practice in developing an argument and citing of cases is only a means to this end.

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THE ROLE OF JUDGES
All moot court judges are expected to interject the counsels by questions and objections. The
objections need not represent the judge’s real opinion; he makes it in order to see how the student
counsel responds. After counsels have concluded their argument the presiding judge may invite
members of the audience to express their opinions upon the legal problem Amicus curiae (friends
of the court). The judge may then deliver the judgment and also declare which counsel or side
performed best.

MOCK TRIALS
A mock trial differs from a moot in that it is a mock jury -trial, with jury and witnesses.
‘Jury’ means a group of people attending on a legal case and giving a verdict on the basis evidence
given in court. It is not an argument on law. It may look like court proceedings with witnesses
dressing themselves up as counsels in ropes. The audience may consist of non -lawyers who often
come to be entertained. Since the trial is un rehearsed, it requires forensic ability on the part of the
student counsel to take part in it.
There are two ways in which the case may be conducted. It may have been enacted beforehand by
the witness so that they testify as to what they have witnessed. The second method is that the
organizers may simply have given to each witness a statement of his evidence which he is expected to
remember. The former method is more realistic when it comes to cross examination. The actual
trial is a valuable experience for budding advocates who take part in it as counsels.
The trials may be conducted in law schools. The cases may be modeled upon an actual trial
case. It is advisable to keep the number of witness down to five or six. The participants must have
attended real trials in order to learn how things are done. The clerk of the court must know his job.

THE GAME OF ALIBI

The game of alibi, like moots and mock trials, is arranged by the members of the students’
law society. The gathering divides into groups of four, each group being composed of two
prosecuting counsels and two defendants. It is assumed that the two defendants have committed some
crime at a stated time and have set up an alibi. They go out of the room for not more than 10 minutes
in order to prepare their story. Then they return for cross examination by the prosecution counsel.
The counsel’s aim is to break down the alibi by asking some unexpected questions. After the cross

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examinations, the two counsels put their heads together and then one of them address the jury and
submits that the alibi has been broken. The jury signify their verdict by a show of hands. The
opinion of the majority is taken.
FALSE EVIDENCE
False evidence is a game somewhat similar to alibi. Three masked defendants are questioned on
their day to day lives by the counsels. One of these defendants has assumed a completely false name
and occupation and it is jury’s-task to decide which. Each defendant must submit to counsel a week
in advance a couple of hundred words summarizing his life and this enables counsels to prepare their
questions. The witness is not in court during the interrogation of the defendant. The counsels try to
shake the evidence and establish discrepancies between the defendant and his witness. The judge
sums up briefly to the jury who consider and announces their verdict. The imposter then
declares himself and it is interesting to see if the judicial process has succeeded in ascertaining the
truth of the matter.

THIRD DEGREE
Third degree is yet another variant of moots and mock trials. One member of the society is
selected as the defendant and he is given the outline of an alibi defence. His alibi may relate to a
period between 2 and 5 pm on a day when he left for a town and joined his friend for a tea. The
defendant must immediately fill in the details and amplify it under questioning. The object of the
rest of the company, who questioned him for 15 minutes, is to establish a self contradiction.
Leading questions may be asked. The significance of this game is that it can be played by two
players only and it may help to bring out unexpected ability as an implacable interrogator.

Important Essay questions:

1. Substantiate the views of Glanville Williams on moots and mock trails. (Nov 2010)
2. Differentiate between moots and mock trails and explain how moots are
conducted.(Nov2012)
Important short Answers:
3. Mock trails (May 2010), (May 2014),( May 2017)
Reference:
https://blogs.law.nyu.edu/lifeatnyulaw/file-under-m-the-difference-between-mock-and-moot/
http://www.paclii.org/law-and-culture/mootrules.pdf

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 7. Due Process of Law - Lord Denning

1. Part One - Keeping the Streams of Justice clear and Pure.

1. In the face of Court
2. The Victimisation of witnesses
3. Refusing to answer questions
4. Scandalising the Court
5. Disobedience to an order of the Court
6. Prejudicing a fair trial

1. In the Face of Court

1. In my own presence
It is old phrase ‘contempt in the face of the Court’. It means a contempt which the Judge
sees with his own eyes: so that he needs no evidence of witnesses. He can deal with it himself at
once. The most quoted case goes back to the year 1631. It was at Salisbury on the Western Circuit. A
prisoner threw a brickbat at the Judge of Assize. It was originally reported in Norman-French. That
was the language which was commonly in use by lawyers and reporters at that time. But put into
English, the translation is given in 3 Dyer at 1881.
‘Richardson Chief Justice of C. B. at the assizes at Salisbury in the summer of 1631 was
assaulted by a prisoner condemned there for felony, who after his condemnation threw a brickbat
at the said Judge which narrowly missed; and for this an indictment was immediately drawn by Noy
against the prisoner, and his right hand cut off and fixed to the gibbet, upon which he was immediately
hanged in the presence of the Court’. Lord Denning had often told of these cases to his students with
the apocryphal addition:
‘The Judge had his head on one side on his hand as the brickbat whizzed past. Straightening
himself up, he said, “If I’d been an upright judge, I should no longer be a judge”. Author reported
cases what he had seen with his own eyes. He was a junior waiting in the Court of Appeal for his case
to be reached. It was in the Court next to Carey Street. Just before the midday adjournment, a man
got up from the row behind him. He threw a tomato at the Judges. It was not a good shot. It passed
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between Lords Justices Clauson and Goddard It hit the panelling with a loud squish.
They were taken aback. They adjourned for a few minutes. Then they returned, had him brought
up, and sentenced him straightaway to six weeks’ imprisonment.
Later on, when Author was sitting as a Lord Justice in the same Court with Lord Justice
Bucknill, it was similar but not the same. It was a hot day. Counsel was talking a lot of hot air. A
man got up with his stick and smashed the glass window to let in some fresh air. At any rate judges
did not commit him for contempt of court. They sent him off to Bow Street to be dealt with for
malicious damage.
Still later, when Lord Denning was presiding, they became more lenient. On every Monday
morning they hear litigants in person. Miss Stone was often there. She made an application before
them. They refused it. She was sitting in the front row with a bookcase within her reach. She picked
up one of Butterworth’s ‘Workmen’s Compensation Cases’ and threw it at them. It passed between
Lord Justice Diplock and Lord Denning. She picked up another. That went wide too. She said, “I
am running out of ammunition’. They took little notice. She had hoped they would commit her for
contempt of court — just to draw more attention to her. As they took no notice, she went towards
the door. She left saying: ‘I congratulate your Lordships on your coolness under fire.

2. The Welsh students invade the Court

It was a dramatic case. Students of Wales were very enthusiastic about the Welsh language
and they were very upset because the programmes of Wales were being broadcast in English and
not in Welsh. They demonstrated to make a protest. They came up to London. They invaded the
Court. Lord Denning had a special relationship with Wales. During the First World War he was a
second lieutenant in the Royal Engineers.
It was the first case in which the Court of Appeal had to consider ‘contempt in the face of the
Court’. Eleven young students had been sentenced to prison. Each for three months, they were all
from the University of Aberystwyth. They had been sentenced on Wednesday, 4 February 1970.
They started their appeal on Monday, 9 February and decided it on Wednesday, 11 February. They
arranged one of the Welsh Lords Justices to sit. Lord Justice Arthian Davies was well qualified. He
was not only Welsh. He could speak Welsh. He sat with Lord Justice Salmon and Lord Denning.
They heard the argument on the Monday and Tuesday. They had to do it so quickly because what
happened was serious indeed. A group of students, young men and young women, invaded the

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court. It was clearly prearranged. They had come all the way from their University of Aberystwyth.
They strode into the well of the court. They flocked into the public gallery. They shouted slogans.
They scattered pamphlets, they sang songs. They broke up the hearing. The judge had to adjourn.
They were removed. Order was restored.

‘When the judge returned to the court, three of them were brought before him. He sentenced
each of them to three months’ imprisonment for contempt of court. The others were kept in custody
until the rising of the court. Nineteen were then brought before him. The judge asked each of them
whether he or she was prepared to apologize. Eight of them did so. The judge imposed a fine of £50
on each of them and required them to enter into recognizance to keep the peace. Eleven of them did
not apologize. They did it, they said, as a matter of principle and so did not feel able to apologize.
The judge sentenced each of them to imprisonment for three months for contempt of court.
‘In sentencing these young people in this way the judge was exercising a jurisdiction which
goes back for centuries. It was well described over 200 years ago by Wilmot J in an opinion which
he prepared but never delivered. “It is a necessary incident”, he said, “to every court of justice to
fine and imprison for contempt of the court acted in the face of it”.
‘At this point Lord Denning would pay a tribute to the way in which Mr. Watkin Powell
conducted this appeal on their behalf. He did as well as any advocate he ever heard. They had been
much assisted too by the Attorney-General, who came here, not as prosecutor, but as a friend of the
court. He put all the relevant considerations before them to their grateful benefit.

High Court still had power at common law to commit instantly to prison for criminal
contempt, and this power is not affected in the least by the provisions of the Act of 1967. The
powers at common law remain intact. It is a power to fine or imprison, to give an immediate
sentence or to postpone it, to commit to prison pending his consideration of the sentence, to
bind over to be of good behavior and keep the peace, and to bind over to come for judgment if
called upon. These powers enable the judge to give what is, in effect, a suspended sentence. Lord
Denning have often heard a judge say at common law, for ordinary offences, before these modern
statutes were passed.

Lord Denning came now to Mr. Watkin Powell’s third point. He says that the sentences were

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excessive. Lord Denning do not think they were excessive, at the time they were given and in the
circumstances then existing. Here was a deliberate interference with the course of justice in a
case which was no concern of theirs. It was necessary for the judge to show — and to show to all
students everywhere — that this kind of thing cannot be tolerated. Let students please, for the causes
in which they believe. Let them make their protests as they will. But they must do it by lawful means
and not by unlawful. If they strike at the course of justice in this land — and Lord Denning speaks
both for England and Wales — they strike at the roots of society itself, and they, bring down that
which protects them. It is only by the maintenance of law and order that they are privileged to be
students and to study and live in peace.
‘But now what is to be done? The law has been vindicated by the sentences which the judge
passed on Wednesday of last week. He has shown that law and order must be maintained, and
will be maintained. But on this appeal, things are changed. These students here no longer defy the
law. They have appealed to this court and shown respect for it. They have already served a week in
prison. Lord Denning do not think it is necessary to keep them inside it any longer. These young
people are no ordinary criminals. There is no violence dishonesty or vice in them. On the contrary,
there was much that judges should applaud. They wish to do all they can to preserve the Welsh
language. Well may they be proud of it. It is the language of the bards - of the poets and the singers
— more melodious by far than our rough English tongue. On high authority, it should be equal in
Wales with English. They have done wrong — very wrong — in going to the extreme they did. But,
that having been shown, they should permit them to go back to their studies, to their parents and
continue the good course which they have so wrongly disturbed.
‘There must be security for the future. They must be of good behavior. They must keep the
peace. Lord Denning would add, finally, that there is power in this court, in case of need, to recall
them. If it should become necessary, this court would not hesitate to call them back and commit them
to prison for the rest of the sentence which Lawton J passed on them. ‘Subject to what my brethren
will say in a few moments, Lord Denning would propose that they be released from prison today, but
that they be bound over to be of good behavior, to keep the peace and to come up for judgment if
called upon within the next 12 months’.
Now Lord Denning return to the commentators. The reaction from England was expressed in two
anonymous postcards that Lord Denninng received. One said ‘You lousy coward’. The other said
‘You ought to resign’. But the reaction from Wales was one of entire satisfaction. The newspapers

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applauded us. A Dean of Divinity wrote simply, ‘Thank you Lord Denning for doing justice by their
young people’.
3. The Official Solicitor comes in with the Devil
The Official Solicitor is a most useful person. He looks after the interests of those who
cannot, or will not, look after them. Such as infants and persons in need of care and protection. He
takes a special interest in persons committed for contempt of court: because people are sometimes
a bit obstinate. Quite often a wife gets an order against her husband for the sale of the house — he
disobeys it and is committed for contempt. He would rather stay in prison inde finitely than give up
the house to his wife. In such a case the Official Solicitor takes up the case for him and gets him
released, as in Danchevsky v Danchevsky. Such persons often refuse to do anything to purge their
contempt. They take no steps to appeal. They sit sullenly aggrieved in their prison cells. They may
sit there indefinitely unless somebody does something to bring their case before the Court. So the
Official Solicitor does it.
The Official Solicitor took up the case of Mr. Balogh. He lodged notice of appeal. But who was
to be respondent to the appeal? It could not be the Judge. No judge can be sued, served or summoned
for anything he does as a judge. So we invited the Attorney-General to appoint a counsel as amicus
curiae — that is, as a friend of the Court — to help us. That is the practice. The Attorney-General
appointed the Treasury ‘Devil’, Mr. Gordon Slynn. A ‘devil’, in the eyes of the law, is an unpaid
hack. When Lord Denning started at the Bar, he often looked up cases and even wrote opinions
for a barrister senior to Lord Denning — and was not paid a penny. Lord Denning ‘devilled’ for him
to get experience. But it is different now. A ‘devil’ is always paid for his work. The Treasury ‘Devil’
is the best of devils. He is the pick after the juniors at the Bar with a reversion to a judgeship. Mr.
Gordon Slynn was outstanding.
4. The ‘laughing gas’ does not escape
Mr. Balogh’s practical joke is so entertaining — and the Judge’s handling of it so instructive
that I would simply quote from it and let my judgment speaks for itself. There is a new Court House
at St. Albans. It is air-conditioned. In May of this year the Crown Court was sitting there. A case was
2
being tried about pornographic films and books, Stephen Balogh was there each day. He was a casual
hand employed by solicitors for the defence, just as a clerk at £5 a day, knowing no law. The case
dragged on and on. He got exceedingly bored. He made a plan to liven it up. He knew something
about a gas called nitrous oxide (N2O). It gives an exhilarating effect when inhaled. It is called

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“laughing gas”. He had learned all about it at Oxford. During the trial he took a half cylinder of it
from the hospital car park. He carried it about with him in his brief case. His plan was to put the
cylinder at the inlet to the ventilating system and to release the gas into the court. It would emerge
from the outlets which were just in front of counsel’s row. So the gas, he thought, would enliven their
speeches. It would be diverting for the others. A relief from the tedium of pornography. So one night
when it was dark he got on to the roof of the court house. He did it by going up from the public
gallery. He found the ventilating ducts and decided where to put the cylinder. Next morning, soon
after the court sat, at 11.15, he took his brief case, with the cylinder in it, into court no. 1. That was
not the pornography court. It was the next door court. It was the only court which had a door
leading up to the roof. He put the brief case on a seat at the back of the public gallery. Then he left for
a little while. He was waiting for a moment when he could slip up to the roof without anyone seeing
him. But the moment never came. He had been seen on the night before. The of ficers of the court had
watched him go up to the roof. So in the morning they kept an eye on him. They saw him put down his
brief case. When he left for a moment, they took it up. They were careful. There might be a bomb in
it. They opened it. They took out the cylinder. They examined it and found out what it was. They got
hold of Balogh. They cautioned him. He told them frankly just what he had done. They charged
him with stealing a bottle of nitrous oxide. He admitted it. They kept him in custody and reported
the matter to Melford Stevenson J who was presiding in court no. 1 (not the pornography court). At
the end of the day’s hearing, at 4.15 p.m., the judge had Balogh brought before him. The police
inspector gave evidence. Balogh admitted it was all true. He meant it as a joke, practical joke. But the
judge thought differently. He was not amused. To him it was no laughing matter. It was a very
serious contempt of court. Balogh said: “I am actually in the wrong court at the moment. . . . The
proceedings which I intended to subvert are next door. Therefore, it is not contempt against your
court for which I should be tried”. The judge replied: “You were obviously intending at least to
disturb the proceedings going on in courts in this building, of which this is one. . . . You will
remain in custody tonight and I will consider what penalty I impose on you ... in the morning”.
‘Next morning Balogh was brought again before the judge. The inspector gave evidence of his
background. Balogh was asked if he had anything to say. He said: “I do not feel competent to conduct
it myself. I am not represented in court. I have committed no contempt. I was arrested for the theft of
the bottle. No further charges have been preferred”.
The judge gave sentence:

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‘Eleven days later he wrote from prison to the Official Solicitor. In it he acknowledged that his
behavior had been contemptible, and that he was now thoroughly humbled. He asked to be allowed
to apologize in the hope that his contempt would be purged. The Of ficial Solicitor arranged at
once for counsel to be instructed, with the result that the appeal has come to this court. ‘But Lord
Denning finds nothing to tell what is meant by “committed in the face of the court”. It has never
been defined. Its meaning is to be ascertained from the practice of the judges over the centuries.
It was never confined to conduct which a judge saw with his own eyes. It covered all contempt
for which a judge of his own motion could punish a man on the spot. So “contempt in the face of
the court” is the same thing as “contempt which the court can punish of its own motion”. It really
means “contempt in the cognizance of the court”. In this Mr. Balogh’s intension was to disrupt the
proceedings in a trial then taking place. His conduct was reported to the senior judge then in the
court building. It was very proper for him to take immediate action, and to have Mr. Balogh brought
before him. But once he was there, it was not a case for summary punishment. There was not
sufficient urgency to warrant it. Nor was it imperative. He was already in custody on a charge of
stealing. The judge would have done well to have remanded him in custody and invited counsel to
represent him.
‘When this case was opened, it occurred to each one of them: Was Mr. Balogh guilty of the
offence of contempt of court? He was undoubtedly guilty of stealing the cylinder of gas, but was he
guilty of contempt of court? No proceedings were disturbed. No trial was upset. Nothing untoward
took place. No gas was released. A lot more had to be done by Mr. Balogh. He had to get his brief
case. He had to go up to the roof. He had to place the cylinder in position. He had to open the
valve. Even if he had done all this, it is very doubtful whether it would have had any effect at all.
The gas would have been so diluted by air that it would not have been noticeable. ....So here
Mr. Balogh had the criminal intent to disrupt the court, but that is not enough. He was guilty of
stealing the cylinder, but no more. ‘On this short ground think the judge was in error. Judges have
already allowed the appeal on this ground. But, even if there had not been this ground, Lord
Denning should have thought that the sentence of six months was excessive. Mr. Balogh spent 14
days in prison: and he has now apologized. That is enough to purge his contempt, if contempt it
was.

2. The Victimisation of witnesses

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1. The trade union member is deprived of his office:
Every Court has to depend on witnesses. It is vital to the administration of justice that they
should give their evidence freely and without fear. Yet everyone knows that witnesses may be
suborned to commit perjury — they may be threatened with dire consequences if they tell the truth —
they may be punished afterwards for telling the truth. You might think it obvious that it was a gross
contempt of court for anyone to intimidate or victimise a witness.
It was not until 1962 that this was fully debated and considered. It was in Attorney- General v
Butterworth [1963] 1 QB 696. Mr. Butterworth and others were on the Committee of the branch of a
trade union. One of the members had given evidence which they disliked. He had given it before the
Restrictive Practices Court. Mr. Butterworth and others determined to punish him for it. They deprived
him of his office as branch delegate and treasurer. It was reported to the Attorney-General: because he
has a public duty to prosecute for contempt of court. He considered that the action of Mr. Butterworth
and the others was contempt. He applied to the Restrictive Practices Court. They held it was not
contempt. The Attorney- General appealed to Court. Now he remembers this case for a particular
reason. It was argued for three days on Wednesday, Thursday and Friday, 11, 12 and 13 July 1962. It
was the ‘night of the long knives’. The Prime Minister, Mr. Harold Macmillan, dispensed with most of
his ministers, at a minute’s notice; they included the Lord Chancellor, Lord Kilmuir. That left him very
sore. Now one of the duties of the Master of the Rolls is that he has to swear in any new Lord
Chancellor. One day he was warned that he would have to swear in a new Lord Chancellor. He was
not told who he was. But during that morning the Attorney General, Sir Reginald Manningham-Buller
(who was arguing the case himself), asked to be excused for an hour or two. judges guessed the reason.
He was to be the new Lord Chancellor. So on one day he was arguing before judges as Attorney-
General. The next day he was Lord Chancellor above them. They decided in his favour — but on the
merit of his argument — not because he had become Lord Chancellor. Things like that make no impact
on them. As in all these cases they do not delay. Judges prepared their judgments over the weekend
and gave them on the Monday morning. He was sworn in before judges on the Tuesday. In the
judgment they sought to enunciate the relevant principles [1963] 1 QB 696 at 717. ‘In the case of
Butterworth, Bailey and Etherton, the pre-dominant motive in the minds of each of those gentlemen
was to punish Greenlees for having given evidence in the R.E.N.A. case. . . . ‘Lord Denning cannot
agree with the decision of the Restrictive Practices Court. It may be that there is no authority to be
found in the books, but if this be so, all author said that the sooner they make one the better. For there

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can be no greater contempt than to intimidate a witness before he gives his evidence or to victimise
him afterwards for having given it. How can they expect a witness to give his evidence freely and
frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who
dislike the evidence he has given? Let them accept that he has honestly given his evidence. Is he to be
liable to be dismissed from his employment, or to be expelled from his trade union, or to be deprived
of his office, or to be sent to Coventry, simply because of that evidence which he has given? He
declines to believe that the law of England permits him to be so treated. If this sort of thing could be
done in a single case with impunity, the news of it would soon get round. Witnesses in other cases
would be unwilling to come forward to give evidence, or, if they did come forward, they would
hesitate to speak the truth, for fear of the consequences. To those who say that there is no authority on
the point, he would say that the authority of Lord Langdale MR in Littler v Thomson (1839) 2 Beav
129 at 131. is good enough: “If witnesses are in this way deterred from coming forward in aid of legal
proceedings, it will be impossible that justice can be administered. It would be better that the doors of
the courts of justice were at once closed”. He has no hesitation in declaring that the victimisation of a
witness is a contempt of court, whether done whilst the proceedings are still pending or after they have
finished. Such a contempt can be punished by the court itself before which he has given evidence, and,
so that those who think of doing such things may be warned where they stand, he would add that if the
witness has been dignified by it he may well have redress in a civil court for damages. ‘Whilst he
agrees that there is no authority directly on the point, he begs leave to say that there are many pointers
to be found in the books in favour of the view which he has in most of the cases which he has
mentioned the witness had finished his evidence but the case itself was not concluded at the time when
the step was taken against him. Nevertheless the principle was laid down, as he has shown, in terms
wide enough to cover cases where the proceedings were concluded. And he must say that he can see
no sense in limiting this species of contempt to punishment inflicted on a witness while the case is still
going on. Victimisation is as great an interference with justice when it is done after a witness gets
home as before he gets there. No such distinction is drawn in the case of interference with a juror. Nor
should it be drawn in the case of a witness. In R v Martin (1848) 5 Cox CC 356.the jury convicted one
John Martin; the foreman of the Jury had scarcely reached home and gone upstairs when the prisoner’s
brother, James Martin, called and challenged the foreman to mortal combat for having bullied the jury.
This was held by the court in Ireland to be a contempt of court, as indeed it surely was. It does not
matter whether the challenge was before or after he got home. Nor could it matter in the case of a

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judge. Nor in the case of a witness. ‘But when the act is done with mixed motives, as indeed the acts
here were done, what is the position? If it is done with the predominant motive of punishing a witness,
there can be no doubt that it is a contempt of court. But even though it is not the predominant motive,
yet nevertheless if it is an actuating motive influencing the step taken, it is, in my judgment, a
contempt of court. He does not think the court is able to, or should, enter into a nice assessment of the
weight of the various motives which, mixed together, result in the victimisation of a witness. If one of
the purposes actuating the step is the purpose of punishment, then it is a contempt of court in everyone
so actuated. ‘We take into account the apology which has been offered by the members of the union
who have been brought here, and, as it is a case of considerable importance which the AttorneyGeneral
has thought right to bring to this court, we do not think it necessary to impose the whole burden of
costs on these gentlemen. . . . ... In the result, therefore, three will pay £200 apiece and the other three
will pay £100 apiece, making £900 in all payable by them towards the Attorney-General’s costs’.

2. The tenant is evicted from his home:

Now there is an important point which arises when a witness is victimised — and suffers loss
on account of it. The contemnor can be punished by the Courts by fine or imprisonment. But can the
sufferer sue the contemnor for damages? Lord Denning thought he could, or at least, should be able to
do so. The victimisation is not only a criminal offence. It is, to my mind, a civil wrong — a tort as
lawyers call it. This point was much discussed a few months later: It was to my mind a shocking case.
A house was let out by a landlord in tenement flats. The landlord forcibly evicted one tenant called
Harrand. That tenant sued the landlord for damages for wrongful eviction. Chapman, the next-floor
tenant, had seen what had happened. Then these were the facts reported Chapman v Honig [1963) 2
QB 502 at 504. ‘. . . Chapman had been tenant since 1959. He had seen something of what happened
on the second floor, and Harrand wanted him to give evidence in his action against the landlord
described above. Chapman, fearing what might befall him if he gave evidence against his landlord, did
not go voluntarily to the court. He was subpoenaed to do so, and only gave evidence in obedience to
the subpoena. He gave evidence on 22 June 1962, at the hearing before Judge Baxter.
On the very next day, 23 June 1962, the landlord served on Chapman notice to quit his first-
floor flat on 28 July 1962. The reason he did that was simply because Chapman had given evidence for
Harrand. The object of the landlord was, the judge found, “to punish or victimise Mr. Chapman for
having given evidence”. ‘. . . . The judge gave judgment for the plaintiff for £50 damages for contempt

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of court. ‘. . . . On the judge’s findings the landlord gave this notice to quit and attempted to evict the
tenant vindictively in order to punish Chapman for having given evidence against him. That is in itself
a contempt of court — a criminal offence — and punishable accordingly (see AttorneyGeneral v
Butterworth) ([1963] 1 QB 696, [1963] LR 3 RP 327, [1962] 3 All ER 326, [1962] 3 WLR 819
CA) and, being done by father and son in a combination to injure, it may also have been a conspiracy:
see Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, [1942] 1 All ER 142, 58 TLR
125, HL. It was in any case unlawful. He thinks that the victimisation of a witness is not a contempt of
court in itself. It is only a contempt if other people are likely to get to know of it and be deterred from
giving evidence in other actions. If that is right, it would mean this, that if the tenant proclaims his
grievance upon the housetops, telling everyone about it, the landlord is guilty of contempt. But if the
tenant should keep his suffering to himself, without telling his neighbors why he is evicted, the
landlord does no wrong. That cannot be right. . . . ‘The principle upon which this case falls to be
decided is simply this. No system of law can justly compel a witness to give evidence and then, on
finding him victimised for doing it, refuse to give him redress. It is the duty of the court to protect the
witness by every means at its command. Else the whole process of the law will be set at naught, if a
landlord intimidates a tenant by threatening him with notice to quit, the court must be able to protect
the tenant by granting an injunction to restrain the landlord from carrying out his threat. If the landlord
victimises a tenant by actually giving him notice to quit, the court must be able to protect the tenant by
holding the notice to quit to be invalid. Nothing else will serve to vindicate the authority of the law.
Nothing else will enable a witness to give his evidence freely as he ought to do. Nothing else will
empower the judge to say to him: “Do not fear. The arm of the law is strong enough to protect you”. ‘It
is said, however, that to hold the notice invalid is a pointless exercise, because the landlord can give
another notice next day or next week or next month: and that notice will be valid. He does not agree, if
the landlord has been guilty of such a gross contempt as to victimise a tenant, he should have thought
that any court would hold that a subsequent notice to quit was invalid unless he could show that it was
free from the taint. The landlord can at least be required to purge his contempt before being allowed to
enforce the contractual rights which he has so greatly abused. The tenant, of course, has to pay his rent
and perform his covenants: so there is no injustice in requiring the landlord to clear his conscience.
‘The case was put of the valet who gives evidence against his master in a divorce suit. Next day the
master out of spite dismisses him by a month’s notice. Clearly the notice is unlawful. But the servant
cannot stay on against the master’s will. The law never enforces specifically a contract for personal

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service. But what are the damages? They would, I think, be such damages as a jury might assess to
recompense him for the loss of the chance of being kept on longer, if he had not been victimised. Thus
only can the law give adequate redress, as it should, to an innocent person who has been dignified for
obeying its commands. . . . ‘The truth is, however, that this is a new case. None like it has ever come
before the courts so far as he knows. But that is no reason for us to do nothing. They have the choice
before us.
Either to redress a grievous wrong, or to leave it un-remedied. Either to protect the victim of
oppression, or to let him suffer under it. Either to uphold the authority of the law, or to watch it being
flouted. Faced with this choice he has no doubt what the answer should be. They cannot stand idly by.
The law which compels a witness to give evidence is in duty bound to protect him from being
punished for doing it. That was the view of Judge Sir Alun Pugh when he granted an injunction. It was
the view of Judge Baxter when he gave damages of £50. It is my view too. He would not turn the
tenant away without remedy. He would dismiss this appeal’. That was not the view of my two
colleagues. They held that the notice to quit was valid: and that the tenant had no remedy in damages.
They overruled Judge Sir Alun Pugh and Judge Baxter who he knows are very good and experienced
judges. They also overruled me though that does not matter so much. They even suggested that as a
general proposition there can never be a right of action for damages for contempt of court. Pearson LJ
said significantly (at page 522): ‘The general proposition (that there can never be a right of action)
might well be correct, but in the present case it is enough to say that there can be no such right of
action in respect of an act which, as between the plaintiff and the defendant, has been done in exercise
of a right under a contract or other instrument and in accordance with its provisions .... The same act as
between the same parties cannot reasonably be supposed to be both lawful and unlawful — in the
sphere of contract, valid and effective to achieve its object, and in the sphere of tort, wrongful and
imposing a tortuous liability’. That decision went no further. Two colleagues went so far as to refuse
the tenant leave to appeal to the Lords. No doubt because only £50 was involved.
The tenant was legally aided and the landlord was not: and it would be hard on the landlord to
have him taken to the Lords over such a small sum. The case is a disturbing reflection on our doctrine
of precedent as recently proclaimed by the Lords.

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 3. Refusing to answer questions
1. Two journalists are sent to prison:
Next there came a case of intense public interest. Two journalists refused to answer questions
asked of them in the witness-box. They were sent to prison. Were they guilty of contempt of court?
Newspapers had been saying there was a spy in the Admiralty. Parliament ordered an inquiry. Lord
Radcliffe presided over it. One of the journalists had written that ‘it was the sponsorship of two high
ranking officials which led to Vassall avoiding the strictest part of the Admiralty’s security vetting’.
Lord Radcliffe asked the journalist: ‘What was the source of your information? Where did you get it
from?’ The journalist said: ‘I decline to answer’. Lord Radcliffe asked: ‘Will you inquire from the
source whether he is willing for it to be divulged?’ The journalist still declined to answer. Lord
Radcliffe informed the Attorney-General. He moved the Court to punish the journalist for contempt of
court. Mr. Justice Gorman sentenced him to six months. The journalist appealed to Court. It raised the
question whether a journalist has any privilege in the matter. A preliminary point arose as to the
relevancy of the question. A witness is only bound to answer a relevant question, not an irrelevant one.
The cases, heard together, were AttomeyGeneral, v Mulholland; Attorney-General v Foster.[1963] 2
QB 477 at 487 He does deaf with the point in this way: ‘Was the question relevant to the inquiry?
Was it one that the journalist ought to answer? It seems to me that if the inquiry was to be as thorough
as the circumstances demanded, it was incumbent on Mulholland to disclose to the tribunal the source
of his information. The newspapers had made these allegations. If they made them with a due sense of
responsibility (as befits a press which enjoys such freedom as ours) then they must have based them on
a trustworthy source. Heaven forbid that they should invent them! And if they did get them from a
trustworthy source, then the tribunal must be told of it. How otherwise can the tribunal discover
whether the allegations are well founded or not? The tribunal cannot tell unless they see for themselves
this trustworthy source, this witness who is the foundation of it all. The tribunal must, therefore, be
entitled to ask what was the source from which the information came’. The question of privilege (Ibid
at 489) ‘But then it is said (and this is the second point) that however relevant these questions were and
however proper to be answered for the purpose of the inquiry, a journalist has a privilege by law
entitling him to refuse to give his sources of information. The journalist puts forward as his
justification the pursuit of truth. It is in the public interest, he says, that he should obtain information in
confidence and publish it to the world at large, for by so doing he brings to the public notice that which
they should know. He can expose wrongdoing and neglect of duty which would otherwise go un-

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remedied. He cannot get this information, he says, unless he keeps the source of it secret. The mouths
of his informants will be closed to him if it is known that their identity will be disclosed. So he claims
to be entitled to publish all his information without ever being under any obligation, even when
directed by the court or a judge, to disclose whence he got it. It seems to me that the journalists put the
matter much too high. The only profession that he knows which is given a privilege from disclosing
information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of
his client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to
answer when directed to by a judge. The judge will respect the confidences which each member of
these honourable professions receives in the course of it, and will not direct him to answer unless not
only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be
put and answered. A judge is the person entrusted, on behalf of the community, to weigh these
conflicting interests — to weigh on the one hand the respect due to confidence in the profession and on
the other hand the ultimate interest of the community in justice being done or, in the case of a tribunal
such as this, in a proper investigation being made into these serious allegations, if the judge determines
that the journalist must answer, then no privilege will avail him to refuse. ‘It seems to me, therefore,
that the authorities are all one way. There is no privilege known to the law by which a journalist can
refuse to answer a question which is relevant to the inquiry and is one which, in the opinion of the
judge, it is proper for him to be asked. He thinks it plain that in this particular case it is in the public
interest for the tribunal to inquire as to the sources of information. How is anyone to know that this
story was not a pure invention, if the journalist will not tell the tribunal its source? Even if it was not
invention, how is anyone to know it was not the gossip of some idler seeking to impress? It may be
mere rumour unless the journalist shows he got it from a trustworthy source. And if he has got it from
a trustworthy source then however much he may desire to keep it secret, he must remember that he has
been directed by the tribunal to disclose it as a matter of public duty, and that is justification enough. ‘.
. . . We have anxiously considered the sentences of six months and three months respectively which
Gorman J passed on Mulholland and Foster, and after full consideration we have felt unable to adopt
the view that the sentences are disproportionate to the serious nature of the offence’.

2. The New Statesman is angry: That case made some journalists very angry. The New Statesman
published an article by one of them against Judges in which he suggested that the press would retaliate:
‘Any judge who gets involved in a scandal during the next year or so, must expect the full treatment’.

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To which the Daily Mirror retorted with a nice piece of satire: ‘Is it likely that Lord Denning will be
copped in a call-girl’s boudoir, or Lord Justice Danckwerts be caught napping flogging stolen
cigarettes, or Lord Justice Donovan be caught pinching a Goya from the National Gallery? Is Mr.
Justice Gorman, who sentenced the two silent journalists, likely to be discovered running a Soho strip-
tease club when the Courts are in recess? The possibility is laughably remote. The Mirror recognises
that it is the duty of a judge to administer the law as the law stands, and not as some would like it to
be’. Thanks be to the Daily Mirror !

4. Scandalising the Court

1. Lord Mansfield is criticized:
When the Judges of a Court are criticized or defamed — or as it is put ‘scandalised’ — they
can punish the offender. They do it, they say, not to protect themselves as individuals but to preserve
the authority of the Court. It was so stated in one of the most eloquent passages in our law books — in
a judgment which was prepared but never delivered. The Judge who was criticised was one of our
greatest. It was Lord Mansfield himself in 1765. He had made an amendment to information against
John Wilkes. Now Mr. Almon had a shop in Piccadilly. He published a pamphlet entitled ‘A Letter
concerning Libels, Warrants, Seizure of Papers, &c.’ He sold it in his shop for is 6d. In it he said that
Lord Mansfield had made the amendment ‘officiously, arbitrarily, and illegally’. Nowadays judges are
used to criticisms of that kind but in those days the Attorney-General moved to commit Mr. Almon for
contempt of court. The case was argued and Mr. Justice Wilmot prepared a judgment of 28 pages in
length ready to punish Mr. Almon. But Mr. Almonapologised. The Attorney- General resigned. The
proceedings were dropped. So Mr. Justice Wilmot’s judgment was never delivered. Forty years later it
was published in a volume of Wilmot’s cases under the title R v Almon (1765) film 243-271. In it he
said (at page 259): ‘If their authority (i.e. of the Judges) is to be trampled upon by pamphleteers and
news writers, and the people are to be told that the power given to the Judges for their protection, is
prostituted to their destruction, the Court may retain its power some little time, but I am sure it will
instantly lose all its authority; and the power of the Court will not long survive the authority of it: is it
possible to stab that authority more fatally than by charging the Court, and more particularly the Chief
Justice, with having introduced a rule to subvert the constitutional liberty of the people? A greater
scandal could not be published’.

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2. Mr Justice Avory comes under fire:
They have travelled far since that time. In the 1920’s the offence of ‘scandalising the Court’
was regarded as virtually obsolete. But it was revived in a case in 1928 when Lord Denning was four
years called to the Bar. He was in chambers at No. 4 Brick Court. Author had few briefs and spent
much of his time editing — or helping edit — a new edition of Smith’s Leading Cases. But author did
find time to go across the Strand to listen to this cause célèbre. The New Statesman had published an
article criticising Mr. Justice Avory. Now he was a Judge held by the profession with respect, almost
with awe. He was a small man but resolute and stern. It showed in his face with his firm mouth and
piercing grey eyes. He had tried a libel action with a jury. They had awarded £200 damages against
Dr. Marie Stopes, the advocate of birth control - then much frowned upon — see Sutherland v Stopes
[1925] AC 47. The New States-man denounced the case and added these words: ‘The serious point in
this case, however, is that an individual owning to such views as those of Dr. Stopes cannot apparently
hope for a fair hearing in a Court presided over by Mr. Justice Avory — and there are so many
Avorys’. Proceedings were taken against the editor of the New Statesman for contempt of court. They
are reported in R v New Statesman (1928) 44 TLR 301. On the one side was the Attorney-General, Sir
Douglas Hogg KC. On the other, Mr. William Jowett KC. Each was a brilliant advocate. Each was
afterwards Lord Chancellor. But how different.Jowitt — tall, handsome and distinguished with a
resonant voice and clear diction.
Hogg looked like Mr. Pickwick and spoke like Demosthenes. Jowitt put it well for the New
Statesman. He quoted a judgment by a strong Board of the Privy Council in 1899 saying: ‘Committals
for contempt of Court by scandalising the Court itself have become obsolete in this country. Courts are
contented to leave to public opinion attacks or comments derogatory or scandalous to them’ (McLeod
v St. Aubyn) [1899] AC 549 at 561. Hogg replied by quoting a passage from Wilmot’s undelivered
judgment upholding the offence on the ground that ‘to be impartial, and to be universally thought so,
are both absolutely necessary’. Jowett saw that the Court were against him. So he handled them
tactfully. Whilst he submitted there was no contempt, he excused the article by reason of the haste in
which it was written: and apologised humbly if it were held to be contempt. That pleased the Court.
They did not send the editor to prison. They adjudged that he was guilty of contempt: but they did not
fine him. They only ordered him to pay the costs.

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3. We ourselves are told to be silent:
Oddly enough, the last case on this subject concerned Sir Douglas Hogg’s son, Mr. Quintin
Hogg, as he then was. In his full title, the Rt. Hon. Quintin Hogg QC, MP. Now Lord Hailsham of St.
Marylebone, the Lord Chancellor, he is the most gifted man of our time. Statesman, Orator,
Philosopher —he has no compares. Whilst out of office, he is by turns author, journalist, and television
personality. In his exuberance he wrote for Punch and in 1968 found himself brought up by Mr.
Raymond Blackburn on the charge that he was guilty of contempt of court. He criticised the Court of
Appeal in words which were quite as strong as those in which Mr. Almoncriticised Lord Mansfield.
His words are set out fully in the report of the case, R v Commissioner of Police of the Metropolis
[1968] 2 QB 150 at 154, He said: ‘The Legislation of 1960 and thereafter has been rendered virtually
unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the
courts, including the Court of Appeal .... it is to be hoped that the courts will remember the golden rule
for judges in the matter of obiter dicta. Silence is always an option’. The case came before us on a
Monday morning, 26 February 1968. Mr. Blackburn applied in person. Mr. Hogg was in Court but was
represented by the most graceful advocate of our time, Sir Peter Rawlinson QC, now Lord Rawlinson.
He told us that Mr. Hogg in no way intended to scandalise the Court or the Lords Justices — whom he
held in the highest personal and professional regard — but he maintained that the article constituted a
criticism which he had a right to state publicly. Judges accepted the submission and delivered
judgment straightaway, as they usually do. They did not write twenty eight pages as Mr. Justice
Wilmot did. This is what Lord Denning said (at page 154): ‘This is the first case, so far as know,
where this court has been called on to consider an allegation of contempt against itself. It is a
jurisdiction which undoubtedly belongs to them but which they will most sparingly exercise: more
particularly as they have an interest in the matter. ‘Let them say at once that they will never use this
jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will they
use it to suppress those who speak against judges. Judges do not fear criticism, nor do they resent it.
For there is something far more important at stake. It is no less than freedom of speech itself.
‘It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair
comment, even outspoken comment, on matters of public interest. Those who comment can deal
faithfully with all that is done in a court of justice. They can say that we are mistaken, and our
decisions erroneous, whether they are subject to appeal or not. All they would ask is that those who
criticise them will remember that, from the nature of Author’s office, they cannot reply to their

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criticisms. Judges cannot enter into public controversy. Still less into political controversy. They must
rely on conduct itself to be its own vindication. ‘Exposed as they are to the winds of criticism, nothing
which is said by this person or that, nothing which is written by this pen or that, will deter them from
doing what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an
option when things are ill done. So it comes to this: Mr. Quin tin Hogg has criticised the court, but in
so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not
make it a contempt of court. Judges must uphold his right to the uttermost. ‘Lord Denning hold this not
to be a contempt of court, and would dismiss the application’.

5. Disobedience to an order of the Court

1. Strict proof:
One of the most important powers of a court of law is its power to give orders. Very often it
has to make an order commanding a person to do something — or restraining him in some way. If he
disobeys, the Court has one weapon in its armory which it can use. It can punish him for contempt of
court. Either by fine or by imprisonment. This kind of contempt has the characteristics which are
common to all contempt of court. It is a criminal offence. It must be proved beyond reasonable doubt.
Judges laid that down in Re Bramble vale Ltd (1970) 1 Ch 128. But in addition the Court insists on
several requirements being strictly observed.

2.The three dockers:

This strictness was very much in evidence in the case often three dockers, Churchman v Shop
Stewards [1972] 1 WLR 1094. It arose out of the Industrial Relations Act 1971 which set up a new
court, the industrial Relations Court. It was bitterly opposed by the trade unions and their members. So
much so that they refused to recognise the new court: or to obey the orders issued by it. A crisis arose
when the dockers in the East End of London picketed a depot. The Court issued an order common ding
them to stop the picketing. The dockers did not appear before the Court nor were they represented.
They continued the picketing. The Industrial Relations Court gave judgment on Wednesday, 14 June
1972 (which is quoted at page 1097): ‘The conduct of these men, as it appears at present, has gone far
beyond anything which could appropriately be disposed of by the imposition of a fine. Unless judges
receive some explanation they have no alternative but to make orders committing them to prison. But
they wish to give them every opportunity to explain their conduct, if it can be explained’. The Court

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then set a dead-line for an explanation to be given: ‘If they have not appeared before us tomorrow
morning or applied to the Court of Appeal before 2 p.m. on Friday, 16 June, the warrants will issue’.
Now everyone knew that the dockers would take no notice of the Court. They would continue to
disobey. They would continue their picketing. They would not appear before the Industrial Court to
give an explanation. They would not apply to the Court of Appeal.
The warrants would issue. They would go to prison. They would be martyrs. The trade union
movement would call a general strike which would paralyse the country. It was averted. But how was
it done? The Official Solicitor appeared from nowhere. He applied to us in the Court of Appeal asking
judges to quash the order of the Industrial Court. They did so. The dockers were very disappointed.
They were at the gates of the depot expecting to be arrested. Instead there were no warrants, no arrests,
no prison, no martyrdom, and no strike. Everyone asked at once: Who is the Official Solicitor? Who
put him up to this? What right had he to represent the men when they wished for no representation and
what right had he to come to the Court and ask for the committal order to be quashed? On what ground
was it quashed? Lord Denning gave the reasons in his judgment on the fateful Friday (at page 1097):
‘The Industrial Court gave them until 2 p.m. today, Friday, in which to apply to the Court of Appeal.
The three dockers have not applied themselves, nor have they instructed anyone to apply on
their behalf. But the Official Solicitor has done so. He has authority to apply on behalf of any person in
the land who is committed to prison and does not move the court on his own behalf. Likewise, on
behalf of any person against whom an order for committal is made, he is authorised to come to this
court and draw the matter to its attention. He has instructed Mr. Pain, and Mr. Pain has submitted to
judges that the evidence before the Industrial Court was not sufficient to warrant the orders of
committal’. Lord Denning pause here to say that Mr. Pain was very conversant with trade union
matters. He was a very effective advocate. He used to assume a disarming air of diffidence as if to say,
‘Please help me’. And of course they did. Author went on: ‘. ... In exercising those powers, and
particularly those which concern the liberty of the subject, Lord Denning would hold, and this court
would hold, that any breach giving rise to punishment must be proved in the Industrial Court with the
same strictness as would be required in the High Court here in this building. So they have to see
whether the orders were properly proved, and the breaches of them proved, according to that degree of
strictness. ‘It seems to me that the evidence before the Industrial Court was quite insufficient to prove
— with all the strictness that is necessary in such a proceeding as this, when you are going to deprive
people of their liberty — a breach of the court’s order. ‘. ... It may be that in some circumstances the

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court may be entitled, on sufficient information being brought before it, to act on its own initiative in
sending a contemnor to prison. But, if it does so think fit to act, it seems to me that all the safeguards
required by the High Court must still be satisfied. The notice which is given to the accused must give
with it the charges against him Particularity which this court or the High Court here ordinarily requires
before depriving a person of his liberty.
The accused must be given notice of any new charge and the opportunity of meeting it. Even if
he does not appear to answer it, it must be proved with all the sufficiency which we habitually before
depriving a man of his liberty. ‘Having analysed the evidence as it has been put before us in this case,
author said that it falls far short of that which they would require for such a purpose. In Lord
Denning’s opinion, therefore orders of committal should be set aside and the warrants should not be
executed’.

3. The five dockers:

Just over five weeks later, 26 July 1972, that story almost repeated itself. But this time it was
five dockers, not three. They picketed the container depot. The industrial court ordered that they were
to be imprisoned for contempt. Again there was the threat of a general strike. Again judges were
ready to hear an immediate appeal by the Official Solicitor. But he was told by someone to hold his
hand. The reason was because the House of Lords rushed through a decision which was said to affect
the matter. It was Heaton’s Case [1973] AC 15. They were busy amending their drafts - in typescript -
right up to the last moment. Their decision was telephoned at once to the President of the Industrial
Court. It gave him sufficient reason to revoke the order for committal. He revoked it. The general
strike was averted. Another emergency was over. The lesson to be learned from the dockers’ cases is
that the weapon of imprisonment should never be used - for contempt of court in the case of industrial
disputes. Some better means must be found. Can anyone suggest one?

4. The ward of court:

Under this head of disobedience there are cases where a newspaper publishes a report of
proceedings which are held in private. Most cases are bound to be heard in public and there is no bar to
a fair and accurate report of them. But some cases are held in private: and a newspaper is guilty of a
contempt of court if it publishes a report of what took place. Particularly is this the case in wardship
proceedings which are usually held in private. The point arose in 1976 in a case reported as Re F

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[1977] Fam 58. A girl of 15 ran away with a man of 28. He gave her drugs and had sexual intercourse
with her, knowing that she was only 15. Her parents were so worried that they applied for her to be
made a ward of court. The girl was placed in a hostel. A social worker advised that the man of 28
should be allowed to visit her there. The Daily Telegraph got to know of this and published an article
headed, ‘Jailed lover “should visit hostel girl, 16” The Official Solicitor thought that this article
disclosed some of the proceedings which had taken place in private. He moved to commit the Daily
Telegraph for contempt.
The Judge held that it was contempt. they reversed it. Lord Denning said (at page 88): ‘. . . .
There are cases to show that it was contempt of court of publish information relating to the
proceedings in court about a ward. . . . The court was entitled to — and habitually did — hear the case
in private. It could keep the proceedings away from the public gaze. The public were not admitted. Nor
even the newspaper reporters. Only the parties, their legal advisers, and those immediately concerned
were allowed in. When the court thus sat in private to hear wardship proceedings, the very sitting in
private carried with it a prohibition forbidding publication of anything that took place, save only for
the formal order made by the judge or an accurate summary of it: ... . ‘A breach of that prohibition was
considered a contempt of court. It was a criminal offence punishable by imprisonment. But what were
the constituents of the offence? .... ‘This kind of contempt is akin to the contempt which is committed
by a person who disobeys an order of the court. Such as occurs where a party breaks an injunction
ordering him to do something or to refrain from doing it. But there are differences between them.
When one party breaks an injunction, it is the other party — the aggrieved person — who seeks
to commit him for contempt. It is for his benefit that the injunction was granted, and for his benefit that
it is enforced: .... The offender is not to be committed unless he has had proper notice of the terms of
the injunction and it is proved, beyond reasonable doubt, that he has broken it: But when a newspaper
editor — or anyone else for that matter — publishes information which relates to wardship
proceedings, it is very different. He is no party to the proceedings. No order has been made against
him. No notice has been given to him of any order made by the courts. He may — or may not — know
whether the proceedings were in private or in open court. He may — or may not — be aware that there
is a prohibition against publication. On what ground, therefore, is he to be found guilty? On what
ground is he to be punished and sent to prison? What are the constituents of the offence? ‘On principle,
it seems to me that, in order to be found guilty the accused must have had a guilty mind — some guilty
knowledge or intention.

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 Much depends on the nature. “The mental elements of different crimes differ widely”: .... What
then is the mental element here? In considering it, it must be remembered that the offence is not
restricted to newspaper editors or reporters. Anyone who publishes information relating to wardship
proceedings may be found guilty. The girl herself, or her parents, or the lawyers in the case, may find
themselves charged with the offence. Even if they only tell the story by word of mouth to a friend, they
may be guilty of an offence: for that would be a publication of it. Seeing that the offence is of such
wide scope, it seems to me that a person is only to be found guilty of it if he has published information
relating to wardship proceedings in circumstances in which he knows that publication is prohibited by
law, or recklessly in circumstances in which he knows that the publication may be prohibited by law,
but never the-less goes on and publishes it, not caring whether it is prohibited, or not. As if he said:
“Lord Denning doesn’t care whether it is forbidden, or not. Proof of this state of mind must be up to
the standard required by the criminal law. It must be such as to leave no reasonable doubt outstanding.
This test affords reasonable protection to ordinary folk, while, at the same time, it does not give
a newspaper any freedom to publish information to the world at large. If a newspaper reporter knew
that there were, or had recently been, wardship proceedings, he would be expected to know that they
would be held in private and would know — or as good as know — that there was a prohibition
against publication. Once he did know that there were, or had been, ward- ship proceedings, the
prohibition would, think, apply, not only to information given to the judge, at the actual hearing, but
also to confidential reports submitted beforehand by the Official Solicitor, or social workers, or the
like. ‘It remains to apply those principles to the newspapers in this case.
The parents told the “Daily Telegraph” that the wardship order had been a temporary one and
that it had expired. The newspaper thought that there was no longer any prohibition on publication.
They made inquiry at the local council without getting any enlightenment. The “Evening Mail” made
inquiries all round, including the Official Solicitor; and no one told them that the girl was a ward of
court, Furthermore, both newspapers took the view that the matter was of such public interest that it
should be brought to the notice of people in general — unless it was clearly prohibited by law. That
was a legitimate view to take. They made inquiries. Finding no such prohibition, they published the
information. In the circumstances, author said there was any guilty knowledge or intent on their part
such as to warrant a finding that they were in contempt of court’.

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 6. Prejudicing a fair trial
1. ‘Vampire Arrested’:
The freedom of the press is fundamental in our constitution. Newspapers have — and should
have — the right to make fair comment on matters of public interest. But this is subject to the law of
libel and of contempt of court. The newspapers must not make any comment which would tend to
prejudice a fair trial, if they do, they will find themselves in trouble. The most spectacular case is one
that is not reported in the Law Reports but which I remember well. Not that I usually read the
newspapers much. Only The Times when it happens to appear. Its reports of legal decisions are
unique. No other newspaper in the world has anything like it. They are written by barristers and are
quoted in the Courts. But on this occasion the Daily Mirror went beyond all bounds. It came out with a
banner headline — after a man called Haigh had been arrested and before he was charged —
‘VAMPIRE ARRESTED’ It said that Haigh had been charged with one murder and had committed
others and gave the names of persons who, it was said, he had murdered. Lord Goddard was the Chief
Justice. He said: ‘There has been no more scandalous case. It is worthy of condign punishment’. He
fined the newspaper £10,000. He sent the editor to prison for three months. He added: ‘Let the
directors beware. If this sort of thing should happen again, they may find that the arm of the law is
strong enough to reach them too’.

2. The Thalidomide case:

By far the most important case in recent years is the Thalidomide case. It is reported in the
Court of Appeal in AG v Times Newspapers Ltd [1973] 1 QB 710 and in the House of Lords in [1974]
AC 273. “Mothers when pregnant had taken the drug thalidomide. Their children have been born
deformed. That was in 1962. Actions were started at once for damages. Distillers, who distributed the
drug, tried to settle the actions. All parents agreed to a settlement except five. An application was
made to our Court to remove those five parents as next friends so as to get the children represented by
the Official Solicitor. It was known that he would agree to a settlement. If that move had succeeded, all
the cases would have been settled. There would have been no reported case anywhere. But judges
refused to remove those five parents. Our refusal is reported in Re Taylor’s Application [1972] 2 QB
369. It was the turning point of the case. The rest is best told by what said in the Court of Appeal
[1973] 1 QB 710. (At page 736): ‘The editor of the “Sunday Times’.’ tell judges that the report of that
case caused him great anxiety. Over 10 years had passed since the children were born with these

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deformities, and still no compensation had been paid by Distillers. He determined to investigate the
matter in depth and to do all he could, through his newspaper, to persuade Distillers to take a fresh
look at their moral responsibilities to all the thalidomide children, both those where writs had been
issued and those where they had not. He had investigations made and launched a campaign against
Distillers. ‘On 12 October 1972, the Attorney-General issued a writ against the “Sunday Times”
claiming an injunction to restrain them from publishing the draft article. ‘It is undoubted law that,
when litigation is pending and actively in suit before the court, no one shall comment on it in such a
way that there is a real and substantial danger of prejudice to the trial of the action, as for instance by
influencing the judge, the jurors, or the witnesses, or even by prejudicing mankind in general against a
party to the cause. That appears from the case before Lord Hardwicke LC in 1742 of In re Read and
Huggonson {St. James’ Evening Post Case) (1742) 2 Atk 469, and by many other cases to which the
Attorney-General drew our attention. Even if the person making the comment honestly believes it to be
true, still it is a contempt of court if he prejudges the truth before it is ascertained in the proceedings:
see Skipworth’s Case (1873) LR 9 QB 230, 234, by Blackburn J.
To that rule about a fair trial, there is this further rule about bringing pressure to bear on a
party: None shall, by misrepresentation or otherwise, bring unfair pressure to bear on one of the parties
to a cause so as to force him to drop his complaint, or to give up his defence, or to come to a settlement
on terms which he would not otherwise have been prepared to entertain. That appears from In re
William Thomas Shipping Co Ltd [1930] 2 Ch 368 and Vine Products Ltd v Green [1966] Ch 484, to
which I would add an article by Professor Goodhart on “Newspapers and Contempt of Court in
English Law” in (1935) 48 Harvard Law Review, pp. 895, 896. ‘I regard it as of the first importance
that the law which Lord Denning have just stated should be maintained in its full integrity. Judges
must not allow “trial by newspaper” or “trial by television” or trial by any medium other than the
courts of law. ‘But in so stating the law, he would emphasise that it applies only “when litigation is
pending and is actively in suit before the court”. To which he would add that there must appear to be
“a real and substantial danger of prejudice” to the trial of the case or to the settlement of it. And when
considering the question, it must always be remembered that besides the interest of the parties in a fair
trial or a fair settlement of the case there is another important interest to be considered. It is the interest
of the public in matters of national concern, and the freedom of the press to make fair comment on
such matters. The one interest must be balanced against the other. There may be cases where the
subject matter is such that the public interest counterbalances the private interest of the parties. In such

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cases the public interest prevails. Fair comment is to be allowed. It has been so stated in Australia in
regard to the courts of law: see Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 and Ex
parte Dawson [1961] SR (NSW) 573. It was so recommended by a committee presided over by Lord
Salmon on The Law of Contempt in Relation to Tribunals of Inquiry: see (1969) Cmnd. 4078, para 26.
‘Take this present case. Here they have a matter of the greatest public interest. The thalidomide
children are the living reminders of a national tragedy. There has been no public inquiry as to how it
came about. Such inquiry as there has been has been done in confidence in the course of private
litigation between the parties. The compensation offered is believed by many to be too small. Nearly
12 years have passed and still no settlement has been reached.
On such a matter the law can and does authorise the newspapers to make fair comment. So long
as they get their facts right, and keep their comments fair, they are without reproach. They do not
offend against the law as to contempt of court unless there is real and substantial prejudice to pending
litigation which is actively in suit before the court. Our law of contempt does not prevent comment
before the litigation is started, nor after it has ended. Nor does it prevent it when the litigation is
dormant and is not being actively pursued. If the pending action is one which, as a matter of public
interest, ought to have been brought to trial long ago, or ought to have been settled long ago, the
newspapers can fairly comment on the failure to bring it to trial or to reach a settlement. No person can
stop comment by serving a writ and letting it lie idle: nor can he stop it by entering an appearance and
doing nothing more. It is active litigation which is protected by the law of contempt, not the absence of
it. ‘Apply these considerations to the present case. Take the first 62 actions which were settled in
February 1968. The newspapers can fairly comment on those settlements, saying that in making them
the Distillers Company did not measure up to their moral responsibilities. Take the last 123 children in
regard to whom writs have never been issued. The newspapers can fairly press for compensation on
the ground that Distillers were morally responsible. That leaves only the 266 actions in which writs
were issued four years ago but have never been brought to trial. Does the existence of those writs
prevent the newspapers from drawing attention to the moral responsibilities of Distillers? if they can
comment on the first 62 or the last 123, author do not see why they cannot comment on these
intervening 266. There is no way of distinguishing between them. The draft article comments on all the
thalidomide children together. It is clearly lawful in respect of the first 62 and the last 123. So also it
should be in respect of the middle 266. ‘Author has said enough to show that this case is unique. So

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much so that in my opinion the public interest in having it discussed outweighs the prejudice which
might thereby be occasioned to a party to the dispute.
At any rate, the High Court of Parliament has allowed it to be discussed. So why should not
judges in these courts also permit it? There is no possible reason why Parliament should permit it and
they refuse it’. Our decision was reversed by the House of Lords. They stated a new principle. It was
that newspapers should not publish comments or articles which ‘prejudged the issue in pending
proceedings’. This new principle was criticised by the Committee over which their dear friend Lord
Justice Phillimore presided (1974) Cmnd. 5794. It was a very good Committee. ‘Harry’ Phillimore as
judges knew him affectionately devoted his last years to it. They heard much evidence and disposed of
the House of Lords by saying (at page 48):‘The simple test of prejudgment therefore seems to go too
far in some respects and not far enough in others. They conclude that no satisfactory definition can be
found which does not have direct reference to the mischief which the law of contempt is and always
has been designed to suppress. That mischief is the risk of prejudice to the due administration of
justice’. Hitherto we have always expected a decision of the House of Lords to be final and conclusive.
But the Thalidomide case showed the contrary.
The Sunday Times took it to the European Court of Human Rights. They relied on Article 10 of
the European Convention to which the United Kingdom has adhered. It says that: ‘Everyone has the
right to freedom of expression. This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority and regardless of frontiers’. The
European Court of Human Rights, by a majority of 11 to 9, upheld the claim of the Sunday Times. It
had a right to impart information about the Thalidomide case. Inferentially they thought that the House
of Lords were wrong and that the Court of Appeal was right. Three cheers for the European Court. But
what will the House of Lords do now? Will they still regard themselves as infallible? They have
Francis Mann on their side; see The Law Quarterly Review for July 1979, pp. 348-354. 3 A ‘gagging
writ’ let them hope too that the public interest will prevail so as to stop what has been called a
‘gagging writ’. There was a company director called Waller Steiner. He tried to stop criticism of him
at a shareholders’ meeting. He issued a writ against the complaining shareholder: and then sought to
shut him up by saying the matter was ‘sub justice’. Lord Denning dealt with this once and for all hope,
in Wallersteiner v Moir [1974] 1 WLR991 at 1004-1005. ‘Author knows that it is commonly supposed
that once a writ is issued, it puts a stop to discussion. If anyone wishes to canvass the matter in the
press or in public, it cannot be permitted. It is said to be “sub justice”. Lord Denning suggests that is a

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complete misconception. The sooner it is corrected, the better. If it is a matter of public interest, it can
be discussed at large without fear of thereby being in contempt of court. Criticisms can continue to be
made and can be repeated. Fair comment does not prejudice a fair trial.
That was well pointed out by Salmon J in Thomson v Times Newspapers Ltd [1969] 1 WLR
1236, 1239-1240. The law says — and says emphatically — that the issue of a writ is not to be used so
as to be a muzzle to prevent discussion. Jacob Factor tried to suppress the “Daily Mail” on that score,
but failed: see R v Daily Mail (EditorJ, ex parte Factor (1928) 44 TLR 303. And Lord Reid has said
that a “gagging writ” ought to have no effect: see Attorney-General v Times Newspapers Ltd [1974]
AC 273, 301. Matters of public interest should be, and are, open to discussion, notwithstanding the
issue of a writ. ‘So here Lord Denning would hold that a discussion of company affairs at a company
meeting is not a contempt of court. Even if a writ has been issued and those affairs are the subject of
litigation, the discussion of them cannot be stopped by the magic words “sub judice”. It may be there
are newspaper reporters present — so that the words will be published at large next day. Nevertheless,
the shareholders can discuss the company affairs quite freely without fear of offending the court. The
reason is simple. Such discussion does not prejudice fair trial of the action. No judge is likely to read
the newspaper reports, let alone be influenced by them. Nor are the members of a jury, if there should
be a jury. They do not read the reports of company meetings. In any case, they would not remember
them by the time of the trial.
Mr. Lincoln suggested that someone at the meeting might use words such as to bring improper
pressure to bear on the litigants or on witnesses. If that were so, I have no doubt the court could
intervene. But that suggestion cannot be admitted as an excuse for stifling discussion. And Lord Reid
said in Attorney-General v Times Newspapers Ltd [1974] AC 273, 296: “there must be a balancing of
relevant considerations”. The most weighty consideration is the public interest. The shareholders of a
public company should be free to discuss the company affairs at the company meetings, if a
shareholder feels that there have been, or may be, abuses by those in control of the company, he should
be at liberty to give voice to them. ‘Lord Denning can well see, of course, that this freedom of
discussion must not be carried too far. It must not deteriorate into disorder. The chairman must control
the meeting. He must keep order. After time enough has been allowed, he can bring the discussion to a
close. If his own conduct is under fire, he could vacate the chair, and allow it to be taken by another. If
these rules are observed, there should be no trouble’.

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5. The Exclusive Brethren:
There remains one last point. Which are the courts to be- protected by the law of contempt?
Hitherto the question has arisen in regard to the superior courts. But do the same principles apply to
the inferior courts? Judges had to consider it recently when a case was pending in a local valuation
court about rates. It is Attorney-General v British Broadcasting Corporation [1979] 3 WLR 312 at 319.
A religious sect sought to stop a television ‘broadcast which was disparaging of them. It all depended
if the Local Valuation Court was a ‘court’ which the law would protect. Colleagues of Denning
thought it was. I thought it was not summaries the principles in these words: ‘How far do these
principles apply to the inferior courts? Lord Denning said that the word “inferior” is a mis-description.
They are not inferior in the doing of justice: nor in the judges who man them: or in the advocates who
plead in them. They are called “inferior” only because they try cases of a lesser order of importance —
as it is thought. But the cases which they try are often of equal concern, to the parties and the public.
Author see no reason whatever why the principles which have been evolved for the superior courts
should not apply equally to the inferior courts. The stream of justice should be kept pure and clear in
all the courts, superior and inferior, alike. That is the way in which the law seems to be developing, as
is shown by the cases on contempt of court: . . . and the cases on the liability of judges: . . . and on
absolute privilege of advocate and witness. . .
The only qualification is in the manner of enforcing those principles. Where there is contempt
of court, if it comes to granting injunctions or inflicting penalties, this is left to the superior courts: . . .
. But otherwise the principles should be the same for all. ‘But the principles — which confer immunity
and protection — have hitherto been confined to the well-recognized courts, in which Lord Denning
include, of course, not only the High Court, but also the Crown Court, the county courts, the
magistrates’ courts, the consistory courts and courts-martial. The principles have not hitherto been
extended to the newly established courts, of which we have so many. The answer cannot depend on
whether the word “court” appears in the title. There are many newly formed bodies which go by the
name of “tribunal” but which have all the characteristics of the recognised courts, such as the industrial
tribunals, and the solicitors’ disciplinary tribunal. To my mind, the immunities and protections which
are accorded to the recognised courts of the land should be extended to all tribunals or bodies which
have equivalent characteristics. After all, if the principles are good for the old, so they should be good
for the new. Author suggests that the immunities and protections should be extended to all tribunals set
up by or under the authority of Parliament or of the Crown which exercise equivalent functions by

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equivalent procedures and are manned by equivalent personnel as those of the recognized courts of the
land: .... ‘Applying this test, Lord Denning would suggest that commercial arbitrations are excluded
because they are not set up by or under the authority of Parliament or of the Crown. Planning inquiries
are excluded because their function is not to hear and determine, but only to inquire and report.
Licensing bodies are excluded because they exercise administrative functions and not judicial:
.... Assessment committees are excluded because they are manned by laymen and not by lawyers. And
so on. ‘What then about a local valuation court? It is the successor of the old assessment committees,
which are certainly not courts: .... ‘In any case, to mind and body lacks one important characteristic of
a court. It has no one on it or connected with it that is legally qualified or experienced. To constitute a
court there should be a chairman who is a lawyer or at any rate that has at his elbow a clerk or assistant
who is a lawyer qualified by examination or by experience, as a justices’ clerk is. The reason is that a
lawyer is, or should be, by his training and experience better able than others to keep to the relevant
and exclude the irrelevant; to decide according to the evidence adduced and not be influenced by
outside information; to interpret the words of statutes or regulations as Parliament intended; to have
recourse to legal books of reference and be able to consult them; and generally to know how the
proceedings of a court should be conducted. ‘It is for this reason that it is my opinion that the local
valuation court is not a court properly so called. . .’.two colleagues of Lord Denning differed from him.
They held it was a court: but they agreed with him on a more important matter. In the case of a civil
action which to be tried by a judge, it is very rare indeed that a newspaper would be guilty of contempt
by making comments on it. As Lord Denning said (at page 319): ‘No professionally trained judge
would be influenced by anything he read in the newspapers or saw on television’.

Conclusion
Looking at it broadly, the process of Contempt of Court is designed to secure that every person
has a fair trial; or, to put it in other words, it is a procedure by which the Court condemns any conduct
which tends to prejudice a fair trial. The Courts will restrain it by injunction beforehand or by
punishment afterwards. The present tendency is to say that the process should be left in the hands of
the Attorney- General: that he is the person who should decide whether it should be invoiced or not. It
is no doubt proper for any complaint to be laid before the Attorney-General so that he may, if he thinks
fit, institute proceedings for contempt. But it should not be exclusively in his hands. Some cases wear a
political complexion. The Attorney-General may be reluctant to take proceedings for fear of

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repercussions affecting his party. So the Courts should be able to take steps at the instance of anyone
who has a sufficient interest in the matter.

Important Essay Questions:

1. Write about the views of Lord Denning on the contempt in the face of the court.
2. (May 2010)
3. Write about the views of Lord Denning on prejudicing fair trial. (Nov 2010)
4. Point out Lord Denning’s views on keeping the streams of justice clear and pure, citing cases.
(May 2011)
5. Can victimization of witnesses come under the purview of contempt of court? Discuss in the
backdrop of Honig vs Chapman and the case of Butterworth. (Nov 2016)
6. Analyse whether Stephen Balough can be convicted for contempt of court? (May 2017)
Important short answers:
1. Prejudicing a fair trial (May 2010)
2. Scandalising the court ( Nov 2011)
3. Refusing to answer questions ( May 2012)
4. Dockers strike ( Nov 2012)
5. Can journalists refuse to answer questions? Analyse citing attorney general vs Mulloholland
case. (May 2014)
6. The five Dockers case. (May 2014)
7. Attorney General Vs Butterworh case. (May 2015)
8. The ward of the court and contempt proceedings. (May 2015)

Reference:
Text book “Due process of Law” by Alfred Denning

UNIT-II- LINGUISTICS
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 1. PHONETICS

In English there are 26 letters of alphabet but 44 sounds (phonemes). The phonemes are
given below. These are in accordance with International Phonetic Alphabet (IPA).
Classification of vowels and consonants are based on the sound and not alphabet.
Received Pronunciation (R.P) – This is in accordance with the phonetic style used by the people
living around the twin cities of Oxford and Cambridge.
Classification of Sounds (phonemes)
Speech sounds are classified into two: Vowels and Consonants
Vowels:
Daniel Jones defines a vowel “vowel as a voiced sound in forming which the air issues in a
continuous stream through the pharynx and mouth, there being no obstruction and no narrowing
such as would cause audible friction”
A complete list of vowels is as follows

A complete list of vowels is as follows”

1. /i:/ as in seat 11. / ∂:/ as in girl
2. /i/ as in sit 12. /∂/ as in about
3. /e/ as in set 13. /ei/ as in play
4. /æ/ as in sat 14. /∂U/ as in go
5. / / as in hot 15. /ai/ as in buy
U

6. / :/ as in all 16. /aU/ as in cow

7. /a:/ as in card 17. / i/ as in boy
U

8. /U/ as in book 18. /i∂/ as in here

9. /U:/ as in soon 19. /∑∂/ as in there
10. /^/ as in cup 20. /U∂/ as in poor.

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  The first twelve are called pure vowels because in their production the point of
articulation does not change.
 The remaining eight are called diphthongs in their production the tongue glides from one point
of articulation to another.
 These are further classified as closing diphthongs and centering diphthongs.

CLOSING DIPHTHONGS
Front Centre Back Closed

Half - Closed
ei
Half - Open   u:

i
U

Open ai
au:

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 CENTERING DIPHTONGS
Front Centre Back
Closed
Half - Closed u  :

Half - Open i  :

Open

Diphthongs are also called double vowels. Due to the fact that there are two vowels sounds in each
diphthong.
Semi Vowels:
These are two consonant sounds which these are two consonant sounds which are called semi
vowels. They are j and w.
When we articulate the two consonant sounds they are produced not by full contraction, friction or
modification. Hence there are no explosive or friction sounds produced.
These two sounds are produced in the way of the vowels but the difference in contraction in some
part of the mouth and lips has made them classifiable under consonants.
Consonants:
Sounds which are not vowels are called consonants. In their production there is an audible
friction or modification at some place in the mouth. Consonants are classified on the basis of (a) the
place of articulation and (b) the manner of articulation.
The place of articulation
a) Bilabial: articulated by the two lips.
b) Labiodental: articulated by the lower lip against the upper teeth.
c) Dental: articulated by the tip of the tongue and the back of the upper teeth.
d) Alveolar: articulated by the lip or the blade of the tongue against the teeth ridge.
e) Palato - alveolar : articulated by raising the main body of the tongue and touching
the teeth ridge with the blade of the tongue.
f) Palatal: articulated by the front of the tongue against the hard palate,
g) Velar: articulated by the back of the tongue against the soft palate,

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 h) Glottal: articulated in the glottis.

alveobar
alveobar
Alveolar
Bilabid

diental

Dental

Glottal
Palata
Post-

Velar
Labio

Palat
o
-

l
i) Plasive
Unvoiced P t k Voiced
b d g
ii) Affricate
Unvoiced tf
Voiced d3
iii) Fricative
Unvoiced f 0 s f h
Voiced V X z 3
iv) Nasal m n n
v) Lateral 1
vi) Semi- Vowel j
Frictionless Continuant r

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Questions are asked as given below : 1. Identify the vowels -10 Marks.
1. eat - i: mat - a .
2.   - 10 Marks.
Transcription Exercises
mat - m æ t about - ∂bout

TABLE OF CONTENTS

The pronunciation of the alphabet The pronunciation table: vowel and consonant sounds
1) PAN/PAlN The sounds / æ / and / ei /
2) BEST/PEST the sounds / ƅ / and/Ƥ/
3) SUE/ZOO The sounds / s / and / z /
4) DOWN/TOWN The sounds / d /and/t /
5) SEAT/SET The sounds / i: / and / e /
6) CARROT/CABBAGE The sounds /ə / and / ɪ /
7) FEW/VIEW/WINE The sounds / f / / v / and/w
8) CAP/GAP/HAT The sounds / k / / g / and / h /
9) YEAR The sound / j /
10) PHONETIC TEST recap
11) TIME/TJM The sounds / aɪ / and / ɪ /
12) SHEEP/JEEP/CHEAP The sounds / ʃ / / dʒ / and/tʃ/
13) COLLECT^CORRECT The sounds / l / and / r /
14) BARS/BAR The sounds / Ɑ: / and / eə /
15) SOME/SUN/SUNG The sounds / m / / n / and/ђ /
16) COAT/COT The sounds / əƱ / and / ᴅ /
17) BREATHE/BREATH The sounds / Ṍ / and / Ɵ
18) BUN/BULL/BOON The sounds / ˄ / / Ʊ / and / u: /
19) SHIRT/SHORT The sounds / ᴈ: / and / ‫ﬤ‬: /
20) COY/COW The sounds / ‫ﬤ‬ɪ / and / aƱ /

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Important short answers:
1. Consonants (May 2010), ( May 2011)
2. Diphthongs ( Nov 2010)
3. Identify vowels and its divisions with examples. ( Nov 2012)
4. Consonants and its broad divisions. (May 2013)
5. Vowels. (Nov 2013), (Nov 2016)
6. Division of speech sounds. (May 2014)
7. Explain the term ‘phoneme’ and list out the diphthongs with examples. ( May 2017)
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8. How many consonants are there? List out the consonants and give one word for each consonant. (
May 2017)
Reference:
https://old.liu.se/ikk/english/files/Course%20Webpages/english-
3/1.206147/CompendiumVowelsConsonantsofEnglish.pdf
https://www.dvusd.org/cms/lib/AZ01901092/Centricity/Domain/3795/Sound_Spelling_Chart.pdf

2. Language Acquisition

The author Justice David Annoussamy has attempted to assess, review and explore improvements
relating to the acquisition of knowledge of a language, need for knowledge of languages other than the
mother tongue, importance of the mother tongue, the medium of instruction, language planning and the
necessary teaching aids. The language planning policy shall be susceptible to periodical assessment,
review and attunement. The language riddle should be solved with the help of the scientific knowledge
available.
Anatomy of Language
The structure of the language is based on the different registers of language. Registers are modes of
expression which differ from person to person based on the different social status of the persons.
Formalism and colloquialism are the different registers and one has to adopt the appropriate.
1. Acquisition of Language by Children
A) Universality’ of acquisition
The largest group of those involved in the process of acquisition of language consists of children. It is
common knowledge that no human being fails in learning spontaneously a language with the exception
of two categories: the deaf and the dumb. So universal is the phenomenon all over the world, whatever
the language that one tends to believe that the ability to speak is innate. It is only apparently so;
language is actually acquired. Acquisition of a language by children is achieved within a relatively
short period between the ages of 1 and 3 in spite of the complexity of the task. Those who get on best
are those who are exposed well to good language; however, there is an optimum exposure for each age
and for each child. Language is acquired successfully regardless of the level of general intelligence.
Children who later fail in other spheres like arithmetic, swimming, and gymnastics acquire the mother
tongue with the same ease like others and continue to improve their skill in language. Only a faulty
pronunciation of some words is occasionally noticed due to physiological defects in the vocal organs.
Some children having psychological problems develop stammering. In spite of the generality of

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success, one might have noticed that there is variation indeed in volubility’ or extent of vocabulary. In
fact each one has got a ceiling in respect of expression. But there is no such variation as regards the
knowledge of the main features of the language and its sentence patterns. So in respect of
understanding, all are almost at the same level. Of course, children do not acquire the skills in written
language without teaching. The level of performance is subject to great differences in that skill.

b) No teaching
Since the acquisition of mother tongue by children is a universal success, it is of utmost interest to
analyse how’ such acquisition takes place in order to devise methods of teaching other languages in the
classroom Acquisition of language by children does not get explained by learning theories. Of course,
parents are impatient to hear their child speak, especially they are looking eagerly for his first word.
However, they do not proceed to teach the language and if any teaching were imparted it would be of
no avail. They want their child to understand what they say to him and they use for the purpose a
simplified language known as caretaker’s speech. To help the child understand, they use profusely
extra-linguistic support like facial expressions, tone of the voice, and gestures.

c) Understanding precedes expression

The child, before he knows the meaning of words, even before he realizes that they could have a
meaning, is interested in the sound combination of words. Each word has for him its features, which he
is able to recognize and words have life for the children. This special relation of the child with words
explains his interest in poetry which is sought to be satisfied by lullabies, rhymes and various sorts of
traditional poetical compositions accompanying children’s plays. However, in most of the children the
enjoyment of sounds vanishes slowly as they start perceiving the meanings of words and become more
and more interested in them. This is subject to individual variations. The language heard is stored and
remains latent in the brain and it takes some time to put to actual use, first for understanding. This
starts from the 12th month or even earlier; the child is able to recognize a known voice or familiar
sounds indicating certain facts concerning him like the preparation of his food. His hearing system gets
sharper even, a day. During 12-18 months the child is able to follow simple commands and he
responds to interdictions; 90% of the comprehension ability is attained at the age of 3.
Though parents are aware that the child understands what he is told or what is going on around him,
they do not press him to speak except on rare occasions like greeting visitors or thanking them for the

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present offered, or when the child weeps and the parents are anxious to know the reason in order to
console him effectively. One can sometimes come across children who understand everything, but do
not speak at all. It has also been reported that, very rarely, children are able to read newspapers
although they do not speak. Understanding is possible without speaking, but not the reverse.
Understanding is a less active process than speaking. The latter requires a better know ledge of the
language. Understanding amounts only to guessing the meaning of what is stated. Speaking requires
the mental framing of a sentence and its utterance in clear and accepted sounds, which is a more
complex operation. It is to be borne in mind that speaking takes place only several months after
understanding.
d) Phases in expression
Speaking requires in the first place the preparation of the vocal organs and the acquisition of full
command thereof. Preliminary exercises take place in a phased manner. They start at birth with crying.
Between 4 and 6 months the baby cooes or laughs in a broken manner to express his inner feeling.
Between 6 and 9 months he babbles and emits distinct common sounds. This oral exercise, which is by
far more developed in human babes, appears to be the response or rather the imperfect imitation of the
linguistic rhythm they are exposed to. This constant phonal activity mixed with pleasure prepares the
organs concerned for the language purpose. At the age of 3 the child is in possession of the
phonological requirements of his mother tongue.
While engaged in this preparatory’exercise the child starts communicating with people around. The
first exteriorisation of his feelings takes place without speaking. He cries, he pushes what is not
desired, he gesticulates with anger, he smiles and laughs. He responds to familiar sounds and noises
like the knocking at the door, the sound of the clock, etc...At about one year, first words are uttered,
sometimes modified to suit his pronouncing capability. The words do not usually carry the meaning
which adults attribute to them. The child speaks to himself profusely a language of his own. When the
child wants to communicate with others, he starts using the same word for several things. Then single
words, with their actual meaning, appear. When he attempts sentences, he shortens them according to
his cognitive attainment. First, two-word sentences appear: dog comes, daddy’s pen, etc..Then
sentences with more words are used. Even then the adult language is modified according to his age, his
mental and linguistic development. It is worth noting that whilst the utterance of words precedes the
knowledge of corresponding concepts, the utterance of sentences follows the conception of

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corresponding ideas. At about the age of 3, he is able to use about 1000 words following the syntactic
rules.

e)Process of acquisition
It would be interesting and useful to investigate further how the acquisition as described above takes
place. It is not mere soaking up a language as one would be tempted to think. Unconsciously and
without any deliberate action, there is a concomitant storing and organisation of the raw material.
Between the age of 2 and 3 while storing the language, the child has at its command an innate
hypothesis - forming faculty which enables him to devise grammatical rules unconsciously in respect
of the language. This explains the discontinuity in learning which is observed.
In the process of learning there are certain backward steps. The child who initially was saying ‘did’,
“told’, all of a sudden starts saying ‘doed’, ‘telled’, but reverts after a certain time to the correct forms.
The learning of a language by the child is not like the addition of bricks. Each time there is a
structuration of the language by the child with the help of memory and logic, placing reliance on one
or the other. Logic, being more economical in terms of effort than memorizing, the child starts placing
reliance on it as soon as he acquires this second faculty. When he discovers that verbs end with ‘ed’ in
the preterite, he makes use of the logic. Afterwards, when he finds that logic lias failed in some cases,
he takes note of the exceptions and stores them with the help of memory. Before attaining perfection,
the language of the child, though it comes out only after sufficient maturation, is faulty as compared to
the standard language, in pronunciation as well as sentence patterns. The product of the child is very
much appreciated. Out of affection and for the novelty it brings to the language, some of his
modifications become part of the language of the family; especially the surnames of elder children
remain as modified by the younger ones. Though parents do not correct the faulty language
immediately, the}’ instinctively repeat in the correct way what the child has said. It is thus found that
the child in his attempt to learn a language resorts to the trial and error method, the error being
inevitable in the process and ultimately, in course of time, errors disappear and the learning of
language by the child is always a success.

f) Effort involved
On account of the apparent ease with which the child acquires a language, one is tempted to think that
there is no effort. In reality, it is otherwise. With some attention one can perceive the amount of effort

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spent by the child in uttering the first words, the first sentences, and even thereafter in saying certain
unusual words. The apparent ease gets explained by the total involvement of the child in the process.
Speaking is vital for him to satisfy- all his needs which are varied, including the urge to participate in
the family life, to understand it, to be a full partner and play his role. His whole energy is harnessed. It
is accompanied by the pleasure arising out of the success in his new experience of expression. So,
effort is there, but it is not manifest on account of those factors. Language learning without effort by
the child is nothing but a myth due to lack of close observation.

g) Simultaneous acquisition of more than a language

A child can pick up more than a language at a time, if placed in a multi-lingual environment. Only two
conditions are required: the child should be normal and a particular person should always speak the
same language. A child who is very’ eager to get what he wants uses different registers of language
according to the nature of his links with the person concerned, even when only one language is
practiced. When he has to communicate with persons speaking different languages, he acquires all of
them. Between 3 and 4 the child is able to speak to each of his interlocutors the language of the latter.
When a word is not known, the child does not use the word of another language, he resorts instead to a
periphrasis in the language of the interlocutor, and so keen is he to get understood. He acquires in the
process a very high skill of distinguishing languages. He is even able to serve occasionally as an
interpreter.
If exposure to two languages is equal, the progress achieved is also equal and the child has two mother
tongues. But rarely exposure is equal. Even if each of the parents speaks a different language to the
child, they have usually a common language between them, which would be one of the two languages.
The influence of the language of the other members of the family, servants, media, children in the
street and parks may also tilt the balance in favour of one language which therefore takes the lead. But
the other can override it if circumstances change this often happens when the language of the school is
the other one.

2. Picking up another Language

A) When does it operate?
Acquisition of more than one language at a time by children is the proof, if need be, that human brain
is programmed to learn more than one language. Picking up a new language by a person knowing
already one or more languages by mere exposure without any teaching or study is more and more
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prevalent. It happens mostly in the case of migrants and transferred officers and also their children and
servants. This way of learning has proved successful for persons of all ages. Language, though most
intimately linked to a group and being its most important characteristic, can be acquired by an outsider
fairly well.
b) Conditions of acquisition
Such a result is not attained by all. Acquisition depends first on the duration of exposure to the
language. Below a certain minimum, there is no acquisition worth the name. If the contact is lost, the
language acquired is progressively forgotten. Secondly, the target language should be the only possible
vehicle of communication with some of the persons with whom one has to communicate. If the need to
communicate is absent, or if communication can be achieved through another language or through an
interpreter, there is no learning. Thirdly, the result depends also on the extent of involvement in the
activities and the social life in the new language. The urge is greater among youngsters, for playing or
for spending time in a pleasant manner. The result depends finally on the degree of motivation to learn.
There should be eagerness to learn the language and to learn it perfectly. The second one consists of
those who continue to commit the same mistakes and use the same defective sentence patterns.
It appears that a ceiling is reached and there is no further progress possible. Either they are at least
vaguely conscious of their defective speech, but are not motivated enough to acquire the correct forms,
or they are unable to identify- some patterns of expression unknown in their mother tongue and they
short-circuit them while listening as well as speaking. There are also people who, though exposed
continuously to a language, succeed in remaining impervious. They do not listen to what is being
spoken around them. They are not interested in learning it.

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c) Comparison with acquisition of first language by the child
The process of picking up languages is more or less the same as the acquisition of mother tongue by
the child. There are however some noticeable differences. Usually, people around speak to the learner
normally, not like parents to a child with a desire that he learns; they do not repeat. There is no
caretaker’s speech except in circumstances when one wants to get absolutely understood. Secondly,
the need to communicate, however important it may be, is not as vital as for the child.

A third difference which is fundamental but often not clearly perceived is that the learner knows
already a language. This has some advantages. There is no need of acquisition of new concepts
Cognitive development is complete. One is accustomed to express what he wants to say. The hearing
and vocal apparatuses are already fully developed. In that way the task is easy but this situation also
has its disadvantages. The mother tongue acts as a screen. The vocal organs do not have the same
flexibility for the new ‘sounds. The hearing system stands less awakened. There is a tendency to
assimilate the sounds of the new language with the nearest ones in the mother tongue. There is also an
unconscious resentment to have to make an effort to acquire a new’ code of communication when that
is imposed by necessity. But when one has occasion to pick up a language, he should not miss it. What
is required is only wholehearted acceptance.
3. Learning in Nursery School
A nursery school catering for learning a second language has to provide for acquisition of only oral
language. The process then is very similar to picking up a language. It is an organized picking up. In
such a school, the typical school exercises would not have a place. There will be no written language at
all. Everything should be oral. Children are engaged in playful activities with the target language as the
medium; simple crafts, organized play, drawing, singing, recitation of some poems, commented
observation of things, simple scientific experiments explained, reading of picture books, telling stories,
films, etc. Questioning can start when pupils have sufficiently developed the skill of expression;
however, questions should require at the beginning only simple answers. There will be no teaching of
language as such.

If the nursery school is programmed in that way, the acquisition of a new language is fairly successful.
Only 10 - 15 per cent of the children have been found not to be able to pick up a second language in
this way. Trained kindergarten teachers are able to spot such children within a period of one month. It

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is not useful and it may even prove dangerous to continue the experience for such children. They
should be put in the kindergarten in the mother tongue and they will learn the second language later.
Thus they will make satisfactory progress in their studies. If, on the contrary, they are left in the same
foreign language kindergarten with the feeling of failure from the start, they will not go far in their
studies.

Learning a language in a nursery school is a good proposition, but it should be nurtured later properly.

4. Learning through Language Teaching

a) Not a successful enterprise
Acquisition of a language by the child without any teaching has _ proved to be a universal and perfect
success. Picking up is fairly successful. So also is learning in the nursery school. But acquisition
through teaching has been found to be an immense failure in all countries including ours. The result is
worse than in the general education, because language learning is a very delicate process. After many
years of toil, the student is not even able to read a newspaper in the language. Orally he is able to say
only a few salutations. One can easily’ come across educated Indians saying apologetically: “I studied
French (or German) for my Intermediate, (or B.A.) but I cannot speak”. There is a resentment for the
waste of time caused to them. What is more distressing is that failure in English entails failure in the
general examination as well, undue importance being given to English at a wrong place.
b) Reasons for failure
For the purpose of teaching, a foreign language is being considered as a subject like others, ignoring
the peculiar nature of language learning. Language cannot be learnt in the usual sense of the word like
other subjects. Learning theories are irrelevant for language. However, the words ‘learning’ and
learners’ are here used for the purpose of convenience. Language is always acquired. In other subjects,
one is asked to understand, to memorize, and to use the knowledge stocked as and when required. The
whole process takes place through the medium of a known language which is a tool. Language is not a
matter of knowledge. It is a matter of skill, a very complex one.
In considering the language as a subject, teaching ignores the natural process of acquisition of
language.

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Language Register
Registers of Language
A person using his mother tongue resorts to the proper register of language instinctively. In fact, there
are different ways of expression of the same thing by persons of different social status or by the same
person in different settings and in different circumstances of life. The drawing room conversation is
not like the market place bargain. The workshop instructions do not resemble Government orders.
Conversation between persons of the same sex does not resemble the conversation between persons of
opposite sexes.
To illustrate better these different modes of expression, called registers of language, let us take an
example and show how the same thing would be expressed by persons of different social status:

Formal prayer Common man Beggar : Give us this day our daily bread. : Please give us bread
Militant Politician every day.
Poet Moralist : Some bread please, I am hungry. : Bread daily ! Bread !
Pious lady in the drawing room : The priority of priorities is food for all.

: Let this world perish if food is not assured for all. : Your
daily bread is the fruit of your daily work.
: From my heart of hearts I implore the divine
munificence for the whole mankind perennially.

The Political Science Professor : Among the various duties of a Welfare State there is one
which, 1 should say, is paramount, that is
to ensure food to each and every citizen without
interruption.

Lawyer : We respectfully request you and pray that due and

adequate provision be made this day and all the days to
follow, for the satisfying of the petitioner’s maintenance,
that the aforesaid provision be quantified and that the
opposite party be

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Usually one does not become conscious of these different registers of language in the mother tongue
though one uses them daily. Thus written language is not the transcription of the oral language.
Conversely, oral language is not something like the reading of written language, except on some
occasions like lectures, speeches. Even then, one can perceive the difference between a speech
delivered with or without notes (compromise between written and oral language) and a speech
consisting of reading a fully written text. Written language reproduced orally generally causes
boredom, the vividness expected in oral language being missing. The word groups, the way in which
the idea units are reproduced, are not the same in the written and oral language. Intonation, repetition
of words, pauses, and all other ways of giving full expression for the emotion and sentiment which are
available in oral language cannot be found in the written language. So even in the mother tongue, some
are better in written language; some others in oral language. Even children become unconsciously
aware of the difference in registers at a relatively young age. First graders do not use the same register
while speaking with their parents, their teachers, and their playmates.
If use of the appropriate register of language is something naturally acquired in the mother tongue, one
has to pay attention to it while learning and using a second language. Between persons of different
countries, the register will ordinarily be more formal than between natives of the same country. The
foreigner is therefore expected to start learning and speaking the standard language. Too colloquial a
language in the mouth of a foreigner arouses surprise. But when one is speaking in the foreign
language to a close friend, he has to give up the standard language and adopt the appropriate register.
Similarly, when one talks to his cook in the foreign language, he should speak in the corresponding
register. Therefore, in the process of communication in the second language as well, one has to respect
the register of language.
Language varieties
Joseph Balaz (1988) In many of the preceding chapters, we have treated languages, such as English, as
if all speakers of the particular language used that language in a uniform way. That is, we have largely
ignored the fact that every language will have more than one variety, especially in the way in which it
is spoken. Yet this variation in speech is an important and well-recognized aspect of our daily lives as
language-users in different regional and social communities. In this chapter we shall consider the type
of variation which has been investigated via a form of ‘linguistic geography’, concentrating on
regional varieties, and in the following chapter we shall consider the factors involved in social

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variation in language use. First, we should identify that particular variety which is normally meant
when the general terms English, Italian, Japanese, Spanish, and so on are used.
The Standard Language
When we described the sounds, words and sentence of English, we were in fact, concentrating on the
features of only one variety, usually labeled Standard English. This is the variety which forms the basis
of printed English in newspapers and books, which is used in the mass media and which is taught in
schools. It is the variety we normally try to teach to those who want to learn English as a second
language. It is clearly associated with education and broadcasting in public contexts and is more easily
described in terms of the written language (i.e. vocabulary spelling, grammar) than the spoken
language.
If we are thinking of that general variety the used in public broadcasting in the United States, we can
refer more specifically to Standard American English or, in Britain, to Standard British English. There
is no reason why other national varieties such as Standard Australian English. Standard Canadian
English should not be recognized also.
Accent and dialect
Whether or not you think you speak a standard variety of English, you will certainly speak with an
accent. It is a myth that some speakers have accents while others do not some speakers have distinct or
easily recognized types of accent while others do not, but every language-user speaks with an accent.
The term accent, when used technically, is restricted to the term description of aspects of
pronunciation which identify where an individual speaker is from, regionally or socially. It is to be
distinguished from the term dialect which describes features of grammar and vocabulary, as well as
aspects of pronunciation.
Regional dialects
The existence of different regional dialects is widely recognized and often the source of some humor
for those living in different regions. Thus, in the United States, someone from Brooklyn may joke
about the Southerner’s definition of sex by telling you that sex is fo’less than tin, in his best imitation
of someone from the Southern states. The Southerner can, in return, wonder what a tree guy is in
Brooklyn, since he has heard Brooklyn speakers refer to doze tree guys. Some regional dialects clearly
have stereotyped pronunciations associated with them.
Those involved in the serious investigation of regional dialects are fairly uninterested in such
stereotypes, however, and have devoted a lot of research to the identification of consistent features of

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speech found in one geographical area rather than another. These dialect surveys often involved
painstaking attention to detail and tended to operate with very specific criteria in identifying acceptable
informants. After all, it is important to know if the person whose speech you are tape-recording really
is a typical representative of the region’s dialect.
Isoglosses and dialect boundaries
Let us take a look at some examples of regional variation found in one survey, that which resulted in
the Linguistic Atlas of the Upper Midwest of the United States. One of the aims of such a survey is to
find a number of significant differences in the speech of those living in different areas and to be able to
chart where the boundaries are, in dialect terms, between those areas. If it is found, for example, that
the vast majority of informants in one area say they take their groceries home in a paper bag while the
majority in another area say they use a paper sack, then it is usually possible to draw a line across a
map separating the two areas, as shown on the accompanying illustration.This line is called an isogloss
and represents a boundary between the areas with regard to that one particular linguistic item.
Some of the noticeable pronunciation differences in England, and some vocabulary differences, are
illustrated here:

Northern: (‘taught) (‘roo) (‘creek) (‘greasy’

[c] [] [I] ) [s]
Midland: [a] [u] [i] [z]

Northern: paper bag slippey get sick pail

slick take sic
Midland: paper sack bucket
kerosene
coal oil

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The dialect continuum
Another note of caution is required. The drawing of isoglosses and dialect boundaries is quite useful in
establishing a broad view of regional dialects, but it tends to obscure the fact that, at most dialect
boundary areas, one variety merges into another. Speakers who move back and forth across this
border, using different varieties with some ease, may be described as bidialectal (i.e.‘speaking two
dialects’). Most of us grow up with some form of bidialectalism, speaking one dialect ‘in the street’
and having to learn another dialect ‘in the school’. However, if we want to talk about people knowing
two distinct languages, we have to describe them as being bilingual.
Bilingualism
In many countries, regional variation is not simply a matter of two dialects of a single language, but a
matter of two quite distinct and different languages, Canada, for example, is an officially bilingual
country, with both French and English as official languages. This recognition of the linguistic rights of
the country’s French speakers, largely in Quebec, did not come about without a lot of political
upheaval For most of its history, Canada was essentially an English-speaking country, with a French-
speaking minority group. In such a situation, bilingualism, at the individual level, tends to be a feature

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of the minority group. In this form of bilingualism, a member of a minority group grows up in one
linguistic community, primarily speaking one language, such as Welsh in Wales, Gaelic in Scotland or
Spanish in the United States, but learns another language, such as English, in order to take park in the
larger dominant linguistic community.
Language planning
Perhaps because bilingualism in Europe and North America tends to be found only among minority
groups, a country like the United States is often assumed to be a single homogeneous speech
community where everyone speaks English and all radio and television broadcasts and all newspapers
use Standard English. It appears to be a monolingual country. This is a mistaken view. It ignores the
existence of large communities for whom English is not the first language of the home.
The process of language planning may be seen in a better light when the full series of stages is
implemented over a number of years. A good modern example has been provided by the adoption of
Swahili as the national language of Tanzania in East Africa. There still exist a large number of tribal
languages as well as the colonial vestiges of English, but the educational, legal and government
systems have gradually introduced Swahili as the official language. The process of ‘selection’
(choosing an official language) is followed by ‘codification’ in which basic grammars, dictionaries and
written models are used to establish the Standard variety.
Pidgins and Creoles
This language is now used by over a million people, but it began as a kind of ‘contact’ language called
a Pidgin. A Pidgin is a variety of a language (e.g. English) which developed for some practical
purpose, such as trading among groups of people who had a lot of contact, but who did not know each
other’s languages. As such, it would have no native speaker. The origin of the term ‘Pidgin’ is thought
to be from a Chinese Pidgin version of the English word ‘business’. There are several English Pidgins
still used today.They are characterized by an absence of any complex grammatical morphology and a
limited vocabulary. Inflectional suffixes such as -s(plural)and -’s (possessive) on nouns in Standard
English are rare in Pidgins, while structures like tu buk (‘two books’) and di gyal pleis (‘the girl’s
place’) are common. Functional morphemes often take the place of inflectional morphemes found in
the source language. For example, instead of changing the form of you to your, as in the English
phrase your book, English-based Pidgins use a form like bilong,and change the word order to produce
phrases like buk bilong yu.

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The origin of many words in Pidgins can be phrases from other languages, such as one word used for
‘ruin, destroy’ which is bagarimap (derived from the English phrase “bugger him up”), or for ‘lift’
which is haisimap (from “hoist him up”), or for ‘us’ which is yumi (from “you” plus “me”). Original
borrowings can be used creatively to take on new meanings such as the word ars which is used for
‘cause- or ‘source’, as well as ‘bottom’, and originated in the English word arse.
The syntax of Pidgins can be quite unlike the languages from which terms were borrowed and
modified, as can be seen in this example from an earlier stage of Tok Pisin:

Baimbai bilongyu i-arrait gain hed

(by and by) (belong (he- (again)

(head)
you) alright)

‘Your head will soon get well again’

There are considered to be between six and twelve million people still using Pidgin language and
between ten and seventeen million using descendants from Pidgins called Creoles.When a Pidgin
develops beyond its role as a trade language and becomes the first language of a social community, it
is described as a Creoie.
The Post-Creole continuum
In many contemporary situations where Creoles evolved, there is usually evidence of another process
at work. Just as there was development from a Pidgin to a Creole, known as ‘cv reolization’, there is
now often a retreat from the use of the Creole by those who have greater contact with a standard
variety of the language. Where education and greater social prestige are associated with a ‘higher’
variety, used as a model (e.g. British English in Jamaica), many speakers will tend to use fewer Creole
forms and structures. The process, known as ‘decreolization’, leads, at one extreme, to a variety that is
closer to the external standard model and leaves, at the other extreme, a basic variety with more local
Creole features. The more basic variety is called the basilect and the variety closer to the external
model is called the acrolect. Between these two extremes may be a range of slightly different varieties,
some with many and some with fewer Creole features, known as mesolects. This range of varieties,
evolving after (= ‘post’) the Creole has been created, is called the Post-Creole continuum.

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Language, society and culture
When the anchorwoman Connie Chung was asked a fairly insensitive question by a new co-worker
about the relationship between her position as an Asian-American woman and her rapid rise in the
field, her response was both pointed and humorous:“I pointed to the senior vice president and
announced, ‘Bill likes the way I do his shirts.’”
Regina Barreca(1991) We have already noted that the way you speak may provide clues, in terms of
regional accent or dialect, to where you spent most of your early life. However, your speech may also
contain a number of features which are unrelated to regional variation. Two people growing up in the
same geographical area, at the same time, may speak differently because of a number of social factors.
A speech community is a group of people who share a set of norms, rules and expectations regarding
the use of language. Investigating language from this perspective is known as Sociolinguistics.
Sociolinguistics
In general terms, sociolinguistics deals with the inter-relationships between language and society. It
has strong connections to anthropology, through the investigation of language and culture, and to
sociology, through the crucial role that language plays in the organization of social groups and
institutions. It is also tied to social psychology, particularly with regard to how attitudes and
perceptions arc expressed and how in-group and out-group behaviors are identified. All these
connections are needed if we are to make sense of what might be described as ‘social dialects’.

Social dialects
In modern studies of language variation, a great deal of care is taken to document, usually via
questionnaires, certain details of the social backgrounds of speakers. It is as a result of taking such
details into account that have been able to make a study of social dialects, which are varieties of
language used by groups defined according to class, education, age, sex, and a number of other social
parameters.
Before exploring these factors in detail, it is important to draw attention to one particular interaction
between social values and language use. The concept of ‘prestige’, as found in discussions about
language in use, is typically understood in terms of overt prestige, that is, the generally recognized
‘better’ or positively valued ways of speaking in social communities.

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Social class and education
Two obvious factors in the investigation of social dialect are social class and education. In some
dialect surveys, it has been found that, among those leaving the educational system at an early age,
there is a greater tendency to use forms which are relatively infrequent in the speech of those who go
on to college. Expressions such as those contained in Them boys throwed some-thin’ are much more
common in the speech of the former group than the latter. It seems to be the case that a person who
spends a long time going through college or university will tend to have spoken language
features which derive from a lot of time spent working with the written language. The complaint that
some professor “talks like a book” is possibly a recognition of an extreme form of this influence.
The social classes also sound different. A famous study by Labov (1972) combined elements from
place of occupation and socioeconomic status by looking at pronunciation differences among
salespeople in three New York City department stores, Saks (high status), Macy’s (middle status) and
Klein’s (low status).
Actually, a more stable indication of lower class and less education, throughout the English-speaking
world, is the occurrence of [n] rather than [r] at the end of words like walking and going.
Pronunciations represented by sittin’ and drinkin’ arc associated with lower social class.
Another social marker is [h]-dropping, which results in ‘ouse and ’ello. In contemporary English, this
is associated with lower social class and less education. For Charles Dickens, writing in the middle of
the nineteenth- century. it was one way of marking a character’s lower status, as in this example from
Uriah Heep (in David Copperfield).
Age and gender
Even within groups of the same social class, however, other differences can be found which seem to
correlate with factors such as the age or gender of speakers. Many younger speakers living in a
particular region often look at the results of a dialect survey of their area (conducted mainly with older
informants) and claim that their grandparents may use those terms, but they do not. Variation
according to age is most noticeable across the grand- parent-grandchild time span.
Grandfather may still talk about the icebox and the wireless. He’s unlikely to know what rules, what
sucks, or what’s totally stoked, and he doesn’t use like to introduce reported speech, as his
granddaughter might do: We’re getting ready, and he’s like, Let’s go, and I’m like, No way I’m not
ready, and he splits anyway, the creep!

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Variation according to the gender of the speaker has been the subject of a lot of recent research. One
general conclusion from dialect surveys is that female speakers tend to use more prestigious forms
than male speakers with the same general social background.That is, forms such as I done it, it growed
and he ain’t can be found more often in the speech of males, and I did it, it grew and he isn ’t in the
speech of females.
In some cultures, there are much more marked differences between male and female speech. Quite
different pronunciations of certain words in male and female speech have been documented in some
North American Indian languages such as Gros Venire and Koasati.Indeed, when Europeans first
encountered the different vocabularies of male and female speech among the Carib Indians, they
reported that the different sexes used different languages.What had in fact, been found was an extreme
version of variation according to the gender of the speaker.
Ethnic background
In the quote that introduces this chapter, both the gender and the ethnicity of an individual are alluded
to. The humorous response plays on the stereotyped image of how a female member of one ethnic
minority might succeed in society. In a more serious way, we can observe that, within any society,
differences in speech may come about because of different ethnic backgrounds. In very obvious ways,
the speech of recent immigrants, and often of their children, will contain identifying features. In some
areas, where there is strong language loyally to the original language of the group, a large number of
features are carried over into the new language.
Idiolect
Of course, aspects of all these elements of social and regional dialect variation are combined, in one
form or another, in the speech of each individual. The term idiolect is used for the personal dialect of
each individual speaker of a language. There are other factors, such as voice quality and physical state,
which contribute to the identifying features in an individual’s speech, but many of the social factors we
have described determine each person’s idiolect. From the perspective of the social study of language,
you are, in many respects, what you say.

STYLE, REGISTER AND JARGON

All of the social factors we have considered so far are related to variation according to the user of the
language. Another source of variation in an individual’s speech is occasioned by the situation of use.
There is a gradation of style of speech, from the very formal to the very informal. Going for a job

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interview, you may say to a secretary Excuse me. Is the manager in his office? I have an appointment.
Alternatively, speaking to a friend about another friend, you may produce a much less formal version
of the message: Hey,is that lazy dog still in bed? I gotta see him about something.
This type of variation is more formally encoded income languages than others. In Japanese, for
example, there are different terms used for the person you are speaking to depending on the amount of
respect or deference required. French has two pronouns (tu and vons) corresponding to singular you
with the first reserved for close friends and family. Similar distinctions are seen in the you forms in
German (du and Sic) and in Spanish (tu and usted).
(Differences in style can also be found in written language, with business letters(e.g. I am writing to
inform you ...) versus letters to friends (Just wanted to let you know...) as good illustrations. The
general pattern, however, is that a written form of a message will inevitably be more formal in style
than its spoken equivalent. If you see someone on the local bus, eating, drinking and playing a radio,
you can say that what he’s doing isn’t allowed and tha‘ he should wait until he gets off the bus.
Alternatively, you can draw his attention to the more formal language of the printed notice which
reads:
The city has recently passed an ordinance that expressly prohibits the following while aboard public
conveyances, Eating or Drinking. The Playing of Electronic Devices.
The formality of expressions such as expressly prohibit, the following, and electronic devices is more
extreme than is likely to occur in the spoken language.
Language and culture
Many of the factors which give rise to linguistic variation are sometimes discussed in terms of culti’ al
differences. It is not unusual to find linguistic features quoted as identifiable aspects of ‘working class
culture’ or African- American culture’, for example. In many respects, this view has been influenced
by the work of anthropologists who tend to treat language as one element among others, such as
beliefs, within the definition of culture as ‘socially acquired knowledge’. Given the process of cultural
transmission by which languages are acquired, it makes a lot of sense to emphasize the fact
that(linguistic variation is tied very much to the existence of different cultures).
Linguistic determinism
If two languages appear to have very different ways of describing the way the world is, then it may be
that as you learn one of those languages, the way your language is organized will determine how you
perceive the world being organized. That is your language will give you a ready-made system of

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categorizing what you perceive, and as a consequence, you will be led to perceive the world around
you only in those categories. Stated in this way, you have a theory of language which has been called
linguistic determinism and which, in its strongest version, holds that “language determines thought “In
short, you can only think in the categories which your language allows you to think in.
The Sapir-Whorf hypothesis
The general idea people are considering is part of what has become known as the Sapir-Whorf
hypothesis. Edward Sapir and Benjamin Whorf produced arguments, in the 1930s, that the language of
American Indians, for example, led them to view the world differently from those who spoke
European languages. Let us look at an example of this reasoning. Whorf claimed that the Hopi Indians
of Arizona perceived the world differently from other tribes (e.g. the English-speaking tribe) because
their language led them to do so. In the grammar of Hopi, there is a distinction between ’animate’ and
‘inanimate’, and among the set of entities categorized as ‘animate’ were clouds and stones. Whorf
concluded that the Hopi believe that clouds and stones are animate (living) entities and that it is their
language which leads them to believe this. Now, English does not mark in its Grammars that clouds
and stones are animate, so English speakers do not see the world in the same way as the Hopi. In
Whorf’s words (“We dissect nature along lines laid down by our native languages).
Language universals
While many linguists have recognized the extent to which languages are subject to variation, they have
also noted the extent to which all languages have certain common properties. Specifically, every
human language can be learned by children, employs an arbitrary symbol system, and can be used to
send and receive messages by its users. From another point of view, every language has no unlike and
verb like components which are organized within a limited set of patterns to produce complex
utterances. At the moment, much of what is known about the general character of languages is in the
form of certain established relationships. For example, if a language uses fricative sounds, It invariably
also uses stops. If a language places objects after verbs, it will also use prepositions. By discovering
universal patterns of this type, it may be possible one day to describe, not just the grammars of all
languages, but the single grammar of human language.

Important Essays
1. Explain any two laws of language acquisition. (May 2018)
2. Explain understanding skills. (May 2018)

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 3. How important are aptitude and attitude to acquire a language. (May 2018)
4. Discuss the pros and cons of having mother tongue as official language in a multilingual
country like India. (May 2018)
Important short answers:
9. Language register (May 2010), (May 2011), ( Nov 2012),( May 2017), (Nov 2017)
10. Acquisition of language by children ( Nov 2010)
11. Legal jargon ( May 2011), (May 2013)
12. Mother tongue influence on second language acquisition. . ( Nov 2012)
13. Language acquisition by children. (May 2013),( May 2017)
14. Language dialects. (May 2013), (Nov 2013), (Nov 2016)
15. Explain language register and jargon. (May 2015)
16. Four skills of language acquisition. ( Nov 2016)
17. Importance of mother tongue. ( Nov 2016)
18. Impact of mother tongue in learning a new language. (Nov 2017)
19. Discuss the importance of ‘attitude’ of a learner to acquire a new language. (Nov 2017)
20. Explain listening skills and reading skills. (Nov 2017)
21. Explain the spoken skills and written skills. ( May 2017)

Reference:
https://scholar.harvard.edu/files/adam/files/language_acquisition.ppt.pdf
https://www.ling.upenn.edu/~ycharles/klnl.pdf

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 UNIT-III
LOGIC
Definitions of Logic
It is the power to reason which makes man different from all other living beings. In many
ways man and animals behave similarly, but the difference between their ways of behaviour lies in
the fact that man can judge whether his actions are right or wrong, and his ideas are true or false,
while animals cannot. This power to reason is dependent on the power to gain knowledge. Man
acquires knowledge by using his thinking powers. Students must first know what thinking is.
Man’s behaviour consists of
 Thinking,
 Feeling
 Willing.
What we refer to as the mind of man is made up of these three functions. Whenever we are trying
to find a solution to a problem, we are thinking. When we appreciate beauty of different kinds,
whether it is a painting, a piece of music, or nature, we are feeling. When we are faced with a moral
crisis, we decide upon a particular course of action which seems to be right, and this is the function
of willing.
As students of logic, we have to study the science of thought. It is by thinking that we arrived
at knowledge. Knowledge is a system of ideas, which we again as a result of thinking. For example,
we look at an object which is brown in colour, has a certain length, breadth, height and weight. It is
used for certain purposes such as for writing or to place things on. It is reached as a result of our
own intellectual activity. We know something only when we think about it and relate it to the rest of
our experience. Therefore, while considering knowledge, we have to distinguish between
knowledge which we get as a result of our thinking and a mere report or hearsay. We usually say
‘I heard that A is dishonest, but I do not rally know it’. Here, the dishonesty of A is something that
someone else has told us. We have not experienced it ourselves. Such knowledge which is acquired
by hearsay is not considered true knowledge, because it may be found to be false in actual
experience. Logic is the science of thought and studies those processes of thinking whose aim is to
attain truth. As the science the logic must be concerned with the nature and conditions of truth.
Logic lays down certain standards which when followed, lead the individual to truth. Logic also
lays down standards or norms for thinking.

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Logic and Psychology
Logic is not the only science whose subject-matter is thinking. There are other sciences like
Psychology which also study thought. Both Logic and Psychology are interested in the mental
process known as thinking. But there is an important difference in their approach to the subject-
matter. We have already seen how Logic as a normative science is interested in studying the ideal
or to their attainment. Positive sciences are those which study things as they describe them. All
natural sciences like Physics, Chemistry, Botany etc., are positive sciences. Normative sciences are
those which study things as they ought to be with reference to an ideal. Therefore, it follows, that the
interest of Psychology is only in the processes of thought whereas the interest of Logic lies in the
product of thought. To the former what is important is the nature of thought and the meaning. It is
with this meaning side of thought that Logic is concerned. Logic differs from Psychology in another
way also. Psychology, which is the science of behaviour, is interested not only in thinking but also
in feeling and willing. Psychology describes pleasure and pain, acts of will, as well as logical
thinking. All these are studied for their own sake, whereas Logic studies thinking alone, and that
too with a definite ideal, viz., the attainment of truth Hence there is a twofold difference between
Logic and Psychology.

Logic and Ethics

If Logic deals with thinking from a normative standpoint, ethics deals with the willed activity
of man from a normative standpoint. So also in Ethics, we judge man’s willed behaviour to be good
or bad by referring it to the ideal of goodness. Ethics gives us the norm for willing and Logic gives us
the norm for thinking. Both are concerned with what ought to be. Both Logic and Ethics agree in
method, but the subject-matter is different.
It may be asked: What is the practical use of a study of Logic? People have been thinking
correctly throughout the ages without logical training. Also those who have received logical
training may go wrong in their thinking. Even then, it is useful to study Logic, for it will help its
student in recognizing his mistakes in thought and grading himself against them in the future.
The most important characteristic of man is his thinking power and a study of the principles of
correct thinking must be of great importance to him.

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The Principle of Thinking and the Syllogism
The word ‘Logic’ is derived from the Greek word ‘logos’ which means ‘thought’ and ‘word
as expression of thought’. From this the definition of Logic may be understood the science of
thought expressed in language. That is, thought, as such in the abstract, can never be studied. We
have to deal with the results of thinking, rather than with the thought-processes themselves.
Reasoning is always from what is given to something that is not given. At every stage of our
experience, we are explaining things in terms of ideas and meanings. Sometimes we change old
ideas into new meanings. To know a thing means, then, to transform it into ideas and meaning
which connect that thing with other things either positively or negatively. We say an object
belongs to one class of things or is different form another class of things or is different from
another class. So in every reasoning we have these three parts:
(i) A given statement, fact or idea;
(ii) (ii) A statement, fact or idea which follows from the given idea;
(iii) (iii) The basis or ground on which we draw (ii) from (i).
Such thinking is done in the form of judgments. Judgment is the way in which the mind
interprets the facts supplied to it by sensations. It is one single act of thought. When we look at the
‘rose’ and understand the colour ‘red’ as belonging to the object ‘rose’, we are making a judgement
in terms of ideas and meanings about an external object ‘rose’. Aristotle, the famous Greek
Logician, said that a statement in which something is said either positively or negatively about
something else, is a proposition. Taking this as a simple and preliminary definition of a
proposition we find that statements like ‘a rose is red’, ‘crows are not white’ are propositions. We
affirm or deny some quality of some object. In reasoning we make use of such propositions to arrive
at knowledge.
There are two types of inference. If one proposition is all that is given and from that if we draw
a conclusion, the inference is known as immediate inference. For example, if we say ‘A’ is B because
B is A’, it is a case of immediate inference. By this we mean that because ‘B is A’, the conclusion
‘A is B’ must follow. On the other hand, if the given propositions are more than one which lead
to a conclusion, the inference is called mediate inference. In immediate inference the conclusion
is reached directly, whereas in mediate inference the conclusion is reached after some comparison
with a common factor is done. So the conclusion is reached immediately or indirectly. For example, if
we argue ‘S is P because M is P and S is M’, it is a case of mediate inference. Here the relation

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between S and P is determined because each of them is related to a third term M. A typical example of
such a mediate inference is made up of three propositions. The third proposition is derived from the
first and the second proposition. Aristotle called this type of mediate inference syllogism. This
word means thinking two propositions together. But every pair of propositions do not lead to a third
proposition as conclusion. For example, from the statements ‘dogs are animals’, and ‘men are rational’
no conclusion can be drawn, because they have nothing in common. There must be something that is
to be drawn from them. In the following argument:
‘All men are
mortal
Socrates is a man
Socrates is mortal’
There is a passage from the facts given in the first two propositions to the third. In this example ‘man’
is the basis on which it is maintained that Socrates is mortal. So we think together the first two
propositions as a result of which thinking, we arrive at a conclusion given in the third proposition.
The whole is one piece of argument, although for the sake of convenience, we can divide it into two
parts. But the most important fact to be remembered here is that the first two given propositions are
to be taken as true. These two given propositions are known as premises, and the third proposition
which we draw from these two, is known as the conclusion, ‘Socrates is mortal’. This type of
syllogism is the simplest example of mediate inference. The word ‘premise’ means the starting
point which is taken as true. Therefore in a syllogism the first two statements are called premises
because they are the starting points for the argument and also because they are taken as true. The
conclusion is derived from such true premises and therefore, is true.
Each proposition of a syllogism consists of two terms and a copula. The terms are the extremes
of the proposition and are known as the subject and the predicate of the proposition. Thus in the
proposition ‘the weather is pleasant’, ‘the weather’ is the subject, pleasant, is the predicate and the
word ‘is’, which connects the subject and the predicate, is called the copula. In the syllogism given
above, we are said that the first two propositions have a common term. The common term is ‘man’
and is known as the middle term. It is the mediating term or the term to which the subject and
predicate and referred. This whole relationship may be illustrated by means of circles.

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 Here the most important to remember is that man is the connecting link between a mortal
being and Socrates, Such a link is known as the middle term.
In the syllogism we have just considered, there are two other terms, viz., Socrates and mortal, which
have to be explained. These form the subject and predicate of the conclusion and are known as
minor term and major term. As already shown by circles we find that ‘mortal’ which is the
predicate or the major term has the largest extension and ‘Socrates’ the subject of the conclusion
has the least extension.
Now, if we look at the syllogism as a whole;
‘All men are mortal
Socrates is a man
Socrates is mortal,
We find that the major term ‘mortal’ appears in the first premise, ‘all men are mortal’.
Therefore that premise is known as the major premise. The minor term ‘Socrates’ appears in
the second premise. That premise in which the minor term appears is known as the minor premise.
When the major premise is first, the minor premise second and the conclusion third. Thus:
All men are mortal - Major premise.
Socrates is a man - Minor premise.
Socrates is mortal - Conclusion
It will be convenient to use symbols for the terms and represent the syllogism symbolically. We shall
use the letter P,S and M.S. (which is the subject of the conclusion) will indicate the minor term, P
(which is the predicate of the conclusion) will indicate the major term and M will indicate the middle
term. Making use of these symbols, we have
M-P
S-M
S-P
This is the general pattern of the argument known as syllogism. Aristotle maintained that this is the
most important form of reasoning. Here we proceed to draw a conclusion from the given

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premises. We deduce a conclusion from something that is given. ‘Deduce’ means to draw out. Hence
this process of logical arguing from the known and the unknown. The facts that are given are such
that they are related to a common ground. It is this common ground or mediating fact which helps
us to reason out the relationship between the known facts.

THE PROPOSITION
The proposition and parts
A judgment, which is the mental act of thought, when expressed on language is known as a
proposition. In the last chapter it was said that a proposition consists of two terms and a copula. The
two terms are known as subject and predicate. The subject is that about which some thing is af firmed
or denied. In the proposition ‘rose is red’ we say that the rose has the red colour. Hence ‘rose’ is the
subject of the proposition. The predicate is that which is af firmed of denied of the
subject. ‘Redness’ is the colour which is said to belong to the subject ‘rose’. Hence it is the predicate
of the proposition. Similarly in the proposition, ‘The black board is not white’ we are denying the
quality of white as not belonging to the subject ‘blackboard’. Hence, the copula ‘is’ is the sign of
relation between the subject and the predicate. For the form wherein the two terms are related by
some form of the verb ‘to be’, preferably ‘is’, ‘is not’, ‘are’, ‘are not’. Such propositions can be
shown symbolically thus:

S P

Rose is red

where ‘S’ stands for subject and ‘P’ stands for predicate and the copula is shown marked off from
S and P. Such a logical proposition must be distinguished from the grammatical sentence. The
logical proposition is the verbal form of a judgement. It gives a form to thought, and as such may
be true or false. But a grammatical sentence is not so limited. We can express not only thoughts,
but also wishes, commands and feelings etc., it will be shown how to change sentences into logical
propositions.

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Classification of propositions

(a) According to quality: We have defined a proposition as a statement in which

some thing is said either positively or negatively about something else. That is
every proposition either affirms or denies something of the subject. This is called the
quality of the proposition. Qualitatively, therefore, propositions are either
affirmative or negative. In an affirmative or negative, In as affirmative proposition
the predicate is affirmed as belonging to the subject. Such an affirmative proposition
is always of the form ‘S is P’ where S and P stand for subject and predicate of the
proposition. The negative proposition is of the form ‘S is not P’. Taking a concrete
example, in the proposition ‘Roses are red’, the predicate ‘red’ is affirmed of the
subject ‘roses’. In the proposition ‘Man is not perfect’, the predicate ‘perfect’ is denied
of the subject ‘man’.

(b) According to quantity: Propositions are also divided according to quantity. The
quantity of a proposition is always determined by referring to the subject of the
proposition. When the proposition refers to all the individuals belonging to the class
signified by the subject, the proposition is said to be universal in quantity. Thus in
the proposition ‘all men are mortal’, the predicate ‘mortal’ is affirmed of the whole
group of ‘men’. Similarly in the proposition ‘No men are perfect’, the predicate
‘perfect’ is denied of the entire class of ‘men’. In the both cases, since the whole of
the class is referred to, these propositions are called universal propositions.
We have now seen that all propositions have quantity and quality. They are either af firmative or
negative; universal or particular. Combing these we have four different types of propositions.
They are usually represented by the vowels A,E,I and O.A and I are the first two letters stand for
universal affirmative and particular affirmative propositions represented by A. Universal
affirmative propositions are of the form, ‘A; S is P’ (SAP); and particular af firmative propositions
are of the form ‘Some S in P’ (SIP). Similarly E and O are the vowels in the Latin word ‘nego’ (I
deny) and they stand for universal negative and particular negative propositions respectively e.g.,
‘no men are perfect’ is a universal negative proposition. Symbolically stated it is of the form ‘No S
is P’ (SEP). A particular negative is of the form ‘Some S not P’ (Sop).

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 The form of the E proposition requires explanation. It is expressed as ‘No S is P’. If we look at
the copula ‘is’, it will be seen as though the proposition is affirmative. But it is not so. The subject
of the E proposition is ‘All S’ and the copula is ‘is not’. Still the proposition is not written in the
form ‘All S is not P’ because this statement in the English language means ‘some S is not
P’. Therefore, the form ‘No S is used for the universal negative.
A part from the division of propositions according to quality and quantity, there is
another division into categorical and conditional. This is also a very important division in the study of
deductive logic. In a categorical proposition the predicate is either affirmed or denied or the subject
definitely, without any condition. We definitely say ‘the sun is shining’, ‘Socrates is a man’. There
is no doubt or condition. On the other hand, conditional propositions are those where we af firm
something only under some conditions. We do not say anything directly about the subject itself, but
only under certain conditions. Such conditional propositions are of two kinds, the hypothetical and
the disjunctive. The hypothetical proposition is expressed in the form : (1) If A is B, C is D. If there is
rain, the roads will be wet. ‘(2) k If A is B, then A is C ‘If one is intelligent, one will pass the
examination. In these two forms, ‘If A is B’ is the condition and is called the antecedent. An
antecedent is that which comes first or is the condition. The disjunctive propositions are also
expressed is one of two forms. (1) Either A is B or C is D.‘Either all wars should be stopped or
humanity will perish. (2) Either A is B or A is C.‘The signal lights are either red or green’. All these
different types of propositions may be expressed as follows:

Propositions

Categorical Conditional
(S is P)

1. SAP Hypothetical Disjunctive

2. SEP
3. SIP

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Classification of Categorical propositions
1. According to quality Example
Affirmative: S is P Rose is red.
Negative: S is not P Man is not perfect.
2. According to quantity Example
Universal All men are mortal
Man is mortal.
Particular Some men are not wise.
Singular Socrates is mortal
The four kinds of categorical propositions
They are usually represented by the vowels A,E,I and O.

1. Universal affirmative -SAP

Ex: All S is P
2. Universal negative -SEP
Ex: No S is P
3. Particular affirmative -SIP
Ex: Some S is P
4. Particular negative -SOP
Ex: Some S not P
Apart from these particular hints, there are some general facts to be remembered when
reducing a sentence into the logical form. The real subject of the proposition is always got in answer
to the question ‘What is being spoken about?’ The logical predicate is also got in answer to the
question ‘What is being spoken about?’ The logical predicate is also got in answer to the question
‘What is stated about the subject ?’ The copula must be clearly given in the logical form and it must
always be the present tense of the verb ‘to be’ with or without the negative sign. We must determine
the quality of the subject by asking the question ‘Does the predicate apply to the whole of the subject
or only to a part ?’ If the answer be the former, then the proposition is universal; If is the latter, it
is particular. The most important rule is the meaning should not be changed while reducing
sentences to logical form.

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Distribution of terms
We have said that a proposition consists of a subject term, a predicate term and a copula. We
have also said that propositions can be divided into universal and particular based on the nature
of the subject. Now we have to consider the relation existing between the two terms, subject and
predicate, more fully. Every term can be understood in two ways. It can be understood as having
certain characteristic. It can also be understood as representing a class of objects. For example, the
term ‘rose’ may be understood as the sweet smelling, pond coloured flower which grows on thorny
bushes. It can also stand as a mark for all the roses in the world. The former is known as the intorsion
of the term and the latter is known as extension of the term. In categorical propositions both the
terms are taken only in their extension. That is, the subject and predicate are always regarded either
as individual or as classes of objects. If this is so, then it follows that, in the propositions taken as a
whole, the relation between subject and the predicate is one of either inclusion or exclusion. That
is, the group of things indicated by the subject must be either wholly or partly within or without
the group of things indicated by the predicate. For example, when we say ‘all men are mortal beings’,
the class of men, which is the subject, is meant to fall entirely within the class of mortal beings
which is the predicate. There are four types of categorical prepositions and two terms in each.
1. Universal affirmative proposition (A)
Ex: All crows are black.
Subject is distributed and the predicate is undistributed.
2. Universal negative proposition (E)
Ex: No birds are wingless.
Distributes both subject and predicate.
Particular affirmative proposition (I)
Ex: Some flowers are lovely.
Both subject and predicate are undistributed.
4. Particular negative proposition (O)
Ex: Some men are not honest.
Subject is undistributed whereas the predicate
is distributed.

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To sum up these results : Universals (A and E) distribute their subjects, particulars (I and O) do not;
negatives (E and O) distribute their predicates, af firmatives (A and I) do not,

Proposition : Subject distributed, predicate undistributed.

A : Subject and predicate distributed.
Proposition E : Subject and predicate undistributed.
Proposition I
Proposition O : Subject undistributed, predicate distributed.
These results may be summarized in the code word ASEBINOP, which means A
distributes subject only; E both; I neither and O predicate only.

THE OPPOSITION OF PROPOSITIONS

We have already shown the difference between mediate and immediate inference in the
last chapter. When we proceed to draw a conclusion from only one proposition which is given, he
argument is known as opposition. We have already seen that categorical propositions are four kinds
asked on the differences of quality and quantity. When any two of these four types (A,E,I and O)
of propositions, having the same terms as subject and predicate, differ in quantity of quality or in
both they are said to be opposed. The word ‘opposition’ normal means, ‘disagreeing’. When two
things are so much against each other that they cannot go together, we say there is opposition
between them. But logically, the word ‘opposition’ has a wider meaning. It includes here some cases
of propositions which are not really in conflict. Propositions with the same subject and predicate but
different in quantity of quality are said to be propositions which are opposed to each other.
Contradiction:
Two prepositions which differ both in quantity and in quality are in contradictory opposition. A
and O,E and I are the two pairs of contradictories.
Ex: 1. All men are wise - Some men are not wise.
2. No men are perfect - Some men are perfect.
i. Universal affirmative -A
ii. Universal Negative -E
iii. Particular Affirmative -I
iv. Particular Negative -O

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Contradictory: differ both in quantity and quality- A and O; E and I
Contrary: differ in quality but both universal- A & E
Sub contrary: differ in quality but both particular- I&O
Subaltern: differ in quantity- A&I, E&O
Reduction of Sentences to Logical Form
 1. A,E,I,O are the four types of logical propositions. Sentences which are not given in
these forms must be reduced to none of these four types.
 2. The meaning of the given sentence must not be changed while changing the form of the
sentence.
 3. When compound sentences like ‘Gold and silver are costly metals’ are given, they must
be split up into simpler propositions like ‘Gold is a costly metal’ and ‘Silver is a costly
metal’.
 4. Words like ‘no’, ‘none’ when added to the subject given an E proposition

Universal is true, the particular must be true, but if it is false the particular may or may not be true.
If ‘All men are mortal’, then it follows that ‘Some men are mortal’. But from the truth of the
statement ‘Some men are wicked’, we cannot say anything about ‘all men’. If the universal is not
accepted, the particular may or may not be accepted. If the particular is not accepted, the universal
also must not be accepted; if the particular is accepted, the universal may or may not be accepted.
The Square of Opposition
All the four types of relations we have explained above are usually represented in a diagram
which is called the Square of Opposition.

1. Contradictories : A and O ; E and I

2. Contraries : A and E
3. Subcontraries : I and O
Subalterns
Subalterns

4. Subalterns : A and I ; E and O Subcontraries

The result of oppositions that we have obtained may be summed up in the following table :

A E I O

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If A is true... True False True False
If A is false... False Doubtful Doubtful True
If E is true... False True False True
If E is false... Doubtful False True Doubtful
If I is true... Doubtful False True Doubtful
If I is false... False True False True
If O is true... False Doubtful Doubtful True
If O is false... True False True False

Conversion and obversion

One form of immediate inference we have so far studied. When two prepositions are
logically opposed to each other, we can, in some cases, know the truth or falsity of one of them,
given the truth or falsity of the other. There are also other processes of immediate inference, where
we infer the truth of one proposition from the truth of another. These processors are all called
educations. The word ‘educe’ means ‘drawing out’ and ‘education’ is the process of drawing
out. This name is given to these immediate inferences because they try to draw out the meaning of
the given proposition and make it plain.
Conversion and obversion
 Conversion is the process whereby we draw a new proposition from the given proposition
without changing the meaning of that given preposition by interchanging the subject and
predicate of the given proposition.
 Ex: M-P No men are perfect
P-M No perfect beings are men
Two kinds
1. Simple Conversion (E&I)
2. Conversion by limitation or per accidents. (A)

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 S a P
1 . A- Convertend : All S is P All men are mortal
P i S
Converse: some P is S Some mortals are men
S e P
2 . E- Convertend : No S is P No men are perfect

P e S
Converse: No P is S No perfect beings are men
S i P
3. I- Convertend : Some S is P Some men are wise
P i S
Converse: some P is S Some wise beings are men

4. O-has no converse.

Obversion : This is the name of the immediate inference where the proposition is changed in
quality without changing the meaning. In the process of this change, the subject of the proposition
is kept as it is, while changing the predicate to its contradictory. Now, we infer from a
proposition of the form ‘S-P’ another proposition of the form ‘S is not-P’. This is based on the
principle that all statements can be made both affirmatively and negatively. It is all the same whether
we say ‘All men are mortal’ or ‘No men are non-mortal’. In such an obversion the original
proposition 89s called the obvertend and the inferred proposition is called the quality of the
proposition, keep the subject as it is and substitute for the predicate its logical contradictory.
Applying this to the four types of categorical propositions, we get the following results.
1. A- Obvertend All S is P
Obverse No S is not P
2. E- Obvertend No S is P
Obverse All S is not P
3. I- Obvertend: Some S is P Some men are wise.
Obverse: Some S is not P Some men are not non wise.

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 4. O- Obvertend: Some S is not P
Some men are not intelligent.
Obverse: Some S is P
Some men are non- intelligent.
From these examples it will be clear that the logical contradictory of the term is got by use such
phrases as ‘other than’. But it should always be remembered that just as non-P is the contradictory
of P, P is the contradictory of not-P. If the obvertend is of the form ‘S is not - P, the obverse will be
of the form ‘S is not P’.

THE SYLLOGISM
Introduction
In the last chapter we considered some of the forms of immediate inference. The
various forms of immediate reference show that there are different ways in which the same truth
can be expressed. That is, if the given statement is true, then without changing its meaning, we can
express it in other forms of propositions also. But this is not all. There is also the other kind of
inference known as mediate inference, where we cannot go so directly from one proposition to
another. In mediate inference, as we have already seen in the first chapter, we must have a mediation
fact which connects the subject and predicate. It is based on this relation that the predicate is either
asserted or denied of the subject in the conclusion. The whole argument is known as a syllogism.
We have also seen that the parts of a syllogism are the major premise, the minor premise and the
conclusion. The major premise gets its name from the major term and the minor premise from the
minor terms. These major and minor terms are the predicate and the subject of the conclusion. In
the premises there is also another term which is known as the middle term, which supplies the
mediating fact. If we form the syllogism now, we have.
All men are mortal - M
Socrates is a man - S
Socrates is mortal - p

A. Rules relating to the structure of the syllogism

1. A syllogism must contain three and only three terms.

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 2. A syllogism must contain three and only three propositions.
B. Rules relating to quantity
3. The middle term must be distributed in one, at least, of the premise.
4. No term must be distributed in the conclusion which is not distributed in the
premise.
C. Rules relating to quality
5. From two negative premises there can be no conclusion, i.e., one at least of the
premises must be affirmative.
6. If one premise is negative, the conclusion must be negative, and if the conclusion is
negative, one premise must be negative.
D. Rules which follow from to above rules
7. From two particular premises there can be no conclusion
8. If one premise is particular, the conclusion must be particular.
Explanation of the above rules.
The first two rules tell us what a syllogism is. A syllogism is an argument in which from
two given propositions we infer a third proposition. Hence there must be only three propositions. If
there are more than three propositions, we have more than one syllogism; if less than three, we
have no syllogism. We have also seen that a logical argument of this type is the result of
comparing two terms with a common third term. It is on the basis of the middle term that the
major term is either affirmed of denied of the minor term in the conclusion. If there are more than
three terms, then no such comparison is possible. Hence there must be only three terms in a
syllogism. When leads to wrong conclusions. Such wrong syllogisms are fallacious reasonings.
Sometimes the same term is used having a double meaning. Such usage may be with reference
to all the three terms. For example,
The end of a thing is its perfection
Death is the end of life
Therefore: Death is the perfection of life.
Here the word end is used first in the sense of ‘goal’ and then in the sense of ‘termination’.
Hence it ceases to be a middle term. The middle term is used in an ambiguous way. In such cases
also we have four terms and the syllogism is not valid. So in determining the terms of a syllogism, we
must be careful to see that no word is used in a double sense.

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The third rule that the middle term must be distributed at least once in the premises is a very
important rule. The whole syllogistic argument centres round the middle term and the rule demands
that the whole extend of the middle term must be referred to at least once. If this is not done, the
major term may refer to another part. This will make it impossible for us to compare the major and
the minor terms to another part. This will make it impossible for us to compare the major and the
minor terms and arrive at a conclusion. This may be illustrated by means of three diagrams where
each one breaks this rule and thus leads to wrong conclusions.

M S
S
P S M

M P P
In figure 1, we find the S which is the minor term has no connection at all with P which is
the major term because they both represent different parts of the middle term M. Similarly
Figures 2 and 3 also show that unless the whole extent of M is referred to in connection with either
S or P, we cannot say anything the relation between S and P. Let us consider a practical example.
All men are mortal
All monkeys are mortal
All monkeys are men.
We see the absurdity of this conclusion that all monkeys are men. Such absurdity arises
because the middle term ‘mortal’ is undistributed. Consequently the major term refers to a portion
of it and the minor term refers to a completely different part of it. Thus when the middle term is
not distributed even once, we get wrong conclusions.
The fourth rule is a double rule. (a) The minor term should not be distributed in the conclusion
unless it is distributed in its premise. When the rule is broken we have the fallacy known as
‘illicit

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process of the minor term’ or shortly as illicit minor. (b) The major term should not be distributed
in the conclusion unless it is distributed in its premise. If the rule is broken, we have the fallacy
known as ‘illicit process of the major term’ or shortly as illicit major. The reason for these double
rule is very clear. We can never say something about the universal by knowing only a part of it. If
the major and minors terms are undistributed in their premises, it means that only a part of their
extension in the conclusion and this is what is done if these terms are distributed in the conclusion.
The argument.

M a P
All men are mortal
M a M
All men are rational
S a P
All rational being are men

Commits the fallacy of illicit minor. Here we are saying something about ‘all rational beings’ in
the conclusion, whereas in the minor premise where ‘rational’ is the predicate, it remains
undistributed. From less we are deriving more. From part, we are saying something about the whole
which is wrong syllogism. Similarly about the major term in the argument.
All cruel men are cowards.
No college men are cruel.
No college men are cowards.
Where the major terms remains undistributed in its premise while it is distributed in the
conclusion.While applying this rule of distribution, we should note that the mistake is only when
we take more of a term in the conclusion than is referred to in the premise. But there is nothing
wrong if we take less from more. If the terms are distributed in their premises and undistributed in the
conclusion there is no fallacy.
The fifth rule states that from two negative premises no conclusion can be reached. In a
negative statement the predicate is always denied of the subject either wholly or partly. If both the
premises are negative, it means that both the major term and the minor term are excluded from the
middle term. Hence, we can conclude no thing as regards the relation between major and minor

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terms. The negative statements give us no ground for inference. Therefore at least one premise must
be affirmative. For example.
Anger is not good.
Calmness is not anger.
From these two premises it is not possible to say whether calmness is or is not good. But
sometimes, the premises appear to be negative while they are not really negative statements in
meaning. For example,
Whatever is not a compound is an element.
Gold is not a compound.
Gold is an element.
In this argument both the premises seem to be negative. But examining them closely, we find
that neither of them is negative. They can written as follows :
Whatever substance is not a compound is an element.
Gold is a substance that is not a compound.
Gold is an element.
The sixth rule says that if one premise be negative the conclusion must be negative. In a
syllogism the middle term occurs in both the premises. If one premise is negative, then it means that
of the major and minor terms one agrees with the middle term whereas the other does not agree with
the middle term. From such a syllogism the inference that can be drawn is that the minor and major
terms do not agree with each other.
That is, the conclusion is bound to be negative. For example,
No men are perfect.
X is a men
X is not perfect.
Here the negative; premise says that the major term ‘perfect’ is excluded from the middle term
‘man’. The affirmative premise states that the minor is connected with the middle term. From this
it follows that the two terms S and P are not related. Similarly if the conclusion (S-P) is given as
negative, then one of the premises must be negative. In the conclusion there is exclusion of P from
S. This exclusion must be shown to be drawn from the premises themselves. That can happen only
when one of the premises is negative.

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 The seventh rule is that from two particular premises no conclusion is possible. This may be
seen to follow as a consequence from the above discussed rules. There are two particular positions, I
and O. As either of them may be major of minor premise, there are four possible combinations,
II,IO,OI, and OO. Of these, OO is not possible because of the fifth rule which says that from negative
premises no conclusion can be drawn. The combination II also has to be given up as it does not
distribute any term. According to rule 3, the middle term must be distributed at least once in the
premises. In IO and OI only one term is distributed, viz., the predicate of O. This must be middle
term as per rule 3. Then neither the major term nor the minor term is distributed. But as one of the
premises is negative, as per rule 6, the conclusion must be negative. If this is so, then the predicate of
the conclusion which is the major term is not distributed in the premise, since only one term can be
distributed in the premises and that has already been taken to be the middle conclusion without
being distributed in its premise. Thus illicit major occurs, breaking rule 4. Hence from the particular
propositions no conclusion can be drawn.
Similarly the eighth rule, that if one premise is particular, the conclusion must be particular may
be proved by examining the different combinations of the premises possible : AI and IA, AO and OA,
EI and IE, EO and OE. Of these combinations EO and OE are not possible because they are both
negative premises and according to rule 5, there can be no conclusion. In combination AI and IA
only one term is distributed which is the subject of the A proposition. This must be the middle term to
satisfy rule 3. No other term is distributed in the premises. Hence the major and minor terms which
from the predicate and subject of the conclusion cannot be distributed. Hence the conclusion must
be a particular conclusion, for particular propositions alone do not distribute their subjects.
In the prepositions AO and OA, two terms are distributed, viz., the subject of A and the
predicate of O. One of these distributed terms must be the middle term. That leaves us only with one
more distributed term which can be either the major or the minor term. As one of the premises is
negative, the conclusion must also be negative according to rule 6. All negative premises distribute
their predicates as already explained. That is, the conclusion which is negative will distribute their
predicates as already explained. That is, the conclusion which is negative will distribute its predicate
which is the major term. To avoid the illicit prices of the major term. To avoid the illicit process of
the major and the minor term must be distributed in its premise. So know the middle term and major
term are distributed in the premises. In the premises, the minor term is not distributed. That means
the subject of the conclusion cannot be distributed, which, therefore, makes it a particular

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proposition. Similarly the combination EI also lead to a particular conclusion. The leaves us with the
combination of IE alone. From these two propositions, only a negative conclusion is possible,
because one of the premises is negative. Negative propositions distribute their predicates. So in the
conclusion the major term is distributed. To avoid the illicit process of the major, it must be
distributed in its premises which is I, a particular affirmative proposition, which does not
distribute any term. Hence no valid conclusions is possible.
The rules that have been so far discussed give us the conditions for a valid syllogism. There are three
terms in a syllogism and two premises in which these three terms must be place. In every premise there
are two terms and hence there are four places in which the three terms, the middle term, the major
term and the minor terms have to be placed. But the middle term must occur in both the premises either
as subject or predicate. Hence there are four possible ways of arranging the terms in an argument. These
four forms of syllogistic reasoning are called the figures of the syllogism. It is the position of the
middle term in the premises that determines the figures of a syllogism. The four figures may be
symbolically represented as follows:
Fig.I Fig.II Fig. III Fig.IV
M-P P-M M-P P-M
S-P P-M M-S M-S
~ S-P ~ S-P ~ S-P ~ S-P
In the first figure the middle term is subject in the major premise and predicate in the minor
premise.
In the second figure the middle term is predicate in both the premises.
In the third figure the middle term is subject in both the premises.
In the fourth figure the middle term is predicate in the major premise and subject in the minor
premise.
There are three propositions in a syllogism; and each of the propositions may be of any one of the
four forms. A,E,I and O. Syllogism thus vary in respect of the quantity and quality of the
propositions which constitute them. This character of the propositions which constitute them. This
character of the propositions which go to form a syllogism is called the Mood of the syllogism. As
there are three propositions in each syllogism, and as each of the propositions may assume any one of
the four form A, I and O, the total number of possible moods is 43 or 64. Thus of each figure we
have 4*4*4 or 64 possible varieties. We may write out these 64 combinations and determine which of

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them are valid. But it is must easier to determine the valid combinations of premises selves. In each
syllogism there are two premises, and each premise may take any one of the four forms, A,E,I or O.
Thus we get sixteen combinations in all.

AA EA IA OA
AE EE IE OE
AI EI II OI
AO EO IO OO
Some of these combinations will not be correct according to the rules of the syllogism. We
know that from the negative premises no conclusion is possible; hence the combinations ES, EO,
Oe, and OO are to be ruled out. From two particular premises no inference can be drawn; hence the
combinations II, IO and OI are invalid. As we have already seen the combination IE does not lead to
a valid conclusion. After all the combinations are removed, there are eight valid ones left over;

AA EA IA OA
AE .. .. ..
AI EI .. ..
AO .. .. ..
When these combinations are used in the four figures we get nineteen valid moods in all- four
in the first figure, four in the second, six in the third, and five in the fourth figure. These moods are
represented by code words which show the combination of the premises.
Fig. I-Barbare, Celerent, Darii, and Ferioque.
Fig. II-Cesare, Camestres, Festino and Baroco.
Fig. III-Darapti, Disamis, Datisi, Felepton, Bocardo and Ferison.
Fig. IV-Bramantip, Camenes, Dimaris, Fesapo, and Fresison.

The vowels contained in each word signify the quality and quantity of the three propositions
of the syllogism. Thus in Barbara, the three propositions are all universal second figure whose
propositions are EAE.

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Hypothetical and Disjunctive Syllogisms
We have so far been studying the categorical syllogism. But a syllogism can also be made
up of propositions which are other than categorical proposition, viz., hypothetical and disjunctive
propositions. We have already seen in the last chapter that there are two forms of the hypothetical
proposition : (a) If A is B, C is D; (b) If A is B, A is C. The first part which begins with ‘If’ is the
condition down as the antecedent and the second part the condition is the consequent. Of the two
forms of the hypothetical proposition given above, in the first, the subject of the antecedent which is
‘A’ is different
from the subject of the consequent which is ‘C’. But in the second form, the subject of the antecedent
which is ‘A’ is the same as the subject of the consequent which is also ‘A’. The antecedent and the
consequent in both the forms are either the antecedent or the consequent may be negative. For
instance, the first form need not always be ‘If A is B,C, is D.’ It can also be : “If A is not B,C is
D’, ‘If A is B, it is not D’, ‘If A is not B, C is not D.’ In the case of the categorical proposition the
quality of the proposition is shown by the copula. How are we to determine the quality of the
hypothetical proposition ? Can them are negative, the preposition is negative ? No. Because the
distinction of affirmative and negative does not apply to the hypothetical proposition. The
proposition affirms that the consequent follows upon the condition which is given in the
antecedent. The antecedent or the consequent may be by itself either negative or affirmative. In all
cases, the function of hypothetical proposition is only to say that if the condition that is given by
the antecedent is there, then the fact that is given by the consequent will also be there. Similarly
there are also no quantitative differences. We have seen that in the categorical proposition, the
reference is always to individuals or groups of individuals. There, the predicate which is a quality
is said to either belong or not belong to the subject which is an individual. If we say that the
quality belongs to the whole of the subject, then the proposition is universal; if only to a part of the
subject, then it is a particular proposition. No such quantitative differences are there in hypothetical
propositions. Here the consequent depends on the decedent. That is, the relation between antecedent
and that the qualities of a mortal being are elated hypothetical propositions is only concerned with
qualities and hence quantities have no place in it.

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The disjunctive propositions also are given in two forms : (1) A is either B or C. (2) Either A is B or C
is D. Whatever is the form in which the disjunctive propositions given the principle of disjunction is
the same. This always gives us the alternatives of any system and makes use of the words ‘either-or’.
For example, ‘Signal lights are either red or green’. But he alternatives given need not be only two
as in the above example. There may be many more alternatives as in the example, “triangles are
either equilateral, isosceles, or scalene”. From this it is clear that in disjunctive propositions there is
neither quantity nor quality. The principle of disjunction gives us the alternatives of any system.
Hence it always positive. There can also be no quantity here, because there is no reference to any
individuals here. But the disjunctive gives us the alternatives of any system. Hence it always positive.
There can also be no quantity here, because there is no reference to any individuals here. But the
disjunctive has a condition. That is, the alternatives of a disjunction must be mutually exclusive and
exhaustive. If we take the example ‘A is either B or C’, the alternatives B and C must tell us all that
there is to be known of A, both positive and negative. This is what is meant by saying the alternatives
must be exhaustive. Also, the alternatives A and B must be completely different from each other, and
they must not have any fact common between them. For example, in the proposition ‘Signal lights are
either green or red’, in the system of signal lights, within it is a green light is completely excludes the
red light. Hence the alternatives here are mutually exclusive.
We have so far seen the nature of hypothetical and disjunctive propositions. These propositions
can take the place of categorical propositions in syllogistic arguments. Let us examine first that
syllogism in which the propositions are hypothetical in nature. In a hypothetical syllogism,
ordinarily, the major premise would be a hypothetical proposition, the minor premise would be a
categorical proposition and the conclusion again a categorical proposition. Its general symbolic form
is
If A is B, C is
D A is B
~ C is B
For example:
If he is Madras, he will come to see me.
He is in Madras
~ He will come to see me.

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The rule of the hypothetical syllogism is : either affirm the antecedent or deny the consequent. The
major premise which is the hypothetical proposition has two parts, the antecedent and the
consequent. The minor premise which is categorical must either af firm the antecedent or deny the
consequent of the major hypothetical proposition. Depending on this the conclusion takes shape. If the
minor affirms the antecedent, the conclusion will affirm the consequent. If it denies the consequent,
the conclusion will deny the antecedent.
For example :
If it rains, he will be
wet. It rains.
~ The roads will be wet.
Here the minor premise affirms the antecedent of the major hypothetical premise and the
conclusion affirms the consequent. Again
If it rains, the road will be
wet. The roads are not wet.
~ It has not rained.
The reason for this rule is that the antecedent is only one of the conditions and not only
condition for the consequent. ‘For example, heat is given out by electric current, burning of coal,
wood and from sunshine. So if any one of these causes are present heat with be produced. That is, if
the antecedent is present, we can say the consequent is also present. But from the absence of the
antecedent we cannot definitely say the consequent will also be absent, because the consequent
may be present because of conditions other than the given angeceern being present. If electric
current is not present, we cannot say heat will not be present, because heat may be caused by other
conditions. Similarly we cannot conclude that the antecedent is present because of the presence of
the consequent, for the consequent may be present because of other causes being present. So now
we see the reason for the rule of the hypothetical syllogism which says present. So now we see the
reason for the rule of the hypothetical syllogism which says that either the antecedent should be
affirmed or consequent be denied. Here affirming means stating what is given in the major premise.
Applying this rule, we have two types of hypothetical syllogisms; one in which the minor
premise affirms the antecedent and the other in which the minor premise denies the
consequent. These two are known as Modus ponens and Modus tollens or the constructive
hypothetical syllogism (modus ponens) and the destructive hypothetical syllogism (modus tollens).

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Symbolically these two forms are :
Modus ponens :
If A is B, C is D
A is B
~ C is D.
If it rains, the roads will be wet.
It rains.
~ The roads are wet.
Modus tollens :
If A is B, C is
D C is not D
~ A is not B
If he is in Madras, he will call on me.
He has not called on me.
~ He is not in Madras.
These reasons for affirming the consequent and denying the antecedent of the hypothetical
syllogism have an exception. Ordinarily, we have stated, the antecedent is one of the conditions of
the consequent. But if it is known that the antecedent is the only condition of the consequent, then it
is not wrong to infer the absence of the consequent from the absence of the antecedent or presence of
the antecedent from the presence of the consequent.
E.g., Only if a triangle is equilateral it is equiangular
This triangle is not equilateral.
~ This is not equiangular.
Similarly,
Only if it is a magnet, it will attract
iron. This bit of iron is attracted.
~ This is magnet.

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While deciding on the syllogism which comes under this exception, it must be carefully examined if the
antecedent is an essential and necessary condition. In the above example, it is essential and
necessary that an equilateral triangle must also be an equiangular triangle. Similarly, it has been
known that magnets invariably attract iron. So, the consequent and the antecedent may be denied or
affirmed irrespective of the rules of the hypothetical syllogism.
The disjunctive syllogism is an argument where the major premise is a disjunctive proposition, the
minor premise a categorical proposition and the conclusion is another categorical proposition. We
have said that the disjunctive proposition must be of the form ‘Either A is B or C is D’. Here the
alternatives or disjunction are ‘A is B’ and ‘C is D’.
In the disjunctive syllogism the minor premise which is categorical either af firms or denies one
of the alternatives and if the minor premise denies one alternatives, the conclusion will af firm the
other alternative. Let us first state this symbolically.
Either A is B or C is D - Major : disjunctive
premise. A is B - minor : categorical premise.
~ C is not D - conclusion : categorical.
Here one of the alternatives ‘A is B’ is affirmed in the minor premise and the other alternatives
‘C is D’ is denied in the conclusion.
Either A is B or C is
D A is not B
~ C is D.

FALLACIES
Introduction
The purpose of Logic is to give us valid principles of thinking. Thinking must be done
correctly if we are to get conclusions. This is done when thought conforms to the laws of systematic
reasoning. The function of logic is only to give us the rules of standards for right thinking. Not
only should we know positively what is right, we should also know negatively what is wrong. Such
wrong inferences are known as fallacies. A fallacy may be defined as a conclusion resulting from
thought which claims to be valid but which violates the principles of reasoning. As we have already
seen, thinking always proceeds in two ways. We have general, universal judgements from which we
argue about the truth of a particular. We include the particular statement under the universal. This

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type off reasoning we have called deduction. We deduce the truth of the particular from the given
universal. The other way of thinking is known as Induction where are arrive at a universal truth as a
result of such observation. Both these form of thinking are governed by laws. When these laws are
violated, we have fallacies. We shall examine the fallacies of deductive reasoning first.
Deductive Fallacies:
We may divide all deductive fallacies into formal fallacies and material fallacies. Formal
fallacies are those where the forms of inference are incorrect. There are two types of inference, the
immediate and the mediate. When the rules governing these inferences are not followed, we have
formal fallacies. But inference not only obeys certain formal laws, it also has a meaning and content.
When the contents of a syllogism are absurd, although the form is valid, we have material fallacies.
These may be because the words in the premises are wrongly used and interpreted or may be
because the premises assume truths which they should not do so.
(a) Formal fallacies:
(i) We have seen the obversion and conversion are forms of immediate inference. When the
rules of these are violated, we have Illogical education. In obversion the logical contradictory of
the predicate is taken in the place of the original predicate. Instead of this, if the logical contrary
is used, the observe will be fallacious. For example, if from the proposition ‘Honesty is always a
good policy’, we draw the conclusion that ‘Di-honesty is always a bad policy’, we are having a
wrong inference. Again the A proposition should be converted per accidents. When this is not
done, we have an illogical conversion e.g., ‘all men are mortal’, when simply converted. Becomes
‘all mortals are men’, which is materially wrong, for, mind are not the only mortal beings.
ii) There are fallacies which result from the violation of the rules of the syllogism
in mediate inference.
(1) Quaternio Terminorum or the fallacy of four terms :
The first rule of the syllogism states that a syllogism must contain three and only three terms. When
this rule is not followed, we have the fallacy of four terms.
For example :
Cultured men are reasonable
Logicians are wise-men
Logicians are reasonable
This argument, although in the form as syllogism, is not a syllogism at all, since the premises

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contain four terms which have nothing in common between them. In some cases, the four terms
will not be so differently and clearly stated. The same word may be used with different meanings.
For example
Gold can be expelled by heat
Ravi’s illness is cold
Ravi’s illness can be expelled by heat.
Here the word cold is used in the two senses. First as showing temperature condition and
second as an illness. So, although the argument looks like a good syllogism, it is not so as it
has four terms. Just like this, even the major and minor terms may have double meaning, in
which are the fallacy will be Quaternion Terminorum.

(2) Undistributed middle :

The third rule of the syllogism says that the middle term must be distributed in one, at least, of the
premises. When this is not observed, the fallacy of undistributed middle arises. For example,
All Punjabis are Indians
All Bengalis are Indians
All Bengalis are Punjabis
The argument is fallacious because the middle term ‘Indians’ is not distributed even once. The
middle term should be such that it relates the minor and the major terms and this it will not be
able to do if it is undistributed in both the premises.
(3) Illicit major :
The fourth rule of the syllogism says that no term must be distributed in the conclusion which is not
distributed in the premise, If the major term is distributed in the conclusion and not in its premise, it
means we are inferring more from the less. It is called illicit process of the major term or shortly
illicit major. For example :
All rational beings are responsible people Brutes are not rational beings Brutes are not
responsible people.
(4) Illicit minor:
This fallacy also occurs when the forth rule is broken. This happens when the minor term
remains undistributed in its premise and becomes distributed in the conclusion E.g.,
All generous people are loved by the poor

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 All generous people are polite
All polite people are loved by the poor.
Here are the minor term ‘polite people’, which as the predicate of an A proposition is
undistributed, becomes distributed in the conclusion. This is a fallacy if illicit process of
the minor term or shortly illicit minor.
(5) Negative premises:
The fifth rule of the syllogism says that from two negative premises there can be no conclusion. When
this rule is broken, we have the fallacy of two negative premises.E.g.,
Anger is not good
Calmness is not anger
From these two negatives, we cannot draw any conclusion.
(6) Particular Premises :
The seventh rule states that from two particular premises there can be no conclusion. Some
Asians are Indians
Some Asians are Chinese
Some Chinese are Indians
Here, since the middle term remains undistributed, the conslusion does not follow from the
premises.
(7) Denying the Antecedent:
This is a fallacy in hypothetical reasoning. In a hypothetical proposition, the antecedent is only one
of the conditions. Because it is absent, we cannot say the consequent also must be absent for the
consequent may have other conditions. Hence the rule : Affirm the antecedent. Instead of doing this,
if the antecedent is denied in the minor premise, the syllogism will be fallacious. Such a fallacy is
known as the fallacy of denying the antecedent. For example :
If my friend is in need,
he would come to me
He is not in need He will not come to me
Here the antecedent is denied and the conclusion is given as negative. We do not know, if ‘being
in need’ is the only condition under which he would come. Just as we know, if there is fire there is
heat, we cannot say wherever there is heat, there must be fire. Hence the conclusion is wrong.
(8) Affirming the consequent:

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This is the other fallacy in hypothetical reasoning which occurs when the minor premise af firms the
consequent. For example,
If there is rain, he will not go out
He has not gone out
There is rain.
Here again the antecedent is only one of the reasons and not the only reason. Rain is a cause of
the person not going out, but it is not the only cause, for he may not go out on account of
other reasons also. Hence this a fallacy of affirming the consequent.
(9) Improper Disjunction :
The condition of a disjunctive syllogism is that the alternatives must exclude each other and that
they must together exhaust all possible alternatives. When this is not so, we have an improper
disjunction which is the fallacy of disjunctive syllogism. For example,
He will either pass in the first class or fail.
He has not passed in the first class
He has failed.
This is improper, because there are other ways of passing also such as passing with a second
class or a third class. So the disjunction does not give all the alternatives. Hence it is a fallacious
argument. Similarly,
He is either an orator or a musician.
He is an orator
He is not a musician.
Here the alternatives are not exclusive of each other. A man can be both an orator and a
musician. Hence such argument are also fallacious.
(b) Material fallacies :
An argument may be correct in form, and still may be invalid. This is because the matter of the
syllogism is wrong. For example,
All men are monkeys
X is a man
X is a monkey.

Here, though the form of the syllogism satisfies all the rules, still it is not a valid syllogism

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because the meaning is nonsensical. There are two important principles of logical reasoning which
should not be violated, if materially the argument is to be correct. The first principle is that the
terms used in an argument should not be ambiguous. That is, the terms should not be doubtful in
their meaning. The second principle is that what is to be proved, must be proved strictly from the
premises. Nothing that is not given in the premises must be assumed or taken for granted. If the first
rule is broken, we have the following fallacies.
(1) Fallacy of ambiguous and shifting terms :
Here the various terms of the syllogism are used in an ambiguous manner. For example, He who is
most hungry eats most,
He who eats least is most hungry,
He who eats least eats most.
In this example since the meaning of words used is not definitely fixed. We arrive at an absurd
conclusion. Such a fallacy can also be included under the formal fallacy of four terms. When
the same term is used with different meanings in the syllogism, it becomes a syllogism with
four terms.
(2) Fallacy of Composition:
An argument in which words, which should be taken separately, are taken together, commits the
fallacy of composition. The fallacy is one where, from a statement about where, from a
statement about a class of things distributively, we pass to a statement about the whole,
collectively. When a word used detractively, we refer to the whole class represented by the word.
When a word is used collectively, we refer to a group which is made up of similar individuals
taken as a whole. In arguments where the fallacy of composition is committed, a term is first used
in a distributive sense and then used in a collective sense. This happens because the word ‘all’ is
misleading. For example,
All the angles of a triangle are less than two right angles
A, B, and C are all the angles of this triangle
A,B, and C are less then two right angles.
Here the word ‘all’ is used in the major premise in the distribute sense, and in the minor in a
collective sense. Another example of this fallacy is ‘A regiment of a hundred men is composed of
soldiers who are all six feet high; therefore the whole regiment is six hundred feet high’.

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(3) Fallacy of Division:
This is the opposite of the fallacy of composition. Words which must be taken together are here taken
separately. For example, “Hindus and Muslims are men and brethren. Therefore Hindus are men
and Muslims are men and brethren. That is, the fallacy of division occurs when we pass from a
statement about the class considered collectively to the same statement about each every member
of the class taken distributively. For example ‘All the plays of Kalidasa cannot be acted in a
day. The Sakuntala is play of Kalidasa; therefore the Sakuntala cannot be acted in a day’.
(4) Fallacy of Accident :
This fallacy has two forms (a) the direct or simple fallacy of accident and (b) the converse
fallacy of accident.
(a) The direct fallacy of accident consists in arguing that what is true as a general rule is true
also under special circumstances. For example, ‘What is bought in the market is eaten :
raw meat is bought in the market; therefore raw meat is eaten.’
(b) This is the opposite of the direct fallacy of accident. If consists in arguing that what is
true under special circumstances is true also generally. For example, ‘When a person is
ill, staying in bed is good for his health. Therefore staying in bed is always good’.
When the second rule concerning the matter of the syllogism is broken, we get certain
fallacies. ‘That is, when the conclusion that is drawn is not strictly based on the premises,
we have the following fallacies.
(1) Petitio Principle or begging the question :
Here we assume the conclusion in the premises. We prove the conclusion by premises which
can be proved by the conclusion by premises which can be proved by the conclusion itself. For
example, ‘Virtue is right; to give to beggars is a virtue; therefore to give to beggars is right’. Here the
conclusion is only a restatement of the minor premise. The major premise is a repetition; because to
call charity a virtue and to call it right are the same. And so, to say that to give to beggars is a virtue is
not to prove that it is right. Another form of this fallacy is where we argue in a circle. Two
propositions are used, each in turn, to prove the other. For example.
‘I should not tell a lie, because I know that I should not tell lies’
So we must be always careful to see that the conclusion is not assumed in the premises and that the
conclusion must always follows the premises.

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(2) Ignoratio Elenchi or irrelevant conclusion :
There are several forms of this, but we shall examine only two of them.
(a) Argumentum ad hominem: This is arguing about the person instead of about the
proposition which he puts forward. For example, ‘This man followed the principle of non-
violence all these days, now he wants to follow violent methods to put down riots. So we cannot
follow him.’ Here instead of arguing about the proposition whether violence is good or bad
under the given circumstances, we are arguing about the person of the man. Hence it is a wrong
argument known as argumentum ad hominem.
(b) Argumentum ad verecundiam: Another form of the irrelevant conclusion is the fallacy of
verecundiam. This is an appeal to authority or long-established custom in favour of, or against, a
proposition. To argue that ‘we must agree to a proposal because so and so approves of it’ is to
commit this fallacy. Instead of arguing and giving reasons for arriving at a conclusion, if authorities
are quoted in support of the argument, we have the fallacy of verecundiam. The reference here if to
authority and now to reason.
(3) Non-Sequitur:
This is otherwise known as the fallacy of false cause, non cause pro cause. It is committed
whenever the conclusion does not follow from the premises. For example. ‘Australians usually win
cricket test matches in India. Therefore Indians must be a civilized people.’ Here although there is a
form of argument, it is not correct. The conclusion does not follow from the given statement. Hence
the argument contains the fallacy of non-sequitur.
Inductive Fallacies
We have so far been discussing fallacies which occur in Deduction. Now we shall consider some
fallacies which occur in Induction. Induction is the process whereby we arrive at universal statements
by an analysis of particular instances. This process is strictly governed by the law of causation.
Several processes have been shown already to be employed in arriving at such universals. Scienti fic
Induction is that where the causal relation is established without doubt between two phenomena. The
processes used are enumeration, observation, analogy, and explanation. In every one of these, it is
possible to have wrong applications. We shall deal with these one by one.

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(i) Based on enumeration: we have two fallacies. (1) Perfect induction, (2)
Simple enumeration.
1. Perfect Induction: Sometimes we infer a conclusion by the method of complete
enumeration. This is known as ‘perfect induction’. For example, after carefully going
through the list of members, I infer that they are all Hindu. This way if arriving at the
conclusion is not satisfactory. The conclusion which is reached through ‘perfect
induction’ is not her result of generalization. There is no inductive leap.
2. Simple Enumeration: Our generalizations are very often based on incomplete
enumeration or simple enumeration. We count some instances and make a general
statement which is true, not only of the observed cases but also of the unobserved ones.
For example, after seeing several crows which are black, we generalize ‘all crows are
black’. This generalization is not well-established. There is no analysis here to show why
crows must be black. It can easily be disproved by one contradictory instance. Hence the
conclusion cannot be accepted as certain.
(ii) Errors of Observation: Observation is the process where we count instances and
examine them to see if they can support a theory or build up a theory. While doing this, it is
quite possible to omit to notice instances which would contradict our hypotheses. We have
a tendency to consider only those facts which would support our theory and neglect those
which would go against it. This error in observation is known as non-observation. Those
who believe that number thirteen is not an auspicious number will always give instances
of cases where the number was associated with failure or disaster. But, it will be noticed
that they will purposely omit to mention cases where. Although the number thirteen was
present, no disaster has occurred. Such observation is known as non-observation.
Sometimes, we also misinterpret facts so as to suit the theory which we want to prove.
Such wrong observation is known as mal- observation. A person who is always afraid
of snakes will see a snake in anything that has got that shape. Such misinterpretation of
facts is a fallacy of observation.
(iii) Fallacies of Analogy : Whenever words are wrongly used in metaphors, we have
fallacies of analogy. By using analogy we arrive at conclusions about facts which are
similar to a large extent. For example, the city is compared to the heart and the country is
compared to the body. Then it is said that, since the heart is diseased, the body also
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becomes bad, so also when the city is bad, the country is also bad. Here the error in
reasoning is due to the metaphorical use of the words ‘heart’ and ‘body’. If we devote some
thought to it, we will know the difference between a living body and a country. A second
form of unsound analogy is in not distinguishing between essential and non-essential
properties. Sound analogy is always based on a comparison of essential points. For
example, ‘A child has come to know that, when the dog is pleased, he wags his tail. On
this, the child argues that, when the cat wags its tail, it must be pleased. ‘ The child’s
argument here is a case of analogical reasoning. He observes a resemblance between the
dog and the cat as regards wagging of the tail. He knows that the dog wags when he is
pleased and therefore concludes that the cat also wags because it is pleased. But the
resemblance is not an essential one. Hence the analogy is unsound.
(iv) Fallacies of Explanation: There are two important fallacies of explanation:
(a) The fallacy of non-observation may also be said to be a fallacy off explanation
known as hasty generalization. Sufficient number of instances are not observed.
Negative instances are omitted from the enumeration and a generalization is arrived at.
Such a generalization, as it does not cover all instances, is known as hasty generalization or
illicit generalization.
(b) A second error of explanation is in mistaking as cause and effect what merely
follow each other. This fallacy is known as post hoc ergo propter hoc or the fallacy of false
cause. One form of it we have already discussed as a non- sequitur. To argue that ‘A is
because of C since it is after C’ is fallacious. For example to say that since night follows
day, day is the cause of night, is an absurd argument which commits the fallacy of post
hoc propter hoc.
Conclusion
We have come to the close of our study of the fundamentals of logic. The nature of
thought, the principle that govern its processes, the mistakes in reasoning that we most
commonly make when we stay away from the path of truth-these and other related topics
have been discussed. Thinking is what each one of us is intimately concerned with. Even
without our knowledge we employ logical principles in our daily conversation and
arguments. The science of logic appears difficult and strange at first. But when once its
principles are understood, we realize that we have been using them, however
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imperfectly, in our commonest thoughts and expression.
Important Essay Questions:
1. Write about rules and fallacies of syllogism. (May 2010)
2. What is “Proposition”? Write about the different kinds of propositions. (May
2010)
3. Write about logic as a science. Distinguish between inductive and deductive
logic. (Nov 2010)
4. What is “Syllogism”? Write about the different kinds and fallacies of syllogism.
(Nov 2010)
5. Explain ‘distribution of terms’ with examples. (May 2011)
6. Write about rules and fallacies of syllogism. (May 2011)
7. Explain the opposition of propositions. (May 2012)
8. What is a fallacy? Explain how fallacies occur. Give examples. (May 2013)
9. What is syllogism? Give the kinds and structure of a syllogistic argument. (Nov
2013)
10. What is proposition? Discuss the structure and types of propositions with
examples. (May 2014)
11. Analyse the uses of logic for law students and compare logic with psychology
and Ethics. (May 2017)
Important short answers
1. Law and logic (May 2010)
2. Distribution ( Nov 2010)
3. Logic and psychology ( Nov 2011)
4. Logic and ethics ( May 2012)
Reference:
http://faculty.washington.edu/jwhelan/Documents/Drill%20Sheets/Syllogisms%20101.pdf
https://web.cn.edu/kwheeler/documents/Syllogisms.pdf
https://www.researchgate.net/publication/228205112_Logic_for_Law_Students_How_to_
Think_Like_a_Lawyer

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 UNIT-IV
Essays
Writing an essay often seems to be a dreaded task among students. Whether the essay is for a
scholarship, a class, or maybe even a contest, many students often find the task
overwhelming. While an essay is a large project, there are many steps a student can take that
will help break down the task into manageable parts. There are seven steps to writing a
successful essay.
Essay Tips: 7 Tips on Writing an Effective Essay
1. Pick a topic.
You may have your topic assigned, or you may be given free reign to write on the subject of
your choice. If you are given the topic, you should think about the type of paper that you
want to produce. Should it be a general overview of the subject or a specific analysis?
Narrow your focus if necessary. If you have not been assigned a topic, you have a little more
work to do. However, this opportunity First, define your purpose. Is your essay to inform or
persuade? Once you have determined the purpose, you will need to do some research on
topics that you find intriguing. f your goal is to educate, choose a subject that you have
already studied. If your goal is to persuade, choose a subject that you are passionate about.
Whatever the mission of the essay, make sure that you are interested in your topic.
2. Prepare an outline or diagram of your ideas.
In order to write a successful essay, you must organize your thoughts. By taking what’s
already in your head and putting it to paper, you are able to see connections and links
between ideas more clearly. This structure serves as a foundation for your paper. Use either
an outline or a diagram to jot down your ideas and organize them. If you prefer to create an
outline, write your topic at the top of the page. From there, begin to list your main ideas,
leaving space under each one. In this space, make sure to list other smaller ideas that relate to
each main idea. Doing this will allow you to see connections and will help you to write a
more organized essay.
3. Write your thesis statement.
Must create a thesis statement and thesis statement tells the reader the point of your essay.
Look at your outline or diagram. What are the main ideas? Your thesis statement will have
two parts. The first part states the topic, and the second part states the point of the essay.
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4. Write the body.
The body of your essay argues, explains or describes your topic. Each main idea that you
wrote in your diagram or outline will become a separate section within the body of your
essay. Each body paragraph will have the same basic structure. Begin by writing one of your
main ideas as the introductory sentence. Next, write each of your supporting ideas in
sentence format, but leave three or four lines in between each point to come back and give
detailed examples to back up your position. Fill in these spaces with relative information that
will help link smaller ideas together.
5. Write the introduction.
Now that you have developed your thesis and the overall body of your essay, you must write
an introduction. The introduction should attract the reader’s attention and show the focus of
your essay. Begin with an attention grabber. You can use shocking information, dialogue, a
story, a quote, or a simple summary of your topic.
6. Write the conclusion.
The conclusion brings closure of the topic and sums up your overall ideas while providing a
final perspective on your topic. Your conclusion should consist of three to five strong
sentences. Simply review your main points and provide reinforcement of your thesis.
7. Add the finishing touches.
After writing your conclusion, you might think that you have completed your essay. Wrong.
Before you consider this a finished work, you must pay attention to all the small details.
Check the order of your paragraphs. Your strongest points should be the first and last
paragraphs within the body, with the others falling in the middle. Also, make sure that your
paragraph order makes sense. Finally, review what you have written. Reread your paper and
check to see if it makes sense. Make sure that sentence flow is smooth and add phrases to
help connect thoughts or ideas. Check your essay for grammar and spelling mistakes.

Linking of Rivers in India- problems and solutions

Introduction
The idea of interlinking of rivers in the Indian subcontinent is atleast 150 years old.
During the British Raj in India, Sir Arthur Cotton, a British general and irrigation engineer,
first suggested linking the Ganga and the Cauvery for navigational purposes. Dr. K.L. Rao’s
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Proposal (1972), which had 2640 km. long Ganga - Cauvery link as its main component
involved large scale pumping over a head of 550 m. The power requirement for lifting the
water was huge, estimated to be 5000 to 7000 MW, for irrigating an additional area of 4
million hectares only. The scheme was also not having any flood control benefit. Dr. Rao
had estimated this proposal to cost about Rs. 12,500 crores, which at 2002 price level comes
to about Rs. 1,50,000 crores. The Central Water Commission, which examined the proposal,
found it to be grossly under estimated and economically prohibitive. Capt. Dastur Proposal
(1977) envisaged construction of two canals – the first 4200 km. Himalayan Canal at the foot
of Himalayan slopes running from the Ravi in the West to the Brahmaputra and beyond in
the east; and the second 9300 km Garland Canal covering the central and southern parts, with
both the canals integrated with numerous lakes and interconnected with pipelines at two
points, Delhi and Patna. The cost estimated by Capt. Dastur was Rs. 24,095 crores. The
cost estimated by the experts in 1979 was about Rs. 12 million crores. The realistic cost at
2002 price level comes to about Rs. 70 million crores.
River-linking project
The sheer scale and scope of the project: 30 river linkages and more than 3,000
storage structures spread across a 15,000km canal network that will transfer 174 trillion litres
of water every year, and will cost a total of Rs5.6 trillion. This puts the river-linking project
on a par with some of the most daring feats of engineering attempted in the history of
mankind. It is a reimagining of the entire aquatic ecosystem of a country as large and diverse
as India. The Indian Rivers Inter-link aims to link India’s rivers by a network of reservoirs
and canals and so reduce persistent floods in some parts and water shortages in other parts of
India. The Inter-link project has been split into three parts: a northern Himalayan rivers inter-
link component, a southern Peninsular component and starting 2005, an intrastate rivers
linking component. The project is being managed by India’s National Water Development
Agency (NWDA), under its Ministry of Water Resources. The idea to link rivers got a shot in
the arm with the establishment of the National Water Development Agency in 1982 by then
Prime Minister Indira Gandhi. The first National Democratic Alliance government (1999-
2004) was keen to implement the interlinking of rivers (ILR) project, and the Supreme Court,
following public interest litigation, in 2003, asked for it to be implemented by 2016. In 2002,
Supreme Court asking to expedite the project.
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Component of National River Planning project
It has two components
a) Himalayan Component
b) Peninsular Component
Basic idea
Connect the Himalayan and peninsular rivers via a network of canals so that excess
water from one channel can be diverted to another which has inadequate flow.

Himalayan Component
 The Himalayan component envisages construction of storage reservoirs on the main
Ganga and Brahmaputra Rivers and their principal tributaries in India and Nepal so as
to conserve monsoon flows for irrigation and hydro-power generation, besides flood
control.

 Links will transfer surplus flows of the Kosi, Gandak and Ghagra to the west.
 In addition, the Brahmaputra-Ganga Link will augment dry-weather flow of the
Ganga.
 Surplus flows that will become available on account of inter-linking of the Ganga and
the Yamuna are proposed to be transferred to the drought prone areas of Haryana,
Rajasthan and Gujarat.
 With this proposal about 14 Mha-m of additional water would be available from these
river systems for irrigating an estimated 22 M-ha in the Ganga-Brahmaputra basin
apart from Haryana, Punjab, Rajasthan and Gujarat.
 It would also provide 1120 cumec to Calcutta Port and would provide navigation
facility across the country.
 It will also provide flood moderation in the Ganga-Brahmaputra system.
 The Himalayan component will benefit not only India but also Nepal and Bangladesh.
 Fourteen links are proposed in the Himalayan component.

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Proponents

It will irrigate about 87 million acres of farmland, control floods, and generate 34 GW
of hydroelectric power. These are tantalizing prospects: India’s rain-fed farms are forever
hostage to the vagaries of nature, so much so that even one bad monsoon has a direct and
debilitating economic impact.
 At the same time, simultaneous floods and droughts in different parts of the
country continue to wreak havoc, destroying the lives and livelihoods of
millions.
 India also desperately needs clean energy to fuel its development processes,
and if river water can be leveraged and redirected to serve these purposes,
that’s an option worth exploring.
Peninsular Rivers Development Component
 The main component of Peninsular Rivers Development is the “Southern
Water Grid” which is envisaged to link Mahanadi, Godavari, Krishna, Pennar,
and Cauvery rivers. The peninsular scheme was envisaged to provide
additional irrigation benefits of over 13 million ha. The Peninsular component
comprises the following four parts:
 Diversion of surplus flows of Mahanadi and Godavari to Krishna, Pennar,
Cauvery and Vaigai.
 Diversion of west-flowing rivers of Kerala and Karnataka to the east.
 Inter-linking small rivers flowing along the west coast, north of Mumbai and
south of Tapi.
 Inter-linking the southern tributaries of Yamuna.
 The peninsular component of ILR has 13 major water storage/diversion
structures situated in four basins. Three non-storage structures, viz.,
Dowlaiswaram barrage, Prakasam barrage, and Grand Anicut and storage
node (Narayanpur) cater to only irrigation, while six storage nodes, viz.,
Inchampalli, Almatti, Nagarjunasagar, Pulichintala, Krishnarajasagar, and
Mettur will serve both irrigation and power needs.

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  One storage node, viz., Somasila is operated to meet domestic and irrigation
needs and two storage nodes, viz., Polavaram and Srisailam are multi-purpose
projects serving domestic, irrigation, and hydropower demands.
Pros and Cons of the Project
It will lead to massive displacement of people
 Since the Ganga basin’s topography is flat, building dams would not
substantially add to river flows and these dams could threaten the forests of
the Himalayas and impact the functioning of the monsoon system.
 The transfer of such enormous amounts of water will inundate forests and land
for reservoirs, and the weight of billions of litres of water may even have
seismic implications in the Himalayan region.
Challenges
Inter-linking the great rivers of India is a dream that has been around for a while. The
idea was first proposed in 1970’s and revived again in 2003 but nothing concrete has been
done till date.

Advantages of this project

Problems related to flood control, irrigation, limiting droughts and boosting farm
output—can be sorted out by linking the country’s rivers.
Potential benefits to transport infrastructure through navigation, as well as to broadening
income sources in rural areas through fish farming.
But, what about the feasibility of the Project ?
 A north to south inter-linking of rivers is physically not possible. The barrier imposed
by the Vindhya mountains makes it expensive to lift water along the north and south
axis. It is also unnecessary.
 Henceforth, the river-water linking plan – one for peninsular India and the other for
linking rivers from the east to the north is an ideal solution.
Other issues

 River inter-linking is an expensive business from building the link canals to the
monitoring and maintenance infrastructure. Implementation of the project not only
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 needs a huge financial capital but also political support, both are scarce commodities
as of now.
 Another important issue is building consensus among states and Land acquisition.
 Once the project is implemented it would lead to large scale displacement of people
and animals. Hence appropriate rehabilitation measures should be taken by the
Government.
 A careful scientific assessment of the project and its impact on the environment, is
necessary in case of a project of this magnitude especially with regard to Biodiversity

Critics

The project is built on bad science and an outdated understanding of water systems and
water management. Specifically, the concept of surplus and deficit river basins—which is at
the core of the river-linking project—is contested. A new study by researchers at the Indian
Institutes of Technology in Mumbai and Chennai, analyzing weather data over 103 years
(from 1901 to 2004), has found that rainfall has decreased over the years by more than 10%
even in river basins that once had a surplus, such as those of the Mahanadi and the Godavari.

 The project seems to view the river as a uni-dimensional water pipeline when it is, in
fact, an entire ecosystem—and any changes to its natural course will have an impact
on all the flora and fauna, the wetlands and the floodplains that are intricately linked
to the river system.
 The long-term environmental impact of such a project is a major concern.
 For example, one of the reasons why the Ken-Betwa link, which is now receiving
priority attention, has been stuck for several years is because it requires
environmental clearance for diverting 5,500 hectares from the Panna National Park, a
tiger reserve.
 Less than positive experience other countries have had with such projects—be it the
Soviet regime’s decision to divert the Amu Darya and the Syr Darya, which fed the
Aral Sea, to irrigate the desert, or the Australian government’s experiments in its
Murray Darling basin.

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  Political challenges as well. Water transfer and water sharing are sensitive subjects
that have already spawned century-long disputes.

Conclusion

Moreover, water is a state subject in India, and even though the Centre is empowered
to bring an inter-state river under its control to serve the national interest, it has effectively
never done so owing to enormous resistance from the states.

SUSTAINABLE DEVELOPMENT

The affluence of developed countries of the world and the desperate poverty of under-developed
countries is injurious to the life support system on our planet. Human life in developed
countries of the world requires large amounts of energy and material inputs while a ceaseless
stream of wastes is generated which damages the environment and results in rapid depletion
of resources of our planet. Life in under-developed countries strives to survive on a meager
share, clamoring for the basic necessities and in ignorance or desperation often damages the
very resource base on which rests the entire life support system of this planet. We have to
build a sustainable world - a world which should last forever. There should be a fair sharing
of global resources among the living beings of the world. Everyone in this world should get at
least the basic amenities of everyday life - food, clothing, drinking water, shelter etc. in such
a way that there could be no damage to other life-forms and the environment. Man should
learn to live in harmony with nature.

The resources of this world, if properly managed, distributed and utilized economically,
are sufficient for all living beings-as the biosphere stands today. In future, how-ever, we
may require sharp decline in growth rate of human population, which we are capable of
bringing about with a little more efforts (Khoshoo, 1990). To build up a sustainable world, a
world of permanence in which all living beings live in perfect harmony with each other and
with the environment we shall have to adopt certain basic practices which can be
enumerated as under:

1. Protecting and augmenting regenerability of the life support system on this planet
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 which can be achieved by :(a) Rationalized husbanding of all renewable resources. (b)
Conserving all non-renewable resources and prolonging their life by recycling and
reuse (c) Avoiding wasteful use of natural resources.
2. Fair sharing of resources, means and products of development between and within the
nations of the world. This should lead to a significant reduction in disparity in re
source use, in its economy and shall curtail the associated environmental damage all
the world over.
3. Educating people regarding the concealed economic and environmental costs of over-
consumption of resources with particular reference to its impact on developing
countries of the world.
4. Adopting willingly sustainability as a way of life by encouraging frugality (to be con
tent with less) and fraternity (sharing things with others in a fair way).
5. Meeting all the genuine social needs and legitimate aspirations of people by
blending economic development with environmental imperatives to remove poverty.
Today the environment is no longer a concern about a locality or wild-life or deforestation or
Pollution; it is crisis about the developmental pattern which we have followed so far. It is a global
issue which forces us to think as to where we are going? What shall happen if we do not stop, re-
consider and make necessary modifications in our means, methods and objectives. It is high
time that we should rethink and take proper steps to build up a world of permanence - a sustainable
society which lasts forever

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I YEAR OF 3 YEAR LL.B
SEMESTER - I
ODD SEMESTER
SUBJECT : JURISPRUDENCE
SUBJECT CODE : TA1B
 SYLLABUS
TA1B - JURISPRUDENCE
Unit - I

Nature and definition of Jurisprudence.

Unit - II

The various schools of jurisprudence and their methodology.

Unit - III

Nature and definitions of law - Different kinds, and classification, Imperative theory of
law - Constitutional law and International law - their nature.

Unit - IV

The concept of State and Sovereignty - a general outline.

Unit - V

Sources of law - Legislation, Precedent and Custom.

Unit - VI

Administration of Justice.

Unit - VII

Juristic Concepts of Rights and Duties, Title, Persons, Liability, Ownership, Possession,
Property and Obligation.

Books for Reference:

1. Salmond : Jurisprudence
2. Paton : Jurisprudence.
3. Monica David : Jurisprudence.
4. G.C.V. Subba Rao : Jurisprudence.
5. Avatar Singh : Jurisprudence
6. Mahajan : Jurisprudence
*************************
 JURISPRUDENCE

GENERAL

DEFINITION OF JURISPRUDENCE

The English word "Jurisprudence" has been taken from a Latin word "Jurisprudentia", which
consists of two words, 'Juris' and 'prudentia'. 'Juris' means law and 'Prudentia' means
knowledge. Jurisprudence, therefore, literally means knowledge of law and its application. It is
difficult to give a singular definition of the term. Since the growth and development of law in
different countries has been under different social and political conditions, the different jurists
have given different definitions according to their own notion of the subject-matter and so it is not
possible to give a universal and uniform definition of Jurisprudence. So the different jurists have
defined this term in different ways-

Ulpian: According to Ulpian "Jurisprudence is the knowledge of things human and divine, the
science of the just and unjust". The definition given by Ulpian is wide and broad enough
because it includes the term 'Dharma' under Hindu Jurisprudence. It also covers the province of
religion, ethics and philosophy.

Criticism: The above definition is wide and broad enough because it includes the term
'Dharma' under Hindu Jurisprudence. It also covers the province of religion, ethics and
philosophy. The modern jurisprudence does not study the spiritual salvation. It is now-a-days
confined only to what Hindu jurists described as 'Vyavahara' which means those rules that
determines the judicial proceedings or controversies.

Prof. Gray: According to Prof. Gray "Jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the courts and the principles involved in those
rules." Prof. Gray is of the opinion that jurisprudence deals with that kind of law which consists
of rules enforced by courts while administering justice. In other words, the laws of the jurists
deal with man and seek to regulate external human conduct in the society. It does not concern
itself with the inner beliefs of man imposed in religious laws, which derive their authority from
superhuman source which we call 'God'. The sanction for their enforcement is spiritual reward
or curse according to man's deeds.

Holland: According to Holland "Jurisprudence is the formal science of positive law." It is

wrongly applied to actual systems of law, or to current views of laws, or to suggestions for its
amendment, but is the name of a science. The science is a formal, or analytical, rather than a
material one. It is the science of actual or positive law. The essential ingredients of his definition
of jurisprudence are as under-
 1. Formal
2. Science
3. Positive Law.

Holland's definition of jurisprudence has been criticized by various jurists like Gray Dr. Jenks
and Prof. Platt.According to Gray "Jurisprudence is, in truth, no more a formal science than
physiology, so the acts and forbearances of men and the events which happen to them are the
subject-matter of jurisprudence and physiology could as well dispense with the former as
jurisprudence with the latter."

Salmond: Salmond has defined jurisprudence in two different senses-

1. In Wider (Generic) Sense: According to Salmond, "Jurisprudence in wider sense

means the science of civil law." Salmond says that in a generic and primary sense
jurisprudence includes the entire body of legal doctrine. Since jurisprudence is the knowledge
of law, from this point of view it includes the entire book of laws.
2. Narrow (Specific) Sense: Salmond distinguishes jurisprudence in its generic sense, as
including the entire body of legal doctrine, from jurisprudence in a more specific sense, in
which it means a particular department of such doctrine exclusively. He says that in its
limited significance it may be called theoretical or general jurisprudence to distinguish it
from the more practical and special departments of legal study. In this sense "Jurisprudence
is the science of the first principles of civil law."

The words which are used by Salmond in his definitions may be explained as under-
1. Law: According to Salmond, "Law is the body of principles recognized and applied by
the state in the administration of justice."
2. Civil Law: The term 'civil law' is derived from the Latin word "Civitas" which means
State. Thus, civil law means law made by state. It means the law of the land as opposed to
other bodies of rules to which the name of law has been extended by analogy.
3. Science: According to Salmond, if we use the term science in its widest permissible
sense, as including the systematized knowledge of any subject of intellectual inquiry,
jurisprudence may be defined as the science of civil law. It is a science as distinguished
from arts and indicates in its widest sense all those subjects which directly or indirectly treat
of the science of law. Salmond says that as the 'science of law' there may be three kinds of
jurisprudence-
a. Expository or systematic jurisprudence, which deals with the contents of an actual legal
system, as existing at any time whether past or present.
b. Legal history, which is concerned with the legal system in its process of historical
development.
 c. The science of legislation, the purpose of which is to set forth law as it ought to be. It
deals with the ideal future of the legal system and the purpose which it may serve.

Austin: According to Austin "Jurisprudence is the Philosophy of Positive Law." He was the
first jurist to make jurisprudence as a science. By the term "Positive Law" he means 'jus
positivum', that is law laid down by a political superior for commanding obedience from his
subjects.
Austin divides jurisprudence into two parts, namely-
(i) General jurisprudence; and
(ii) Particular jurisprdence.
By "General jurisprudence", he meant 'the science concerned with exposition of the principles of
nations and distinctions which are common to all the systems of law' whereas Particular
Jurisprudence consisted of the science of any such system of positive law as now obtains or once
actually obtained in specifically determined nation.

Allen: According to Dr. Allen "Jurisprudence is the scientific synthesis of the essential
principles of law".

Paton: According to Paton "Jurisprudence is a particular method of the study not of the law of one
particular country but of the general notions of law itself." Paton is of the opinion that
jurisprudence studies the basic or fundamental principles or general notions of law itself.

Conclusion: On the basis of the above description we can say that Salmond's statement that
'jurisprudence is the science of the first principles, of civil law', appears to be more sound than
any other definitions because in fact we study the basic principles of law in jurisprudence and
not the law of any particular country.

NATURE AND SCOPE OF JURISPRUDENCE

Nature: Jurisprudence in its nature is entirely a different subject from other social sciences. The
reason for this is that it is not codified but a growing and dynamic subject having no limitation of
itself. Every jurist does not base his study on the rules made but tries to understand their utility
after due deliberation. So it can be said that Jurisprudence has no limited scope being a growing
subject. There is a difference of opinion about the nature of jurisprudence. It is called both Art and
Science. But to call it science would be more proper and useful. The reason for this is that just as
in science we draw conclusions after making a systematic study by inventing new methods,
Jurisprudence is concerned with the fundamental principles of law and systematic and scientific
study of their methods.

Scope: Jurisprudence includes all concepts of human order and conduct in State and Society.
 According to Justice P.B. Mukherjee, "Jurisprudence is both an intellectual and idealistic
abstraction as well as behavioural study of man in society. It includes political, social,
economic and cultural ideas. It covers the study of man in relation to State and Society."
Salmond has also opined that "In jurisprudence we are not concerned to derive rules from
authority and apply them to problem; we are concerned rather to reflect on the nature of legal
rules, on the underlying meaning of legal concepts and on the essential features of legal system."
This makes the distinction between law and Jurisprudence amply clear. Thus, whereas in law we
look for the rules relevant to the given situation, in jurisprudence we ask what is for a rule to be a
legal rule, and what distinguishes law from morality, etiquette and other related phenomenon.
It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to
discover new rules but to reflect on the rules already known.

Contents of Jurisprudence: The contents of jurisprudence are-

1. Sources: It is true that the basic features of a legal system are mainly to be found in its
authoritative sources and the nature and working of the legal authority behind these sources.
Therefore, it obviously forms the contents of jurisprudence. Subject such as custom,
legislation, precedent as a source of law, pros and cons of codification of laws, methods of
judicial interpretation and reasoning, an inquiry into the administration of justice etc. are
included for study.

2. Legal Concepts: Jurisprudence includes the analysis of legal concepts such as rights,
titles,property, ownership, possession, obligations, acts, negligence, legal personality and
the related issues. The study of these abstract legal concepts furnishes a background for
better understanding of (aw in its various forms.
3. Legal Theory: Legal theory is concerned with law as it exists and functions in the society,
and the manner in which law is created and enforced as also the influence of social opinion
and law on each other.

Utility I Importance of Jurisprudence: Salmond opines that jurisprudence has its own
intrinsic interest like any other subject of serious scholarship. Just as a mathematician
investigates the number theory not with the aim of seeing his findings put to practical use but by
reason of the fascination which it holds for him, likewise the writer on jurisprudence may be
impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may well
have their effect on contemporary socio-political thought and at the same time may themselves
be influenced by these ideologies.

Practical Applicability: Jurisprudence also has its practical applicability. It seeks to

rationalize the concepts of law which enables us to solve the different problems involving
intricateness of law. In other words, it serves to render the complexities of law more manageable
and rational and in this way theory can help to improve practice in the seats of law.

Educational Value: Jurisprudence has great educational value. The logical analysis of legal
concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in
shading aside their rigidity and formalism and trains them to concentrate or social realities and the
functional aspects of law. It is not the form of law but the social function of law which has
relevance in modern jurisprudence. Law has to take the needs of society and also of the
advances in related and relevant disciplines such as sociology, economics, philosophy etc. The
proper understanding of law of contract may perhaps require some knowledge of economics
and economic theory or a proper grasp of criminal law may need some knowledge of criminology
and perhaps also of sociology.

Holland: Commenting on the significance and utility of jurisprudence, Holland observed,

"The ever renewed complexity of human relations calls for an increasing complexity of legal
details, till a merely empirical knowledge of law becomes impossible." Thus, jurisprudence
throws light on the basic ideas and the fundamental principles of law in a given society. This is
why it has been characterized as "the eye of law" by some jurists. Jurisprudence helps the judges
and the lawyers in ascertaining the true meaning of the laws passed by the legislatures by
4
providing the rules of interpretation. It also furnishes them an opportunity to pinpoint the
lacunae, short-comings and defects in the laws framed by the legislature and remedy them
through their judicial interpretation. The study of jurisprudence helps in rationalizing the
thinking of the students and prepares them for an upright civil life. The knowledge of law and
legal precepts also helps them to face every exigency of human affairs boldly and courageously.
Jurisprudence may also be helpful to legislators who playa crucial role in the process of law-
making. The study of jurisprudence may familiarize them with technicalities of law and legal
precepts thus making their job fairly easy as also interesting. The utility of jurisprudence
should be tested in the light of its functional role and in the context of the prevailing socio-
economic and political philosophies of the time, place and circumstances. The law should
serve the purpose of 'social engineering' by preserving societal values and eliminating
conflicting interests of individuals in the society.

Jurisprudence is the Eye of Law: On account of the importance of jurisprudence in the field
of law is called "the eye of law". The eyes are one of the most important parts of human body.
Almonds all human activities and the movements of body are possible only through them.
Unless man can see things properly, he cannot do any work. The reason of calling jurisprudence
the 'eye of law' is that jurisprudence functions for law in the same manner as the eyes do in human
body.

The main function of jurisprudence is to study the origin of law, its development and its
contribution towards society. Law is the only nearest and important aspect in the absence of
which the existence of a peaceful and organised society cannot be imagined. Laws are the basis
of all nation-activities. The proper existence of State is in obedience of personal rights and
liabilities of people and the conduct of national activities depends on the existence of solid and
perfect law. The matters relating to birth, marriages, death, succession etc., are equally controlled
through laws. Hence it is essential to know the correct basic principles of law which are
contained only in the jurisprudence. It is necessary that the people should have a sound
knowledge of law which is possible only with the help of jurisprudence. Therefore,
jurisprudence, having so much importance for the society, has rightly been called the eye of law.
 UNIT- 1

Jurisprudence in its nature is entirely a difference subject from other social science. The
reason for this is that it is not codified but a growing and dynamic subject having no limitation
on itself. Its inquiry system is of different status from other subjects. Every jurist does not base
his study on the rules made but tries to understand their utility after due deliberation Thus the
jurisprudence has no limited scope being a growing subject. There is difference of opinion about
the nature of jurisprudence. It is called both art and science. But to call it science would be
more proper and useful. The reasons for this is that just as in science we draw conclusions after
Making a systematic study by investing new methods. In the same way jurisprudence is
concerned with the fundamental principles of law systematic and scientific study their methods.
Scope of Jurisprudence:- According to justice P.B.Mukherjee: ,” Jurisprudence is both an
intellectual and idealistic abstraction as well as behavioural study of man in society. It includes
political, social, economic and cultural ideas. It covers that study of man in relation to state and
society.”
Jurisprudence involves certain types of investigations into law, and investigation an
abstract, general and theoretical nature which seeks to lay the bare essential principles of law and
legal systems.
Salmond observed: “In jurisprudence we are not concerned to derive rules from authority and
apply them to problem, we are concerned rather to reflect on the nature of legal rules, on the
underlying meaning of legal concepts and on the essential features of legal system.” It therefore
follows that jurisprudence comprises philosophy of law and its object is not to discover new
rules but to reflect on the rules already known.

CONTENTS OF JURISPRUDENCE:-
The following are the contents of jurisprudence:-
i) Sources It is true that the basic features of a legal system are mainly to be found in its
authoritative sources and the nature and working of the legal authority behind these sources.
Under this head matters such as custom, legislation, precedent as a sources of law, pros and cons
of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the
administration of justice etc., are included for study.
ii) Legal Concepts: - Jurisprudence includes the analysis of legal concepts such as rights,
title, property, ownership, possession, obligations, acts, negligence, legal personality and related
issues. Although all these concepts are equally studied in the ordinary branches of law, but since
each of them functions in several different branches of law, jurisprudence tries to build a more
comprehensive picture of each concept as a whole.
iii) LEGAL THEORY: - Legal theory is concerned with law as it exists and functions in the
society and the manner in which law is created and enforced as also the influence of social
opinion and law on each other. It is therefore necessary that while analysing legal concepts and
effort should be made to present them in the background of social developments and changing
economic and political attitudes.

SIGNIFICANCE AND UTILITY OF JURISPRUDENCE

It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical
use. But it is not correct to say so. Its utility is as under:-
1. Salmond pointed out that jurisprudence has its own intrinsic interest like and other
subject of serious scholarship, likewise the writer on jurisprudence may be impelled to his
subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect
on contemporary socio-political thought and at the same time may themselves be influenced by
these ideologies.
2. Jurisprudence also has its practical applicability. In other words it serves to render the
complexities of law more manageable and rational and in this way theory can help to improve
practice in the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens
the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their
rigidity and formalism and trains them to concentrate or social realities and the functional aspects
of law. It is not the form of law but the social function of law which has relevance in modern
jurisprudence. For instance, a proper understanding of law of contract may perhaps require some
knowledge of economic and economic theory or a proper grasp of criminal law may need some
knowledge of criminology and psychiatry and perhaps also of sociology.
4. Commenting on the significance and utility of jurisprudence: Holland observed, “ the
ever renewed complexity of human relations call for an increasing complexity of legal details,
till a merely empirical knowledge of law becomes impossible.” Thus jurisprudence throws light
on the basic ideas and the fundamental principles of law in a given society. It is the why it has
been characterized as “The eye of law.”
5. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the
laws passed by the legislature by providing that the interpretation of statues.
6. The study of jurisprudence helps in rationalizing the thinking the students and prepares
them for an upright civil life. The knowledge of law and legal precepts also helps them to face
every exigency of human affairs boldly and courageously.
7. Jurisprudence may also be helpful of legislators who play a crucial role in the process of
law-making. The study of jurisprudence may familiarize them with technicalities of law and
legal precepts thus making their job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring
theory and life into focus for it concerns human thought in relation to social existence. The law
should serve the purpose of social-engineering by preserving societal values and eliminating
conflicting interests of individuals in the society.

JURISPRUDENCE IS THE EYE OF LAW: - On account of importance of jurisprudence in

the field of law it is called, “The eye of Law”. The eyes are one of the most important parts of
human body. Almost all human activities and the movements of body are possible only through
them. Unless man can see anything properly, he cannot do any work. The reason of calling
jurisprudence the ‘the eye of law’ is that jurisprudence functions for law in the same manner as
the eyes do in human body. For example- the interpretation of law is a very difficult task; It
cannot be done without the help of jurisprudence. ‘PATON’ in this connection says that,”
Jurisprudence is a particular method of study, not the law of one particular county but of the
general notions of law itself.’ Whenever any complicated problem regarding law like:-
1 How and when the law developed. 2 What is its object? 3 Whether the law was made by people
or it was due to the inspiration of some Divine force. 4 Whether the law is a command of a
sovereign or it is a result of gradual development of civilization in society. The main function of
jurisprudence is to study the origin of law, its development and its contribution towards society.
The matters to birth, marriages, death, succession etc., are equally controlled through laws. It is
the well known saying that, “ignorance of law is no excuse,” hence it is essential to know the
correct basic principles of law which are contained only in the jurisprudence. Law is also
connected with civil life. A person who obeys laws is known as a civilized citizen. A person who
does not obey law is punished. It is therefore necessary that all the people should have the sound
knowledge of law which is possible only with the help of jurisprudence. Therefore,
jurisprudence, having so much importance for the society, has rightly been called the eye of law
Nature and Scope of Jurisprudence
What is Jurisprudence?
There is no universal or uniform definition of Jurisprudence since people have different
ideologies and notions throughout the world. It is a very vast subject. When an author talks about
political conditions of his society, it reflects that condition of law prevailing at that time in that
particular society. It is believed that Romans were the first who started to study what is law.
Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.
-Most of our law has been taken from Common Law System.
-Bentham is known as Father of Jurisprudence. Austin took his work further.
Bentham was the first one to analyze what is law. He divided his study into two parts:
1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.
2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.
However, Austin stuck to the idea that law is command of sovereign. The structure of English
Legal System remained with the formal analysis of law (Expositorial) and never became what it
ought to be (Censorial). J. Stone also tried to define Jurisprudence. He said that it is a lawyer’s
extraversion. He further said that it is a lawyer’s examination of the percept, ideas and
techniques of law in the light derived from present knowledge in disciplines other than the law.
Thus, we see that there can be no goodness or badness in law. Law is made by the State so there
could be nothing good or bad about it. Jurisprudence is nothing but the science of law.
Definitions by:
1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound
6. Dias and Hughes
Austin- He said that “Science of Jurisprudence is concerned with Positive Laws that is laws
strictly so called. It has nothing to do with the goodness or badness of law.
This has two aspects attached to it:
1. General Jurisprudence- It includes such subjects or ends of law as are common to all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any portion of it.
Basically, in essence they are same but in scope they are different.
Salmond’s Criticism of Austin
He said that for a concept to fall within the category of ‘General Jurisprudence’, it should be
common in various systems of law. This is not always true as there could be concepts that fall in
neither of the two categories.
Holland’s Criticism of Austin
He said that it is only the material which is particular and not the science itself.
Holland’s Definition- Jurisprudence means the formal science of positive laws. It is an
analytical science rather than a material science.
1. He defined the term positive law. He said that Positive Law means the general rule of external
human action enforced by a sovereign political authority.
2. We can see that, he simply added the word ‘formal’ in Austin’s definition. Formal here means
that we study only the form and not the essence. We study only the external features and do not
go into the intricacies of the subject. According to him, how positive law is applied and how it is
particular is not the concern of Jurisprudence.
3. The reason for using the word ‘Formal Science’ is that it describes only the form or the
external sight of the subject and not its internal contents. According to Holland, Jurisprudence is
not concerned with the actual material contents of law but only with its fundamental conceptions.
Therefore, Jurisprudence is a Formal Science.
4. This definition has been criticized by Gray and Dr. Jenks. According to them, Jurisprudence is
a formal science because it is concerned with the form, conditions, social life, human relations
that have grown up in the society and to which society attaches legal significance.
5. Holland said that Jurisprudence is a science because it is a systematized and properly co-
ordinated knowledge of the subject of intellectual enquiry. The term positive law confines the
enquiry to these social relations which are regulated by the rules imposed by the States and
enforced by the Courts of law. Therefore, it is a formal science of positive law.
6. Formal as a prefix indicates that the science deals only with the purposes, methods and ideas
on the basis of the legal system as distinct from material science which deals only with the
concrete details of law.
7. This definition has been criticized on the ground that this definition is concerned only with the
form and not the intricacies.
Salmond- He said that Jurisprudence is Science of Law. By law he meant law of the land or civil
law. He divided Jurisprudence into two parts:
1. Generic- This includes the entire body of legal doctrines.
2. Specific- This deals with the particular department or any portion of the doctrines.
‘Specific’ is further divided into three parts:
1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system
existing at any time, past or the present.
2. Historical- It is concerned with the legal history and its development
3. Ethical- According to him, the purpose of any legislation is to set forth laws as it ought to be.
It deals with the ‘ideal’ of the legal system and the purpose for which it exists.
Criticism of Salmond- Critics says that it is not an accurate definition. Salmond only gave the
structure and failed to provide any clarity of thought.
Keeton- He considered Jurisprudence as the study and systematic arrangement of the general
principles of law. According to him, Jurisprudence deals with the distinction between Public and
Private Laws and considers the contents of principle departments of law.
Roscoe Pound- He described Jurisprudence as the science of law using the term ‘law’ in
juridical sense as denoting the body of principles recognized or enforced by public and regular
tribunals in the Administration of Justice.
Dias and Hughes- They believed Jurisprudence as any thought or writing about law rather than
a technical exposition of a branch of law itself. Thus, we can safely say that Jurisprudence is the
study of fundamental legal principles
Scope of Jurisprudence-
After reading all the above mentioned definitions, we would find that Austin was the only
one who tried to limit the scope of jurisprudence. He tried to segregate morals and theology from
the study of jurisprudence However, the study of jurisprudence cannot be circumscribed because
it includes all human conduct in the State and the Society.
Approaches to the study of Jurisprudence- There are two ways
1. Empirical-Facts to Generalization.
2. A Priori- Start with Generalization in light of which the facts are examined.
Significance and Utility of the Study of Jurisprudence
1. This subject has its own intrinsic interest and value because this is a subject of serious
scholarship and research; researchers in Jurisprudence contribute to the development of society
by having repercussions in the whole legal, political and social school of thoughts. One of the
tasks of this subject is to construct and elucidate concepts serving to render the complexities of
law more manageable and more rational. It is the belief of this subject that the theory can help to
improve practice.
2. Jurisprudence also has an educational value. It helps in the logical analysis of the legal
concepts and it sharpens the logical techniques of the lawyer. The study of jurisprudence helps to
combat the lawyer’s occupational view of formalism which leads to excessive concentration on
legal rules for their own sake and disregard of the social function of the law.
3. The study of jurisprudence helps to put law in its proper context by considering the needs of
the society and by taking note of the advances in related and relevant disciplines.
4. Jurisprudence can teach the people to look if not forward, at least sideways and around them
and realize that answers to a new legal problem must be found by a consideration of present
social needs and not in the wisdom of the past.
5. Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas
and fundamental principles of law. Therefore, by understanding the nature of law, its concepts
and distinctions, a lawyer can find out the actual rule of law. It also helps in knowing the
language, grammar, the basis of treatment and assumptions upon which the subject rests.
Therefore, some logical training is necessary for a lawyer which he can find from the study of
Jurisprudence.
6. It trains the critical faculties of the mind of the students so that they can dictate fallacies and
use accurate legal terminology and expression.
7. It helps a lawyer in his practical work. A lawyer always has to tackle new problems every day.
This he can handle through his knowledge of Jurisprudence which trains his mind to find
alternative legal channels of thought.
8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed
by the legislators by providing the rules of interpretation. Therefore, the study of jurisprudence
should not be confined to the study of positive laws but also must include normative study i.e.
that study should deal with the improvement of law in the context of prevailing socio-economic
and political philosophies of time, place and circumstances.
9. Professor Dias said that ‘the study of jurisprudence is an opportunity for the lawyer to bring
theory and life into focus, for it concerns human thought in relation to social existence’.
Relationship of Jurisprudence with other Social Sciences
1. Sociology and Jurisprudence- There is a branch called as Sociological Jurisprudence. This
branch is based on social theories. It is essentially concerned with the influence of law on the
society at large particularly when we talk about social welfare. The approach from sociological
perspective towards law is different from a lawyer’s perspective. The study of sociology has
helped Jurisprudence in its approach. Behind all legal aspects, there is always something social.
However, Sociology of Law is different from Sociological Jurisprudence.
2. Jurisprudence and Psychology- No human science can be described properly without a
thorough knowledge of Human Mind. Hence, Psychology has a close connection with
Jurisprudence. Relationship of Psychology and Law is established in the branch of
Criminological Jurisprudence. Both psychology and jurisprudence are interested in solving
questions such as motive behind a crime, criminal personality, reasons for crime etc.
3. Jurisprudence and Ethics- Ethics has been defined as the science of Human Conduct. It
strives for ideal Human Behaviour. This is how Ethics and Jurisprudence are interconnected:
a. Ideal Moral Code- This could be found in relation to Natural Law.
b. Positive Moral Code- This could be found in relation to Law as the Command of the
Sovereign.
c. Ethics is concerned with good human conduct in the light of public opinion.
d. Jurisprudence is related with Positive Morality in so far as law is the instrument to assert
positive ethics.
e. Jurisprudence believes that Legislations must be based on ethical principles. It is not to be
divorced from Human principles.
f. Ethics believes that No law is good unless it is based on sound principles of human value.
g. A Jurist should be adept in this science because unless he studies ethics, he won’t be able to
criticize the law.
h. However, Austin disagreed with this relationship.
4. Jurisprudence and Economics- Economics studies man’s efforts in satisfying his wants and
producing and distributing wealth. Both Jurisprudence and Economics are sciences and both aim
to regulate lives of the people. Both of them try to develop the society and improve life of an
individual. Karl Marx was a pioneer in this regard.
5. Jurisprudence and History- History studies past events. Development of Law for
administration of justice becomes sound if we know the history and background of legislations
and the way law has evolved. The branch is known as Historical Jurisprudence.
6. Jurisprudence and Politics- In a politically organized society, there are regulations and laws
which lay down authoritatively what a man may and may not do. Thus, there is a deep connected
between politics and Jurisprudence.
Synthetic Jurisprudence
The necessity for synthetic jurispurdence arises from the fact that it is necessary to
determine the truth from all aspects and from diffferent angles. Analytical jurisprudence, studied
separately, does not give anuthiong more than an understaning of the leaal concepts as they
prevail in varuous legal systems. This in itself is useful but we cannot stop after merely analysing
the problem. We will in a better position if we discuss the historical aspets of the legl ideas,
problems or principles and go furhter in the light of philosophical norms and sociological
requirments, the historicl jurist lay empasis on historical jurisprudence and reuse to recognise the
other branches of jurisprudecne. Knowledge is a syntheitc whole and cannot be divided into
watertight compartments. It is our duty to amalgamate half-truths in order to from the whole
truth. Synthesis enables us to reconcile the conflicting theories. In synthetic jurisprudence, we
study the various topics and theories from the point of view of synthesis. We analyse, we
retrospect, we compare, we philosophise, we socialise and we synthesise. The fruits of synthesis
are well-balanced and well-disgested truths. The advocates of synthetic jurisprudence consider
jurisprudence as a study of fundamental leagl principles, including their historical, philosophical,
scientfic and sociological basis and including an analusis of legal concepts. Theu pont out that
jurisprudence is history it is philosophy it is a science and it is concerned with altruistic
utilitarianism.
 UNIT- 2
SCHOOLS OF JURISPRUDENCE

Bentham: Austin is considered to be the father of analytical or positivist thought. However,

Jeremy Bentham whose many works have lately come to light appears to be the founder of this
approach. Austin owes much to Bentham and on many points his propositions are not more
than a 'paraphrasing of Bentham's theory. Jeremy Bentham (1748-1832) heralded a new era in
the history of legal thought. He laid the foundation of positivism in the modern sense of the term.
Bentham's Definition of Law: He defined law as follows – "A law may be defined as an
assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state
concerning the conduct to be observed in a certain case by a certain person or class of persons,
who in the case in question are or are supposed to be subject to his power: such volition trusting
for its accomplishment to the expectation of certain events which it is intended such
declaration should upon occasion be a means of bringing to pass, and the prospect of which it
is intended should act as a motive upon those whose conduct is in question." He ana lysed rights
and duties which were adopted and improved upon by late jurists like Austin and by many,
even in the 20th century. The purpose of law is to bring pleasure and avoid pain. Pleasure and
pain are the ultimate standards on which a law should be judged. All considerations of justice
and morality disappear from this approach. For Bentham the right relationship between
positive law and morality or moral criticism was expressed in the maxim" 'Obey punctually
censure freely.'

Bentham's Contribution: Bentham's contribution to legal theory is the epoch making

transition from the peculiar brand of natural law doctrine in the work of Blackstone to a rigorous
positivism. If represents one of the major developments in the history of modern legal theory.
He gave new directions for law making and legal research. "With Bentham came the advent of
legal positivism and with it the establishment of legal theory as a science of investigation as
distinct from the art of rational conjecture. Bentham laid the foundations of this new
approach, but, far from containing the solution to problems involving the nature of positive law,
his work was only the beginning of a very long and varied series of debates, which are still going
on today.

Criticism Against Bentham: Bentham's theory has its weaknesses. "The main weakness of
Bentham's work" says Friedman, "derives from two shortcomings". One is Bentham's abstract
and doctrinaire rationalism which prevents him from seeing man in all his complexity, in his
blend of materialism and idealism, of nobility and baseness, of egoism and altruism. This leads
Bentham to an overestimate of the power of the legislator and an underestimate of the need
for individual discretion and feasibility in the application of law. The second fundamental
weakness stems from Bentham's failure to develop clearly his own conception of the balance
 between individual and community interests." Many of his propositions are neither convincing
nor prove true in practical application.

John Austin: (1790-1859) he is the father of English Jurisprudence and the founder of the
Analytical School of Jurisprudence. He was elected to the Chair of Jurisprudence in the
University of London in 1826. Then he proceeded to Germany and devoted some time to the
study of Roman Law as it was taken in Germany. The scientific treatment of Roman Law there
made him aware of the chaotic legal exposition of law in his own country. He took inspiration
from it and proceeded to make a scientific arrangement of English Law. The method which he
applied was essentially of English origin. He avoided metaphysical method which is a German
characteristic.

John Austin as a Positivist: sought to show what law really is as opposed to Natural Law notions
of what it ought to be. According to Austin, positive law consists of commands, set as rules of
conduct, by a Sovereign member(s) of the independent political society wherein the author of
the law is supreme and opposed to model and natural law. Every law properly so called, must
have three elements of Command, Sanction and Sovereign. It emanates from Sovereign and has
binding force and is authoritative. The law is command of Sovereign Commands employees'
duty and sanction. Command and duty are correlative terms Sanction an enforcement of
obedience.

Further it shall be convenient to discuss Austin's theory under two main heads-
1) Austin's conception of law.
2) His method.

1. Austin's Conception Law: Law in the common use means and includes things which
cannot be properly called 'law'. Austin defined. law as 'a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him.'

Law of two kinds-

i) Law of God, and
ii) Human Laws
This may be divided into two parts-
i) Law of God-Laws set by God for men.
ii) Human Laws-laws set by men for men.

Two Kinds of Human Laws: Human Laws may be divided into two classes-
 Positive Law: These are the laws set by political superiors as such, or by men not acting as
political superiors but acting in pursuance of legal rights conferred by political superiors. Only
these laws are the proper subject-matter of jurisprudence. leads Bentham to an overestimate of
the power of the legislator and an underestimate of the need for individual discretion and
feasibility in the application of law. The second fundamental weakness stems from Bentham's
failure to develop clearly his own conception of the balance between individual and community
interests." Many of his propositions are neither convincing nor prove true in practical
application.

John Austin: (1790-1859) he is the father of English Jurisprudence and the founder of the
Analytical School of Jurisprudence. He was elected to the Chair of Jurisprudence in the
University of London in 1826. Then he proceeded to Germany and devoted some time to the
study of Roman Law as it was taken in Germany. The scientific treatment of Roman Law there
made him aware of the chaotic legal exposition of law in his own country. He took inspiration
from it and proceeded to make a scientific arrangement of English Law. The method which he
applied was essentially of English origin. He avoided metaphysical method which is a German
characteristic.

John Austin as a Positivist: sought to show what law really is as opposed to Natural Law notions
of what it ought to be. According to Austin, positive law consists of commands, set as rules of
conduct, by a Sovereign member(s) of the independent political society wherein the author of
the law is supreme and opposed to model and natural law. Every law properly so called must
have three elements of Command, Sanction and Sovereign. It emanates from Sovereign and has
binding force and is authoritative. The law is command of Sovereign Commands employees'
duty and sanction. Command and duty are correlative terms Sanction an enforcement of
obedience.

Further it shall be convenient to discuss Austin's theory under two main heads-
3) Austin's conception of law.
4) His method.

2. Austin's Conception Law: Law in the common use means and includes things which
cannot be properly called 'law'. Austin defined. Law as 'a rule laid down for the guidance of an
intelligent being by an intelligent is being having power over him.'

Law of two kinds-

i) Law of God, and
ii) Human Laws
 This may be divided into two parts-
i) Law of God-Laws set by God for men.
ii) Human Laws-laws set by men for men.

Two Kinds of Human Laws: Human Laws may be divided into two classes-

Positive Law: These are the laws set by political superiors as such, or by men not acting as
political superiors but acting in pursuance of legal rights conferred by political superiors. Only
these laws are the proper subject-matter of jurisprudence.
a) Other Laws: Those laws which are not set by political superiors (set by persons who are
not acting in the capacity or character of political superiors or by men in pursuance of
legal rights)

Analogous to the laws of the latter class are a number of rules to which the name of law is
improperly given. They are opinions or sentiments of an under-terminate body of men, as laws
of fashion or honour. Austin places International Law under this class. In the same way there are
certain other rules which are called law metaphorically. They too are laws improperly so called.
A chart presenting this division clearly is given below.

The following chart clearly says that how the law evolved in the world and especially in India.
The schools of jurisprudence are a fundamental and the basic for the development of law and
the rules of conduct to the ruler and to the people.

"Laws proper, or property so called, are commands; laws which are not commands, are laws
improper or improperly so called. Laws properly so called, with laws improperly so called, may
be aptly divided into the following four kinds:

1) The divine laws, or the laws of God; that is to say, the laws which are set by God to his
human creatures.

2) Positives laws; that is to say, laws which are simply and strictly so called, and which
form the appropriate matter of general and particular jurisprudence.

3) Positive morality, rules of positive morality or positive moral rules.

4) Laws metaphorical or figurative, or merely metaphorical or figurative.

Criticism against Austin's Theory: Austin's theory has been criticized by a number of jurists
and by some of them very bitterly, Bryce went to the extent of saying that 'his contributions to
juristic science are so scanty and so much entangled in error that his book ought no longer to find
a place among those prescribed for students. However, this is an extreme view. The main points of
criticism against Austin's are as follows-

a) Customs Ignored: 'Law is the command of sovereign', as Austin says, is not

warranted by torical facts. In the early times, not the command of any superior, but
customs regulated the conduct of the people. Even after coming of state into existence
customs continued to regulate the conduct. Therefore, customs should also be included in
the study of jurisprudence, but Austin ignored them.

b) Law Conferring Privileges : The law which is purely of a permissive character and
confers only privileges, as the Wills Act, which lays down the method of drawing a
testamentary document so that it may have legal effect, is not covered by Austin's definition
of law.

c) Judge-made Law: In Austin's theory there is no place for judge-made law. In the
course of their duty judges (in applying precedents and in interpreting the law) make law.
Though an Austinian would say that judges act under the powers delegated to them by the
sovereign, therefore, their acts are the commands of the sovereign. Nobody, in modern
times, will deny that judges perform a creative function and Austin's definition of law does
not include it.

d) Conventions: Conventions of the constitution, which operate imperatively, though not

enforceable by court, shall not be called law, according to Austin's definition, although they
are law and are a subject- matter of a study in jurisprudence.

e) Rules Set by Private Persons: Austin's view that 'positive law' includes within itself set
by private persons in pursuance of legal rights is an undue extension because their nature
is very vague and indefinite.

f) International Law: Austin put International Law under positive morality along with
the law of honour and the law of fashion. "The so called law of nations consists of opinions
or sentiments current among nations generally. It, therefore, -is not law properly so called."
The main ingredient of law lacking in International law is sanction but this alone will not
deprive it from being called law. Now nobody will accept that International law is not law.
Therefore, according to Austin's definitiol1, a very important branch of law shall be
excluded from the study.

g) Command Theory Untenable: A modern theorist, Prof. Olivecrona from Sweden has
 denied the applicability of the idea of command to law. He says that a command and not
identical with a declaration of will. There is a difference between a command had the
statement or declaration of a will. A command is always an act through which one person
seeks to influence the will of another. Command presupposes some determinate person
who commands and another to whom the command is addressed. In modern times, the
machinery of state remains always changing and it is run by a multitude of persons.
Therefore, the idea of command does not apply in such systems.

h) It is Artificial: The view that law is 'command of the sovereign' suggests as if the
sovereign is standing just above and not as part of the community giving his arbitrary
commands. This view treats law as artificial and ignores its character of spontaneous
growth. The sovereign is an integral part of the community or state and his commands are
the commands of the organized community. Most of the theories regarding state, in
modern times, say that the sovereignty does not remain in the shape in which it was
conceived by the writers of past ages. They say that state itself is sovereign and law is
nothing but the general will of the people. Therefore, the law cannot be said to be a command.

i) Sanction is not the Only Means to Induce Obedience: According to Austin's view, it
is the sanction alone which induces man to obey law. It is submitted that it is not a correct
view. Lord Bryce has summed up the motives as indolence, deference, sympathy, fear, and
reason that induce a man to obey law. The power of the state is ratio ultima- the force which
is the last resort to secure obedience.

j) Relation of Law and Morals Overlooked: According to Austin, the science of

jurisprudence is concerned with positive law, or with laws strictly so called, as considered
without regard to their goodness or badness. In other words, Law is not concerned with
morals. But this is not a correct proposition. The origin of the words 'right' 'wrong' and
'duty' etc. owe their origin to certain ethical notions. Austin overlooked this aspect of the
law.

Different approaches to the treatment of jurisprudence are represented by its various

schools of thoughts. Salmond preferred three schools
1. Analytical (dogmatic)
2. Sociological school
3. Historical school
4. The philosophical school
5. Comparative school
Analytical School
The analytical school is ‘positive’ in its approach to the legal problems in the society. It
concentrates on things as they are, not as they ought to be. The main concern of the positivists is
‘ law the is actually found’ positum, and not the ideal law. The most important legal sources are
legislation, judicial precedents and customary law. This school, domiant in England, lays down
the essential elements that go to make up the whole fabric of law e.g., state sovereignty and the
administration of justice. The motto of analytical school is Ubi civitas ibi lex i.e., where there is
state, there will not be anarchy. State is necessary wvil. The main propnents of this school are,
Bentham, Holland, Austin, Salmond, etc.

Bentham’s concept of law

Bentham is considered the founder of modern utilitarianism. Also, he was a champion of
codified law. Bentham’s work was intended to provide the indispensable introduction of a civil
code. Bentham distinguished Expositorial jurisprudence from censorial jurisprudence. His
concept of law is imperative one i.e., “law is assemblage of signs, declaration of volition
conceived or adopted by sovereign in a state”. While supporting the economic principle of
Laissez faire, he propounded the principle of utilitarianism: ‘the proper end of every law is the
promotion of the greatest happiness of the greatest number’’. He defined utility as the property or
tendency of a thing to prevent some evil or procure some good.
Austinian concept of Law
Hohn Austin (1790-1859) was a lecturer in London University. He applied analytical
method- ‘law should be carefully studied and analyzed and the principle underlying therein
should be found out’ and confined his field of study only to the positive law- jus positivism.
Therefore, the school founded by him is called by various names- analytical, positivism,
analytical positivism. Austin is considered as the “Father of English Jurisprudence”. his lectures
were published under their title ‘the Province of Jurisprudence Determined’. Austin defined law
as a rule laid down for the guidance of an intelligent being by and intelligent being having power
over him. According to him, so-called ‘proper law’ includes: law of God, humans laws and
positive law. The law improperly metaphor. According to him, positive, “positive morality”
consists of –law not set by men or in pursuance of a legal right, and law by analogy as law of
fashion. The improper laws lacked sanction of the state. Every law, properly, so called must have
three elements- command, sanction and sovereign. According to him, “Law is the command of a
sovereign”, requiring his subjects to do or forbear from doing certain acts. There is an implied
threat of a sanction if the command is not obeyed.
Kelsen’s Concept of Law
Hans Kelsen 91881-1973), belonging to ‘Vienna school’ of legal thought, proposed a
“pure theory of law” i.e., a theory which is free from special, historical, political, psychological,
etc., influences and is logically self-supporting. The law is a normative and not a natural science,
there are sanctions attached to the laws it. The test of sanctions attached to the law itself. The test
of lawness is to be found within the system of legal norms itself. He defined law as ‘an order of
human behavior’. According to Kelsen, laws are ought propositions i.e., norm, if x happens, then
y ought ot happen. Thus, if a person commits theft, he ought to be punished. Law does not
attempt to describe what actually occurs but only prescribe certain rules. Norm is a legal
meaning attached to an act of will. It is the meaning of an act by which certain behavior is
commanded, permitted or authorized.

Natural Law Theory

Natural law is also known as Moral law/Divine law/ Law of God, and Law of reason. The
natural philosophy found an expression in the Roman legal system through division of roman is
into their distinct division- jus civile, jus gentium and jus naturale. Natural law is basically a
priori method, natural law appeals to the reason of man and there is no element of compulsion in
it. It embodies the principles of morality and natural justice and as such it differs from positive
law and legal justice. It is law in an ideal state and it differs from man-made law. Its principles
are common to all state and thus, it differs from jus civil, the civil law or the law of the land.

ARISTOTLE: According to Aristotle, law is either universal or special and perfect law is
inherent in the nature of man and is immutable, universal and capable of growth. He defined
natural law as reason unaffected by desires. It wa Aristotle, and not Plato, who founded natural
law on reason.

STOCIS’S: identified natural law with reason wich governs the entire universe and man being a
part of universe, is also governed by reason.

CICERO: said ‘true law is right reason in agreement with nature”.

ST. THOMAS ACQUIANS: defined law as “an ordinance of reason for the common good
made by him who has the care of the community and promulgated through reason”

GROTIUS: Hugo grotius held on reason, but on right reason i.e., ‘self –supporting reason’ of
man. He treated ‘natural law’ as immutable which cannot be changed by God himself. He said
that natural law is based on the nature of man and his urge to live in peaceful society. He
considered divine law as the grandmother, natural law the parent and positive law as the child.

HOBBES: Hobbes’s theory of natural law was based on the natural right of self-preservation of
person and property. In order to secure self-protection in as stage of nature, men voluntarily
entered into a ‘social contract’ and surrendered their freedom to the ruler.

LOKE: According to John Locke, man entered into a social contract by which he yielded to the
sovereign not all his rights but not only the power to preserve order and enforce the law of
nature. The individual retained his inalienable right to life, liberty and estate. The moment
sovereign encroached upon the natural rights, laws lose their validity and the government may be
overthrown.

ROUSSEAU: Rousseau pointed out that social contract, is not historical fact as contemplated
by Hobbes and Locke, but is merely a hypothetical conception. According to him, people united
to preserve their rights of freedom and equality, and for that they surrendered their rights to the
community as a whole- general will. This, while the individual parts with his natural rights, he
gets in return civil liberties. Therefore, he favored people’s sovereignty. His theory is considered
to be the forerunner of the modern jurisprudential; thought and legal theory.

KANT: Kant propounded his famous theory of categorical imperative in his classic work-
critique of pure reason. His theory of General Will, and embodies two principles: (i) a man is
expected to act in such a way that he is guided by dictates of his own conscience, (ii) autonomy
of will implying an action emanating form reason. In essence, an action is right only if it co-exist
with each and every man’s free will according to the universal la. This he called as the principle
of innate right.

Sociological school
Sociological jurisprudence arose as a reaction to positivism. According to it, law is not an
isolated phenomenon but is part of the social reality; this school has emerged as a result of
synthesis of various juristic thought. The supporters of this school linked law with other social
science disciplines and trusted it as synthesis of psychology, philosophy, economics, political
science, sociology, etc. R. Pound rightly pointed out; the sociological jurists look more for the
working of law than for its abstract content. Roscoe Pound can be said to be the father of
sociological jurisprudence in America. Montesquieu is the forerunner of the sociological method
in jurisprudence. other noted jurists of this school includes: Auguste Comppte, Herbert Spencer,
Rudolph Von Ihering, Ehrlich, Duguit, Francois Geny.

AUGUSTE COMTE: He is regarded as the founding father of the science of sociology. He

applied scientific methods to the study of socialism which has been termed as scientific
positivism. According to him, societies, like any other organism, can progress when ii is guided
by scientific principles. Further, it is the society and not the individual which should be the focal
point of law. The only right which man can possess is the right always to do his duty.
HERBERT SPENCER: He gave a scientific exposition to the organic theory of society. He
deduced for sources of law, namely, (i) Divine laws having quasi-religious sanctions, (ii)
Induction of the past leaders, (iii) Will of the ruler, and, (iv) collective opinion of the society. He
considered law as nothing more than a hardened custom. The purpose of law is to resolve the
conflicting interests of the individuals in the society.

EHRLICH: His theories of living law is that law need not be necessarily created by the state or
applied by the courts or have a coercive legal compulsion behind it, but it is created by life of
groups living within the society. In other words law arises in society in the form of spontaneous
ordering of social relations of marriage, family associations, possessions, contracts, etc. His
theory of living law came as a vigorous reaction against the analytical positivism and state-made
laws.

DUGUIT: His theory of social solidarity was based on the fact that independence of man is the
essence of society. He developed the concept of syndicalism. He established a standard social
solidarity to which all positive law must conform. It is nothing but natural law in different form.
Therefore, it has been rightly observed that Duguit pushed natural law out through the door and
let it come by windows. He denounced the omnipotence of the state and acknowledged the
superior role of judiciary. He also rejected the notion of natural rights of men which made
individual hostile to larger of the society.

FRANCOIS GENY: His sociological approach emphasized free scientific research as a solution
to social problems, which is based on (i) Autonomy of will, (ii) Maintenance of public order and
interest, and, (iii) proper balancing of conflicting private interests of individuals. He gave
primacy to courts; a judge should try to find out the solution freely and scientifically.

Historical school
The eighteenth century saw the birth of the historical school of jurists in Germany,
headed by Savigny (1779-1861). Writers like Voltaire and Rousseau began to emphasize the
spirit of the people, in opposition to the individual and this gave rise to the surge of nationalism
which finally led to the French Revolution. Their French Revolution heralded a reforming and
codifying spirit throughout the European continent. Savigny and his school concentrated more on
legal history rather than historical jurisprudence. law to him is a spontaneous emanation from the
life and spirit of a people. The source of law is not the command of the sovereign, not even the
habit of a community, but the instinctive sense of right possessed by every race. So the typical
law which is a customary rule is based on the peoples conviction of what is right, and so it could
be harmed by legislation. So every conscious effort as a factor in legal evolution was excluded,
this stultified rather than encouraged the development of the legal order.
Differences between the analytical and the historical schools may be exhibited as follows:
Analytical school Historical school
1. Law is product of the state. Law is found and not made. Law is self-
existent.
2. If there is no sovereign, there can be no Law is antecedent to the state and exists even
law. before a state organization comes into being.
3. The hall-mark of law is enforcement by Law is independent of political authority and
the sovereign. enforcement.
4. The typical law is statute. The typical law is custom.
5. Custom is not law until its validity has Custom is the formal source of law. It is
been established by a judicial decision or by an transcendent law and other methods of legal
act of the legislature. It’s only a persuasive. evolution, e.g., precedent and legislation
6. Law rests upon their force of politically Law rests on the social pressure behind the
organized society. rules of conduct which it enjoins.
7. Law is the command of rh sovereign , Law is the rule whereby the invisible border
line is fixed within which the being and
activity of each individual obtains a secure and
full space.
8. In interpreting a statue judges should In construing a statue judges should consider
confine themselves to a purely syllogistic the history of the legislation in question.
method

The Philosophical school or Ethical

 Modern jurists call this the theological school. To Bentham who is closely associated
with this school the end of law is to promote the greatest happiness of the greatest number. To
Kant, those legal restrictions can be justified only in so far as they promote the freedom of
individual in society. To others belonging to this school, the law is to maintain justice in society.
So this school, firstly, seeks a proper answer to the problem of the validity of law. Secondly, it
stresses that law is intimately related to justice. According to Salmond; ‘’ Philosophical
jurisprudence is the common ground of moral and legal philosophy, of ethics and jurisprudence.
“The philosophical school reverts its attention on the purpose of law and the justification for
coercive regulation of human conduct by means of legal rules. Kant has shown that the chief
purpose of law is the provision of a field of fre activity for the individuals without interference
by his fellow men. Law is thge means by which individual will is harmonized with the general
will of the community. The philosophical school is interested primarily in the “development of
the idea of justice as an ethical and moral phenomenon and its manifestation in the principles
applied by the courts’.
GROTIUS: Hugo Grotius, celebrated founder of international law, is also regarded as the father
of philosophical jurisprudence. He defined “the dictate of right reason which points out that an
act, according as it is or is not in conformity with rational nature, has in it a quality of moral
baseness or moral necessity”.
IMMANUEL KANT (1724-1804): Kant gave modern thinking a new basis which no subsequent
philosophy could ignore. The “Copernican turn” which he gave to philosophy was to replace the
psychological and empirical method by the critical method, by an attempt to base the rational
character of life and world on the observation of facts and matter but on human consciousness
itself. That was done by Kant by a systematic inquiry into the function of human reason.
HEGEL: Hegel was the most influential thinker of the philosophical school. His system is a
monistic one. The idea unfolds from the simple to the complex by means of the dialectical
process. There can be no dualism of any kind as any phase of reality is based on reason. To quote
Hegel: “what is reasonable is real and what is real is reasonable”.
HOHLER: (1849-1919): Kohler was under the influence of the Hegelians. He defined law as
“the standard of conduct which in consequence of the inner impulse that urges man towards a
reasonable form of life, emanates from the whole, and is forced upon the individual”.
STAMMLER (1856-1938): Stammler is a neo-Kantian and his philosophical position is summed
up in the theory of justice. According to him: “There is not a single rule of law the positive
content of which can be fixed a priori”. However, he emphasizes the need for the development of
a theory of just law in addition to the investigation of positive law. The content of a given law
can be tested with reference to the theory of just law.
DEL VECCHIO: Del Vecchio developed, independently of stammler, a thory of law on
essentially similar foundations. He was a jurist of much greater elegance and universality than
stammler. His writings display a profusion of philosophical, historical and juristic learning.
Comparative school
This method of studying law and legal institutions received recognition as a science only
recently. It got its impetus during the first world war of (1914-1918). The intensified
international contacts necessitated the study of the legal systems of one another. The comparative
method considers the development of two or more systems of law. By comparing the notions,
and ideas prevailing in any one system, with those in another, it discovers those rules which are
common to the legal systems studied.

American realism
The realist movement is a part of the sociological approach and it is sometimes called the
“left wing of the functional school”. It differs from the sociological school as it is little
concerned with the ends of law. It concentrates on a scientific observation of law in its making
and working. The movement is caled realist as it studies law in its actual working and rejects the
traditional definition of law that it is a body of rules and principles which are enforced by the
courts. The advocates of the realist movement concentrate on the decisions given by the law
courts. They not only study the judgments given by the judges but also the human factor in the
judges and lawyers. They study the forces which influence judges in reaching their decisions.
GRAY (1839-1935): Dr. Friedmann considers John Chipman Gray (1839-1915) and Oliver
Wendell Holmes (1841-1935) as the mental fathers of the realist movement. Gray, although a
distinguished exponent of the analytical tendency in jurisprudence, relegated statutory legislation
from the centre of the law to one of several sources and placed the judge in the centre instead.
JUSTICE HOLMES (1841-1935) : That tendency was made articulate by justice holmes who, in
an essay published in 1897, gave an entirely empirical and skeptical definition of law in these
word: “take the fundamental question, what constitutes the law...you will find some text writers
telling you that it is something different from what is decided by the courts of Massachusetts or
England, that it is a system of reason, that it is a deduction from principles of ethics or admitted
actions, or what not, which may or may not coincide with the decision.
Principal Features of Realist Approach. Llewellyn outlines the principal features of the realist
approach as follows:
(i) There has to be a conception of law in flux asnd of the judicial creation of law.
(ii) Law is a means to social ends an every part of it has constantly to be examined for its
purpose and efforts and judged in the light of both and their relation to each other.
(iii) Society changes faster than law and so there is a constant need to examine how law meets
contemporary social problems.
(iv) There has to a temporary divorce of is and ought for purposes of study. This does not
mean that the ideas of justice and teleology are to be expelled altogether, but they are to be put
on one side while investigating what the law is and how it works.
(v) The realists distrust the sufficiency of legal rules and concepts as descriptive of what
courts do.
(vi) The realists do not have trust in the traditional theory that the rules of law are the
principal factors in deciding cases. They have drawn attention to many other influences which
play a decisive role. It is absurd to define law solely in terms of legal rules.
(vii) The realists believe in studying the law in narrower categories than has been the practice
in the past. They feel that part of the distortion produced by viewing the law in terms of legal
rules is that rules cover hosts of dissimilar situations where in practice utterly different
considerations apply.
(viii) The realists insist on the evaluation of any part of the law in terms of its effects and on
the worth wholeness’ of trying to find these effects.
(ix) There must be a sustained and programmatic attack on the problems of the law along the
lines indicated above.
ASSESSMENT OF THE REALIST MOVEMENT IN 1961
In 1961, Prof. Yntema, himself a leading realist, attempted to assess the present and
future of the realist movement. After stressing both the importance and influence of legal realism
upon American law, lawyers and law schools, he conceded that a major defect of the realist
movement had been the neglect of the more humanistic side of law, particularly revealed both in
its neglect of the comparative and historical aspects of law and the tendency to place
overemphasis upon current leagl practice. The result was a certain loss of perspective and in
particular a failure to distinguish between what is trivial or ephemeral on the one hand and what
is of wider on the other.
ESTIMATE:
Lord Lloyd writes that the realists have done good work in emphasizing both the
essentially flexible attitude of the judiciary towards developing precedent, even within the four
corners of a rigid doctrine of precedent and the operation of concealed factors in judicial law-
making. The realists have played their part in bringing about a changed outlook and attitude
towards the legal system and the function of the law and the legal profession in society which
has made itself felt in all but the most traditionalists of the law schools of the common law
world.

THE SCANDINAVIAN REALISTS

The view of Prof. Dias is that there is hardly a school of scandinavian realism. The
individuals who are thought to belong to this group, show important differences among
themselves. However, they agree in the main in denying the possibility of a science of justice or
values. To them, these are purely subjective reactions, or else reflective of class or political
ideology. It is not possible to construct a science on such a basis. While the American realists
were practicing lawyers or law teachers who sought to approximate legal theroy to legal practice,
the Scandinavian jurists approached their tasks on a more abstract plane and with the training of
philosophers. The Scandinavian realism has been described as “metaphysics-skeptical”. It is
essentially a philosophical critique of the metaphysical foundation of law.
HAGERSTROM: (1868-1939)
Axel Hagerstrom was not a lawyer but a philosopher whose attention was directed to law and
ethics as particularly fertile sources of metaphysics. His aim was to destroy transcendental
metaphysics and he started with law. He declared: all metaphysical concepts. They are mere
word-play. Legal philosophy for hagerstrom is sociology of law without empirical investigation
but built upon conceptual. Historical and psychological analysis. Much ho his writing is a
critique of the errors of juristic thought.
Emperical basis of rights: As regard the method Hagerstrom, he first reviews the attempts that
have been made to discover the empirical basis of a right and dismisses each one of them.
According to him: the facual basis which we are seeking cannot to be found either in protection
guaranteed or commands issued by an external authority.
Historical basis of rights: Hagerstrom also investigated the historical basis of the idea of a right.
For that purpose, he made extensive study of Greek and Roman law and history. His studies were
conceived to demonstrate that the framework of the jus civile was a system of rule for the
acquisition and exercise of supernatural powers. He believed that modern law is also a ritualistic
exercise.
Objective values: Hagerstrom denied the existence of objective values. It appeared to him that
there were no such things as goodness and badness in the world. The words represent emotional
attitudes of approval and disapproval towards certain facts and situations. The word duty express
an idea, the association of a feeling of compulsion with regard to a desired course of conduct.
There is no possibility of any science of the ought. All questions of justice, aims, purposes of law
are matters of personal evaluation. They are not susceptible to any scientific process of
examination.
Law: Prof. Olivercrona did not define law. To quote him: “I do not regard it as necessary to
formulate a definition of law”. Again, “a description and an analysis of the facts is all that will be
attempted”. If one seeks to investigate the nature of law, it begs the question to begin by
assuming what it is. He insists that facts must be examined first. The method of identifying these
will be simply to take up such facts as are covered by the expression rules of law.
Binding force of law: There is a lot of concern about the validity of law. Olivecrona approaches
it form the angle of abidingness. Law has binding force in so far as it is valid. An invalid law is
not binding. There are no such things as the binding force behind law.
Rights: Olivecrona does not dismiss the idea Of rights altogether. However, he calls it a hollow
word. A court should pronounce on a factual situation without calling right in aid. The proof of a
right is accomplished by proving certain facts or events. Those facts are called title
Valid law: Ross does not seek to reduce all law to sociological phenomena. His conclusion is hat
valid law means the abstract set of normative ideas which serve as a scheme of interpretation for
the phenomena of law in action.
Norm: According to Ross: “ A norm is a directive which stands in a relation of correspondence
to social facts”. To say that a norm exists means that a certain social fact exists. This in turn
means that the directive is followed in the majority of cases by people who feel bound to do so.
The principle feature of legal norms is that they are directives addressed to courts. A norm may
derive from a part decision, but all norms including those of legislation, should be viewed as
directives to courts.

Contribution of the Realists

The realist movement has made a valuable contribution to jurisprudence. Its approach to
law is in a positive spirit. It is not concerned with any theory of justice or natural law. It demands
a comprehensive approach and examination of allthe factors which lead to decisions. The realists
have goaded on the lawyers and judges to relaise the importance of their work and not to do
theior work blindly.
 METHODOLOGY
The following are the legal methodology
- Applied methodology
- Fundamental methodology
- Doctrinal and non-doctrinal methodology
- Empirical methodology
- Quantitive methodology
- Qualtive methodology
- Ethical methodology
- Historical methodology
-
 UNIT- 3

DEFINITION AND KINDS OF LAW

Definition of Law: In one sense the law is a large body of rules and regulations based mainly
on general principles of justice, fair play and convenience, which have been worked out and
promulgated by governmental bodies to regulate human activities and define what is and what is
not permissible conduct in various situations. The term law, however, is also used in a much
broader sense. To denote the whole process by which the organized society, through
governmental bodies and personnel (Legislatures, Courts, Administrative tribunals, Law
enforcement agencies and officials, Penal and Corrective institutions etc.) attempt to apply
these rules and regulations and thereby establish and maintain peaceful and orderly relations
between the people in that society. Thus the study of law is necessarily not only a study of legal
rules but also a study of the whole legal system through which society attempts to maintain law
and order. Article 13(3)(a) of the constitution. The term law includes any ordinance, order, by-
law, rule, regulation, notification, custom and usage having, in the territory of India, the force
of law.

The Kinds I Classification of Law: The use of the term law is made in various senses. It denotes
different kinds of rules and principles. Now we are discussing various meanings given to law
which shall be discussed and the meaning in which it is taken in jurisprudence shall be discussed.
Thus according to Blackstone, "Law in its most general and comprehensive sense signifies a rule
of action and is applied indiscriminately to all kinds of action whether animate rational
irrational." Thus, we say the laws of motion of gravitation of optics or mechanics as well as laws
of nature and of nations.

Classification of Law: For a proper and Logical understanding of Law, its classification
becomes necessary. It helps in grasping the principles and the logical structure of the legal order.
It makes clear the inter-relation of rules and their effect on each other. It helps in arranging the
rules in a concise and systematic way. It presents an analysis for the architect of Law which
greatly helps in codification. It is of great use for a lawyer. It helps him in understanding the law.
Classification of law is generally on the following pattern -
1. Substantive Law and Procedural Law or Formal Law.
2. Civil Law and Criminal Law
3. International Law and Municipal Law.
4. Codified and Uncodified Law.

1. Substantive Law and Procedural Law or Formal Law: Substantive law is the law
dealing with the topic with which it has been connected. e.g., Contract Act, Hindu Law,
 I.P.C. Procedural or formal law deals with evidence and procedure in court of law-
C.P.C. for civil cases and Cr. P.C. for criminal cases. We have on the whole the same law of
evidence in Civil cases. Some laws are predominantly substantive and some mainly
formal or procedural. But a substantive law also may have the formal in it., e.g., Company
Law, Insolvency Law etc.
Where the rule of formal law differs from a rule of substantive law, the substantive law
prevails over the formal law, because all the formal laws deal with the form not with the
spirit-

a) Substantive law is that which defines the right while procedural law determines the
remedies.
b) Substantive law is concerned with the ends which the Administration of Justice seeks,
procedural law deals with the means and instruments, by which these ends are to be
attained.
c) Procedure Law regulates the conducts and the relations of courts and litigants in
respect of the litigation itself. Substantive Law determines their conducts and relation
in respect of the matter litigated.

2. Civil Law and Criminal Law: Civil Law which is the part of the imperative law, is the law
of land and is forced by its courts -"Civil Law is all that body of principles, decisions
and enactments made, passed, recognised or approved by the legally constituted
authorities or agencies in a state, for regulating rights, duties and liabilities (between the
state and the citizens, as also the citizens inter-se, and the citizens of the state in relation to
members of foreign state), and enforced through the machinery of the judicial process
for obedience to the sovereign authorities6in a state." Sometimes the expression Civil Law
is used to convey the idea that the civil law is different from the criminal law or the law of
military. Civil Law has what are known as sanctions behind it. A sanction means a
coercive factor for the enforcement of law.
These sanctions are of three kinds namely-
1. Inner or moral, Le. the force of one's soul.
2. Social Le. those arising out of public resentment and public opinion, and
3. Legal.Civil Law includes Constitutional Law, Administrative Law and Public Law,
Constitutional Law is the Law that provides for the working of the Constitution of a country.
That says how the Executive, the Legislative and the Judiciary are to function. That
determines the structure of e state, the allocation of powers, the rights and liberties of the
subject as also the obligation of t e citizen in consonance with the maintenance of the
solidarity of the State.

Administrative or Executive Law: Administrative or executive law is the law

(including the rules) concerning the Administration of the executive department of the
 State.

Characteristics of Civil Law:

a) Uniformity,
b) Territoriality of application.
c) Generality of application, except in the case of a special law.
d) Attempted conformity with the principles of justice
e) The Creation of Legal rights.
f) The recognition by the State or its agency.

Criminal Law: Criminal law defines crimes/offences, and prescribes punishment for them. Its
aim is the prevention of and punishment for offences.

Criminal law is necessary for maintaining order and peace within the State.

In civilized societies crime is considered to be a wrong against the society. Therefore, the state
initiates the proceedings against the offender, and thus it is always a party in criminal cases. This
is why the criminal law is considered as a branch of pubic law.
3. Municipal Law and International Law:

1) Municipal law, State Law or national law is the law of a state or a country and in that
respect is opposed to International Law.

2) Municipal Law is the law of the Sovereign over the individual subject to the Sovereign
rules.

3) It is the rule or law by which particular nation is governed.

4) It is the rule or law by which particular nation is governed.

5) It is operated within the territory of the country.

International Law: International law, also called the Law of Nations, is the body of rules which
regulates mainly the mutual relations of States.

It is made up party of –
a) Customs between the nations,
b) Conventions as the result of International Conference and otherwise.
c) International reciprocity.
Some earlier jurists like Austin and his supporters were of the view that international law is not
law as it lacked many of the elements which a law should have. But on the other hand Kelson, and
his supporters were of the view that international law is a law and is superior to the municipal law.
This controversy is no more and it has been recognised on almost all heads that international law is
law and is a very important branch of law.

According to some jurists, it may be divided into two classes-

Public International Law: Public International law is the body of rules which governs the
conduct and relations of states with each other. Really speaking, the term "International
Law" is used for this class of Law.

Private International Law: Private International Law means those rules and principles
according to which the cases having foreign elements are decided e.g. a contract between
India and Pak to be performed in Cyclone. The rules and principles on which the rights and
duties of person would be determined would be called private international law or conflicts
of laws.

4. Codified and Uncodified Law

According to Oxford Dictionary 'Code' means a systematic collection of statutes, body

of laws, so arranged as to avoid inconsistency and overlapping.Codification means
promulgation, compilation, collection and systematization of the body of law in a
coherent form by an authority in a State competent
8 to do so. The codified law is certain,
simple and rigid whereas the uncodified law is flexible as a judge is bound by the
precedent of higher courts. The codified law can be laid down beforehand whereas the
emergence of uncodified law depends on litigation. Codified law is coherent whereas
the uncodified law differs from case to case. Uncodified law is the principle and enacted
law is merely accessory. The activity of the legislative is called for only on special
occasions to do that which lies beyond the constructive or remedial efficacy of the
common law or uncodified law. Codification means, not the total disappearance of case
law or uncodified law, but merely the reversal of this relation between it and statute
law. Case law or uncodified law continue to grow, even when codes are complete. It
means that the substance and body of law shall be enacted law, and that in that case law
shall be incidental and supplementary only. But no legislative skill can effectually
anticipate the complexity and variety of facts. The function of precedent (uncodified
law, case law) will be to supplement, to interpret, to reconcile and to develop the
principles which the Code contains, Out of Code itself, therefore, a body of case law will
grow, as judicial commentary and supplement them. This supplementary and explainary
case law is codified and incorporated into successive additions of the Code then the
process of interpretation will begin again with the like results.
Before the codification, the customs and personal laws governed the individuals in

India. This classification can also be shown with the help of following diagram -

Law: Meaning, Features, Sources and Types of Law!

State is sovereign. Sovereignty is its exclusive and most important element. It is the
supreme power of the state over all its people and territories. The State exercises
exercis its sovereign
power through its laws. The Government of the State is basically machinery for making and
enforcing laws. Each law is a formulated will of the state. It is backed by the sovereign power of
the State. It is a command of the State (sovereign
(sovereign)) backed by its coercive power. Every violation
of law is punished by the State. It is through its laws that he State carries out its all functions.

I. Law: Meaning and Definition:

The word ‘Law’ has been derived from the Teutonic word ‘Lag, which means ‘definite’.
‘
On this basis Law can be defined as a definite rule of conduct and human relations. It also means
a uniform rule of conduct which is applicable equally to all the people of the State. Law
prescribes and regulates general conditions of human acti
activity in the state.
1. “Law is the command of the sovereign.” “It is the command of the superior to an inferior and
force is the sanction behind Law.” —Austin

2. “A Law is a general rule of external behaviour enforced by a sovereign political authority.” -

Holland

In simple words, Law is a definite rule of behaviour which is backed by the sovereign power of
the State. It is a general rule of human conduct in society which is made and enforced by the
government’ Each Law is a binding and authoritative rule or value or decision. Its every
violation is punished by the state.

II. Nature/Features of Law:

1. Law is a general rule of human behaviour in the state. It applies to all people of the state. All
are equally subject to the laws of their State. Aliens living in the territory of the State are also
bound by the laws of the state.

2. Law is definite and it is the formulated will of the State. It is a rule made and implemented by
the state.

3. State always acts through Law. Laws are made and enforced by the government of the State.

4. Law creates binding and authoritative values or decisions or rules for all the people of state.

5. Sovereignty of State is the basis of law and its binding character.

6. Law is backed by the coercive power of the State. Violations of laws are always punished.

7. Punishments are also prescribed by Law.

8. The courts settle all disputes among the people on the basis of law.

9. In each State, there is only one body of Law.

10. Legally, Law is a command of the sovereign. In contemporary times laws are made by the
representatives of the people who constitute the legislature of the State. Laws are backed by on
public opinion and public needs.
11. The purpose of Law is to provide peace, protection, and security to the people and to ensure
conditions for their all round development. Law also provides protection to the rights and
freedoms of the people.

12. All disputes among the people are settled by the courts on the basis of an interpretation and
application of the laws of the State.

13. Rule of law, equality before law and equal protection of law for all without any
discrimination, are recognised as the salient features of a modern legal system and liberal
democratic state.

Sir John Salmond refers to eight kinds of law viz.,

Imperative law

Physical or scientific law,

Natural law or moral law,

Conventional law,

Customary law

Practical or technical law

International law and civil law

Imperative Law:- According to Salmond: “ imperative law means a rule which prescribes a
general course of action imposed by some authority which enforces it by superior power either
by physical force any other form of compulsion.” The chief advocate of imperative law is Austin
who defines law as a command which obliges a person or persons to a course of conduct.

Physical or Scientific Laws:- According to slmond: “physical laws or the laws of science are
expression of the uniformities of nature-general principles expressing the regularity and harmony
observable in the activates and operations of the universe”. An example of physical laws is the
law of tides. Physical laws are also called natural laws or laws of nature. There is uniformity and
regularity in those laws. They are not the creation of men and cannot be changed by them.
Human laws change from time to time and country to country but physical laws are invariable
and immutable forever.
Natural Law or Moral Law:- According to Salmond: “by natural law or moral law is meant the
principles of natural right and wrong –the principles of natural justice if we use the term justice
in its widest sense to include all forms of rightful action”. Natural law has been called divine
law, the law opf reaosn, the universal or common law and eternal law. It is called the command
of god imposed upon men.

Conventional Law:- According to salmond, conventional law mens “any rule or system of rules
agreed upon by persons for the regulation of their conduct towards each other”. It is form of
special law. It is law for the parties who subscribe to it. Examples of conventional law are the
laws of cricket or any other game, ruels and regualtions of a club or any other voluntary society.
Conventional law in some cases is enfoced by the state. When it is enforced by the state, it
becomes a part of the civil law. The view of some writers is that international law or the law of
nations is alos a kind of conventional law on the ground that its principles are expressly or
impliedly agreed upon by the states concerned.

Customary Law:- According to salmond, customasry law means “any rule of action which is
actually observed by men-any rule which is the expression of some asctual uniformity of some
voluntary actition.” A custom may be voluntary and still it is law. When a custom is firmly
established, it is enforced by the authority of the state. Customary law is an important source of
law. This is particularly so among the conservative people who want to keep as much of the past
as possible e.g. Hindu Marriage Act in 1955

Practical or Technical Law: - Practical or technical law consists of rules for the attainment of
certain ends e.g., the laws of health, the laws of architecture etc. These rules guide us as to what
we ought to do in order to attain a certain end. Within this category come the laws of music, laws
of architecture, laws of style, etc.

Constitutional Law:

Constitutional Law is the supreme law of the country. It stands written in the Constitution
of the State. The Constitutional Law lays down the organization, powers, functions and inter-
relationship of the three organs of government. It also lays down the relationship between the
people and the government as well as the rights, freedoms (fundamental rights) and duties of the
citizens. It can be called the Law of the laws in the sense all law-making in the State is done on
the basis of powers granted by the Constitutional Law i.e. the Constitution.

According to dicey: “Constitutional law includes all rules is which directly or indirectly
affect the distribution of power or exercise of the sovereign power of the state. Hence it includes
(among other things) all rules which define the members of the sovereign power, all rules which
regulate the relation of such members to each other or which determine the mode in which the
sovereign power or the members thereof exercise their authority.”

AMENDMENT

Every written constitution has a provision for its amendment. The method of a
amendment of the American constitution is highly rigid and complicated. The Constitution can
be amended by three-fourths of the legislatures of the states in the United States. The English
Constitution is unwritten and flexible. The method of its amendment is the same as that of
passing an ordinary law. In India, article 368 of the Indian Constitution deals with the
amendment of the Indian Constitution.

Sources of English Constitutional Law

According to lord Bryce, English constitutional law is to be found in “the mass of

precedents carries in men’s memories or recorded in writing, of dicta of lawyers or statesmen, of
customs, usages, understandings and belief’s bearing upon methods of government, together with
a certain number of statutes, some of them containing matters of pretty detail, others related to
private just as much as to public law, nearly all of them presupposing and mixing up with
precedent and customs and all of them covered with a parasitic growth of legal decisions and
political habits, apart from which the statutes would be almost unworkable, or at any rate, quite
different from their working from what they really are. The English Constitution is to be found in
the great constitutional landmarks, statutes, judicial decision, common law and conventions.

Statute Law or Ordinary Law:

It is also called the national law or the municipal law. It is made by the government
(legislature) and it determines and regulates the conduct and behavior of the people. It lays down
the relations among the people and their associations, organizations, groups and institutions. The
legislature makes laws, the executive implements these and judiciary interprets and applies these
to specific cases.

Ordinary Law is classified into two parts:

Private Law and Public Law.

Private Law:
 Private Law regulates the relations among individuals. It lays down rules regarding the
conduct of the individual in society and his relations with other persons. It guarantees the
enjoyment of his rights. It is through this law that the State acts as the arbiter of disputes between
any two individuals or their groups.

Public Law:

The law which regulates the relations between the individual and the State is Public Law.
It is made and enforced by the State on behalf of the community.

General Law:

It lays down the relations between the private citizens (Non-officials or who are not
members of the civil service) and the State. General Public Law applies to all the citizens in their
relations with the State.

Administrative Law:

It lays down the rules governing the exercise of the constitutional authority which stands
delegated by the Constitution of the State to all the organs of government. It also governs the
relations between the civil servants and the public and lays down the relations between the civil
servants and the State. In some States like France, Administrative Law is administered by
Administrative Courts and General Law is administered by ordinary courts. However in
countries like India, Britain and the USA the same courts administer both the General Law and
Administrative Law.

Clarifying the distinction between Public law and Private law, Holland writes: “In Private Law
the parties concerned are private individuals alone and between whom stands the State as an
impartial arbiter. In Public Law also the State is present as an arbiter although it is at the same
time one of the parties interested.”

INTERNATIONAL LAW

According to Lord Birkendhand, international law consists of rules acknowledged by the

general body of civilized independent states to be binding upon them in their mutual relations. It
consists of those rules which govern sovereign states in their relations and conduct towards each
other.
 According to Starke, international law may be defined, for its great part, of the principles and
rules of conduct which states feel themselves bound to observe in their relations with each other
and which includes also (a) the rules of law relating to functioning of international institutions
and organizations, their relations with each other and their relations with states and individuals
and (b) certain rules of law relating to individuals so far as the rights and duties of such
individuals are the concern of the international community.

According to salmond, international law is essentially a species of conventional law and has its
source in international agreement. It consists of those rules which the sovereign states have
agreed to observe in their dealings with one another.

International agreements are of two kinds: They are either express or implied. Express
agreements are contained in treaties abed conventions. Implied agreements are to be found in the
custom or practice of the states. In a wide sense, the whole of international law is conventional.
In a narrow sense, international law derived from express agreement is called the conventional
law of nations.

Nature of International Law

There is a considerable divergence of opinion regarding the true nature of international

law. John Austin, Willoughby and Holland regard and do not concede that is law properly so
called. According to Austin: “the law obtaining between nations is not a positive law for every
positive law is set by a given sovereign to a person of persons in a state of subjection to its
author.” Austin defines positive law as body of rules for human conduct set and enforced by a
sovereign political authority. However, international law is not set or enforced by a political
authority which is sovereign over other states for the regulation of whose relations that law is
intended. According to Oppenheim, international law is law in the true sense of the term. For
hundreds of years, more and more rules have grown up for the conduct of the states with one
another. These rules are to great extent customary rules but along with them are daily created
more and more written rules by international agreements. Oppenheim admits that there is at
present no Central Government above the governments of several states which could in every-
case severe the enforcement of the rules of international law. International law is regarded as a
part of American law an dis-ascertained and administered by the courts of justice of appropriate
jurisdiction. Likewise, the law the prize courts administer in England is not municipal law but
international law.

Civil Law
 According to salmond, civil law is “the law of the state or of the land, the law of lawyers
and the courts”. Civil law is the positive law of the land or the law as it exists. Like any other
law, it is uniform and that uniformity is established by judicial precedents. It is noted for its
constancy because without that, it would be nothing but the law of the jungle. It is enjoyed by the
people who inhabit a particular state which commands obedience through the judicial processes.
It is backed by the force and might of the state for purposes of enforcement. Civil law has an
imperative character and has legal sanction behind it. It is essentially of territorial nature. It
applies within the territory of state concerned. It is not universal but general. It creates legal
rights, whether fundamental or primary. The term civil law is derived from jus civile or civil law
of the Romans. It is not so popular today as it used to be. The term positive law has become more
popular than civil law. Sometimes, the term municipal law is uded in place of civill law.

Common Law

The general law of England can be divided into three parts viz., statue law, equity and
common law. Statute law is made by the legislature and equity was developed by the court of the
chancery. According to salmond: “the common law is he entire body of English law, the total
corpus juris angliae with three exceptions, namely (1) statute law, (2) equity and (3) special law
in its various forms.” The expression common law was adopted by English lawyers from the
canonists who used it to denote the general law of the church as opposed to those divergent
usages which prevailed in different local jurisdictions and superseded or modified within their
territorial limits the common law of Christendom.

Equity

It was found during the 13th century in England that common law had become very rigid
and that rigidity should be lessened by supplementing it by rules governed by the conscience of
the judge. There were certain rules of natural justice prevalent at that time and those were used to
supplement the principles of common law. The result was that a party who could not get any
relief in the ordinary course, applied to the King who was the fountain of justice. The king
referred those petitions to the Lord Chancellor who was “their keeper of the Kings’ conscience.”
The Lord Chancellor considered those applications and gave relief in fit cases, particularly in
those of frauds, errors and unjust judgments.

Kinds of special law

 Salmond refers to six kinds of special laws and those are Local Law, Foreign Law,
Conventional Law, Autonomic Law, Martial Law and International Law as administered in Prize
Courts.

(a) Local Law: Local Law id the law of a particular locality and not the general law of the
whole country. There may be customs which have obtained the force of law in certain
localities and within those localities, that customary law superseded the general law.
(b) Foreign Law: It is essential in many cases to take account of system of foreign law and
to determine the rights and liabilities of the parties on that basis. Ignorance of law is no
excuse and everyone is supposed to know the law of the land. However, ignorance of
foreign law is like the ignorance of fact and can be excused.
(c) Conventional Law: Conventional law has its source on the agreement of those who are
subject to it. Agreement is law for those who make it. Examples of conventional law are
the rules of a club or a cooperative society. Some other examples of conventional law are
the articles of association of a company, articles of partnership etc.
(d) Autonomic Law : By autonomic law is meant that species of law which has its sources in
various forms of subordiante legislative authhority possessed by private persons and
bodies of persons. A railway company may make bye-laws for regulating its trafiic.
Likewise, a university may make statutes for the government of its members. An
incorporated company can alter its articles and impose new rules and regulations upon
the shareholders. Although autonomic law is not incorporated into the general law of the
community, these rules are constituted by the exerice of autonomic powers of private
legislation. Autonomic laws are made by antonomous bodies for the government of their
memebrs.
(e) Martial Law : Martial law is the law administered in the courts maintained by military
authorities. Martial law is of three kinds :

(i) It is the law for the discipline and control of the army itself and is
commonly known as the military law. It affects the army alone and never
the civil population.
(ii) The second kind of martial law is that by which in times of war, the army
governs any foreign land in its military occupation. The country is
governed by the military commander through the prerogative of the
socereign. The law in this case depends upon the pleasure of the mil;itary
commanders.
(iii) The third kind of martial law is the by which in times of war, the army
governs the realm itself in derogation of the civil law so far as the same is
required for public safety or military necessity. The temporary
 establishment and military justice isd known as the proclamation of
martial law. Courts cannot question the validity of the actions of a military
commander if he had cted honestly.

(f) International law as administered in prize courts (Prize Law): Interantional law is
kind of conversation law is a kind of conventional law. As a special law, it refers to that
portion of the state in times of war. Prize law is that part of law which regulates the
practice of the capture of ships and cargoes at sea in times of war. International law
requires that all states desiring to exercise the right of capture must establish and maintain
within their territories what are known as prize courts. It is the duty of those courts to
investigate the legality of all the captures of ships and cargoes. If the seizure is lawful, the
property is adjudges as a lawful prize of war. Prize courts were set up to decide the fate
of the ships and cargoes captured during the war between India and Pakistan in 1971.
(g) Mercantile customs: Another kind of special law consists of the body of mercantile
usage known as the Law Merchant. The whole of the Indian Law relating to hundis
derives its origin from mercantile customs.
 UNIT- 4

The origin of State has been a favourite subject of speculation. The Greeks organised city-
states which according to them had a divine origin. And sovereignty is one of the chief attributes
of statehood. This term was for the first time introduced by the French political thinker Jean
Bodin…
STATE
Salmond defines State as “an association of human beings established for the attainment of
certain ends by certain means”. A state is the most important of all associations and is
distinguished from all of them by its functions. The chief ends for which human beings associate
state are :
(i) to prevent war
(ii) for the administration of justice
The means employed to attain these ends is the physical force of the State.
According to Holland, “A State is a political society. He further writes society means a natural
unit of a large number of human beings united together by a common language and by a
common language and by similar customs and opinions resulting from common ancestry,
religion and historical circumstances.”
Grotius defines States as “the complete union of freemen who join themselves together for the
purpose of enjoying law and for the sake of public welfare.”
ORIGIN AND EVOLUTION OF THE STATE
The origin of State has been a favourite subject of speculation. The Greeks organised city-
states which according to them had a divine origin. Later speculators were not convinced with
the divine origin of States, explain the rise of political society by the hypothesis of an “original
contract” theory of which Hugo Grotius was the main supporter. However, this theory was later
proved as superfluous and untenable by subsequent thinkers.
ESSENTIAL ELEMENTS OF STATE
It may be reiterated that a State is nothing but an independent political society which is made for
the maintenance of peace and administration of justice amongst its population. A state has the
following elements :
1. Population: It implies a considerable group of human beings living together in a community since
the State comes into existence for the people, the population is one of the essential elements of
the State. There is no fixed number of persons to constitute a State, but it must be a considerable
number.
2. Territory: No people can constitute a State if they are not permanently settled on a fixed territory.
The territory of a State includes land, water and airspace. More than one state cannot be located
on the same territory. The size of the State is not materialistic.
3. Government: It is the important machinery or agency by means of which the State maintains its
existence, carries on its functions and formulates, expresses and realizes its policies and objectives.
It is regarded as indispensable because without it the state cannot exist.
4. Sovereignty: Sovereignty of a State implies that it is free from any kind of external control and
commands habitual obedience from the people within its territory. It confers upon the state two
 things namely internal supremacy and external independence. It can also be defined as supreme
and unfettered authority within a state.
FUNCTIONS
It has been generally accepted that for an administration of justice, are the two main functions of
the State. The functions of the State are divided into two categories which are Primary and
Secondary.
Primary Functions
The primary functions of a State are war and administration of justice. The fundamental purpose
and end of political society is a defence against external enemy and maintenance of law and
order within the country. These are also called the constituent functions as they are necessary for
the very existence of the State. Herbert Spencer also supported the view that the primary
functions of the State include defending the country against external aggression and to maintain
internal law and order.
Secondary Functions
A State may exist without discharging these functions as they are not essential. These functions
are mostly related to welfare activities of the State. The main secondary functions of the State are
legislation and taxation. There are also two theories of the State – socialism and individualism.
Under the former theory, the state assumes itself an unlimited variety of functions and the in the
latter theory, the state leaves the individuals free.
THEORIES OF THE STATE
THE DIVINE THEORY
This is the oldest theory of the origin of the State. The Jews believed that God appointed the
king, deposed him and even killed bad rulers. The king of the Jews was therefore looked upon as
the agent of God and was regarded as responsible to him. The theory of divine creation leads to
the theory of divine right of Kings. Not only is the state a divine institution, it is also ruled by the king
who acts as the agent and representatives of God. This aspect of the theory was fully developed during the
16th and 17th centuries. The leaders of the reformation movement used this theory to support and justify
the Institution of absolute monarchy. King is like a father compared with his children or like the head as
compared with the body, without him, there can be no Civil Society. Today no one believes in this theory
because it is based on faith and not reason.
THE SOCIAL CONTRACT THEORY
The most famous exponents of the social contract theory are Hobbes, Locke and Rousseau. The
substance of the social contract theory is that the state was created by men, by means of a
contract. In the earlier times, there was no state and no man-made laws as men regulated their
conduct on the basis of the laws prescribed by nature but there was no human agency to
formulate and enforce the laws of nature. Men entered into an agreement and created the state.
According to Hobbes, man is selfish By Nature. According to Locke, man is social by nature and
according to Rousseau, human nature is made up of 2 elements: self-preservation and sympathy
for others. The theory plays an important role in the people struggle against absolute monarchy.
PATRIARCHAL THEORY
According to this theory, the state is the natural extension of the family. The early family was
patriarchal. Descent in the family was traced through males and the eldest male parent exercised
Supreme authority over all members of the family.
MATRIARCHAL THEORY
According to this theory, the early society was matriarchal. The Institution of the family did not
exist. People lived in groups. The descent was traced through the mother. The matriarchal
society evolved into a patriarchal society which ultimately led to the emergence of the state.
EVOLUTIONARY THEORY
The state is not an invention; it is a growth and evolution the result of the gradual process
running throughout the known history of man. It is now commonly agreed that four factors
particularly influence the process of evolution of the state.
KINSHIP
Whether the primitive form of society was patriarchal or matriarchal, is a subject of controversy
but there is no doubt that kinship of blood relationship was the first and the strongest bond of
social organization. It was blood relationship that was the fundamental bond of union
everywhere in primitive societies.
RELIGION
Religion was another element that welded together families and tribes. Religion was linked with
kinship. All the members of the family or group worshipped together their ancestors. It may be
said that religion plays an important role in primitive Social Organisation.
CLASS STRUGGLE AND WAR
Class struggle and war were important factors in the origin and development of the state.
Reorganization of primitive communities was very simple there was no need for organized
forced to maintain unity and discipline.
POLITICAL CONSCIOUSNESS
Political Consciousness was another important factor that contributed to the emergence of
political power. It may be described as the innate feeling among men that they have certain aim
and objects which they cannot achieve without living under an organized authority.
It may be reasonably concluded that the origin of the state cannot be assigned to a particular
point of time or one particular factor it has evolved gradually with certain specified factors
playing an important role in its growth and development these factors are kinship religion war
and political consciousness.

THE DOCTRINE OF SOVEREIGNTY

Meaning of Sovereignty

The word “sovereignty” is derived from the Latin word “superannus” meaning supreme.
It means the supreme power of the state over all individuals and associations within its own
territorial limits. This is internal sovereignty of the state whereby the state is the final authority to
make laws, issue commands and take political decisions which are binding upon all individuals
and associations within its jurisdiction. It has the power to command obedience to its laws and
commands and to punish the offenders who violate the same.
At the same time, sovereignty also involves the idea of freedom from foreign control, i.e., the
independence of the state from the control or interference of any other state in the conduct of its
international relations. This is what is called external sovereignty whereby a state has the power
to independently determine its own foreign policy and has the right to declare war and make
peace. At the same time, external sovereignty implies that each state, big or small, by virtue of its
sovereign status is equal to every other state. It can command no other state and it cannot itself
be commanded by any other state.

Accordingly, sovereignty of the state has two aspects, namely, internal and external sovereignty.

Sovereignty is an essential element of the state and with every change in the conception of the
state, the concept of sovereignty has also varied from age to age. The Greek philosopher
Aristotle spoke of the “supreme power” of the state. The Roman jurists were also familiar with
the notion. During the Middle Ages, the idea of sovereignty was associated either with the
authority of the king or with the Pope.

Characteristics of Sovereignty

There are many characteristics or attributes of sovereignty. These are discussed below:

 Absoluteness: Sovereignty is regarded as absolute. This means that neither within the
state nor outside it , is there any power which is superior to the sovereign. The will of the
sovereign reigns supreme in the state. His obedience to customs of the state or
international law is based on his own free will.
 Permanence: The sovereignty of a state is permanent. Sovereignty lasts as long as an
independent state lasts. The death of a king or president or the overthrow of the
government does not mean the destruction of sovereignty as the ruler exercises sovereign
power on behalf of the state and therefore, sovereignty lasts as long as the state lasts.
 Universality: Sovereignty is a universal, all-pervasive or all-comprehensive quality in the
sense that it extends to all individuals, groups, areas and things within the state. No
person or body of persons can claim exemption from it as matter of right. The immunity
granted to diplomats from other countries is only a matter of international courtesy and
not of compulsion.
 Inalienability: Sovereignty is inalienable. It means that the state cannot part with its
sovereignty. The state as a sovereign institution ceases to exist, if it transfers its
sovereignty to any other state.
 Indivisibility: As sovereignty is an absolute power, it cannot be divided between different
sets of individuals or groups. In every state, sovereignty must be vested in a single legally
 competent body, to issue the final commands. Division of sovereignty is bound to give
rise to conflicting and ambiguous commands.
 Imprescriptibility: This implies that sovereignty can neither be destroyed nor lost if it has
not been exercised for a long period. A people may not have exercised sovereignty for
some time due to control by a foreign power. But non-exercise of sovereign power does
not put an end to sovereignty itself. It can only shift to a new bearer.
 Originality: The most important characteristic of sovereignty is its original character.
Sovereignty cannot be manufactured. Dependence on another for supreme power cannot
make a state a sovereign one.

Different kinds of sovereignty exist in the world. These are discussed below:

Titular and Real Sovereignty

A titular sovereign is one who is sovereign only in name and not in reality. Although
outwardly, the power is vested in one person, the real power is enjoyed by another. Such a
situation prevails in parliamentary democracies. The King or Queen in England is the Titular
head and he/she does not enjoy any real power. Actual powers are enjoyed by ‘King/Queen-in-
Parliament’ which constitutes the real sovereign. In case of India, the President of India is the
titular sovereign and the real power lies in the hands of the Council of Ministers headed by the
Prime Minister which constitutes the real sovereign.

De facto and de jure Sovereign

Sometimes, the existing regime in a state is overthrown through unconstitutional means,

as in the case of a military takeover. In such a situation, until the new sovereign is legally
established and recognized, there may exist two sovereigns-one in the legal sense, who has lost
his real powers; the other in the practical sense who has not yet been legally established. The de-
facto sovereign may not have any legal claim to obedience, but he is a practical sovereign whose
authority is based on physical force or moral persuasion and the people are compelled to obey
him. Under such circumstances, the legal or formal sovereign retains de-jure sovereignty while
the actual sovereign is said to be the de-facto sovereign. In the present-day world there have been
several instances where military generals have overthrown constitutionally elected governments,
thereby usurping all powers of the state. Such a takeover makes the military general the de-facto
or actual sovereign possessing real powers, while the dethroned regime, which still is the legal or
formal sovereign, retains de-jure sovereignty. In course of time, the de-facto sovereign, by
securing the consent of the people through elections or otherwise, may become a de-jure
sovereign. The best example of de-facto sovereignty, in modern times, is furnished by the case of
Spain under General Franco who captured the authority of the State by defeating the Republican
Government of Spain. Though he began to rule by force, gradually he was trying to be a de-jure
sovereign by winning the consent of the people. Historically too, there have been several
examples of the emergence of de facto sovereignty. Some of these are: the authority exercised by
Cromwell in England, by Napoleon in France and the Bolshevist group in Russia after 1917.

Legal and Political Sovereignty

The legal sovereign is the supreme law making body. In every independent state, there
are some laws which must be obeyed by the people and there must be a power to issue and
enforce these laws. The power which has the legal authority to issue and enforce these laws and
final commands is the legal sovereign. It may vest in one person or a body of persons. It alone
declares, in legal terms, the will of the state. Law is a command of the sovereign and he who
violates it is liable to be punished. The King/Queen-in-Parliament is the legal sovereign in the
UK.

Political sovereignty is vested in the electorate, public opinion and all other influences of the
state which mould or shape public opinion. The political sovereign is represented by the
electorate or the body of voters in the state. The electorate, that is, the political sovereign, elects
the legal sovereign in the form of the members of the parliament. Accordingly, the political
sovereign controls the legal sovereign. It lies behind the legal sovereign. According to
A.C.Dicey, “Behind the sovereign whom the lawyer recognizes there is another sovereign to
whom the legal sovereign must bow.”

Popular Sovereignty

The concept of popular sovereignty regards people as the source of all authority in the
state. All organs of the government, whether it is the executive, the legislature or the judiciary,
derive their power and authority from the will of the people taken as a whole. Accordingly, the
idea of popular sovereignty implies that the supreme power in the state rests with the people. The
Preamble to the Constitution of India contains the idea of popular sovereignty. It begins with the
phrase, “WE, THE PEOPLE OF INDIA …” and ends with the phrase, “…HEREBY ADOPT,
ENACT, AND GIVE TO OURSELVES THIS CONSTITUTION.”

In modern times, the development of sovereignty as a theory coincided roughly with the
growth of the state in terms of power, functions and prestige. In the nineteenth century, the
theory of sovereignty as a legal concept (i.e. sovereignty expressed in terms of law) was
perfected by John Austin, an English jurist. He is regarded as the greatest exponent of the
“Monistic theory of sovereignty.” It is called the Monistic Theory of Sovereignty because it
envisages a single sovereign in the state. The sovereign may be a person or a body of persons.
Furthermore, as sovereignty is considered to be a legal concept, the theory is called the Legal-
Monistic theory of Sovereignty. John Austin, in his famous book, Province of Jurisprudence
Determined (1832), stated his views on sovereignty in the following words: “If a determinate
human superior not in the habit of obedience to a like superior receives habitual obedience from
the bulk of a given society, that determinate superior is sovereign in that society and that society
(including the superior) is a society political and independent.”

On an analysis of the above definition, we could find the following implications:

Firstly, sovereignty must reside in a “determinate person” or in a “determinate body” which acts
as the ultimate source of power in the state.

Secondly, the power of the determinate superior is unlimited and absolute. He can exact
obedience from others but he never renders obedience to any other authority.

Thirdly, the obedience rendered by a people to an authority occasionally will not turn the
authority into sovereign power.

Fourthly, obedience rendered to sovereign authority must be voluntary and as such undisturbed
and uninterrupted. Austin also points out that it is not necessary that all the inhabitants should
render obedience to the superior. It is enough if the “bulk”, i.e., the majority of a society renders
habitual obedience to the determinate superior.

Fifthly, the sovereign is the supreme law maker. Laws are the commands of the sovereign which
are binding upon all within the territorial jurisdiction of the state. Breach or violation of these
commands leads to punishment from the sovereign.

Sixthly, sovereignty is one indivisible whole and as such incapable of division between two or
more parties. There can be only one sovereign authority in a state.

CRITICAL EVALUATION OF AUSTIN’S THEORY

The theory of Austin has been strongly criticized by many writers like Sidgwick, Sir
Henry Maine and others. The main point of criticism against Austin’s theory is that the theory is
inconsistent with the modern idea of popular sovereignty. In his fascination for the legal aspect
of sovereignty, Austin completely loses sight of popular sovereignty according to which the
ultimate source of all authority is the people. It is also pointed out that sovereignty may not
always be determinate. It is very difficult to locate the sovereign in a federal state. For example,
in the federal state of USA, sovereignty resides neither with the President nor with the
legislature, namely, the Congress. It resides with the people as expressed in the constitution. The
same is the case in India.

Furthermore, Austin has been criticized for defining law as the command of the
sovereign. But in many countries, customary laws are supreme and they are not issued in the
form of commands. But such laws influence the conduct of even despots to a great extent. Sir
Henry Maine cites the example of Ranjit Singh of Punjab who fits the Austinian conception of
human superior. But even a despotic ruler like Ranjit Singh dared not change the customary laws
which regulated the conduct of his people. According to the advocates of the Pluralist theory of
sovereignty, the state is an association like various other associations.

However, in spite of the criticisms levelled against the monistic view of sovereignty as
propounded by John Austin, it must be mentioned that Austin is an exponent of absolute and
unlimited sovereignty purely from the legal or formal point of view. Fundamentally, he does not
prescribe for an irresponsible sovereign, but maintains that the sovereign cannot be formally
made responsible to any authority similar to himself: His authority is legally superior to all
individuals and groups within his jurisdiction. Austin has done a distinct service by clearly
distinguishing the legal from the political sovereign.

Pluralism or the Pluralist theory of sovereignty emerged as a reaction against the

Monistic theory of sovereignty which we have discussed in the previous section. The Pluralist
theory emerged in response to the undue emphasis on the power of the state as advocated by the
monists. Some of the leading exponents of the Pluralist theory include Emile Durkheim, Otto
von Gierke, F.W.Maitland, G.D.H.Cole, Sidney and Beatrice Webb, Miss M.P.Follet and Prof.
Harold Laski. The Pluralist theory of sovereignty rejects the monistic theory of sovereignty and
denies that sovereignty is the absolute and indivisible supreme power of the state.

PRINCIPLES OF PLURALISM

 Pluralistic Nature of Society: The Pluralist theory recognizes the role of several
associations in the society, formed by men in pursuance of their varied interests. Such
associations include the church and other religious organizations, trade unions,
cooperative societies, voluntary associations and the like. At best, the state is but one of
these associations, standing side-by-side with them and not above them. The state is not
distinct from these associations.
  Role of the State as Coordinator: Just as an association coordinates the activities of its
members, the state also coordinates the activities of the other associations in the society.
The state is a means of resolving the conflicting claims of these associations. It does so
by evolving a common basis of their functioning, not by imposing its own will on them
but by way of harmonizing and coordinating their several interests so as to secure the
“common good” or the interest of the society at large.

The Pluralist theory maintains that the claim of the state to superior authority cannot be taken
for granted. The state enjoys a privileged position in the sense that its jurisdiction is compulsory
over all individuals and associations within its fold. It is equipped with coercive powers so that it
can punish those who defy its commands. But the state must justify the exercise of its special
powers. As an association of associations, the state must fulfil its moral obligation of
harmonizing the interests of all associations operating in the society, without being influenced by
any “vested interests” while exercising its authority.

 Decentralization of Authority: The Pluralists hold that the complexity of the economic
and political relations of the modern world cannot be dealt with by a monolithic view of
the state. Therefore, the management and control of society must be shared by various
associations in proportion to their contribution the social good. Accordingly, the
pluralists stand for the decentralization of authority so that all authority is not
concentrated in the hands of the state.

CRITICAL EVALUATION OF THE PLURALIST THEORY

However, in spite of the criticisms leveled against the Pluralist theory of sovereignty, it
must be mentioned that the pluralist theory was a democratic reaction against state absolutism. It
pointed out the limitations on the authority of the state while acknowledging the role and
importance of various groups and associations in the society.

Lastly, coming to the Marist view on sovereignty, they take a very narrow view of
sovereignty because they believe that it is intended to protect the interests of the dominant class
of society. According to Marxists, the State shall wither away with the development of a
classless society. In their view, sovereignty of the state is limited by International Law which
imposes a check on the absolute power of the State. They consider it as a “great stumbling block
on the oath of international progress.” However, this accusation of a restraint of liberty and a
lack of opportunity was derided by and opposed by John Rawls, who believed that a society in
time develops on a meritocratic model and asserted that the basic purpose of the society which is
to assure its citizens of freedom and opportunity shall be sustained.
 UNIT-5

SOURCES OF LAW

Sources of law mean the sources from where law or the binding rules of human conduct
originate. In other words, law is derived from sources. Jurists have different views on the origin
and sources of law, as they have regarding the definition of law. As the term 'law' has several
meanings, legal experts approach the sources of law from various angles. For instance, Austin
considers sovereign as the source of law while Savigny and Henry Maine consider custom as the
most important source of law. Natural law school considers nature and human reason as the
source of law, while theologians consider the religious scripts as sources of law. Although there
are various claims and counter claims regarding the sources of law, it is true that in almost all
societies, law has been derived from similar sources.

CLASSIFICATION OF SOURCESOF LAW

Salmond, an English Jurist, has classified sources of law into the following categories:
Formal Sources of Law:
These are the sources from which law derives its force and validity. Alaw enacted by the State or
Sovereign falls into this category.
Material Sources of Law:
It refers to the material of law. In simple words, it is all about the matter from where the laws are
derived. Customs fall in this category of law.
However, if we look around and examine the contemporary legal systems, it may be seen that
most legal systems are based on legislations. At the same time, it is equally true that sometimes
customs play a significant role in the legal system of a country. In some of the legal systems,
court decisions are binding as law.
There are three major sources of law can be identified in any modern society are as follows:

Custom

Judicial precedent

Legislation

CUSTOM AS ASOURCE OF LAW

Custom can simply be explained as those long established practices or unwritten rules which
have acquired binding or obligatory character. In ancient societies, custom was considered as one
of the most important sources of law; In fact it was considered as the real source of law. With the
passage of time and the advent of modern civilization, the importance of custom as a source of
law diminished and other sources such as judicial precedents and legislation gained importance.
There is no doubt about the fact that custom is an important source of law. Broadly, there are two
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed
custom as law because it did not originate from the will of the sovereign. Jurists like Savigny
consider custom as the main source of law. According to him the real source of law is the will of
the people and not the will of the sovereign. The will of the people has always been reflected in
the custom and traditions of the society. Custom is hence a main source of law.

Analytical Positivist School of Thought-

Austin said that the term ‘source of law’ has three different meanings:

1. This term refers to immediate or direct author of the law which means the sovereign in the
country.

2. This term refers to the historical document from which the body of law can be known.

3. This term refers to the causes that have brought into existence the rules that later on acquire
the force of law. E.g. customs, judicial decision, equity etc.

Historical Jurists- Von Savigny, Henrye Maine, Puchta etc. – This group of scholars believed
that law is not made but is formed. According to them, the foundation of law lies in the common
consciousness of the people that manifests itself in the practices, usages and customs followed by
the people. Therefore, for them, customs and usages are the sources of law.

Sociological Jurists- This group of scholars protest against the orthodox conception of law
according to which, law emanates from a single authority in the state. They believe that law is
taken from many sources and not just one.

Ehlrich said that at any given point of time, the centre of gravity of legal development lies not in
legislation, not in science nor in judicial decisions but in the society itself.

Duguit believed that law is not derived from any single source as the basis of law is public
service. There need not be any specific authority in a society that has the sole authority to make
laws.

Salmond on Sources of Law-

Salmond has done his own classification of sources of law:

1. Formal Sources- A Formal Source is as that from which rule of law derives its force and
validity. The formal source of law is the will of the state as manifested in statutes or decisions of
the court and the authority of law proceeds from that.

2. Material Sources- Material Sources are those from which is derived the matter though not the
validity of law and the matter of law may be drawn from all kind of material sources.

a. Historical Sources- Historical Sources are rules that are subsequently turned into legal
principles. Such sources are first found in an Unauthoritative form. Usually, such principles are
not allowed by the courts as a matter of right. They operate indirectly and in a mediatory manner.
Some of the historical sources of law are:

i. Unauthoritative Writings

ii. Legal Sources- Legal Sources are instruments or organs of the state by which legal rules are
created for e.g. legislation and custom. They are authoritative in nature and are followed by the
courts. They are the gates through which new principles find admittance into the realm of law.
Some of the Legal Sources are:

a. Legislations

b. Precedent

c. Customary Law

d. Conventional Law- Treatises etc.

Charles Allen said that Salmond has attached inadequate attention to historical sources.
According to him, historical sources are the most important source of law.

Keeton said that state is the organization that enforces the law. Therefore, technically State
cannot be considered as a source of law. However, according to Salmond, a statute is a legal
source which must be recognized. Writings of scholars such Bentham cannot be considered as a
source of law since such writings do not have any legal backing and authority.

Legal sources of English Law- There are two established sources of English Law:

1. Enacted Law having its source in legislation- This consists of statutory law. A Legislation is
the act of making of law by formal and express declaration of new rules by some authority in the
body politic which is recognized as adequate for that purpose.
2. Case Law having source in Judicial Precedence- It consists of common law that we usually
read in judgments and law reporters. Precedent could also be considered as a source of law as a
precedent is made by recognition and application of new rules by the courts whilst administering
justice. Thus, Case Laws are developed by the courts whereas enacted laws come into the court
ab extra.

3. Juristic Law- Professional opinion of experts or eminent jurists. These are also sources of law.
Though, they are not much accepted.

Sources of Law: Are they sources of Right too?

A Legal Right means a fact that is legally constitutive of a right. A Right is the de facto
antecedent of a legal right in the same way as a source of law is de facto antecedent of a legal
principle Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand how
various jurists have defined legislation.

1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.

2. Horace Gray- Legislation means the forma utterance of the legislative organs of the society.

3. John Austin- There can be no law without a legislative act.

Analytical Positivist School of Thought- This school believes that typical law is a statute and
legislation is the normal source of law making. The majority of exponents of this school do not
approve that the courts also can formulate law. They do not admit the claim of customs and
traditions as a source of law. Thus, they regard only legislation as the source of law.

Historical School of Thought- This group of gentlemen believe that Legislation is the least
creative of the sources of law. Legislative purpose of any legislation is to give better form and
effectuate the customs and traditions that are spontaneously developed by the people. Thus, they
do not regard legislation as source of law.

Types of Legislation

1. Supreme Legislation- A Supreme or a Superior Legislation is that which proceeds from the
sovereign power of the state. It cannot be repealed, annulled or controlled by any other
legislative authority.

2. Subordinate Legislation- It is that which proceeds from any authority other than the sovereign
power and is dependant for its continual existence and validity on some superior authority.
Delegated Legislation- This is a type of subordinate legislation. It is well-known that the main
function of the executive is to enforce the law. In case of Delegated Legislation, executive
frames the provisions of law. This is also known as executive legislation. The executive makes
laws in the form of orders, by laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the power
to make subordinate legislation is usually derived from existing enabling acts. It is fundamental
that the delegate on whom such power is conferred has to act within the limits of the enabling
act.

The main purpose of such a legislation is to supplant and not to supplement the law. Its main
justification is that sometimes legislature does not foresee the difficulties that might come after
enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen while
formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample
scope for adjustment in the light of experiences gained during the working of legislation.

Controls over Delegated Legislation

Direct Forms of Control

1. Parliamentary Control

2. Parliamentary Supervision

Indirect Forms of Control

1. Judicial Control- This is an indirect form of control. Courts cannot annul subordinate
enactments but they can declare them inapplicable in special circumstances. By doing so, the
rules framed do not get repealed or abrogated but they surely become dead letter as they become
ultra vires and no responsible authority attempts to implement it.

2. Trustworthy Body of Persons- Some form of indirect control can be exercised by entrusting
power to a trustworthy body of persons.

3. Public Opinion can also be a good check on arbitrary exercise of Delegated Powers. It can be
complemented by antecedent publicity of the Delegated Laws.

It is advisable that in matters of technical nature, opinion of experts must be taken. It will
definitely minimize the dangers of enacting a vague legislation.

Salient Features of Legislation over Court Precedents

1. Abrogation- By exercising the power to repeal any legislation, the legislature can abrogate any
legislative measure or provision that has become meaningless or ineffective in the changed
circumstances. Legislature can repeal a law with ease. However, this is not the situation with
courts because the process of litigation is a necessary as well as a time-consuming process.

2. Division of function- Legislation is advantageous because of division of functions. Legislature

can make a law by gathering all the relevant material and linking it with the legislative measures
that are needed. In such a process, legislature takes help of the public and opinion of the experts.
Thus, public opinion also gets represented in the legislature. This cannot be done by the judiciary
since Judiciary does not have the resources and the expertise to gather all the relevant material
regarding enforcement of particular principles.

3. Prospective Nature of Legislation- Legislations are always prospective in nature. This is

because legislations are made applicable to only those that come into existence once the said
legislation has been enacted. Thus, once a legislation gets enacted, the public can shape its
conduct accordingly. However, Judgments are mostly retrospective. The legality of any action
can be pronounced by the court only when that action has taken place. Bentham once said that
“Do you know how they make it; just as man makes for his dog. When your dog does something,
you want to break him off, you wait till he does it and beat him and this is how the judge makes
law for men”.

4. Nature of assignment- The nature of job and assignment of a legislator is such that he/she is
in constant interaction with all sections of the society. Thereby, opportunities are available to
him correct the failed necessities of time. Also, the decisions taken by the legislators in the
Legislature are collective in nature. This is not so in the case of Judiciary. Sometimes, judgments
are based on bias and prejudices of the judge who is passing the judgment thereby making it
uncertain.

5. Form- Enacted Legislation is an abstract proposition with necessary exceptions and

explanations whereas Judicial Pronouncements are usually circumscribed by the facts of a
particular case for which the judgment has been passed. Critics say that when a Judge gives
Judgment, he makes elephantiasis of law.

Difference between Legislation and Customary Law

1. Legislation has its source in theory whereas customary law grows out of practice.

2. The existence of Legislation is essentially de Jure whereas existence of customary law is

essentially de Facto.
3. Legislation is the latest development in the Law-making tendency whereas customary law is
the oldest form of law.

4. Legislation is a mark of an advanced society and a mature legal system whereas absolute
reliance on customary law is a mark of primitive society and under-developed legal system.

5. Legislation expresses relationship between man and state whereas customary law expresses
relationship between man and man.

6. Legislation is precise, complete and easily accessible but the same cannot be said about
customary law. Legislation is jus scriptum.

7. Legislation is the result of a deliberate positive process. But customary law is the outcome of
necessity, utility and imitation.

Advantage of Court Precedents over Legislation

1. Dicey said that “the morality of courts is higher than the morality of the politicians”. A judge
is impartial. Therefore, he performs his work in an unbiased manner.

2. Salmond said that “Case laws enjoys greater flexibility than statutory law. Statutory law
suffers from the defect of rigidity. Courts are bound by the letter of law and are not allowed to
ignore the law.”

Also, in the case of precedent, analogical extension is allowed. It is true that legislation as an
instrument of reform is necessary but it cannot be denied that precedent has its own importance
as a constitutive element in the making of law although it cannot abrogate the law.

3. Horace Gray said that “Case law is not only superior to statutory law but all law is judge
made law. In truth all the law is judge made law, the shape in which a statute is imposed on the
community as a guide for conduct is the statute as interpreted by the courts. The courts put life
into the dead words of the statute”.

4. Sir Edward Coke said that “the function of a court is to interpret the statute that is a document
having a form according to the intent of them that made it”.

5. Salmond said that “the expression will of the legislature represents short hand reference to the
meaning of the words used in the legislature objectively determined with the guidance furnished
by the accepted principles of interpretation”.
Precedent as a Source of Law

The Doctrine of Precedant in India: All ancient texts suggest that "That path is the right one
which has been followed by virtuous men. On the basis of this there was the theory of
precedent in India.

Later on, on 1st October, 1937 a Federal Court was established in India under the provisions of
government of India Act, 1935. The hierarchy of the Courts before independence of India was as
under-
1. Privy Council/Kind-in-council.
2. Federal Court
3. High Courts, and
4. District Courts.

Thus, the decisions of the Federal Court were binding on all the courts below. The decisions
of the Privy council were binding on the Federal Court and the Court below. The Privy Council
was not bound by its n decisions. During British time the Obiter Dicta (things said by the way)
was binding on all the courts British India. After independence the Supreme Court of India was
established as the highest court of India. The Article 141 the Constitution enacts that the
decision of the Supreme Court is binding on all the Indian Courts. The Supreme Court,
sometimes overrules its earlier decisions or in other words, the Supreme Court is not bound by
15
its earlier decision (Art. 143 of the Constitution). The overruling is not a good law but if any thing
is detrimental to the general welfare of the public, the Supreme Court overrules the same as it has
been done by the Supreme Court in Sajjan Singh vs. State of Rajasthan and Shankari Prasad
case. The question before the court was whether the parliament has the power to abridge or to
take away the fundamental rights of the citizens. The Supreme Court held that yes, the
parliament has the power to abridge or to take away the fundamental rights of the citizens. But
in Golak Nath case Supreme Court reversed/ overruled its earlier decision and held that the
parliament has no power to take away the fundamental rights of the citizens. The Supreme
Court evolved the Doctrine of prospective overruling and declared that the decision of Golak
Nath case will only be applicable to the future cases. This decision was not given retrospective
operation so that there will be no choas and confusion among the masses and the whole
progress of the country shall be dashed to ground. So the Obiter Dicta declared by the Supreme
Court alongwith the ratio in a particular case is not binding on all the tribunals/subordinate
courts in India as it was being done during British period (that the Obiter Dicta declared by the
Privy Council was binding on all the Courts, subordinate to Privy Council, in India)
Hierarchy of Courts under Indian Constitution

Supreme Court

High Courts (in each of the States)

District and Sessions Judges Courts (in each

of the Districts)

Civil (Civil Judge/Court of Munsif) CJM (Criminal)

Small Cause

Courts

Nayaya

Panchayats

Judicial
Magistrate Executive Magistrate
The Application of the Doctrine: The authority of a decision as a precedent lies in its ratio
decidendi. It is, therefore, necessary to know what this ratio decidendi is and how it is
determined.

Ratio decidendi and obiter dictum. There are cases which involve questions which admit of
being answered on principles. Such principles are deduced by way of abstraction of the
material facts of the case eliminating the immaterial elements. And as the result the principle
that comes out, is not applicable only to that case, but to other cases also which are similar
to the decided case in their essential features. This principle is known as ratio decidendi,
The issues which need determination of no general principles are answered on the basis of
the circumstances of the particular case and lay down no principles of general application.
These are called obiter dictum. It is the ratio decidendi or the general principle, and not the
obiter dictum that
has the binding effect as a precedent. But the determination of ratio decidendi and obiter
dictum is not so easy in practice as it appears to be in theory. Many eminent jurists have laid
down principles and methods to determine the ratio decidendi of a decision. But the task is
full of difficulties. Prof. Goodhart has made an elaborate discussion about the structure of a
case and has suggested methods for the determination of the ratio decidendi, but he too has
failed in laying down infallible test. In cases in which the reasons for the decision are not
given, or where judges have come to the same conclusion, but have given different, and,
sometimes, contrary reasons, or where a reason, is only a hypothesis it is very difficult to
find out the ratio decidendi. But this difficulty serves useful purpose also. It is for the judge
to determine ratio decidendi and to apply it on the case which he is going to decide. This
gives an opportunity to him to mould the law according to the changed conditions by laying
emphasis on one or the other point.

When an appeal is heard by an even number of the judges and they are equally divided, the
practice is that the appeal is deemed to have failed, and it is the resultant negative which is
regarded as the precedent for the future.

Precedents are cited not only in those courts, or tribunals where they have obligatory force,
but also where the precedent cited is in any way relevant in answering the question
involved. And relevant decision of a court is a strong argument and it is given a respectful
consideration. A precedent may be cited from any source which is reliable. Generally, the
reports are used, and some reports are considered more authoritative than the other.

A precedent is not abrogated by lapse of time. With the passing of the time the authority of a
precedent goes on strengthening if the law on that point is not altered by some statute. But
very ancient precedents are, sometimes, inapplicable due to the changed circumstances,
and then the courts resort to 'distinguishing' and get rid of the binding authority of such
precedents. Precedents have been compared with wine, which 'improves with age up to a
certain point and then begins to go off."

Merits and Demerits of the Doctrine: It is clear from the discussion made in the preceding
page that the doctrine has assumed a very important place in modern times. A number of
jurists have expressed their views for and against the doctrine. The supporters of the

72
doctrine put forward the following arguments in support of the doctrine-

Merits:
1) It shows respect for the opinion of one's ancestors. Eminent jurists like Coke and
Blackstone have supported the doctrine on this ground. They say that there are always
some reasons behind these opinions, we mayor may not understand them.

2) Precedents are based on customs, and, therefore, they should be followed. Courts
follow them because "these judicial decisions are the principal and most authoritative
evidence that can be given of the existence of such a custom as shall form a part of the
common law". Therefore, in following precedents we follow customs which in their turn
have been a general practice or conduct of the people for a long time, and not only the
opinion of a judge.

3) As a matter of great convenience it is necessary that a question once decided should be

settled and should not be subject to re-argument in every case in which it arises. It will
save the labour of the judges and the lawyers. If the precedents are not followed, every
case would go from the court of the first instance to the highest tribunal causing a lot of
delay, expense and inconvenience to the public. At the same time, it will cause a great
impediment in the way of the administration of justice.
4) Precedents bring certainty in law. If courts do not follow precedents and the judges
17
start deciding and determining issues every time afresh without having regard to the
previous decisions on the point, the law would become most uncertain. A good law
should always be certain. This certainty can be brought about only by conferring
authority on precedents.

5) Precedents bring flexibility in the law. Judges in giving their decisions are
influenced by social, economic and many other values of their age. They mould and
shape the law according to the changed conditions and thus bring flexibility in the law.

6) Precedents are Judge-made law. Therefore, they are more practical. They are based
on actual cases. It is not like statute law which is based on a priori theories. The law
develops through precedents according to actual needs. This development is based on
experience. Thus, it is better suited to fulfill the ends of law.

7) Precedents bring about a scientific development in law. In a case Baron Parke

observed-"lt appears to me to be of great importance to keep the principle of decision
steadily in view, not merely for the determination of the particular case, but for the
interest of law as a science." In other words, precedents bring logical perfection in law and
put the law in the form of principles.

8) Precedents guide judges and, consequently, they are prevented from committing
errors which they would have committed in the absence of precedents. The law, in
precedents, is laid down after thrashing of the points and argument in great detail.
Therefore, it is of great value to the judges. By following precedents, judges are
prevented from any prejudice and partiality because precedents are binding on them.

73
 By deciding cases on established principles, the confidence of the people in the
judiciary is strengthened.

9) As a matter of policy, decisions, once made on principle should not be departed from
in the ordinary course. When reliance has been placed on a decision and the people
have adjusted their rights and liabilities according to it, they should not be disappointed
by an overruling of such decision. Jessel, M.R., in a case, observed:"Where a series of
decisions of inferior courts have put a construction on an Act of Parliament, and thus,
made a law which men follow in their daily dealings, it has been held, even by the House
of Lords, that it is better to adhere to the course of the decision than to reverse them
because of the mischief which would result from such a proceeding. Of course, that
requires two things, antiquity of decision, and the practice of mankind in conducting their
affairs."

DEMERITS OF THE DOCTRINE:

1) There is always a possibility of overlooking authorities. The vastly increasing
number of the cases has an overwhelming effect on the judge and the lawyer. It is very
difficult to trace out all the relevant authorities on every point. There are instances
where a decision might have been different if some precedent would not have been
overlooked.

2) Sometimes, the conflicting decisions of superior tribunal throw the judge of a

lower court on the horns of a dilemma. The courts are faced with what an English
judge called "complete fog of authorities". Though there are rules for such
contingencies, they are not of much help. The provision is that the lower court should
choose between the two conflicting decisions of a superior court. But this makes law
uncertain, depending on the individual interpretation and discretion.
3) A great demerit of the doctrine of precedent is that the development of law depends on
the incidents of litigation. Sometimes, most important points may remain
unadjudicated because nobody brought action uponthem.

4) A very grave demerit, or, rather an anomaly, of the doctrine of precedent is that,
sometimes, an extremely erroneous decision is established as law due to not being
brought before a superior court. This is followed in later cases because courts do not
allow the reopening of a question. Thus, it becomes a settled practice, and if, later on a
point is brought before a superior court in a case, it is obliged to approve it on the
principle "that it is not necessary or advisable to disturb a fixed practice which has
been long observed in regard to the disposition of property, even though it may have
been disapproved at times by individual judges, where no real point of principle has been
related".

In India, the judgment rendered by Supreme Court is binding on all the subordinate courts,
High Courts and the tribunals within the territory of the country. In case of a judgment
rendered by the High Court, it is binding in nature to the subordinate courts and the tribunals
within its jurisdiction. In other territories, a High Court judgment only has a persuasive
value. In Indo-Swiss Time Ltd. v. Umroo, AIR 1981 P&H 213 Full Bench, it was held that
74
“where it is of matching authority, then the weight should be given on the basis of rational
and logical reasoning and we should not bind ourselves to the mere fortuitous circumstances
of time and death”. Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held
that when there is an inconsistency in decision between the benches of the same court, the
decision of the larger bench should be followed.

What is the meaning of Precedent as a source of law?

Till the 19th Century, Reported Court Precedents were probably followed by the
courts. However, after 19th century, courts started to believe that precedence not only has
great authority but must be followed in certain circumstances. William Searle Holdsworth
supported the pre-19th century meaning of the precedence. However, Goodheart supported the
post-19th century meaning.

Declaratory Theory of Precedence- This theory holds that judges do not create or change the
law, but they ‘declare’ what the law has always been. This theory believes that the Principles
of Equity have their origin in either customs or legislation. However, critics of this theory say
that most of the Principles of Equity have been made by the judges and hence, declaratory
theory fails to take this factor into regard.

Types of Precedents

1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or
not. They are classified as Legal Sources.

2. Persuasive Precedent- Judges are under no obligation to follow but which they will take
precedence into consideration and to which they will attach such weight as it seems proper to
them. They are classified as Historical Sources.

Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent.

There are circumstances that destroy the binding force of the precedent:

1. Abrogated Decision- A decision when abrogated by a statutory law.

2. Affirmation or reversal by a different ground- The judgment rendered by a lower court

loses its relevance if such a judgment is passed or reversed by a higher court.

3. Ignorance of Statute- In such cases, the decision loses its binding value.

4. Inconsistency with earlier decisions of High Court

5. Precedent that is sub-silentio or not fully argued.

6. Decision of equally divided courts- Where there is neither a majority nor a minority
judgment.

7. Erroneous Decision

Custom as a Source of Law

75
What is Custom? Custom may be defined as the uniformity of conduct of
people under like circumstances.

Those patterns of human behaviour which receive universal acceptance and recognition are
called sage and when in the course of time they get established, they are called customs.

In the Tanistry case custom is described as "It is just non-scriptum and made by the people in
respect of the place where the custom obtains. For where the people find any act to be good
and beneficial and apt and agreeable to their nature and disposition, they use and practise it
from time to time, and it is by frequent Iiteration and multiplication of this act that the
custom is made and being used. From time in which custom is made and being used to time in
which memory runneth not to the contrary obtains the force of law.

Herbert Spencer points out "Before any definite agency for social control is developed there
exists a control arising partly from the public opinion of the living, and more largely from
the public opinion of the dead". Thus, it is tradition passing on from one generation to another
that originally governed human conduct. This tradition is custom.

According to Halsbury's Law of England "A custom is a particular rule which has existed
either actually or presumptively from time immemorial, and has obtained the force of law
in a particular locality, although contrary to or not consistent with the general common law of
the realm".

CLASSIFICATION OF CUSTOMS:
Customs

Customs Having Sanction Customs without

Sanction

The customs in the wider sense can be classified as follows-

Customs without Sanction: Customs without sanction are those customs, which are non-
obligatory. They are observed due to the pressure of public opinion.

Customs having Sanction: Customs having sanction are those customs, which are enforced
by the state. These are the customs with which we are concerned. These can be divided into two
parts-

i) Legal Customs.
ii) Conventional Customs.

Legal Customs: Legal Customs operate as a binding rule of law and have been recognized
by the courts and have become a part of the law of land. These customs are enforced by

76
 courts and can further be classified as follows-

a) General Customs: General customs are those customs which prevail throughout
the territory of the state, though the customs which are treated to be part of law of the land
are general legal customs.

b) Local Customs: Local customs are those customs which apply to a defined locality
i.e. to a particular district or town. These can be classified as follows -

Geographical
/ Local.
Personal /
Local
Customs.

Salmond said that ‘Custom is the embodiment of those principles which have commended
themselves to the national conscience as the principles of justice and public utility’.

Keeton said that “Customary laws are those rules of human action, established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by
the courts and applied as a source of law because they are generally followed by the political
society as a whole or by some part of it”.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.

3. Law formulated by doctrinal writings and scientific discussions of legal principles.

Historical School of Jurisprudence- Von Savigny considered that customary law, i.e. “law
which got its content from habits of popular action recognized by courts, or from habits of
judicial decision, or from traditional modes of juristic thinking”, was merely an expression of
the jural ideas of the people, of a people’s conviction of right – of its ideas of right and of
rightful social control.

However, it is the Greek historical School that is considered as the innovator of custom as
source of law. Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true
human association becomes a real and living entity animated by its own individual soul”.
Henry Maine believed that custom is the only source of law. He said that “Custom is a
conception posterior to that of themestes or judgment.”

Ingredients of Custom

1. Antiquity

77
2. Continuous in nature.

3. Peaceful Enjoyment

4. Obligatory Force

5. Certainty

6. Consistency

7. Reasonableness

Antiquity:
In order to be legally valid customs should have been in existence for a long time, even
beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England
has been fixed for the determination of validity of customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have been enjoyed
without any kind of interruption. Long intervals and disrupted practice of a raise doubts about
the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It should not
have been practised secretly. Acustom must be proved to be a matter of right. A mere
doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom, to be valid,
should be based on rationality and reason. If a custom is likely to cause more inconvenience
and mischief than convenience, such a custom will not be valid.

Morality:
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts
have declared many customs as invalid as they were practised for immoral purpose or were
opposed to public policy.

Status with regard to:

In any modern State, when a new legislation is enacted, it is generally preferred to the
custom. Therefore, it is imperative that a custom must not be opposed or contrary to
legislation. Many customs have been abrogated by laws enacted by the legislative bodies. For
instance, the customary practice of child marriage has been declared as an offence.

When Does A Custom Become Law: To answer this question two views have been given by
the jurists on this point, which are contrary to each other.

The view of Austin and Gray is that a custom becomes law after its recognition by the
Sovereign. Austin says that custom is a source of law; it itself is not law. His definition of
law that it is a command of the Sovereign does not allow the customs to be included in law.
A custom is not a 'positive law' unless it is so declared by the court, or, in other words, it is
not law until it has received judicial recognition or it has been embodied in some statute.

78
 According to Savigny, who is the founder of this school, custom is per se law. A custom
carries its justification on itself. They are based on the opinion of the people and national
character. They embody those principles of justice which society recognises. He says custom
is the badge and not a ground of origin of positive law.
According to historical school, custom is law independent of any declaration or
recognition by the State. The State has no discretion or power over them except to accept
them.

Conclusion: Customs lie in the foundation of all legal systems. They came into existence
with the existence of the society. The customs are the basis of most of the laws, but at the
same times, Judges, Jurists and Legislatures have played a very vital role in moulding them.

Interpretation of statutes

The term has been derived from the Latin term ‘interpretari’, which means to explain,
expound, understand, or to translate. Interpretation is the process of explaining, expounding
and translating any text or anything in written form. This basically involves an act of
discovering the true meaning of the language which has been used in the statute. Various
sources used are only limited to explore the written text and clarify what exactly has been
indicated by the words used in the written text or the statutes. Interpretation of statutes is
the correct understanding of the law. This process is commonly adopted by the courts for
determining the exact intention of the legislature. Because the objective of the court is not
only merely to read the law but is also to apply it in a meaningful manner to suit from case to
case. It is also used for ascertaining the actual connotation of any Act or document with the
actual intention of the legislature. There can be mischief in the statute which is required to be
cured, and this can be done by applying various norms and theories of interpretation which
might go against the literal meaning at times. The purpose behind interpretation is to clarify
the meaning of the words used in the statutes which might not be that clear. According
to Salmond, “Interpretation” is the process by which the court seeks to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is
expressed.

Construction meaning

In simple words, construction is the process of drawing conclusions of the subjects

which are beyond the direct expression of the text. The courts draw findings after analysing
the meaning of the words used in the text or the statutes. This process is known as legal
exposition. There are a certain set of facts pending before the court and construction is the
application of the conclusion of these facts. The objective is to assist the judicial body in
determining the real intention of the legislature. Its aim is also to ascertain the legal effect of
the legal text.

79
 Difference between Interpretation and Construction

Interpretation Construction

1. Construction, on the other hand, refers

1. In law, interpretation refers to exposing
to drawing conclusions from the written
the true sense of the provisions of the
texts which are beyond the outright
statutes and to understand the exact
expression of the legal text.
meaning of the words used in any text.
2. The purpose of construction is to
2. Interpretation refers to the linguistic
determine the legal effect of words and
meaning of the legal text.
the written text of the statute.
3. In the case where the simple meaning of
3. In the case where the literal meaning of
the text is to be adopted then the concept
the legal text results in ambiguity then
of interpretation is being referred to.
the concept of construction is adopted.

Classification of Statutes

Codified statutory law can be categorized as follows-

Codifying statutes: - The purpose of this kind of statute is to give an authoritative statement
of the rules of the law on a particular subject, which is customary laws. For example- The
Hindu Marriage Act, 1955 and The Hindu Succession Act, 1956.

Consolidating statutes: - This kind of statute covers and combines all law on a particular
subject at one place which was scattered and lying at different places. Here, the entire law is
constituted in one place. For example- Indian Penal Code or Code of Criminal Procedure.

Declaratory statutes: - This kind of statute does an act of removing doubts, clarifying and
improving the law based on the interpretation given by the court, which might not be suitable
from the point of view of the parliament. For example- the definition of house property has
been amended under the Income Tax (Amendment) Act, 1985 through the judgment of the
supreme court.

Remedial statutes: - Granting of new remedies for enforcing one’s rights can be done
through the remedial statutes. The purpose of these kinds of statutes is to promote the general
welfare for bringing social reforms through the system. These statutes have liberal
interpretation and thus, are not interpreted through strict means. For example- The Maternity
Benefits Act, 1961, The Workmen’s Compensation Act, 1923 etc.

80
Enabling statutes: - The purpose of this statute is to enlarge a particular common law. For
example- Land Acquisition Act enables the government to acquire the public property for the
purpose of the public, which is otherwise not permissible.

Disabling statutes: - It is the opposite of what is provided under the enabling statute. Here
the rights conferred by common law are being cut down and are being restrained.

Penal statutes: - The offences for various types of offences are provided through these
statutes, and these provisions have to be imposed strictly. For example- Indian Penal Code,
1860.

Taxing statutes: - Tax is a form of revenue which is to be paid to the government. It can
either be on income that an individual earns or on any other transaction. A taxing statute thus,
levies taxes on all such transactions. There can be income tax, wealth tax, sales tax, gift tax,
etc. Therefore, a tax can be levied only when it has been specifically expressed and provided
by any statute.

Explanatory statutes: - The term explanatory itself indicates that this type of statute
explains the law and rectifies any omission left earlier in the enactment of the statutes.
Further, ambiguities in the text are also clarified and checked upon the previous statutes.

Amending statutes: - The statutes which operate to make changes in the provisions of the
enactment to change the original law for making an improvement therein and for carrying out
the provisions effectively for which the original law was passed are referred to as amending
statutes. For example- Code of Criminal Procedure 1973 amended the code of 1898.

Repealing statutes: - A repealing statute is one which terminates an earlier statute and may
be done in the express or explicit language of the statute. For example- Competition Act,
2002 repealed the MRTP Act.

Curative or repealing statutes: - Through these statutes, certain acts which would otherwise
be illegal are validated by curing the illegality and enables a particular line of action.

Rules of Interpretation

Literal or Grammatical Rule

It is the first rule of interpretation. According to this rule, the words used in this text are to be
given or interpreted in their natural or ordinary meaning. After the interpretation, if the
meaning is completely clear and unambiguous then the effect shall be given to a provision of

81
a statute regardless of what may be the consequences. The basic rule is that whatever the
intention legislature had while making any provision it has been expressed through words and
thus, are to be interpreted according to the rules of grammar. It is the safest rule of
interpretation of statutes because the intention of the legislature is deduced from the words
and the language used. According to this rule, the only duty of the court is to give effect if the
language of the statute is plain and has no business to look into the consequences which
might arise. The only obligation of the court is to expound the law as it is and if any harsh
consequences arise then the remedy for it shall be sought and looked out by the legislature.

Case Laws

Maqbool Hussain v. State of Bombay, In this case, the appellant, a citizen of India after
arriving at the airport did not declare that he was carrying gold with him. During his search
was carried on, gold was found in his possession as it was against the notification of the
government and was confiscated under section 167(8) of Sea Customs Act.

Later on, he was also charged under section 8 of the Foreign Exchange Regulations Act,
1947. The appellant challenged this trial to be violative under Article 20(2) of the Indian
Constitution. According to this article, no person shall be punished or prosecuted more than
once for the same offence. This is considered as double jeopardy.

It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus,
accordingly, he was not prosecuted earlier. Hence, his trial was held to be valid.

Manmohan Das versus Bishan Das, AIR 1967 SC 643

The issue in the case was regarding the interpretation of section 3(1)(c) of U.P Control of
Rent and Eviction Act, 1947. In this case, a tenant was liable for evidence if he has made
addition and alternate in the building without proper authority and unauthorized perception as
materially altered the accommodation or is likely to diminish its value. The appellant stated
that only the constitution can be covered, which diminishes the value of the property and the
word ‘or’ should be read as land.

It was held that as per the rule of literal interpretation, the word ‘or’ should be given the
meaning that a prudent man understands the grounds of the event are alternative and not
combined.

State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1) 317, in this case a
person was caught along with the counterfeit currency “dollars” and he was charged under
section 120B, 498A, 498C and 420 read with section 511 and 34 of Indian Penal Code for
possessing counterfeit currency. The accused contended before the court that a charge under
section 498A and 498B of Indian Penal Code can only be levied in the case of counterfeiting

82
of Indian currency notes and not in the case of counterfeiting of foreign currency notes. The
court held that the word currency notes or bank note cannot be prefixed. The person was held
liable to be charge-sheeted.

The Mischief Rule

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive
construction because the purpose of this statute is most important while applying this rule. It
is known as Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584. It is
called as mischief rule because the focus is on curing the mischief.

In the Heydon’s case, it was held that there are four things which have to be followed for true
and sure interpretation of all the statutes in general, which are as follows-

1. What was the common law before the making of an act.

2. What was the mischief for which the present statute was enacted.
3. What remedy did the Parliament sought or had resolved and appointed to cure the
disease of the commonwealth.
4. The true reason of the remedy.

The purpose of this rule is to suppress the mischief and advance the remedy.

Case laws

Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting
in the streets of London and it was creating a huge problem in London. This was causing a
great problem in maintaining law and order. To prevent this problem, Street Offences Act,
1959 was enacted. After the enactment of this act, the prostitutes started soliciting from
windows and balconies. Further, the prostitutes who were carrying on to solicit from the
streets and balconies were charged under section 1(1) of the said Act. But the prostitutes
pleaded that they were not solicited from the streets. The court held that although they were
not soliciting from the streets yet the mischief rule must be applied to prevent the soliciting
by prostitutes and shall look into this issue. Thus, by applying this rule, the court held that the
windows and balconies were taken to be an extension of the word street and charge sheet was
held to be correct.

Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the sweeten
supari which was sweetened with the help of an artificial sweetener. He was prosecuted under
the Food Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The
court held that the dictionary meaning is not always the correct meaning, thereby, the
mischief rule must be applicable, and the interpretation which advances the remedy shall be

83
taken into consideration. Therefore, the court held that the word ‘food’ is consumable by
mouth and orally. Thus, his prosecution was held to be valid.

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised
the corporation to round up the cattle grazing on the government land. The MCD rounded up
the cattle belonging to Kanwar Singh. The words used in the statute authorised the
corporation to round up the abandoned cattle. It was contended by Kanwar Singh that the
word abandoned means the loss of ownership and those cattle which were round up belonged
to him and hence, was not abandoned. The court held that the mischief rule had to be applied
and the word abandoned must be interpreted to mean let loose or left unattended and even
the temporary loss of ownership would be covered as abandoned.

Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR

1962 SC 1526, Issue, in this Case, was that the respondent concerned was running a factory
where four units were for manufacturing. Out of these four units one was for paddy mill,
other three consisted of flour mill, saw mill and copper sheet units. The number of employees
there were more than 50. The RPFC applied the provisions of Employees Provident Fund
Act, 1952 thereby directing the factory to give the benefits to the employees. The person
concerned segregated the entire factory into four separate units wherein the number of
employees had fallen below 50, and he argued that the provisions were not applicable to him
because the number is more than 50 in each unit. It was held by the court that the mischief
rule has to be applied and all the four units must be taken to be one industry, and therefore,
the applicability of PFA was upheld.

The Golden Rule

It is known as the golden rule because it solves all the problems of interpretation. The
rule says that to start with we shall go by the literal rule, however, if the interpretation given
through the literal rule leads to some or any kind of ambiguity, injustice, inconvenience,
hardship, inequity, then in all such events the literal meaning shall be discarded and
interpretation shall be done in such a manner that the purpose of the legislation is fulfilled.
The literal rule follows the concept of interpreting the natural meaning of the words used in
the statute. But if interpreting natural meaning leads to any sought of repugnance, absurdity
or hardship, then the court must modify the meaning to the extent of injustice or absurdity
caused and no further to prevent the consequence. This rule suggests that the consequences
and effects of interpretation deserve a lot more important because they are the clues of the
true meaning of the words used by the legislature and its intention. At times, while applying
this rule, the interpretation done may entirely be opposite of the literal rule, but it shall be
justified because of the golden rule. The presumption here is that the legislature does not
intend certain objects. Thus, any such interpretation which leads to unintended objects shall
be rejected.
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Case laws

Tirath Singh v. Bachittar Singh, AIR 1955 SC 850

In this case, there was an issue with regard to issuing of the notice under section 99 of
Representation of People’s Act, 1951, with regard to corrupt practices involved in the
election. According to the rule, the notice shall be issued to all those persons who are a party
to the election petition and at the same time to those who are not a party to it. Tirath Singh
contended that no such notice was issued to him under the said provision. The notices were
only issued to those who were non-parties to the election petition. This was challenged to be
invalid on this particular ground. The court held that what is contemplated is giving of the
information and the information even if it is given twice remains the same. The party to the
petition is already having the notice regarding the petition; therefore, section 99 shall be so
interpreted by applying the golden rule that notice is required against non-parties only.

State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276, Issues of
the case are as follows. A transporting company was carrying a parcel of apples was
challenged and charge-sheeted. The truck of the transporting company was impounded as the
parcel contained opium along with the apples. At the same time, the invoice shown for the
transport consisted of apples only. Section 11 of the opium act 1878, all the vehicles which
transport the contraband articles shall be impounded and articles shall be confiscated. It was
confiscated by the transport company that they were unaware of the fact that opium was
loaded along with the apples in the truck. The court held that although the words contained
in section 11 of the said act provided that the vehicle shall be confiscated but by applying the
literal rule of interpretation for this provision it is leading to injustice and inequity and
therefore, this interpretation shall be avoided. The words ‘shall be confiscated’ should be
interpreted as ‘may be confiscated’.

State of Punjab v. Quiser Jehan Begum, AIR 1963 SC 1604, a period of limitation was
prescribed for, under section 18 of land acquisition act, 1844, that an appeal shall be filed for
the announcement of the award within 6 months of the announcement of the compensation.
Award was passed in the name of Quiser Jehan. It was intimated to her after the period of six
months about this by her counsel. The appeal was filed beyond the period of six months. The
appeal was rejected by the lower courts. It was held by the court that the period of six months
shall be counted from the time when Quiser Jehan had the knowledge because the
interpretation was leading to absurdity. The court by applying the golden rule allowed the
appeal

Harmonious Construction

According to this rule of interpretation, when two or more provisions of the same statute
are repugnant to each other, then in such a situation the court, if possible, will try to construe
the provisions in such a manner as to give effect to both the provisions by maintaining

85
harmony between the two. The question that the two provisions of the same statute are
overlapping or mutually exclusive may be difficult to determine. The legislature clarifies its
intention through the words used in the provision of the statute. So, here the basic principle of
harmonious construction is that the legislature could not have tried to contradict itself. In the
cases of interpretation of the Constitution, the rule of harmonious construction is applied
many times. It can be assumed that if the legislature has intended to give something by one, it
would not intend to take it away with the other hand as both the provisions have been framed
by the legislature and absorbed the equal force of law. One provision of the same act cannot
make the other provision useless. Thus, in no circumstances, the legislature can be expected
to contradict itself.

Cases –

Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, in this case, the State Government
proposed to acquire sugar industries under U.P Sugar Undertakings (Acquisition) Act, 1971.
This was challenged on the ground that these sugar industries were declared to be a
controlled one by the union under Industries (Development and Regulation) Act, 1951. And
accordingly, the state did not have the power of acquisition of requisition of property which
was under the control of the union. The Supreme Court held that the power of acquisition was
not occupied by Industries (Development and Regulation) Act, 1951. The state had a
separate power under Entry 42 List III.

M.S.M Sharma v. Krishna Sinha, AIR 1959 SC 395.

Facts of the case are as follows- Article 19(1)(a) of the Constitution provides for freedom of
speech and expression. Article 194(3) provides to the Parliament for punishing for its
contempt and it is known as the Parliamentary Privilege. In this case, an editor of a
newspaper published the word -for- word record of the proceedings of the Parliament
including those portions which were expunged from the record. He was called for the breach
of parliamentary privilege. He contended that he had a fundamental right to speech and
expression. It was held by the court that article 19(1)(a) itself talks about reasonable freedom
and therefore freedom of speech and expression shall pertain only to those portions which
have not been expunged on the record but not beyond that.

Conclusion

Every nation has its own judicial system, the purpose of which to grant justice to all.
The court aims to interpret the law in such a manner that every citizen is ensured justice to
all. To ensure justice to all the concept of canons of interpretation was expounded. These are
the rules which are evolved for determining the real intention of the legislature.

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It is not necessary that the words used in a statute are always clear, explicit and unambiguous
and thus, in such cases it is very essential for courts to determine a clear and explicit meaning
of the words or phrases used by the legislature and at the same time remove all the doubts if
any. Hence, all the rules mentioned in the article are important for providing justice.

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 UNIT-6

ADMINISTRATION OF JUSTICE

a. Salmond- Salmond said that the ‘Definition of law itself reflects that Administration of
Justice has to be done by the state on the basis of rules and principles recognized’.

b. Roscoe Pound- He believed that it is the court who has to administer justice in a state.
Both, Roscoe Pound and Salmond emphasized upon the Courts in propounding law.
However, Roscoe Pound stressed more on the role of courts whereas Salmond stressed more
on the role of the State.

B. Administration of Justice- There are two essential functions of every State:

a. War
b. Administration of Justice

Theorists have said that that if a state is not capable of performing the above mentioned
functions, it is not a state. Salmond said that the Administration of Justice implies
maintenance of rights within a political community by means of the physical force of the
state. However orderly society may be, the element of force is always present and operative.
It becomes latent but it still exists. Also, in a society, social sanction is an effective
instrument only if it is associated with and supplemented by concentrated and irresistible
force of the community. Social Sanction cannot be a substitute for the physical force of the
state.

Origin and Growth of the concept of Administration of Justice

It is the social nature of men that inspires him to live in a community. This social nature of
men demands that he must reside in a society. However, living in a society leads to conflict
of interests and gives rise to the need for Administration of Justice. This is considered to be
the historical basis for the growth of administration of justice. Once the need for
Administration of Justice was recognized, the State came into being. Initially, the so called
State was not strong enough to regulate crime and impart punishment to the criminals. During
that point of time, the law was one of Private Vengeance and Self-Help. In the next phase of
the development of Administration of Justice, the State came into full-fledged existence.
With the growth in the power of the state, the state began to act like a judge to assess liability
and impose penalty on the individuals. The concept of Public Enquiry and Punishment
became a reality. Thus, the modern Administration of Justice is a natural corollary to the
growth in the power of the political state.

C. Advantages and Disadvantages of Legal Justice

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a. Advantages of Legal Justice

i. Uniformity and Certainty- Legal Justice made sure that there is no scope of arbitrary
action and even the judges had to decide according to the declared law of the State. As law is
certain, people could shape their conduct accordingly.
ii. Legal Justice also made sure that the law is not for the convenience of a particular special
class. Judges must act according to the law. It is through this that impartiality has been
secured in the Administration of Justice. Sir Edward Coke said that the wisdom of law is
wiser than any man’s wisdom and Justice represents wisdom of the community.

b. Disadvantages of Legal Justice

i. It is rigid. The rate of change in the society is always more rapid than the rate of change in
the Legal Justice.

ii. Legal Justice is full of technicalities and formalities.

iii. Legal Justice is complex. Our society is complex too. Thus, to meet the needs of the
society, we need complex laws.

iv. Salmond said that ‘law is without doubt a remedy for greater evils yet it brings with it
evils of its own’.

D. Classification of Justice- It can be divided into two parts

a. Private Justice- This is considered to be the justice between individuals. Private Justice is
a relationship between individuals. It is an end for which the court exists. Private persons are
not allowed to take the law in their own hands. It reflects the ethical justice that ought to exist
between the individuals.

b. Public Justice- Public Justice administered by the state through its own tribunals and
courts. It regulates the relationship between the courts and individuals. Public Justice is the
means by which courts fulfil that ends of Private Justice.

E. Concept of Justice According to Law

Justice is rendered to the people by the courts. Justice rendered must always be in
accordance with the law. However, it is not always justice that is rendered by the courts. This
is because the judges are not legislators, they are merely the interpreters of law. It is not the
duty of the court to correct the defects in law. The only function of the judges is to administer
the law as made by the legislature. Hence, in the modern state, the administration of justice
according to law is commonly considered as ‘implying recognition of fixed rules’.

F. Civil and Criminal Justice

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 Civil Justice and Criminal follow from Public Justice and Private Justice. Looking
from a practical standpoint, important distinctions lie in the legal consequences of the two.
Civil Justice and Criminal Justice are administered by a different set of courts. A Civil
Proceeding usually results in a judgment for damages or injunction or restitution or specific
decree or other such civil reliefs. However, a Criminal Proceeding usually results in
punishment. There are myriad number of punishments ranging from hanging to fine to
probation. Therefore, Salmond said that ‘the basic objective of a criminal proceeding is
punishment and the usual goal of a civil proceeding is not punitive’.

G. Theories of Punishment
a. Deterrent Theory- Salmond said that the deterrent aspect of punishment is extremely
important. The object of punishment is not only to prevent the wrongdoer from committing
the crime again but also to make him an example in front of the other such persons who have
similar criminal tendencies.

The aim of this theory is not to seek revenge but terrorize people. As per this theory, an
exemplary punishment should be given to the criminal so that others may take a lesson from
his experience.

Even in Manu Smriti, the Deterrent Theory is mentioned. Manu said “Penalty keeps the
people under control, penalty protects them, and penalty remains awake when people are
asleep, so the wise have regarded punishment as the source of righteousness”. However,
critics believe that deterrent effect not always leads to a decrease in crime.

b. Preventive Theory- This theory believes that the object of punishment is to prevent or
disable the wrongdoer from committing the crime again. Deterrent theory aims at giving a
warning to the society at large whereas under Preventive Theory, the main aim is to disable
the wrongdoer from repeating the criminal activity by disabling his physical power to commit
crime.

c. Reformative Theory- This theory believes that Punishment should exist to reform the
criminal. Even if an offender commits a crime, he does not cease to be a human being. He
might have committed the crime under circumstances which might never occur again. Thus,
the main object of Punishment under Reformative theory is to bring about a moral reform in
the offender. Certain guidelines have been prescribed under this theory.

i. While awarding punishment, the judge should study the characteristics and the age of the
offender, his early breeding, the circumstances under which he has committed the offence
and the object with which he has committed the offence.

ii. The object of the above mentioned exercise is to acquaint the judge with the exact nature
of the circumstances so that he may give a punishment which suits those circumstances.

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iii. Advocates of this theory say that by sympathetic, tactful and loving treatment of the
offenders, a revolutionary change may be brought about in their character. However, the
Critics say that Reformative Theory alone is not sufficient, there must be a mix of Deterrent
Theory and Reformative Theory in order to be successful. Critics believe that in a situation of
deadlock between the two theories, the Deterrent Theory must prevail.

Distinction between Deterrent Theory and Reformative Theory

1. Reformative Theory stands for the reformation of the convict but the Deterrent Theory
aims at giving exemplary punishment so that the others are deterred from following the same
course of action.

2. Deterrent Theory does not lead to a reformation of the criminal as it imposes harsh
punishments. Whereas, Reformative Theory believes that if harsh punishment is inflicted on
the criminals, there will be no scope for reform.

3. Deterrent Theory believes that the punishment should be determined by the character of
the crime. Thus, too much emphasis is given on the crime and too little on the criminal.
However, Reformative Theory takes into consideration the circumstances under which an
offence was committed. Reformative Theory further believes that every effort should be
made to give a chance to the criminal to improve his conduct in the future.

d. Retributive Theory- In primitive societies, the punishment was mostly retributive in

nature and the person wronged was allowed to have his revenge against the wrongdoer. The
principle was “an eye for an eye”. This principle was recognized and followed for a long
time. Retributive theory believes that it is an end in itself, apart from a gain to the society and
the victim, the criminal should meet his reward in equivalent suffering.

e. Theory of Compensation- This theory believes that punishment should not only be to
prevent further crime but it should also exist to compensate the victim who has suffered at the
hands of the wrongdoer. However, critics say that this theory is not effective in checking the
rate of crime. This is because the purpose behind committing a crime is always economic in
nature. Asking the wrongdoer to compensate the victim will not always lower the rate of
crime though it might prove beneficial to the victim. Under this theory, the compensation is
also paid to the persons who have suffered from the wrongdoing of the government.

H. Kinds of Punishment

a. Capital Punishment- This is one of the oldest form of punishments. Even our IPC
prescribes this punishment for certain crimes. A lot of countries have either abolished this
punishment or are on their way to abolish it. Indian Judiciary has vacillating and indecisive
stand on this punishment. There have been plethora of cases where heinous and treacherous
crime was committed yet Capital Punishment was not awarded to the criminal.

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b. Deportation or Transportation- This is also a very old form of punishment. It was
practised in India during the British Rule. The criminal is put in a secluded place or in a
different society. Critics of this punishment believe that the person will still cause trouble in
the society where he is being deported.

c. Corporal Punishment- Corporal punishment is a form of physical punishment that

involves the deliberate infliction of pain on the wrongdoer. This punishment is abolished in
our country but it exists in some Middle Eastern Countries. Critics say that it is highly
inhuman and ineffective.

d. Imprisonment- This type of punishment serves the purpose of three theories, Deterrent,
Preventive and Reformative.

i. Under Deterrent Theory, it helps in setting an example.

ii. It disables the offender from moving outside, thus serving the purpose of Preventive
Theory.

iii. If the government wishes to reform the prisoner, it can do so while the person is serving
his imprisonment, thus serving the purpose of Reformative Theory.

e. Solitary Confinement- Solitary confinement is a form of imprisonment in which a

prisoner is isolated from any human contact. It is an aggravated form of punishment. It is said
that it fully exploits and destroys the sociable nature of men. Critics say that it is inhuman
too.

f. Indeterminate Sentence- In such a sentence, the accused is not sentenced for any fixed
period. The period is left indeterminate while awarding and when the accused shows
improvement, the sentence may be terminated. It is also reformative in nature.

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 UNIT-7

JURISTIC CONCEPTS

LEGAL RIGHTS AND DUTIES

Legal rights are, clearly, rights which exist under the rules of legal systems or by
virtue of decisions of suitably authoritative bodies within the. According to positivists, legal
rights are essentially those interests which have been legally recognized and protected. John
Austin made a distinction between legal rights and other types of rights such as Natural rights
or Moral rights. By legal rights, he meant rights which are creatures of law, strictly or simply
so called. He said that other kind of rights are not armed with legal sanction and cannot be
enforced judicially. On the other hand, Salmond said that a legal right is an interest
recognized and protected by rule of law and violation of such an interest would be a legal
wrong. Salmond further said that:

1. A legal duty is an act that obliges to do something and act, the opposite of which would be
a legal wrong.
2. Whenever law ascribes duty to a person, a corresponding right also exists with the person
on whom the duty is imposed.
3. There are two kinds of duties: Moral Duty and Legal Duty.
4. Rights are said to be the benefits secured for persons by rules regulating relationships.

Salmond also believed that no right can exist without a corresponding duty. Every
right or duty involves a bond of legal obligation by which two or more persons are bound
together. Thus, there can be no duty unless there is someone to whom it is due; there can be
no right unless is someone from whom it is claimed; and there can be no wrong unless there
is someone who is wronged, that is to say, someone whose right has been violated. This is
also called as vinculum juris which means “a bond of the law”. It is a tie that legally binds
one person to another.

On the other hand, Austin said that Duties can be of two types:

a. Relative Duty – There is a corresponding right existing in such duties.

b. Absolute Duty – There is no corresponding right existing.

Austin conceives this distinction to be the essence of a right that it should be vested in
some determinate person and be enforceable by some form of legal process instituted by him.
Austin thus starts from the assumption that a right cannot vest in an indeterminate, or a vague
entity like the society or the people. The second assumption with which Austin starts is that
sovereign creates rights and can impose or change these rights at its will. Consequently, the
sovereign cannot be the holder of such rights.

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According to Salmond, there are five important characteristics of a Legal Right.

1. It is vested in a person who may be distinguished as the owner of the right, the subject of
it, the person entitled, or the person of inherence.

2. It avails against a person, upon whom lies the correlative duty. He may be distinguished as
the person bound, or as the subject of duty, or as the person of incidence.

3. It obliges the person bound to an act or omission in favour of the person entitled. This may
be termed the content of the right.

4. The act or omission relates to something (in the widest sense of that word), which may be
termed the object or subject matter of the right.

5. Every legal right has a title, that is to say, certain facts or events by reason of which the
right has become vested in its owner.

Some jurists hold that a right may not necessarily have a correlative duty. They say that legal
rights are legal concepts and these legal concepts have their correlatives which may not
necessarily be a duty. Roscoe Pound also gave an analysis of such legal conceptions. He
believed that legal rights are essentially interests recognized and administered by law and
belong to the ‘science of law’ instead of ‘law’. He proposed that such Rights are conceptions
by which interests are given form in order to secure a legal order.

Hohfeld’s System of Fundamental Legal Concepts or Jural Relations

1 2 3 4

Right Privilege Power Immunity

Jural Opposites – – – –

No Right Duty Disability Liability

Jural Correlatives Right Privilege- Power Immunity

– – – –

Duty No Right Liability Disability

Jural Correlatives represent the presence of in another. Thus, right is the presence of duty in
another and liability is the presence of power in another.

Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right in
oneself and disability is the absence of power in oneself.

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Conclusion derived from Hohfeld’s System

a. As a person’s right is an expression of a wish that the other person against whom the right
or claim is expressed has a duty to obey his right or claim.

b. A person’s freedom is an expression of a right that he may do something against other

person to change his legal position.
c. A person’s power is an expression of a right that he can alter other person’s legal position.

d. A person’s disability is an expression of a wish that another person must not alter the
person’s legal position.

Salmond on Rights and Duties

Salmond said that a perfect right is one which corresponds to a perfect duty and a
perfect duty is one which is not merely recognized by law but also enforced by law. In a fully
developed legal system, there are rights and duties which though recognized by law are not
perfect in nature. The rights and duties are important but no action is taken for enforcing
these rights and duties. The rights form a good ground for defence but duties do not form a
good ground for action. However, in some cases, an imperfect right is sufficient to enforce
equity.

Salmond gave following classifications of rights.

1. Positive and Negative Rights

2. Real and Personal Rights
3. Right in rem and right in personam
4. Proprietary and Personal Rights
5. Inheritable and Uninheritable Rights
Salmond’s Classification of Positive and Negative Rights

Positive Rights Negative Rights

1 A positive right corresponds to a
corresponding duty and entitles its
owners to have something done for him
without the performance of which his
enjoyment of the right is imperfect.
2 In the case of positive rights, the person
subject to the duty is bound to do
something.
3 The satisfaction of a positive right
results in the betterment of the position
Negative rights have negative duties
corresponding to them and enjoyment is
complete unless interference takes place.
Therefore, majority of negative rights are
against the entire world.
Whereas, in case of negative rights,
others are restrained to do something.
Whereas in case of a negative right, the
position of the owner is maintained as it

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 of the owner. is.
4 In case of positive rights, the relation
Whereas in case of negative rights, the
between subject and object is mediate relation is immediate, there is no
and object is attained with the help of
necessity of outside help. All that is
others. required is that others should refrain
from interfering case of negative rights.
5 In case of positive rights, a duty is In case of negative rights, the duty is
imposed on one or few individuals. imposed on a large number of persons.

Salmond’s Classification of Real and Personal Rights

Real Rights Personal Rights

1 A real right corresponds to a duty
imposed upon persons in general.
2 A real right is available against the
whole world.
3 All real rights are negative rights.
Therefore, a real right is nothing more
than a right to be left alone by others. It
is merely a right to their passive non-
interference.
In real right, the relation is to a thing.
Real rights are derived from some
special relation to the object.
4 Real rights are right in rem.
A personal right corresponds to a duty
imposed upon determinate individuals.
A personal right is available only against a
particular person.
Most personal rights are positive rights
although in a few exceptional cases they are
negative.
In personal right, it is the relation to other
persons who owe the duties which is
important. Personal rights are derived from
special relation to the individual or
individuals under the duty.
Personal rights are right in personam.

Salmond’s Classification of Right in rem and Right in personam

Right in rem Right in personam

1 It is derived from the Roman term ‘actio It is derived from the Roman term
in rem’. An action in rem was an action ‘action in personam’. An action in
for the recovery of dominium. personam was one for the enforcement
of obligato i.e. obligation.
2 The right protected by an action in rem A right protected by action in personam
came to be called jus in rem. came to be called as jus in personam.
3 Jus in rem means a right against or in Jus in personam means a right against or
respect of a thing. in respect of a person.
4 A right in rem is available against the A right in personam is available against
whole world. a particular individual only.

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Salmond’s Classification of Proprietary and Personal Rights

Proprietary Rights Personal Rights

1 Proprietary rights means a person’s right Personal rights are rights arising out of
in relation to his own property. any contractual obligation or rights that
Proprietary rights have some economic or relate to status.
monetary value.
2 Proprietary rights are valuable. Personal rights are not valuable.
3 Proprietary rights are not residual in Personal rights are the residuary rights
character. which remain after proprietary rights
have been subtracted.
4 Proprietary rights are transferable. Personal rights are not transferable.
5 Proprietary rights are the elements of Personal rights are merely elements of
wealth for man. his well-being.
6 Proprietary rights possess not merely Personal rights possess merely judicial
judicial but also economic importance. importance.

Salmond’s Classification of Inheritable and Uninheritable Rights

Inheritable Rights Uninheritable Rights

A right is inheritable if it survives the A right is uninheritable if it dies with the
owner. owner.

OWNERSHIP

Salmond on Ownership

Ownership denotes the relationship between a person and an object forming the
subject-matter of his ownership. It consists in a complex of rights, all of which are rights in
rem, being good against the entire world and not merely against specific persons.

Incidence of Ownership

1. The owner has the right to possess things that he owns.

2. The owner normally has a right to use or enjoy the thing owned, the right to manage it, the
right to decide how it shall be used and the right of income from it. However, Right to
possess is not a right strictu sensu because such rights are in fact liberties as the owner has no
duty towards others and he can use it in any way he likes and nobody can interfere with the
enjoyment of his ownership.

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3. The owner has the right to consume, destroy or alienate the things. The right to consume
and destroy are again straight forward liberties. The right to alienate i.e. the right to transfer
the existing rights involves the existence of power.

4. Ownership has the characteristic of being ‘indeterminate in duration’ and Ownership has a
residuary character. Salmond contrasted the rights of the owner with the lesser rights of the
possessor and encumbrancer by stating that “the owner's rights are indeterminate and
residuary in a way in which these other rights are not”.

Austin’s Concept of Ownership

Ownership or Property may be described accurately enough, in the following manner:

‘the right to use or deal with some given subject, in a manner, or to an extent, which, though
is not unlimited, is indefinite’. Now in this description it is necessarily implied, that the law
will protect or relieve the owner against every disturbance of his right on the part of any other
person. Changing the expression, all other persons are bound to forbear from acts which
would prevent or hinder the enjoyment or exercise of the right. Austin further said that
“Ownership or Property, is, therefore, a species of Jus in rem. For ownership is a right
residing in a person, over or to a person or thing, and availing against other persons
universally or generally. It is a right implying and exclusively resting upon obligations which
are at once universal and negative”.

Dias on Ownership

After referring to the views of Salmond and other Jurists, Dias came to the conclusion
that a person is owner of a thing when his interest will outlast the interests of other persons in
the same thing. This is substantially the conclusion reached by many modern writers, who
have variously described ownership as the ‘residuary’, the ‘ultimate’, or ‘the most enduring
interest’. According to Dias, an owner may be divested of his claims, etc., to such an extent
that he may be left with no immediate practical benefit. He remains owner nonetheless. This
is because his interest in the thing, which is ownership, will outlast that of other persons, or if
he is not presently exercising any of his claims, etc., these will revive as soon as those vested
in other persons have come to an end. In the case of land and chattels, if the owner is not in
possession, ownership amounts to a better right to obtain the possession than that of the
defendant. It is 'better' in that it lasts longer. It is apparent that the above view of Dias
substantially agrees with that of Salmond. According to Dias it is the outlasting interest and
according to Salmond, ownership has the characteristic of being indeterminate in duration
and residuary in nature.

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 Types of Ownership

Corporeal Ownership Incorporeal Ownership

1. Corporeal Ownership signifies ownership in a 1. Incorporeal Ownership is a right or an interest.
physical object. 2. Incorporeal things cannot be perceived by
2. Corporeal things are things which can be senses and are in tangible.
perceived by senses.
Sole Ownership Co-Ownership
When an individual owns, it is sole ownership When there is more than one person who owns
the property
Trust Ownership Beneficial Ownership
1. There is no co-ownership. 1. There can be co-ownership.
2. The person on whom the responsibility lies for 2. The person for whom the trust is created is
the benefit of the others is called the Trustee. called the Beneficiary.
3. The trustee has no right to the beneficial
enjoyment of the property. 3. The Beneficiary has the full rights to enjoy the
4. Ownership is limited. A trustee is merely an property.
agent upon whom the law has conferred the duty 4. Ownership is complete.
of administration of property.
5. Trusteeship may change hands.
5. Beneficial Owners remain the same.
Legal Ownership Equitable Ownership
Legal ownership is that ownership which has its Equitable ownership comes from equity
basis in common law. divergence of common law. Thus, distinction
between legal and equitable ownership is very
thin.
Vested Ownership Contingent Ownership
1. Ownership is vested when the title is perfect. 1. Ownership is contingent when it is capable of
being perfect after fulfilment of certain
2. Vested ownership is absolute. condition.
2. Contingent ownership becomes vested when
the conditions are fulfilled.
Absolute Ownership Limited Ownership
Ownership is absolute when possession, Limited Ownership is subjected to the limitations
enjoyment, disposal are complete and vested of use, disposal or duration.
without restrictions save as
restriction imposed by law.

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 POSSESSION

Salmond on Possession

Salmond said that in the whole of legal theory there is no conception more difficult
than that of possession. The legal consequences which flow from the acquisition and loss of
possession are many and serious. Possession, for example, is evidence of ownership; the
possessor of a thing is presumed to be the owner of it, and may put all other claimants to
proof of their title. The transfer of possession is one of the chief methods of transferring
ownership. Salmond also said that possession is of such efficacy that a possessor may in
many cases confer a good title on another, even though he has none himself.

He also made a distinction between possession in fact and possession in law.

1. Possession may and usually does exist both in fact and in law. The law recognizes as
possession all that is such in fact, and nothing that is not such in fact, unless there is some
special reason to the contrary.

2. Possession may exist in fact but not in law. Thus the possession by a servant of his
master’s property is for some purposes not recognized as such by the law, and he is then said
to have detention or custody rather than possession.

3. Possession may exist in law but not in fact; that is to say, for some special reason the law
attributed the advantages and results of possession to someone who as a matter of fact does
not possess. The possession thus fictitiously attributed to him is termed constructive In
Roman law, possession in fact is called possessio naturalis, and possession in law as
possessio civilis.

Corporeal and Incorporeal Possession

Corporeal Possession is the possession of a material object and Incorporeal

Possession is the possession of anything other than a material object. Corporeal possession is
termed in Roman law possessio corporis. Incorporeal possession is distinguished as possessio
juris, the possession of a right, just as incorporeal ownership is the ownership of a right.
Salmond further said that “corporeal possession is clearly some form of continuing relation
between a person and a material object. It is equally clear that it is a relation of fact and not
one of right”. What, then, is the exact nature of that continuing de facto relation between a
person and a thing, which is known as possession? According to Salmond, the possession of a
material object is the continuing exercise of a claim to the exclusive use of it. It involves two
distinct elements, one of which is mental or subjective, the other physical or objective. The
mental element comprises of the intention of the possessor with respect to the thing
possessed, while the physical element comprises of the external facts in which this intention
has realised, embodied, or fulfilled itself. The Romans called the mental element as animus
and the subject element as corpus. The mental or subjective element is also called as animus

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possidendi, animus sibi habendi, or animus domini. The Animus Possidendi - The intent
necessary to constitute possession is the intent to appropriate to oneself the exclusive use of
the thing possessed. It is an exclusive claim to a material object. Salmond made following
observations in this regard.

1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use the thing as owner.
4. The animus possidendi need not be a claim on one’s own behalf.
5. The animus possidendi need not be specific, but may be merely general. It does not
necessarily involve any continuous or present knowledge of the particular thing possessed or
of the possessor’s relation to it.

The Corpus Possessionis – The claim of the possessor must be effectively realized in the
facts; that is to say, it must be actually and continuously exercised. The corpus possessionis
consists in nothing more than the continuing exclusion of alien interference, coupled with
ability to use the thing oneself at will. Actual use of it is not essential.

Immediate and Mediate Possession

The possession held by one man through another may be termed mediate, while that
which is acquired or retained directly or personally may be distinguished as immediate or
direct.

There are three kinds of Mediate Possession:

1. Possession that is acquired through an agent or servant who claims no interest of his own.

2. The direct possession is in one who holds both on the actual possessor’s account and on his
own, but who recognizes the actual possessor’s superior right to obtain from him the direct
possession whenever he choose to demand it.

3. The immediate possession is in a person who claims it for himself until some time has
elapsed or some condition has been fulfilled, but who acknowledges the title of another for
whom he holds the thing, and to whom he is prepared to deliver it when his own temporary
claim has come to an end.

Concurrent or Duplicate Possession

1. Mediate and Immediate Possession co-exist in respect of the same thing as already
explained above.
2. Two or more persons may possess the same thing in common, just as they may own it in
common. This also called as compossessio.
3. Corporeal and Incorporeal Possession may co-exist in respect of the same material object,
just as corporeal and incorporeal ownership may.

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Incorporeal Possession
In Incorporeal Possession as well, the same two elements required, namely the animus
and the corpus. In the case of incorporeal things, continuing non-use is inconsistent with
possession, though in the case of corporeal things it is consistent with it. Incorporeal
possession is commonly called the possession of a right, and corporeal possession is
distinguished from it as the possession of a thing. The distinction between corporeal and
incorporeal possession is clearly analogous to that between corporeal and incorporeal
ownership. Corporeal possession, like corporeal ownership, is that of a thing; while
incorporeal possession, like incorporeal ownership, is that of a right. In essence, therefore, the
two forms of possession are identical, just as the two forms of ownership are. Hence,
Possession in its full compass and generic application means the continuing exercise of any
claim or right.

Paton on Possession
Paton said that even though Possession is a concept of law still it lacks a uniform
approach by the jurists. Some jurists make a distinction between legal and lawful possession.
Possession of a thief is legal, but not lawful. In some cases, where possession in the popular
sense is meant, it is easy to use some such term as physical control. Possession is also
regarded as prima facie evidence of Ownership. According to Paton, for English law there is
no need to talk of mediate and immediate possession. The Bailee and the tenant clearly have
full possession: Salmond's analysis may he necessary for some other systems of law, but it is
not needed in English law.

Oliver Wendell Holmes and Von Savigny on Possesion

Savigny with other German thinkers (including Kant and Hegel) argued that
possession, in the eyes of the law, requires that the person claiming possession intend to hold
the property in question as an owner rather than recognize the superior title of another person,
so that in providing possessory remedies to lessees, Bailees, and others who lack such
intentions, modem law sacrifices principle to convenience. To this Holmes responded that he
“cannot see what is left of a principle which avows itself inconsistent with convenience and
the actual course of legislation. The first call of a theory of law is that it should fit the facts. It
must explain the observed course of legislation. And as it is pretty certain that men will make
laws which seem to them convenient without troubling themselves very much what principles
are encountered by their legislation, a principle which defies convenience is likely to wait
some time before it finds itself permanently realized.”

Holmes also criticised Savigny and other German theorists by saying that “they have
known no other system than the Roman”. In his works, Holmes proved that the Anglo-
American Law of Possession derived not from Roman law, but rather from pre-Roman
German law. One of Holmes's criticisms of the German theorists, signally including Savigny,
is that they "have known no other system than the Roman, and he sets out to prove that the
Anglo-VAmerican law of possession derives not from Roman law, but rather from pre-
Roman German law.

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 PROPERTY

The term property is commonly used to define the objects which are owned. In other words,
property denotes those things in which right of ownership can be expanded. The term
property includes both living and non-living things. Lands, chattels, shares, and debts are
included in the property. In a wider sense, the term includes all those rights which a person
has or can be exercised. For instances, right to life, personal liberty, reputation and all those
rights which he can exercise against others. Hence, in its wider sense, it can be termed as all
those things or material objects without which a person cannot live.

The term property has been described by various jurists as:-

SALMOND says that the law of property is the law of proprietary rights ‘right in rem’, the
law of proprietary rights ‘in personam’ is distinguished from it as the law of obligations.
According to this usage, a freehold or leasehold estate in land, or patent or copyright is
included in property but debt or shares or benefit arising out of a contract is not property.

According to Salmond, property has been termed in a variety of senses:

Legal Rights- It includes all those rights which a person is entitled by a way of law. All those
material objects which a person owns as per the law are his legal rights. These are the rights
which he can exercise over others. It includes a person’s personal as well as proprietary
rights.

Proprietary Rights- It does not include personal rights, it only include proprietary rights. It
means that land, chattels, shares or debts are his property but his right to life and reputation
are not included in his property.

Corporeal Property- It only includes those property which real or which can be seen i.e.
land, chattels, etc. It does not include shares or debts as property.

HOBBES AND BLACKSTONE are in favour of that property which is entitled by law, i.e.
legal rights.

AUSTIN suggests that property is the greatest enjoyment which a person holds. According to
him, property includes whole of assets whether personal or proprietary.

Kinds of Property

Corporeal

Incorporeal

Corporeal Property

It is also termed as tangible property. It is the right of ownership over material things. It
includes only those things which are real and visible. Person who has the right to use a thing

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is called as the owner of the object and the object is called as property. It includes only
material things, i.e. land, house, chattels, money, ornaments etc.

Corporeal Property can be divided into two;

Movable and Immovable Property

Real and Personal property

Movable and Immovable Property

A corporeal property can be movable or immovable.

Immovable property includes land, house, walls etc. It includes that property which cannot be
moved from one place to another. Objects which are physically attached to the earth and
permanently fastened to anything attached to the earth are termed as immovable property.

Whereas Movable property are those properties which can be easily moved from one place to
another by the help of a person. It includes chattels, ornaments, etc.

Real and Personal Property

There is no such distinction between real and personal property. Real property means all
rights over the land which is recognized by law. Whereas Personal property means all other
proprietary rights whether right in rem or right in personam.

Incorporeal property

Incorporeal property is other proprietary rights which are right in rem and are not tangible
and real.

Incorporeal Property can be divided into two;

Jura in re aliena

Jura in re propria

Jura in re aliena

They are called as encumbrances. It includes property, the ownership of which is in the hand
of one person and it is used by other person.

It is categorized into following:

Lease;

Servitude;

Securities;

Trusts;

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Right in re propria

Proprietary rights are of both materials as well as non-material things. Material things are the
physical objects and non-material things are the rights attached to the things. Right in re
propria is mainly over immaterial things. The person having right over the thing which he
attains due to his skill and labour.

It is categorized into following:

Patent

Copyright

Commercial Goodwill

Theories of Law of Property

Various theories have been provided by jurist from time to time to provide better explanation
and recognition to the law of property. Such theories are both in support and against the law
of property.

Following are the important theories of property.

The Natural Law Theory

The Natural law theory is based on the principle that one who possesses the object is the
owner of the property. It provides that when an ownerless thing is being possessed by
someone then that person become the owner of the property. The reason is that the law
recognized the property through its owner. This theory also gets recognized by law because
the priority of the ownership of property is given to that person who is in the possession of
the property.

This principle is supported by various jurists.

GROTIUS says that all the things were originally without an owner and whoever occupied
them became the owner.

According to BLACKSTONE, the natural law theory provides that one who starts making
use of a thing acquired an interest in that thing even for a short period or last long.

This theory has been criticized by some jurist also; HENRY MAINE says that it is erroneous
to think that possession gives right over the title of the property.

Where BENTHAM says that property is not originated by the occupation of an ownerless
thing, but it is the creation of law. He believes that property exist only when there is an
existence of law.

The Labor Theory

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According to this theory, the person who has used his skills and labor to produce an object is
the owner of that object because it is the result of his hard work. Though this theory is not
recognized in modern times because there are many situations where one can acquire
property from others by a way of will or contract. The labor theory is also called as the
positive theory.

SPENCER supported this theory. He holds that property is the result of labor of an individual
and one who has not put any labor to produce the property cannot acquire it.

Metaphysical Theory

This theory was propounded by KANT and HEGEL. Both of them justified the theory but
this theory was not recognized as it is not concerned with reality.

According to KANT, a thing rightfully belongs to someone when he is connected with it in

such manner that when someone else uses it without consent, it causes damage to the owner
also. He provides that as per this theory, there is physical connection between the owner and
the object.

HEGEL holds that property is the objective manifestation of the personality of an individual.
In other words, property is an object in which person has a right to direct his will.

Historical Theory

This theory talks about private property and its slow and steady growth. This theory is
propounded by BENTHAM and got support from HENRY MAINE. The growth of property
has three distant stages.

First Stage- It provides that a tendency is developed among people to take things in natural
possession and exercise it independently of the law of state.

Second Stage- This provides for juristic possession which means possession in fact and as
well as in law.

Third Stage- This is based on the ownership of the property recognized by law. The law
guarantees the owner of property exclusive right and control over the property.

Psychological Theory

This theory provides that the property came into existence based on the tendency of a human
being. Every one desires to own thing and to exercise control over them. BENTHAM has
supported this theory and hold that property is a conception of mind. It is nothing but an
expectation to own a property and make use of it to the fullest.

DEAN POUND also supported BENTHAM and asserted that the conception of property is
the acquisitive instinct of an individual who desires to have control and possession over the
property.

Modes of Acquisition of Property

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There are various modes of acquisition of property. SALMOND has described four modes of
acquisition of property.

Possession

Prescription

Agreement

Inheritance

Possession

Possession means physical control or acquisition of property by a person. Ownership of a

property is based on the possession of the property. Possession is the prima facie evidence of
ownership. For any proprietary matter, law gives first priority to a person who is in
possession of the property.

There are many situations where a person is in the possession of the property but he is not the
real owner of the property. The title of property belongs to someone else. The owner of the
title of the property enjoys absolute right over the property. But the person having possession
of the property does not have an absolute right, he has an only relative title.

According to SALMOND, a person having possession of a property enjoys a good title

against the third person except for the true owner. The possessor is entitled to possession until
getting evicted by the true owner by force of law. In such case, there are two owners, one
have absolute title over the property while another one will have a relative title.

Armony vs. Delomine [(1722) Istr.504]

If the person is in adverse possession i.e. possessory owner is wrongfully deprived of the
thing by a person other than the true owner, that person cannot take the defence of ‘jus tertii’
that the thing does not belong to the possessory owner either.

Prescription

According to SALMOND, “prescription is the effect of lapse of time in creating and

destroying right.”

It is of two kinds.

Positive or acquisitive prescription

Negative or extinctive prescription

Positive or acquisitive prescription

When the right over property is acquired by lapse of time, it is called positive prescription.
For instance, when a person makes a continuous use of a well located in someone else land,
he automatically acquired a right over the well as prescribed under the Indian Easement Act.

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Negative or extinctive prescription

Negative prescription is when a person destroys his right by the effect of lapse of time. It
occurs when the person’s right already exists. For instance, right to sue for the non- payment
of debt is destroyed after a period of time.

Agreement

Property can also be acquired by an agreement enforceable by law. A person having

ownership of a property has a right to transfer the ownership of the property to another person
with or without consideration. According to PATON, agreement is an expression by two or
more persons communicated to each other, of a common intention to affect the legal relation
between them.

PATON follows that an agreement should fulfill four conditions:

There should be two or more parties.

Mutual consent of the parties.

It should be communicated.

There should be common intention to communicate a legal relationship.

Miller vs. Collins [(1896) I Ch. 573]

Property is to be treated as belonging of any person who is having custody and control of it or
having any proprietary right or interest, not being an equitable interest arising only from an
agreement to transfer or grant an interest or having a charge on it.

Inheritance

Another method of acquisition is inheritance. When a person dies, there are some of his rights
which are transferred to his heirs and successors. Whereas there are some other rights also
which cannot be transferred. The rights which can be transferred are called heritance or
inheritable rights. Proprietary rights are inheritable rights as it can be transferred after the
death of its owner. But personal rights such as the right to life or reputation are not
inheritable. However, there are certain exceptions to it. Some proprietary rights are also not
inheritable. For instance, lease for the life of lessee only or in the case of joint ownership. In
case of succession of proprietary rights, if a person has made a will then succession will take
place according to the will. But if the person dies without making a will then succession will
take place as per the law.

Conclusion

Property is a belonging of a person who acquired it either through his hard work or through
succession or out of an agreement. Property can be treated as proprietary rights as well as
personal rights. Every individual is entitled to personal as well as proprietary rights. The term
property is explained in Jurisprudence by various eminent Jurists. Some jurists have

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supported the concept of the property while some are against it. The concept of property has a
special significance in jurisprudence. As jurisprudence also provides a description of other
proprietary rights based on the property.

PERSON

Meaning and Kind of Person

The term ‘person’ is derived from Latin word ‘persona’ which means a mask worn by actors
playing different roles in a drama. In modern days it has been used in a sense of a living
person capable of having rights and duties. Now it has been used in different senses in
different disciplines. In the philosophical and moral sense the term has been used to mean the
rational quality of human being. In law it has a wide meaning. It means not only human
beings but also associations as well. Law personifies some real thing and treats it as a legal
person. This personification both theoretically and practically clarifies thought and
expression. There are human beings who are not persons in legal sense such as outlaws and
slaves (in early times). In the same way there are legal persons who are not human beings
such as corporations, companies, trade unions; institutions like universities, hospitals are
examples of artificial personality recognized by law in the modern age. Hence, the person is
an important category of concept in legal theory, particularly business and corporate laws
have extensively used the concept of person for protection as well as imposing the liability.

Historical Background of the Concept of ‘Person’

The term ‘person’ and ‘personality’ has a historical evolution. Roman law, Greek law and
Hindu law, has used the concept too. In Roman law, the term had a specialized meaning, and
it was synonymous with ‘caput’ means status. Thus, a slave had an imperfect persona. In later
period it was denoting as a being or an entity capable of sustaining legal rights and duties. In
ancient Roman Society, there was no problem of personality as the ‘family’ was the basic
unit of the society and not the individual. The family consisted of a number of individuals,
but all the powers were concentrated with ‘pater familias’ means the head of the family. If a
head of the family dies, and there is an interval between his death and devolution of property
on the heir who accepted inheritance, the property will vest in a person during the interval.
This was called hereditas jacens which was developed by the Romans. The hereditas jacens is
considered by some scholars as similar to legal personality. Hereditas jacens means the
inheritance during the interval between death of the ancestor and the acceptance of the
inheritance by the heir. Some scholars are not ready to agree with the views that it has some
connection with present doctrine of legal personality, even if it is there, it may be in a very
limited sense. There was a provision in Roman law that other institutions or group who had
certain rights and duties were capable to exercise their legal rights through a representative.
Under Greek law, an animal or trees were tried in court for harm or death done to a human
being. It can be said on the basis of this practice that these objects were subject to duties even
though they may not possesses rights. This is an element of the attribution of personality.

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Under early English law, there are some incidences in it had found that an animal or tress or
inanimate objects had been tried in Court under law. The trees and animals were subject to
duty but not rights. After 1846, this system has modified and it was made clear that animals
or tresses are capable of possessing rights and duties; therefore, there is no question of
personality.

Definition of ‘Person’
The term ‘person’ is derived from the Latin term ‘Persona’ which means those who are
recognized by law as being capable of having legal rights and being bound by legal duties. It
means both- a human being, a body of persons or a corporation or other legal entity that is
recognized by law as the subject of rights and duties. Savingy has defined person as the
subject or bearer of right. But Holland has criticized this definition on the ground that persons
are not subject to right alone but also duties. He says: the right not only resides in, but is also
available against persons. There are persons of incidence as well as of inherence. Kelson
rejected the definition of personality as an entity which has rights and duties. He has also
rejected the distinction between human beings as natural persons and juristic persons. He says
the totality of rights and duties is the personality; there is no entity distinct from them.
However, Kelson’s view has been criticised for the reason that in law natural person is
different from legal persons who are also capable of having rights and duties and constitute a
distinct entity. Salmond’s definition seems to be more correct than the earlier definitions. In
the words of Salmond: “So far as legal theory is concerned, a person is any being whom the
law regards as capable of rights and duties. Any being that is so capable is a person, whether
a human being or not, and no being that is not so capable is a person even though he be a
man.” Salmond further explains that the extension of the conception of personality beyond
the class of human beings is one of the most noteworthy achievements of the legal
imagination.

Persons can be classified into (a) natural person, and (b) legal or artificial or juristic person.
There are some natural persons who do not enjoy the status of legal persons and vice versa.

Law of status

Law of status is the law concerning the natural, the domestic and the extra domestic status of
man in civilized society. The law of extra domestic status is the law that is concerned with
matters and relations apart from those concerning the family. Thus this department of the law
of status deals with the status of persons such as lunatics, aliens, deceased persons, lower
animals etc. These are persons who do not enjoy the status of legal personality but the society
has some duties towards them.

Legal Status of Unborn Person

A child in mother’s womb is by legal fiction regarded as already born. If he is born alive, he
will have a legal status. Though law normally takes cognizance of living human beings yet
the law makes an exception in case of an infant in ventre sa mere. Under English Law, a
child in the womb of the mother is treated as in existence and property can be vested in its

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name. Article 906 of the French Civil Code permits the transfer of property in favour of an
unborn person. But, according to Mohammedan Law a gift to a person not in existence is
void. A child in the womb of the mother is considered to be a person both under the law of
crimes and law of torts. Under section 13 of the Transfer of Property Act, property can be
transferred for the benefit of an unborn person by way of trust. Similarly section 114 of the
Indian Succession Act, 1925 provides for the creation of prior interest before the unborn
person may be made the owner of property – corporeal or incorporeal, but no property will be
deemed to be vested in the unborn person unless and until he is born alive. In Hindu Law also
a child in the womb of the mother is deemed to be in existence for certain purposes. Under
Mitakshara law, such a child has interest in coparcenary property.

Under section 315 of the Indian Penal Code, the infliction of pre natal injury on a child,
which is capable of being born alive and which prevents it from being so could amount to an
offence of child destruction. Section 416 of Criminal Procedure Code provides that if a
woman sentenced to death is found to be pregnant, the High Court shall order the execution
of the sentence to be postponed, and may if it thinks fit, commute the sentence to
imprisonment for life. It has been held that in a Canadian case that a child could succeed in
tort after it was born on account of a deformity which was held to have been caused by a
negligent pre natal injury to mother.

Though there is no Indian case on this point but it is expected that a liberal view would be
taken on this line and a child would be getting the right to sue. In an African case it was held
that a child can succeed in tort after it is born on account of a deformity caused by pre injury
to his mother.

In India as well in England, under the law of tort an infant cannot maintain an action for
injuries sustained while on ventre sa mere. However, in England damages can be recovered
under Fatal Accidents Act, 1846 for the benefit of a posthumous child. In short, it can be
concluded that an unborn person is endowed with legal personality for certain purposes.

Legal Status of Dead Man

Dead man is not a legal person. As soon as a man dies he ceases to have a legal personality.
Dead men do not remain as bearers of rights and duties it is said that they have laid down
their rights and duties with their death. Action personalis moritur cum persona- action dies
with the death of a man. With death personality comes to an end. A dead man ceases to have
any legal right or bound by any legal duty. Yet, law to some extent, recognises and takes
account of the desires or intentions of a deceased person. Law ensures a decent burial, it
respects the wishes of the deceased regarding the disposal of his property, protects his
reputation and in some cases continues pending action instituted by or against a person who
is now deceased.

- As far as a dead man’s body is concerned criminal law secures a decent burial to all dead
men. Section 297 of Indian Penal Code also provides punishment for committing crime

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which amounts to indignity to any human corpse. The criminal law provides that any
imputation aganist a deceased person, if it harms the reputation of that person if living and is
intended to hurt the feeling of his family or other near relatives, shall be offence of
defamation under sec 499 of the Indian Penal Code.

The Supreme Court in the case of Ashray Adhikar Abhiyan v Union of India has held that
even a homeless person when found dead on the road, has a right of a decent burial or
cremation as per his religious faith.

In English Law as well as in Muslim Law the violation of a grave is a criminal offence. As
regards reputation of a dead man, it is to some extent protected by criminal law. Under
Roman law any insult to the body of the deceased at the timing of funeral, gave the
deceased’s heir a right to sue for the injury as it is treated as insult to the heir. Under the law
of France the relative of the defamed deceased can successfully sue for damages, if they can
prove that some injury it suited from the defamation. Thus, it is not the rights and the hence
the personality of the deceased that the law recognises and protects but it is the right and
interest of living descendants that it is protected.

So far trust is concerned English Law provides the rule that permanent trust for the
maintenance of a dead man’s tomb is illegal and void and property cannot be tied up for this
purpose. This rule has been laid down in the leading case of Williams v. Williams where it
was said that a corpse is the property of no one. It cannot be disposed of by will or any other
instrument. It was further held in this case that even temporary trusts are neither valid nor
enforceable. Its fulfillment is lawful and not obligatory. It was held in Mathii Khan v. Veda
Leiwai that worship at the tomb of a person is charitable and religious purposes amongst
Muslims- hence trust is possible. In Saraswati v. Raja Gopal it was held that worship at the
Samadhi of a person, except in a community in which there is a widespread practice of
raising tombs and worshipping there at, is not a religious or charitable purpose according to
Hindu Law and would not constitute a valid trust or endowment.

Regarding the property of the dead man the law carries out the wishes of the deceased
example, a will made by him regarding the disposal of his property. This is done to protect
the interest of those who are living and who would get the benefit under the will. This is
subject to the rule against perpetuity as well as law of testamentary succession. Indian
Transfer of Property Act, section 14 incorporates the rule against perpetuities, which forbids
transfer of property for an indefinite time thereby making it alienable. Section 14 of the TPA
restrains the power of creating future interests by providing in the rule against perpetuities
that such interest must arise within certain limits. The rule of perpetuity looks to the date at
which the contingent interest will vest, if it vests at all, and hold it to be void as “perpetuity if
this date is too remote”.

Similarly, section 1 and 4 of the Indian Succession Act, 1925 forbids the creation of a will
whereby vesting of property is postponed beyond the lifetime of one or more persons and the
minority period of the unborn person.

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Legal Status of Lower Animals

Law does not recognise beasts or lower animals as persons because they are merely things
and have no natural or legal rights. Salmond regards them mere objects of legal rights and
duties but never subjects of them. Animals are not capable of having rights and duties and
hence they are not legal persons.

Ancient Law - However, in ancient times animals were regarded as having legal rights and
being bound by legal duties. Under the ancient Jewish Code ‘if an ox gore (wound with a
horn) a man or woman resulting in his or her death, then the ox was to be stoned and its flesh
was not to be eaten. There are many examples in ancient Hebrew Codes where cock, bulls,
dogs and even the trunk of trees which had fallen on human beings and killed him were tried
for homicide.’

There are similar instances in India as well. In number of cases found that, animals were sued
in courts in ancient India. There is popular story about the Mughal Emperor Jehangir in
which the bullock was presented before the Emperor. However these instances are merely of
historical interest and have no relevance in modern law.

Modern Law - Modern Law does not recognise animals as bearer of rights and duties. Law is
made for human beings and all things including animals are for men. No animal can be the
owner of property from a person to an animal. Animals are merely the object of transfer and
are a kind of property, which are owned and possessed by persons. Of course, for the wrongs
done by animals the master is held liable. This duty or liability of the master arises due to
public policy and public expediency. The liability of the master is strict and not a vicarious
liability. The animal could be said to have a legal personality only if the liability of the master
is considered vicarious.

In certain cases, the law assumes the liability of the master for an animal as direct while in
other cases, liability is not direct. Thus, for keeping animals that are not of dangerous nature
the master is not liable for the damage it may do, unless he knows that it was dangerous. The
knowledge of the defendant must be shown as to their propensity to do the act in question.
However, if the animal is of ferocious nature, the master is responsible for the wrong if he
shows negligence in handling it. The owner of animals of this class is also responsible for
their trespasses and consequent damage. If a man’s cattle, sheep or poultry, stray into his
neighbour’s land or garden, and do such damage as might ordinarily be expected to be done
by things of that sort, the owner is liable to his neighbour for the consequences. A charitable
trust can be created for the maintenance of stray cattle, broken horses and other animals. Such
a trust is created with a view to promote public welfare and advancement of religion.
However, if the charitable trust is created only for the benefit of a single horse or a dog, it
cannot be regarded as public charitable trust for instance in Re Dean Cooper Dean v. Stevens
a test of charged his property with the payment of annual sum of trustees for the maintenance
of his horses and dogs. The court held that it is not valid trust enforceable in any way on
behalf of these animals. It was observed that the trustee could/spend the money if they

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pleased in the manner desired by the testator. But if they did not spend the money it would
not be considered a breach of trust and in such a situation the money so spent will be of the
representatives of the testator.

Similarly, a bequest for the maintenance of the testator’s favourite black mare a bequest of an
annual sum for the maintenance of testator’s horses and hounds for a period of 50 years if nay
those animals should so long live a trust for the benefit of a parrot during the life of two
trustees and survivor of them have all been held valid.

Two kinds of persons are recognised by law and those are natural person and legal
persons. Legal persons are also known as artificial, juristic or fictitious persons.
(1) According to Holland, a natural person is “such a human being as is regarded by the law
as capable of rights and duties—in the Language of Roman law, as having a status.”
According to another writer, natural persons are “living human beings recognised as persons
by the state. The first requisite of a normal human being is that he must be recognised as
possessing a sufficient status to enable him to possess rights and duties. A slave in Roman
law did not possess a personality sufficient to sustain legal rights and duties. In spite of that,
he existed in law because he could make contracts which under certain circumstances were
binding on his master. Certain natural rights possessed by him could have legal consequences
if he was manumitted. Likewise in Roman law, an exile or a captive imprisoned by the enemy
forfeited his rights. However, if he was pardoned or freed, his personality returned to him. In
the case of English Law, if a person became an outlaw, he lost his personality and thereby
became incapable of having rights and duties. The second requisite of a normal human being
is that he must be born alive. Moreover, he must possess essentially human characteristics.

(2) Legal persons are real or imaginary beings to whom personality is attributed by law by
way of fiction where it does not exist in fact. Juristic persons are also defined as those things,
mass of property, group of human beings or an institution upon whom the law has conferred a
legal status and who are in the eye of law capable of having rights and duties as natural
persons.

Law attributes by legal fiction a personality of some real thing. A fictitious thing is that
which does not exist in fact but which is deemed to exist in the eye of law. There are two
essentials of a legal person and those are the corpus and the animus. The corpus in the body
into which the law infuses the animus, will or intention of a fictitious personality. The animus
is the personality or the will of the person. There is a double fiction in a juristic person. By
one fiction, the juristic person is created or made an entity. By the second fiction, it is clothed
with the will of a living being. Juristic persons come into existence when there is in existence
a thing, a mass of property, an institution or a group of persons and the law attributes to them
the character of a person. This may be done as a result of an act of the sovereign or by a
general rule prescribed by the government.

A legal person has a real existence but its personality is fictitious. Personification is essential

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for all legal personality but personification does not create personality. Personification is a
mere metaphor. It is used merely because it simplifies thought and expression. A firm, a Jury,
a bench of judges or a public meeting is not recognised as having a legal personality. The
animus is lacking in their case.

Difference between natural person and legal person:

Natural Person
1. A natural person is a human being and is a real and living person.

2. He has characteristics of the power of thought speech and choice.

3. Unborn, dead man and lower animals are not considered as natural persons.

4. The layman does not recognize idiot, company, corporation, idol etc. as persons .

5. He is also a legal person and accordingly performs their functions

6. Natural person can live for a limited period i.e. he cannot live more than 100 years.

Legal Person
1. Legal person is being, real or imaginary whom the law regards as capable of rights or
duties.

2. Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.

3. In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated as
legal persons.

4. The legal persons perform their functions through natural persons only.

5. There are different varieties of legal persons, viz. Corporations, Companies, Universities,
President, Societies, Municipalities, Gram panchayats, etc.

6. Legal person can live more than 100 years. Example: (a) the post of “American President”
is a corporation, which was created some three hundred years ago, and still it is continuing.
(b) “East India Company” was established in sixteenth century in London, and now still is in
existence.

Legal personality is a fictitious attribution of personality by law, a sort of personification of

law. Legal persons being artificial creations of law can be of as many kinds as the law
devises. Continental jurisprudence recognizes three kinds of legal persons, namely:

i. Groups or series of men, usually called corporations: The first class of legal persons

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consists of corporations, namely those which are constitutes by the personification of groups
(e.g., corporation aggregate) or series of individuals (e.g., corporation sole). In State Trading
Corporation of India v. Commercial Tax Officer, the Court observed that corporation are
undoubtedly legal persons but is not a citizen within the meaning of Article 19 of the
Constitution and cannot ask for the enforcement of fundamental rights granted to citizens
under the said article.

ii. Institutions like hospitals, libraries etc.: The second class is that in which corporations or
object selected for personification not a group of series of persons but an institution is. The
law may, if it pleases, regard a church, a hospital or a university or a library as a person. That
is to say it may attribute personality not to any group of persons connected with the
institution, but to the institution itself. In the tradition and practice of English Law, legal
personality is not limited by any logical necessity or indeed by any obvious requirement of
expediency to the incorporated bodies of individual persons. In India, institutions like
university, temple, public authorities, etc. are considered as legal persons. Under Indian law,
trade unions and friendly societies are legal entities. They own properties and suits can be
brought in their names though not regarded as corporations.

iii. Funds or estates like the estates of deceased persons: The third kind of legal person is that
in which the corpus is some fund or estate devoted to special uses, a charitable fund for
example, or a trust estate, or the property or a dead man or of a bankrupt.

Corporate sole

Corporation sole is a legal entity consisting of a sole incorporated office, occupied by a single
man/women and it has legal continuity.

A corporation sole consists of one person only, and the successors of that person in some
particular station or office. The King of England is a corporation sole; so is a bishop; and in
the Church of England every parson and vicar is, in view of the law, a corporation sole.

To understand the concept of corporation sole one needs to deal with two yet similar
questions: First, it was necessary to discover what application the concept had, which
involved understanding why it had come into being in the first place; but Second, it was
necessary to ask what forms of law the use of this concept had excluded. Law, in ruling some
things in, is always ruling some things out (though it was by implication the English genius to
stretch the terms of this proposition as far as they would go). Even English law could not
conjure up terms of art that were infinitely adaptable. That the corporation sole was a term of
art contrived to meet a particular practical problem rather than deduced from a set of general
juristic precepts, could not be doubted. Nor could it be doubted that the application of this
contrivance was rather limited. But what was surprising was how much, nonetheless, was
ruled in, and how much ruled out.

The origins of the corporation sole Maitland traced to a particular era and a particular

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problem. The era was the sixteenth century, and coincides with what Maitland calls ‘a
disintegrating process . . . within the ecclesiastical groups’, when enduring corporate entities
(corporations ‘aggregate’, which were, notwithstanding the misleading terminology, more
than the sum of their parts) were fracturing under political, social and legal pressure.
However, the particular problem was not one of groups but of individuals; or rather, it was a
problem of one individual, the parish parson, and of one thing, the parish church. Was this
thing, a church, plausibly either the subject or the object of property rights? The second
question – of objectivity – was the more pressing one, as it concerned something that was
unavoidable as a cause of legal dispute, namely ‘an exploitable and enjoyable mass of
wealth’.

But it could not be addressed without considering the other question, and the possibility that
the ownership of this wealth does not attach to any named individuals but to the church itself.
The law could probably have coped with this outcome, but the named individuals involved,
including not only the parson but also the patron who nominates him and the bishop who
appoints him, could not. It placed exploitation and enjoyment at too great a remove. Instead,
an idea that had been creeping towards the light during the fifteenth century was finally
pressed into service, and the parson was deemed the owner, not in his own right, but as a kind
of corporation, called a ‘corporation sole’.

What this meant, in practice, was that the parson could enjoy and exploit what wealth there
was but could not alienate it. But what it meant in theory was that the church belonged to
something that was both more than the parson but somewhat less than a true corporation.
That it was more than the parson was shown by the fact that full ownership, to do with as he
pleased, did not belong to any one parson at any given time; that it was less than a
corporation was shown by the fact that when the parson died, ownership did not reside in
anybody or anything else, but went into abeyance. Essentially, the corporation sole was a
negative idea. It placed ultimate ownership beyond anyone. It was a ‘subject less right, a fee
simple in the clouds’. It was, in short, an absurdity, which served the practical purpose of
many absurdities by standing in for an answer to a question for which no satisfactory answer
was forthcoming.

The idea of the corporation sole gave legal fictions a bad name; the corporation sole was a
frivolous idea, which implied that the personification of things other than natural persons was
somehow a less than serious matter. It was not so much that absurdity bred absurdity, but that
it accustoms us to absurdity, and all that that entails. Finally, however, the idea of the
corporation sole was serious because it encouraged something less than seriousness about
another office than parson. Although the class of corporations sole was slow to spread, it was
found serviceable by lawyers in describing at least one other person, or type of person: the
Crown. To think of the Crown as a corporation sole, whose personality is neither equivalent
to the actual person of the king nor detachable from it, is ‘clumsy’. It is in some ways less
clumsy than the use of the concept in application to a parson. The central difficulty, that of
‘abeyance’ when one holder of the office dies, is unlikely to arise in this case: when a parson
dies there may be some delay before another is appointed, but when a king dies there is

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considerable incentive to allow no delay, whatever the legal niceties. Nor is it necessarily
clumsier than other, more famous doctrines: it is no more ridiculous to make two persons of
one body than it is to make two bodies of one person It makes a ‘mess’ of the idea of the civil
service by allowing it to be confused with ‘personal’ service of the king; it cannot cope with
the idea of a national debt ; it even introduces confusion into the postal service (by
encouraging the view that the Postmaster-General is somehow freeholder of countless post
offices). It also gets things out of proportion, for just as it implies that a single man is owner
of what rightly belongs to the state, so it also suggests that affairs of state encompass personal
pastimes.

The problem with absurd legal constructions is not simply that serious concerns may be
trivialised, but also that trivial matters may be taken too seriously, which is just as time-
consuming. ‘So long as the State is not seen to be a person [in its own right], we must either
make an unwarrantably free use of the King’s name, or we must be forever stopping holes
through which a criminal might glide.’

Therefore a corporation sole can be defined as a corporation sole consists of one person and
his or her successors in some particular office or station, who are incorporated by law in
order to give them certain legal capacities and advantages which they would not have in their
natural person.

The Crown first came to be identified as a corporation sole at a sinister time, during the reign
of Henry VIII. In most important respects, as touching on the fundamental questions of
politics, the British state had long been afforded its own identity as a corporation aggregate,
distinct from the persons of any individuals who might make it up at any given moment. The
British state had a secure national debt, which had been owed for some time by the British
‘Publick’, and the British public had been relatively secure since the end of the seventeenth
century in the rights that it had taken from the Crown. The problems, such as they were, were
problems of convenience and not of freedom. But precisely because the idea of the Crown as
a corporation sole remained tied up in the domain of private law, it illustrated the gap that
existed in England between legal and political conceptions of the state. The fact that the
Crown was still understood as a corporation sole implied that there was some distinction to
be drawn between matters of basic political principle and mere questions of law. This was
unsustainable. It was not simply that it was not clear on what basis this distinction could
conceivably rest – it was impossible, after all, to argue that the corporation sole was useful in
matters of law, since it had shown itself to be so singularly useless. It was also far from clear
where to draw the line Maitland devotes considerable attention to the problems that the
British Crown was experiencing at the turn of the twentieth century in understanding its
relationship with its own colonies. That they were its ‘own’, and had begun their life as
pieces of property, meant that there was a legal argument for seeing them still as the property
of the Crown, which was itself seen still as the corporate personality of Her Majesty the
Queen. This was convoluted, unworkable and anachronistic. It was also ironic. It meant that
in what was obviously a political relationship the supposedly dominant partner was still
conceived as an essentially private entity, and therefore restricted by the conventions of

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private law; while the colony itself, which had begun life as a chartered corporation created
by the Crown, was able to use that identity as a corporation aggregate to generate a distinct
identity for itself as “one body corporate and politic in fact and name”.

Corporate aggregate
A corporate aggregate is an incorporated group of co-existing persons. Examples: all private
limited companies, all public limited companies, multi-national corporations, public
undertaking corporations.“Corporate aggregate” is a fictitious body and created by the policy
of men. They may also be called as “body’s Politique”. A corporate aggregate has several
members at a time. These are the private offices. The primary object of corporate aggregate is
to do business. It is lesser permanent than corporate sole. Similarly, corporate aggregate also
shall have its own properties, debts, with which the share holders are not concerned. The
share holders are concerned corporation / company subject to the extent of their share
amount, not exceeding that. They have their own properties. The debts of the company are
not having any connection with their own properties. The debts, profits, losses are related to
the share amount only.

So the perfect definition of corporate aggregate would be -

Corporation aggregate consist of two or more persons united in a society, which is preserved
by a succession of members, either forever or till the corporation is dissolved by the power
that formed it, by the death of all its members, by surrender of its charter or franchises, or by
forfeiture. Such corporations are the mayor and aldermen of cities, the head and fellows of a
college, the dean and chapter of a cathedral church, the stockholders of a bank or insurance
company, etc.

A corporation aggregate, or body politic, or body incorporate, is a collection of many;

individuals united in one body, under a special denomination, having perpetual succession
under an artificial form, and vested by the policy of the law, with a capacity of acting in
several respects as an individual, particularly of taking and granting property, contracting
obligations, and of suing and being sued; of enjoying privileges and immunities in common,
and of exercising a variety of political rights, more or less extensive, according to the design
of its institution, or the powers conferred upon it, either at the time of its creation, or at any
subsequent period of its existence.

So basically a corporate aggregate consists of several persons, who are’ united in one society,
which is continued by a succession of members. Of this kind are the mayor or commonalty of
a city; the heads and fellows of a college; the members of trading companies, and the like.
Going by the above description of corporations aggregate, it would logically follow that
every form of concerted activity of willing individuals aimed at a particular end, would lead
to their acts coming to known through the glass of incorporation which realises their
combined operations as one single act, performed by a single personality. However, it is in
this regard that the real limits of artificial personality are discernible. The law deems only
certain forms of concerted action as eligible for recognition through incorporation; thus while
joint stock companies are recognised as incorporated bodies, associations such as

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partnerships, trade unions and other organizations are not recognised as incorporated bodies
for various reasons. These groups have come to assume the term ‘unincorporated
associations’.

In Saloman v. Saloman and Co., a trader sold a solvent business to a limited company
which consisted of the vendor, his wife and children only. In payment of the purchase money,
the company issued debentures to the vendor. Later on, the company went into liquidation.
The question for decision was whether this debenture holder was entitled to be paid in
preference to the unsecured creditors. The question was answered in the affirmative. It is
clear from this case that a man may become his own preferred creditor by taking debentures
from a company of he holds practically all the shares. This is due to the fact that the company
has a legal personality different from that of the shareholders. This case also shows that one
can seek shelter behind this legal person without one’s real connection with the corporation
being unmasked.

In Daimler Company Ltd. v. Continental Tyre and Rubber Co. Ltd., the respondent
company was incorporated in England for the purpose of selling in England tyres made in
Germany by a German company. Most of the shareholders of that company were Germans.
After the outbreak of war in 1914 between England and Germany, an action was started in
the name of the respondent company for the recovery of a trade debt. The action was resisted
on the ground that the plaintiff was an “alien enemy” at war with England and hence the suit
was not maintainable. The contention of the plaintiff was that the nationality of the company
was distinct from that of its shareholders and as it was registered in England, the declaration
of war had no effect on it. The decision was given against the company by the House of
Lords. Lord parker observed: “What is involved in the decision of the Court of Appeals is
that for all purposes to which the character and not merely the rights and powers of an
artificial person are material, the responsibilities of natural persons who are its corporators,
are to be ignored. An impassible line is drawn between the one person and the others. When
the law is concerned with the artificial person, it is to know nothing of the natural persons
who constitute and control it.” The House of Lords held that the enemy character of
individual shareholders and their conduct could be material on the question whether the
company’s agents and persons in de facto control of the company were adhering to the
enemy. If the persons in control of the company were resident in an enemy country or were
adhering to the enemy, that company would assume an enemy character. The House of Lords
pierced the veil sought to be drawn over the physiognomy of the company for the purpose of
ascertaining who the corporators behind the company were.

In Wurzel v. Houghton Main Home Delivery Service Ltd. and in Wurzel v. Atkinson, the
difference between an incorporated and an unincorporated association with regard to legal
consequences was brought out. Under the Road and Rail Traffic Act, 1933, the holder of a
private carrier’s licence known as “C” licence, was forbidden from using the vehicle for the
carnage of goods for hire or reward. A group of miners incorporated a company to get cheap
delivery of coal from the colliery. A motor goods vehicle in respect of which the company
held “C” licence was used for making delivery of coal at the houses of its members and

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charges for delivery were deducted from the wages of the members. It was held that as the
society was an incorporated one, it was a legal entity distinct from its members and there was
a breach-of condition under which “C” licence was held as the vehicle was used for carriage
of goods for hire or reward. Another group of miners formed an association without
incorporating it. They made use of the vehicle of the association for delivery of coal at the
house of its members. It was held that each member was a part-owner of the vehicle and as
co-owners could not be said to be carrying their own goods for hire or reward by contributing
to the running expenses, there was no breach of the conditions of “C” licence.

The position of the Karta in a Hindu coparcenary is an example of corporate personality. In

coparcenary system although each member of the joint Hindu Family has some rights and
duties and even though it is a single familial unit, a Joint Hindu Family does not have a
separate legal identity and is not a juristic person. It is not capable of holding property and the
law does not attribute any personality to a Joint Hindu Family. The Karta is overall head of
the joint family who manages the entire family property. He has a right to alienate the
property and other members of the family are under his control. He can sue and be sued on
the behalf of the joint family. In juristic terms, he is a corporation sole having a double
capacity, i.e., as a natural person he is the eldest member of the family and as a legal person
he is in the capacity of the Karta of the Joint Family.

According to the long established theory which was founded upon the religious customs of
the Hindus, a Hindu idol is a ‘juristic entity’ having a ‘juridical status’ and it has the power to
sue and being sued. But juridical person in the idol is not the material image but the image
develops itself into a legal person when it is consecrated by the Pran Pratistha
ceremony.According to Hindu law and various decisions of the courts, the position of idol is
that of a minor and a manager is appointed to act on idol’s behalf. Like a minor, an idol
cannot express itself and like a guardian, manager has some limitations under which he has to
act and perform its duties. According to this rule, Shri Guru Granth Sahib is also a juristic
person. But other religious texts such as Gita, Quran, Bible are not considered to be juristic
persons.

The Union of India and the States have also been recognized as corporate entities under
Article 300 of the Constitution of India. Article 300 relating to Suits and proceedings is
as follows:
(1) The Governor of India may sue or be sued by the name of the Union and the Government
of a State may sue or be sued by the name of the State and may, subject to any provisions
which may be made by Act of Parliament or of the Legislature of such State enacted by virtue
of powers conferred by this Constitution, sue or be sued in relation to their respective affairs
in the like cases as the Dominion of India and the corresponding Provinces or the
corresponding Indian States might have sued or been sued if this Constitution had not been
enacted

(2) If at the commencement of this Constitution

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(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of
India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) Any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the Province or the Indian State in
those proceedings.

The President of India as also the Governor of the State is a corporation sole like British
Crown. The Ministers of Union or State Government are not legal or constitutional entity and
therefore, they are not corporation sole. The reason being that they are appointed by the
President or the Governors and are ‘officers’ within the meaning of Articles 53 and 154 of the
Constitution. Article 53(1) say that the executive power of the Union shall be vested in the
President and shall be exercised by him either directly or through officers subordinate to him
in accordance with the Constitution. Similarly, Article 154(1) say that the executive power of
the State shall be vested in the Governor and shall be exercised by him either directly or
through officers subordinate to him in accordance with the Constitution.

Thus, they are not personally liable for their acts or omissions nor are they directly liable in a
Court of law for their official acts. It is the State whether the Centre or the federated unit
which is liable for the tort or the breach of contract committed by a Minister in his official
capacity.

Partnership firm is not a legal person in the eye of law. There is no legal entity, standing over
against the partners. The property and debts of the firm are nothing else than those of the
partners. It can neither sue nor be sued in its own name. The member partners cannot contract
with their partnership firm because a man cannot contract with himself.

Unlike a partnership firm which has no existence apart from its members, incorporated
company has a distinct legal or juristic existence independent of its members. Under the law,
a corporation or a company is a distinct entity (legal persona) existing independent of its
members. An incorporated company exists as a complete being by virtue of its legal
personality and is often described as an artificial person in contrast with a human being who
is a natural person. A company being a legal entity by itself, is separate and distinct from its
promoters, shareholders, directors, officers or employees and as such, it is capable of
enjoying rights and being subjects to duties which are not the same as those enjoyed or borne
by its members. It may sue or be sued in its own name and may enter into contracts with third
parties independently and the members themselves can enter into the contract with the
company.

1) RBI: The Reserve Bank of India has a corporate existence because it is an incorporated
body having an independent existence.
2) UPSC: Union Public Service Commission is not recognized as a legal person as it cannot
hold property in their own names and can neither sue nor be sued in a court of law.
3) A Fund dedicated for a Religious Purpose: it was also of the nature of a legal person. It had

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certain rights and received certain protection from law, such as the property dedicated to a
math.
4) Registered Societies: Societies registered under Societies Registration Act, 1860 are also
held to be legal persons.
5) Trade Union: Registered trade unions are considered as juristic persons.
6) Institutions like Church, University, Library etc.: these are considered as juristic persons.

7) Under the Indian law, Corporation Aggregate are all those bodies or associations which are
incorporated under a statute of the Parliament or State Legislature. In this category comes all
trading and non-trading associations which are incorporated under the relevant like the State
Trading Corporation, Municipal Corporation, Roadways Corporation, the Public Companies,
State Bank of India, the Life Insurance Corporation, the universities, Panchayats, Corporative
Societies.

Limitations to Legal Personality

The limitations of a legal corporate personality have been an issue of constant debate. While
the granting of personhood can help make corporations legally responsible for their actions, it
also opens the door to many more intricate questions. For example, if a corporation has a
personality separate from its shareholders or owners, some argue that it must also have
individual rights, such as the right to vote. If granted the right to vote, however, then
shareholders will in effect have the right to vote twice: once as private individuals, and once
in the personality of the corporation. As this conflict with most voting systems, it remains a
controversial issue throughout legal circles.

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.

In 2010, the United States Supreme Court rendered a decision that many legal scholars
describe as a victory for corporation rights. The decision, Citizens United v. Federal Election
Committee expanded the free speech rights of corporations by holding that it is
unconstitutional to prohibit legal persons from engaging in election expenditures and
electioneering. While critics see this ruling as tantamount to allowing corporate-sponsored
candidates in the future, proponents argue that it is unfair to grant legal personality that grants
equal responsibilities but not equal rights.

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Though a company is a legal person, it is not a citizen under the constitutional law of India or
the Citizenship Act, 1955. The reason as to why a company cannot be treated as a citizen is
that citizenship is available to individuals or natural persons only and not to juristic persons.
The question whether a corporation is a citizen was decided by the Supreme Court in State
Trading Corporation of India v. Commercial Tax Officer. Since a company is not treated as a
citizen, it cannot claim protection of such fundamental rights as are expressly guaranteed to
citizens, but it can certainly claim the protection of such fundamental rights as are guaranteed
to all persons whether citizens or not. In Tata Engineering Company v. State of Bihar it was
held that since the legal personality of a company is altogether different from that of its
members and shareholders, it cannot claim protection of fundamental rights although all its
members are Indian citizens. Though a company is not a citizen, it does have a nationality,
domicile and residence. In case of residence of a company, it has been held that for the
purposes of income tax law, a company resides where its real business is carried on and the
real business of a company shall be deemed to be carried on where its Central management
and control is actually located.

Conclusion
The foregoing analysis makes it abundantly clear that incorporation had great importance
because it attributes legal personality to non living entities such as companies, institutions
etc. which help in determining their rights and duties. Clothed with legal personality, these
non living personalities can own, use and dispose of property in their own names.
Unincorporated institutions are denied this advantage because their existence is not different
from the members.

Ordinarily, only an incorporated body can sue or be sued and an unincorporated body cannot
sue or be sued in its own name. This rule was very useful for trade union organizations which
were usually not incorporated associations. In the case of Taff Vale Railway Co. v.
Amalgamated Society of Railway Servants, the House of Lords decided in 1901 that a trade
union could be sued for damages arising out of the wrongful acts of its officials. The union
concerned had to pay £ 2300 in damages and legal expenses in addition. The trade unions
carried on an agitation against the decision and ultimately the Trade Disputes Act of 1906
gave complete protection against judgments like the Taff Vale Railway Company.

Keelson through his analytical approach to legal personality has concluded that there is no
divergence between natural persons and legal persons for the purposes of law. In law
personality implies conferment of rights and duties. Therefore, for the convenient attribution
of rights and duties, the conception of juristic personality should be used in its procedural
form.

THEORIES OF JURISTIC PERSONALITY

Ethical Natural law philosophers of the 17th and 18th centuries as well as the metaphysical
theorists of 19th century postulated the concept of will as an essential requirement for

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exercising legal right. They also believed that personality is the subjective possibility of a
rightful will. Legal personality is an artificial creation of law. Entities recognized by law are
capable of being parties to a legal relationship. A natural person is a human being
whereas legal persons are artificial persons, such as a corporation, created by law and
given certain legal rights and duties of a human being; a being, real or imaginary, who for
the purpose of legal reasoning is treated more or less as a human being. All legal persons
can sue or be sued.
Theories of Juristic Personality
1. Fiction Theory– This theory was put forward by Von Savigny, Salmond, Coke,
Blackstone, and Holland etc. According to this theory, the personality of a corporation
is different from that of its members. Savigny regarded corporation as an exclusive
creation of law having no existence apart from its individual members who form the
corporate group and whose acts are attributed to the corporate entity. As a result of this,
any change in the membership does not affect the existence of the corporation. It is
essential to recognize clearly the element of legal fiction involved in this process. A
company is in law something different from its shareholders or members. The property
of the company is not in law the property of the shareholders. The company may
become insolvent, while its members remain rich. Gray supported this theory by saying
that it is only human beings that are capable of thinking, therefore it is by way of fiction
that we attribute ‘will’ to non-human beings through human beings who are capable of
thinking and assign them legal personality. Wolf said that there are three advantages of
this theory. It is analytical, more elastic and it makes easier to disregard juristic
personality where it is desirable.
2. Concession Theory– This theory is concerned with the Sovereignty of a State. It pre-
supposes that corporation as a legal person has great importance because it is recognized
by the State or the law. According to this theory, a juristic person is merely a concession
or creation of the state. Concession Theory is often regarded an offspring of the Fiction
Theory as both the theories assert that the corporation within the state have no legal
personality except as is conceded by the State. Exponents of the fiction theory, for
example, Savigny, Dicey and Salmond are found to support this theory. Nonetheless, it
is obvious that while the fiction theory is ultimately a philosophical theory that a
corporation is merely a name and a thing of the intellect, the concession theory is
indifferent to the question of the reality of a corporation in as much as it focuses only
on the source (State) from which the legal power of the corporation is derived.
3. Group Personality Theory or Realist Sociological Theory– This theory was
propounded by Johannes Althusius and carried forward by Otto Van Gierke. This group
of theorists believed that every collective group has a real mind, a real will and a real
power of action. A corporation therefore, has a real existence, irrespective of the fact
whether it is recognized by the State or not. Gierke believed that the existence of a
corporation is real and not based on any fiction. It is a psychological reality and not a
physical reality. He further said that law has no power to create an entity but merely has
the right to recognize or not to recognize an entity. A corporation from the realist
perspective is a social organism while a human is regarded as a physical organism. This
theory was favoured more by the sociologists rather than by the lawyers. While
discussing the realism of the corporate personality, most of the realist jurists claimed
that the fiction theory failed to identify the relationship of law with the society in
general. The main defect of the fiction theory according to the realist jurists was the
ignorance of sociological facts that evolved around the law making process. Horace
Gray, however, denied the existence of collective will. He called it a figment. He said

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 that to get rid of the fiction of an attributed by saying that corporation has a real general
will, is to derive out one fiction by another.
4. The Bracket Theory or the Symbolist Theory– This theory was propounded by
Rudolph Ritter von Jhering (also Ihering). According to Ihering, the conception of
corporate personality is essential and is merely an economic device by which we can
simplify the task of coordinating legal relations. Hence, when necessary, it is
emphasized that the law should look behind the entity to discover the real state of
affairs. This is also similar to the concept of lifting of the corporate veil. This group
believed that the juristic personality is only a symbol to facilitate the working of the
corporate bodies. Only the members of the corporation are ‘persons’ in real sense of the
term and a bracket is put around them to indicate that they are to be treated as one single
unit when they form themselves into a corporation.
5. Purpose Theory or the theory of Zweck Vermogen– The advocates of this theory are
Ernst Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the
fiction theory. It declared that only human beings can be a person and have rights. This
theory also said that a juristic person is no person at all but merely
a “subjectless” property destined for a particular purpose. There is ownership but no
owner. Thus a juristic person is not constructed round a group of persons but based on
an object and purpose. The assumption that only living persons can be the subject-matter
of rights and duties would have deprived imposition of rights and duties on corporations
which are non-living entities. It therefore, became necessary to attribute ‘personality’ to
corporations for the purpose of being capable of having rights and duties.
6. Hohfeld’s Theory– He said that juristic persons are creations of arbitrary rules of
procedure. According to him, human beings alone are capable of having rights and
duties and any group to which the law ascribes juristic personality is merely a procedure
for working out the legal rights and jural relations and making them as human beings.
7. Kelsen’s Theory of Legal Personality – He said that there is no difference between
legal personality of a company and that of an individual. Personality in the legal sense is
only a technical personification of a complex of norms and assigning complexes of
rights and duties.

TITLES

Title is a link between a person and an object to establish ownership of property. A

title is the de facto antecedent of which the right is the de jure consequent. Right of
possession on ownership comes in term of de facto first and later de jure. For
example, I have a watch on my hand. How it can be said that it is my, or I have title
over it. I have either purchased it, or someone has gifted me, or I have inherited it
from elsewhere. Title is created even of stolen objects. It is right of ownership in fact
and in law over property.

Kinds of Title

There are two kinds of title are as follow

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 Investitive facts Investitive facts create rights. This right is created first time on the
objects, which are ownerless. When I catch fish it is my original title and if I purchase
it from elsewhere then it is called derivative title. Derivative right is second right,
which is created after gone away of original right.
 Divestitive facts Divestitive facts are those, which loss or keep away of right is
termed as divestitive facts.
 Alienative right Alienative right is right which is separated or transferable.
 Extinctive right Extinctive right is right which is kept away or destroyed.

OBLIGATIONS

Every legal system contains obligation-imposing laws, but there is no decisive linguistic
marker determining which these are. The term “obligation” need not be used, nor its near-
synonym, “duty.” One rarely finds the imperative mood. The Canadian Criminal Code
imposes an obligation not to advocate genocide thus: “Everyone who advocates or promotes
genocide is guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years.” The English Sale of Goods Act says that, “Where the seller sells
goods in the course of a business, there is an implied condition that the goods supplied
under the contract are of merchantable quality.” That these laws create obligations follows
from the way “offence” and “implied condition” function in their respective areas of law, not
from the language in which they are expressed.

On the face of it, some laws have other functions. A requirement that “a will must be signed”
generally imposes no duty—not a duty to make a will, and not even a duty to have it signed if
you do—it sets conditions in the absence of which the document simply does not count as a
valid will. Nonetheless, some philosophers, including Jeremy Bentham and Hans Kelsen,
argue that the content of every legal system can and should be represented solely in terms
of duty-imposing and duty-excepting laws. Bentham asks, “What is it that every article of law
has in common with the rest? It commands and by doing so creates duties or, what is
another word for the same thing, obligations” (Bentham 1970, 294). (For a related
contemporary view, see Harris 1979, 84–106.) They think that analyzing laws this way
reveals what legislators or subjects most need to know: under what conditions the coercive
power of law will ultimately be met. Others argue that even if such a reduction were possible,
it would be unwieldy, uninformative and unmotivated, concealing as it does the different
social functions that laws fulfil (Hart 1994: 26–49) and the different kinds of reasons for
action that they create (Raz 1990). Others still, despairing of any principled way of knowing
what a law is, have abandoned the problem entirely and tried to develop a theory of law that
bypasses it (Honoré 1977; Dworkin 1978: 71–78). At a minimum, it does seem clear that
whether or not all laws impose obligations, they can only be fully understood through their
relations to those that do. Thus, a legal right is an interest that warrants holding others under
an obligation to protect it, a legal power is the ability to create or modify obligations, and so
forth.

What then are legal obligations? They are legal requirements with which law's subjects
are bound to conform. An obligatory act or omission is something the law renders non-
optional. Since people plainly can violate their legal obligations, “non-optional” does not
mean that they are physically compelled to perform, nor even that law leaves them without

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any eligible alternative. On the contrary, people often calculate whether or not to perform
their legal duties. Could it be then that obligations are simply weighty reasons to perform,
even if sometimes neglected or outweighed? This cannot be a sufficient condition: high
courts have important reasons not to reverse themselves too frequently, but no legal
obligation to refrain. Nor is it necessary: one has an obligation, but only a trivial reason, not
to tread on someone's lawn without his consent.

If their content does not account for the stringency of obligations, what does? A historically
important, though now largely defunct, theory explained it in terms of penalty. Following
Hobbes and Bentham, the English jurist John Austin says that to have a legal obligation is to
be subject to a sovereign command to do or forbear, where a command requires an
expression of will together with an attached risk, however small, of suffering an evil for non-
compliance. “When I am talking directly of the chance of incurring the evil, or (changing the
expression) of the liability or obnoxiousness to the evil, I employ the term duty, or the
term obligation…” (Austin 1832, 18). Others conceived an indirect connection between duty
and sanction. Hans Kelsen holds that what is normally counted as the content of a legal duty
is in reality only part of a triggering condition for the mandatory norm which commands or
authorizes officials to impose a sanction: “[A] norm: ‘You shall not murder’ is superfluous, if a
norm is valid: ‘He who murders ought to be punished’”(Kelsen 1967, 55). And thus, “Legal
obligation is not, or not immediately, the behavior that ought to be. Only the coercive act,
functioning as a sanction, ought to be” (Kelsen 1967, 119).

None of these versions of the sanction theory survived H.L.A. Hart's criticisms (Hart 1994,
27–42; cf. Hacker 1973). First, they misleadingly represent a range of disparate legal
consequences—including compensation and even invalidation—as if they all function as
penalties. Second, they render unintelligible many familiar references to duties in the
absence of sanctions, for example, the duty of the highest courts to apply the law. Third,
they offer an inadequate explanation of non-optionality. “You have an obligation not to
murder” cannot merely mean “If you murder you will be punished,” for the law is not
indifferent between people, on the one hand, murdering and being jailed, and on the other
hand not murdering at all. “The right to disobey the law is not obtainable by the payment of a
penalty or a licence fee” (Francome v. Mirror Group Newspapers Ltd. [1984] 2 All ER 408 at
412). Such dicta are commonplace and reflect familiar judicial attitudes. Most important, the
normal function of sanctions in the law is to reinforce duties, not to constitute them. It is true
that one reason people are interested in knowing their legal duties is to avoid sanctions, but
this is not the only reason nor is it, contrary to what Oliver Wendell Holmes supposed, a
theoretically primary one. Subjects also want to be guided by their duties—whether in order
to fulfil them or deliberately to infringe them—and officials invoke them as reasons for, and
not merely consequences of, their decisions.

Sensitivity to such matters led Hart to defend a rule-based theory. He says that while
sanctions might mark circumstances in which people are obliged to conform, they have an
obligation only when subject to a practiced social rule requiring an act or omission. The fact
that subjects use it as a rule marks it as normative. Three further features distinguish
obligation-imposing rules: they must be reinforced by serious or insistent pressure to
conform; they must be believed important to social life or to some valued aspect of it; and
their requirements may conflict with the interests and goals of the subject (Hart 1994, 85–
88). This account of the nature of obligations is not an account of their validity. Hart does not
say that a legal duty is binding whenever there is a willingness to deploy serious pressure in

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its support, etc. He holds that a duty is legally valid if it is part of the legal system (i.e., if it is
certified as such by the tests for law in that system), and a legal duty is morally valid only if
there are sound moral reasons to comply with it. But, at least in his early work, he offers the
practice theory as an explanation of duties generally—legal duties are the creatures of legal
rules, moral duties of moral rules and so on. (Hart later modified this view, see 1982, 255–
68; and 1994, 256.)

The constitutive role of social pressure is sometimes considered an Austinian blemish on

Hart's theory, but there are in any case more serious problems with it as a general account
of obligations (Dworkin 1978, 50–54; Raz 1990, 53–8). People readily speak of obligations
when they are well aware that there are no relevant social practices, as might a lone
vegetarian in a meat eating society. And Hart's practice conditions may be satisfied in cases
where there is no obligation but only generally applicable reasons, as when victims are
regularly urged to yield their wallets to a mugger. At best, Hart's theory will apply only to a
special class of obligations in which the existence of a conventional practice is an essential
part of the reasons for conformity, though even here, the theory is open to doubt. (See
Dworkin 1978, 54–58; Green 1988, 88–121)

A third account is reason-based. On this view, what constitutes obligations is neither the
social resources with which they are enforced, nor the practices in which they may be
expressed, but the kind of reasons for action that they offer. Legal obligations are content-
independent reasons that are both categorical and pre-emptive in force. The mark of their
content-independence is that their force does not depend on the nature or merits of the
action they require: in most cases, law can impose an obligation to do X or to refrain from
doing X (Hart 1958; 1982, 254–55; but cf. Markwick 2000). That they are pre-emptive means
that they require the subject to set aside his own view of the merits and comply nonetheless.
That they are categorical means that they do not condition their claims on the subject's own
goals or interests.

This view is foreshadowed in both Hobbes and Locke, but its most influential contemporary
version is due to Joseph Raz (1977; 1990, 35–84). He argues that obligations are
categorical reasons for action that are also protected by exclusionary reasons not to act on
some of the competing reasons to the contrary. Obligations exclude some contrary
reasons—typically at least reasons of convenience and ordinary preference—but they do not
normally exclude all: an exclusionary reason is not necessarily a conclusive reason. The
stringency of an obligation is thus a consequence not of its weight or practice features, but of
the fact that it supports the required action by special normative means, insulating it from the
general competition of reasons. Or at any rate this is what obligations do when they have the
force the claim, i.e., when they are binding. The theory does not assume that all legal
obligations actually are binding from the moral point of view, but it does suppose that the
legal system puts them forth as if they were—a consequence that some have doubted. (Hart
1982, 263–67; Himma 2001, 284–97) And while this account is invulnerable to the objections
to sanction-based and practice-based theories, it does need to make good the general idea
of an ‘exclusionary reason’, and some philosophers have expressed doubts on that score
also (Perry 1989, Regan 1987): is it ever reasonable to exclude entirely from consideration
an otherwise valid reason? The account has, nonetheless, been adopted by legal
philosophers with otherwise starkly contrasting views of the nature of law. (Compare, e.g.,
Finnis 1979, 231–59 and Marmor 2001).

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Authority, Obligation, and Legitimacy

A competitive market is not a legal system, even though people adjust their behaviour in
response to relative prices and the whole constitutes a form of social order. Neither was the
system of mutual nuclear deterrence, though it guided behaviour and generated norms that
regulated the Cold War. Many philosophers and social scientists agree that a social order is
a legal system only if it has effective authority. An effective (or de facto) authority may not be
justified, but it does stand in a special relation to justified (de jure) authority. Justified
authority is what effective authorities claim, or what they are generally recognized to have.

What is legal authority, and how is it related to obligations? It is a kind of practical authority,
i.e. authority over action. On one influential view, “To claim authority is to claim the right to
be obeyed” (Wolff 1970, 5). There are, of course, authorities that make no such claim.
Theoretical authorities, i.e., experts, are not characterized by claims to obedience—they
need not even claim a right to be believed. And there are weaker forms of practical authority.
To give someone authority to use your car is merely to permit him. But political authority, of
which legal authority is one species, is normally seen as a right to rule, with a correlative
duty to obey. On this account law claims the right to obedience wherever it sets out
obligations. And to obey is not merely to comply with the law; it is to be guided by it. Max
Weber says it is “as if the ruled had made the content of the command the maxim of their
conduct for its very own sake” (Weber 1963, 946). Or, as Robert Paul Wolff somewhat more
perspicuously puts it: “Obedience is not a matter of doing what someone tells you to do. It is
a matter of doing what he tells you to do because he tells you to do it” (Wolff 1970, 9). This is
not to say that one obeys only in treating the authority's say-so as an indefeasible reason for
action; but one must treat as a binding content-independent reason. The question whether
there is an obligation of obedience to law is a matter of whether we should act from the legal
point of view and obey the law as it claims to be obeyed (Raz 1979, 233–49).

It is an interesting feature of this account that it supposes that one can tell what the authority
requires independent of whether the requirement is justified on its merits. Richard Friedman
argues: “[I]f there is no way of telling whether an utterance is authoritative, except by
evaluating its contents to see whether it deserves to be accepted in its own right, then the
distinction between an authoritative utterance and advice or rational persuasion will have
collapsed” (Friedman 1973, 132). An idea of this sort is developed by Raz into one of the
leading arguments for the “sources thesis”, the idea that an adequate test for the existence
and content of law must be based only on social facts, and not on moral arguments. (See
the entry on legal positivism.) Authority's subjects “can benefit by its decisions only if they can
establish their existence and content in ways which do not depend on raising the very same
issues which the authority is there to settle” (Raz 1994, 219). If law aims to settle disputes
about moral issues, then law must be identifiable without resolving these same disputes. The
law is therefore exhausted by its sources (such as legislative enactments, judicial decisions,
and customs, together with local conventions of interpretation). This kind of argument has
been generalized (see Shapiro 1998), but also subjected to criticism. It is uncertain what sort
of constraint is posed by the idea that it should not involve “the very same issues”—perhaps
if morality is a necessary condition only there could be moral tests for authority that leave the
relevant dependent reasons untouched (Coleman 2001, 126–7). And while law does indeed
serve as a scheme for guiding and appraising behaviour, it may also have other functions,

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such as educating its subjects about right and wrong, and this may be ill-served the attitude
that the rules are to be obeyed in part because they are the rules (Waluchow 1994).

The obligation-correlative view of authority is not universally accepted. Some argue that
legal authority involves no claim right, but only a set of liberties: to decide certain questions
for a society and to enforce their decisions. (Soper 2002, 85 ff; cf. Ladenson 1980;
Greenawalt 1987; 47–61; and Edmundson 1998, 7–70). The liberty conception must answer
two questions. First, is it not a feature of a right to decide that it requires subjects to refrain
from acting on competing decisions? If the law says that abortion is permissible and the
Church says that it is not, what does the denial of the Church's right to decide amount to if
not that public policy should be structured by the former decision and not the latter, even if
the latter is correct? Second, does the right to enforce include a duty of subjects to pay the
penalty when required? If it does, then this is only a truncated version of the obligation-
correlative theory—one that holds that punitive and remedial obligations, but not primary
obligations, are binding. If not, it is starkly at variance with the actual views of legal officials,
who do not think that subjects are at liberty to evade penalties if they can.

This reaches a methodological issue in the philosophy of law. Some consider that the
character of law's authority is a matter for descriptive analysis fixed by semantic and logical
constraints of official language and traditions of argument. Others maintain that such
analysis is impossible or indeterminate, and that we are therefore driven to normative
arguments about what legal authority should be (see Soper 2002; Finnis 1979, 12–15).
Crudely put, they think that we should understand law to claim only the sort of authority it
would be justifiable for law to have. Such is the motivation for Friedrich Hayek's suggestion
that ‘The ideal type of law … provides merely additional information to be taken into account
in the decision of the actor’ (Hayek 1960, 150). Hayek favours the free market, and
concludes that the nature of legal authority should be understood analogically. The most
radical position of this sort is Ronald Dworkin's. He prefers what he calls a “more relaxed”
understanding of legal authority (Dworkin 1986: 429). Others have argued that the pre-
emptive notion of authority is unsatisfactory because it is too rigid (e.g., Perry 1989).
Dworkin's objection runs much deeper. His position is not that law communicates only a
weaker form of guidance; it is that law is not to be understood as trying to communicate
anything at all. A subject considering his legal duties is not listening to the law; he is
engaged in “a conversation with oneself,” and is “trying to discover his own intention in
maintaining and participating in that practice” (Dworkin 1986, 58). On this view there is no
fact of the matter about what law claims that is independent of what each does well to regard
it as claiming.

However we resolve the methodological question, there are two parallel normative
questions:

The problem of obligation: What if anything justifies the duty to obey the law, and how far
does that obedience properly extend?

The problem of legitimacy: What if anything justifies the coercive power of law, and how far
may that power properly extend?

What is the relationship between these? Some maintain that obligation comes first:
“[T]hough obligation is not a sufficient condition for coercion, it is close to a necessary one. A

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state may have good grounds in some special circumstances for coercing those who have
no duty to obey. But no general policy of upholding the law with steel could be justified if the
law were not, in general, a source of genuine obligations” (Dworkin 1986, 191). The idea is
that merely having justice on one's side is an inadequate ground for coercing others; one
also needs a special title flowing from the moral status of the law. (Contrast, for example,
Locke's view that everyone has an “executive power of the law of nature,” at least outside
political society (§ 13).)

Others contend that this gets the relationship backwards. First, it is doubtful whether one
could have an obligation to obey an illegitimate regime. As Rawls says, “Acquiescence in, or
even consent to, clearly unjust institutions does not give rise to obligations” (Rawls 1971,
343; but cf. Simmons 1979, 78–79). If so, at least some conditions of legitimacy precede an
obligation of obedience. Second, there are substantive reasons for thinking we would not
have obligations to obey if the law were not already justified in upholding its requirements
“with steel.” A legal system that could not justifiably coerce could not assure the law-abiding
that the recalcitrant will not take them for suckers. Without being able to solve this assurance
problem it would be unjust to impose obligations on them, and unjust to demand their
obedience. Underlying this suggestion is that idea that familiar idea that effectiveness is a
necessary—but certainly not sufficient—condition for justified authority. (See Kelsen 1967,
46–50; cf. Finnis 1979, 250)

Obligations to the Law

It may affirm our confidence in the obligation-correlative view to know that from earliest times
philosophical reflection on political authority has focussed on the obligation to obey. The
passive obligation of obedience is certainly not all we owe the law (Parekh 1993, 243; Green
2003, 543–47) but many have taken it to be law's minimum demand. This gives rise to a
puzzle. As Wolff puts it: “If the individual retains his autonomy by reserving to himself in each
instance the final decision whether to co-operate, he thereby denies the authority of the
state; if, on the other hand, he submits to the state and accepts is claim to authority then …
he loses his autonomy” (Wolff 1970, 9). Wolff resolves the dilemma in favour of autonomy,
and on that basis defends anarchism.

Some of Wolff's worries flow from the “surrender of judgment” itself—how can it ever be
rational to act against reason as one sees it? Others flow from the fact that it is a
surrender to the law. On the first point, it is relevant to notice that promises and contracts
also involve surrender of judgment and a kind of deference to others (see Soper 2002, 103–
39), yet a rational anarchist needs such voluntary commitments to substitute for authoritative
ordering. A principled objection to every surrender of judgment is thus self-defeating.
Moreover, there seem to be cases in which by surrendering judgment on some matters one
can secure more time and resources for reflection and decision on things that are more
important, or with respect to which one has greater capacity for self-direction. A partial
surrender of judgment may therefore enhance the agent's autonomy overall.

This suggests that Wolff's concern is better understood as skepticism about whether it is
justifiable to surrender one's judgment wholesale to the law. Some philosophers have
queried the intelligibility of this doubt; they say that it is of the nature of law that there is an
obligation to obey it, at least in its central case (Fuller 1958, 100; Finnis 1979, 14–15). Some
go so far as to conclude that it is therefore absurd to ask for any ground of the duty to obey

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the law: law is that which is to be obeyed (McPherson 1967, 64). We need a way into this
circle, and the best entrance is in specifying the nature of law in a way compatible with
various theories of its nature. Three features are especially important (drawing on Hart 1994,
193–200; Raz 1990, 149–54; and Lyons 1984, 66–68.) First, law is institutionalized: nothing
is law that is not connected with the activities of institutions such as legislatures, courts,
administrators, police, etc. Second, legal systems have a wide scope. Law not limited to the
affairs of small face-to-face groups such as families or clans, nor does it only attend to a
restricted domain of life such as baseball. Law governs open-ended domains of large,
loosely structured groups of strangers and it regulates their most urgent interests: life, liberty,
property, kinship, etc. But although law necessarily deals with moral matters, it does not
necessarily do so well, and this is its third central feature: law is morally fallible. This is
acknowledged by both positivists and natural lawyers, whose slogan “an unjust law is not a
law” was never intended to assert the infallibility of law.

The question of political obligation, then, turns on whether there is are moral reasons to obey
the mandatory requirements of a wide-ranging, morally fallible, institutionalized authority.
This obligation purports to be comprehensive in that it covers all legal obligations and
everyone whose compliance the law requires. It is not assumed to bind come what may,
though it is to be one genuine obligation among others. Some philosophers also consider
that it should bind people particularly to their own states, i.e., the states of which they are
residents or citizens, and that an argument that could not show that one had more stringent
duties to obey one's own country than a similarly just foreign one would be in that measure
deficient (Simmons 1979, 31–35; Green 1988, 227–28). Finally, it is common ground the
obligation exists only when a threshold condition of justice is met.

Sources of Obligation

Obligations arising out of the will of the parties are called voluntary, and those imposed by
operation of law are called involuntary. Sometimes these are called conventional and
obediential. The events giving rise to obligations may be further distinguished into specified
categories.

Voluntary

1. unilateral promise (pollicitatio) - undertaking by promisor only to perform, not requiring

the agreement of the beneficiary

Contract

A contract can be broadly defined as an agreement that is enforceable at law. Gaius classified
contracts into four categories which are: contracts consensu, verbal contracts, contracts re, and
contracts litteris. But this classification cannot cover all the contracts, such as pacts and
innominate contracts; thus, it is no longer used.

Quasi-contract

i. negotiorum gestio - duty to repay someone (gestor) who has managed the affairs or
property of another who was unable

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 ii. solutio indebiti - undue payment or delivery of a thing to another, who is then obligated
to return the thing

Quasi-contract is one of the four categories of obligation in Justinian's classification. The

main cases are negotiorum gestio (conducting of another person's affairs without their
authorisation), unjust enrichment, and solutio indebiti.

Quasi-delicts

The designation comprised a group of actions of no obvious similarity, classified by Justinian

as analogous to delictual obligations. It includes res suspensae, things poured or thrown,
shippers/innkeepers/stablekeepers, and erring judges.

Involuntary

1. delicts and quasi-delicts (equivalent to the common-law tort).

2. unjust enrichment (condictio indebiti)

Contracts
A contract can be broadly defined as an agreement that is enforceable at law. Gaius classified
contracts into four categories which are: contracts consensu, verbal contracts, contracts re, and
contracts litteris. But this classification cannot cover all the contracts, such as pacts and
innominate contracts; thus, it is no longer used.

Quasi-contracts
Quasi-contract is one of the four categories of obligation in Justinian's classification. The
main cases are negotiorum gestio (conducting of another person's affairs without their
authorisation), unjust enrichment, and solutio indebiti.

Quasi-delicts
The designation comprised a group of actions of no obvious similarity, classified by Justinian
as analogous to delictual obligations. It includes res suspensae, things poured or thrown,
shippers/innkeepers/stablekeepers, and erring judges.

Subject matter

Obligations are classified according to the nature of the performance (prestation):

real obligations - undertakings to give or deliver property, possession, or enjoyment [4]

specific real obligation - delivery of a determinate thing when it is particularly designated or

physically separated from all others of the same class

generic real obligation - delivery of a generic thing

personal obligations - undertakings either to do or not do all kinds of work or service

positive personal obligation - performance

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negative personal obligation - forbearance

Kinds of Obligation
01. as to Sanction

Civil or perfect obligation. It is an obligation whose sanction is law. Natural Obligation or

naturalis obligatio is one enforceable by law but nevertheless binding on the obligor by
dictate of his conscience and the basic postulates of natural law, justice and equity. Moral
Obligation is a duty imposed by ethical or religious belief.

02. as to Subject Matter

Real Obligation. The obligation to give Personal Obligation . The obligation to do or not to
do.

03. as to Number of Persons

Obliged - Unilateral Obligation. Is one where only one party is bound. Only one party
undertakes a performance. Bilateral Obligation . Is one where both parties are bound, as in
the contract of sale.

04. As to Mode of Performance

Positive Obligation. Is an obligation to give and to do, the essence is affirmative

action Negative Obligation . Is an obligation not to give or not to do, the essence is inaction
or non-action.

05. As to Sequence of Performance

Primary Obligation. The principal object of the contract. Secondary Obligation . One
which is contracted and is to be performed in case the primary obligation cannot be
performed.

06. As to Object

Principal Obligation. One which arises from the principal object of the engagement of the
contracting parties. Accessory Obligation . One which depends upon or peripheral or
collateral to the principal

Kinds of Obligations Under the Civil Code

Pure and Conditional Obligation.

Obligation with a Period

Alternative Obligation

Joint and Solidary Obligation

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Divisible and Indivisible Obligation

Obligation with a Penal Clause

Pure Obligation

Every obligation whose performance does not depend upon a future or uncertain event, or a
past event unknown to the parties, is demandable at once and is called a pure obligation.

Conditional Obligation

Conditional obligation is one the fulfillment of which is dependent upon the happening of an
event.THE CONDITION MAY BE;

1. Suspensive or Condition Precedent – wherein the happening of the condition gives rise
to the obligation. The obligation is not to take effect until the event happens, it is a suspensive
condition Resolutory Condition or Condition Subsequent – wherein the happening of the
condition extinguishes the obligation, obligation with resolutory condition take effect at once,
but terminate upon the happening of the event. Potestative – wherein the condition depends
upon the will of the debtor. (Invalid Condition, Art. 1182) Casual – wherein the condition
depends upon chance, or on the will of the third person Impossible Conditions – those
contrary to good customs or public policy and those prohibited by law, shall annul the
obligation which depends upon them.

2. Obligations with a Period or Term Obligations for whose fulfillment a day certain has
been fixed is called an obligation with a period or term and is demandable only when that day
comes.In obligation with a period , the general rule is that it is presumed that the period has
been established for the benefit of both creditor and debtor

3. In the following instances, the court may fix the period. If the obligation does not fix a
period but from its nature and circumstances it can be inferred that a period was
intended When it depends on the will of the debtor When the debtor binds himself to pay
when his means will permit him to do so.

4. Alternative Obligation An alternative obligation is one where out of two or more

prestations which may be given or performed, only one is due and the complete performance
of one of them extinguishes the obligation. The Obligee or creditor cannot be compelled to
receive part of one and part of the other undertaking or prestation.

5. As a general rule, the right to choose the alternative belongs to the debtor. However, there
are four limitations to this right of choice of alternative by the debtor. When the right of
choice of the alternative is expressly granted to the creditor by mutual agreement of the
parties. The debtor has no right to choose those prestations which are impossible, unlawful or
which could not have been the object of the obligation. The choice cannot produce any legal
effect until it has been communicated to the other party. The debtor loses the right of choice
among the prestations whereby he is alternatively bound when only one alternative is left that
is practicable of performance

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6. Facultative Obligation When only one prestation has been has been agreed upon, but the
obligor may render another in substitution, the obligation is facultative

7. Joint and Solidary Obligation A joint obligation may be defined as an obligation where
there is a concurrence of several creditors or several debtors, by virtue which each of the
creditors has a right to demand, while each of the debtors is bound to render the compliance
with his proportionate part of the prestation which constitute the object of obligation.

8. The Right of the Creditors in Solidary Obligation The right to demand entire payment
of the debt or the entire compliance with the prestation from any one of the debtors. If the
debt has not been fully collected from one debtor, the creditor has the right to demand
payment from the remaining debtors. The right to file an action for compliance with the
obligation against one, some all of the debtors simultaneously. The right to receive payment
or compliance with the entire prestation, from one, some or all of the debtors. The right to do
whatever may be useful to the other creditors. The right to assign his rights with the consent
of the other creditors. The right to make a novation, compensation, confusion or remission of
the debt.

9. Obligations of a Solidary Debtor To pay the entire debt or fulfill the entire prestation
when so demanded by creditors. Payment made by one of the solidary debtors extinguishes
the obligation. If two or more solidary debtors offer to pay, the creditor may choose which
offer to accept. To pay his corresponding share in the debt in case one of the solidary debtors
made full payment of the obligation, with the interest for the payment already made. If
payment is made before the debt is due, no interest for the intervening period may be
demanded. To pay for the share of the insolvent co-debtor in proportion to the debt of each
when one of the solidary debtors cannot, because of his insolvency, reimburse his share to the
debtor paying the obligation. If the solidary debtor makes payment after the obligation has
prescribed or become illegal, he losses the right to reimbursement from his co debtors.

10. Divisible and Indivisible Obligation An obligation to give definite things and those
which are not susceptible of partial performance is deemed an indivisible obligation. When
the obligation gives rise for its object the execution of certain number of days work, the
accomplishment of work by metrical units, or analogous things which by their nature are
susceptible of partial performance, such obligation is called divisible obligation.

11. Obligation with a Penal Clause An obligation with a penalty is one where if the
obligation is not complied with, the penalty imposed shall substitute for damages and the
payment of interests, unless otherwise stipulated

12. A penalty imposed for the breach of contract shall be enforced if the agreement is
violated, whatever the obligee has suffered from damages or not, inasmuch as one of the
primary purposes in fixing a penalty is to avoid damage. Proof of actual damages suffered by
the creditor is not necessary in order to demand penalty.

13. As a general rule is that the penalty takes place of indemnity for damages and for the
payment of interest, except: when there is express agreement to the effect that damages or

137
interest may still be recovered, despite the presence of the penalty clause when the debtor
refuses to pay the penalty imposed in the obligation.

LIABILITY

What is Liability -

Liability is the result of a violation of the law. Law lays down is down the right and duties
on the individual. The law awards legal rights to one individual and imposes the duty upon
another person. A person should not infringe is the legal right of others. If anybody violates
the legal right of another, he is said to have committed a wrong. If there is a wrong there is a
liability.

Definition of Liability –

It is difficult to define the term 'liability' Some Eminent Jurists made attempt to define
the term 'liability'.

Salmond -

According to Sir John Salmond, "liability or responsibility is the bond of necessity that
exists between the wrongdoer and the remedy of the wrong."

Markby -

According to Markby, the word 'liability' is used to describe the condition of a person who
has a duty to perform whether that duty is primary one or secondary or sanctioning one.

Austin -

Austin prefers to use the term 'imputability' to 'liability'. According to him, Those certain
forbearances, Commissions or acts, together with such of their consequences, as it was the
purpose of the duties to avert, are imputable to the persons who have forborne omitted or
acted.

Different Kinds / Types of Liability -

Different Kinds of Liability are as follows -

1) Civil liability -

Civil liability is the enforcement of the right of the plaintiff against the dependent in
civil proceedings. Civil liability gives rise to Civil Procedure whose purpose is to the

138
enforcement of certain rights claimed by the plaintiff against the defendant. Examples of civil
proceedings are an action for recovery of the Debt, Restoration of property, the specific
performance of a contract, recovery of damages, the issuing of an injunction against the
threatened injury etc.

2) Criminal Liability -

Criminal liability is the liability to be punished in a criminal proceeding. in criminal

liability, punishment is awarded to a wrongdoer. If the person is guilty of committing the
offense with criminal intension then he is liable for punishment. Criminal liability is based on
the Maxim "actus non facit reum nisi mens sit rea" it means the offender is guilty only
when it is done with the guilty mind.

3) Penal liability -

The theory of penal liability is concerned with the punishment of wrong. There
are different kinds of punishment, Deterrent, preventive, retributive, reformative etc. A penal
liability can arise either from a criminal or a civil wrong. There are three aspects of penal
liability those are the conditions, incidence, and measure of a liability. As regards the
conditions of penal liability, it is expressed in the maxim "actus non facit reum nisi mens sit
rea" This means that the Act does not constitute guilt unless it is done with guilty intention.
Two things are required to be considered in this connection and those are the act and the
mens rea requires the consideration of imitation and negligence. The act is called the
material condition of penal liability and the mens rea is called the formal condition of penal
liability.

4) Remedial Liability -

Remedial liability is based on the Maxim "Ubi jus ibi remedium" it means when there
is right there must be some remedy. The force of law can be used to compel a person to do
what he ought to do under the law of the country. if an injury is caused by the violation of a
right, the same can be remedied by compelling the person bound to comply with it.The first
exception is an imperfect obligation or duty, Second exception unenforceable duties and the
third exception is the impossibility of performance by law.

5) Vicarious liability -

Vicarious liability means a liability which is incurred for or instead of another.

Generally, a person becomes liable for a tort committed by him. But there are certain
circumstances in which one person becomes liable for the tort committed by another. Such
liability is called vicarious liability. There are three exceptions to the general rule that man
must be forced to do by the force of law what he is bound to do by a rule of law.

Example-
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Master and servant

Firm and partners

Employer and independent contractor

6) Absolute or strict liability

Both in Civil and criminal law, mens rea or guilty mind is considered necessary to
hold a person responsible/liable. However, there are some exceptions to the general rule. In
those cases, a person is held responsible irrespective of the existence of either wrongful intent
or negligence. Such cases are known as the wrongs of absolute liability/ strict liability.

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 I YEAR OF 3 YEAR LL.B

SEMESTER - I

ODD SEMESTER

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SUBJECT : LAW OF CONTRACTS - I
SUBJECT CODE : TA1C

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 SYLLABUS
TA1C - LAW OF CONTRACTS - I
Unit - I Basis and Nature of Contracts.

Unit - II Privity of Contract.

Development of contracts - Development of specialised contracts.

Unit - III Types of Contract.

Void, Voidable and unenforceable contracts, Express and implied contracts, unilateral
and Bilateral contracts-e-contracts Analysis of contract - theory of consensus - Essential element
of a contract.

Unit - IV Formation

Offer and acceptance - offer and invitation to treat - fact of acceptance - acceptance in
case of tender - communication of acceptance in person, by post, telephone,telegraph etc.
Revocation of acceptance, termination of offer.

Unit - V Terms of Contract

Warranty, condition - fundamental obligation - Ticket cases.

Unit - VI Consideration

Definition - Indian and English, Executed - Executory and Past must move from the
promisee -Adequacy reality of consideration - Performance of existing duty. Consideration in
discharge of contract - Rule in Pinnel's case High Trees case. Composition with creditors -
Difference between English and Indian Law.

Unit - VII Intention to create legal obligation.

Unit - VIII Capacity to contract:

(i) infants; (ii) lunatic and drunkard; (iii) Alien enemies; (iv) corporation (v) Foreign
Sovereigns and ambassadors; (vi) Married Woman; infant of necessarie -basis of such contracts.
Infants Relief Act of 1874 - Beneficial contracts of service - Equitable doctrine of restitution -
Delictual liability - English and Indian Law.

Unit - IX Flaw in consent:

Mistake of fact and Law as to identity as to title as to the existence of the subject matter -
as to quality as to written contract (non est factum) - Error in verbis - Error in "causa" -
Difference between English and Indian Law.

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Unit - X Misrepresentation.

Misrepresentation - innocent or fradulent - elements of an effective representation -can

silence amount to representation - Misrepresentation Act of 1967 - Representations which is a
term of contract or mere representation - condition of warranty.

Unit - XI Limits of rights to rescind.

Unit - XII.

Coercion - duress, undue influence, unconscionable bargains.

Unit - XIII Unlawful Agreements.

By Statute: By common Law (Public Policy) stifling of prosecution, maintenance,

champerty - agreements which tend to affect the freedom or security or marriage - immoral
agreement - ousting the jurisdiction of courts - Restraint of trade wagering contracts - Restraint
of parental rights - Restraint to personal liberty consequence of illegality imparidelicto.
Difference between illegal and void contract severance.

Unit - XIV Limits of contractual obligation

Privity of contract - strangers to contract cannot sue or cannot be bound by its terms.
Assignment of contractual rights and liabilities.

Unit - XV Discharge of contracts

By performance tender - By express agreement - accord and satisfaction - Bilateral and

unilateral discharge. Under the doctrine of frustration - operation of the doctrine - effect of the
doctrine - difference between English and Indian law.

Unit - XVI

Remedies of breach of contract - Measure of damages remoteness of damages - penalty

and liquidated damages, mitigation of damages.

Unit - XVII Quasi contract

Definition - historical basis - quantum meruit, obligation resembling those created by the
contract under the Indian Act.

Unit - XVIII Miscellaneous

Contingent contracts - appropriation of payments - time and place of performance. Joint

promisors and joint promisees, reciprocal promises,

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Unit - XIX Specific Relief Act:

Recovering possession of property - specific performance of contract - contracts which

can be specifically enforced, contracts which cannot be specifically enforced persons for or
against whom contracts may be specifically enforced - discretionary powers of Court,
rectification of instruments - Rescission of contract, Cancellation of instruments - declaratory
decrees - Preventive Relief - injunction generally - perpetual injunction.

Statutory Materials with Amendments

1. The Indian Contract Act, 1872.

2. Specific Relief Act, 1963.
3. Information Technology Act,2000
Books for Reference:

1. Anson : Contracts
2. Pollock and Mulla : Contracts (Student's Edition)
3. Prof G.C.V. Subba Rao : Specific Relief Act.
4. Avtar Singh : Law of Contracts
5. Cheshire : Law of Contracts
6. Venkatesan : Law of Contracts
7. Krishna Nair : Law of Contracts
8. N.D. Kapoor : Mercantile Law

*********************

LAW OF CONTRACTS.

UNIT-1

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 BASIS AND NATURE OF CONTRACTS.

Introduction to Indian Contract Act:

The law relating to contracts in India is contained in the Indian Contract Act, 1872. The Act
was passed by British India and is based on the principles of English common law. It is
applicable to all the states of India except the state of Jammu & Kashmir. It determines the
circumstance in which promise made by the parties to a contract shall be legally binding on
them. All of us enter into a number of contracts everyday knowingly or unknowingly. Each
contract creates some rights and duties on the contracting parties. Hence this legislation, the
Indian Contract Act 1872, being of skeletal nature, deals with the enforcement of these rights and
duties on the parties in India.

History of Indian Contract Act:

It was enacted mainly with a view to ensure reasonable fulfillment of expectation created by the
promises of the parties and also enforcement of obligations prescribed by an agreement between
the parties. The Third law commission of British India formed in 1861 under the stewardship of
chairman Sir John Romilly, with initial members as Sir Edward Ryan, R. Lowe, J.M. Macleod,
Sir W. Erle ( Succeeded by Sir, W .M. James ) and justice Wills ( succeeded by J. Henderson ) ,
had presented the report on contract law for India as Draft Contract law (1866) . The Draft Law
was enacted as The Act 9 of Indian Contract Act, 1872 on 25 April 1872 and the Indian Contract
Act, 1872 came into force with effect from 1 September 1872.

Role of East India Company

Before the enactment of the Indian Contract Act, 1872, there was no codified law governing
contracts in India. In the Presidency Towns of Madras, Bombay and Calcutta law relating to the
contract was dealt with the Charter granted in 1726 by King George I to the East India Company.
Thereafter in 1781, in the Presidency Town, Act of Settlement passed by the British Government
came into force.

Act of settlement required the Supreme court of India that questions of inheritance and
succession and all matters of contract and dealing between party and party should be determined
in case of Hindu as per Hindu law and in case of Muslim as per Muslim law and when parties to

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a suit belonged to different persuasions, then the law of the defendant was to apply . In outside
Presidency Towns matters with regard to the contract was mainly dealt with through English
Contract Laws: the principle of justice, equity and good conscience was followed.

NATURE OF CONTRACT

What is Contract?

According to section 2 (h) of the India Contract Act,’’ An agreement enforceable by law is a
contract ‘.

Thus for the formation of a contract, there must be –

 An agreement, and

 The agreement should be enforceable by law.

All agreements are not enforceable by law and therefore, all agreements are not contracts. Some
agreement not enforceable by law.

For example- An agreements to sell a radio set any be a contract, but an agreement to go to see
a movie may be a mere agreement not enforceable by law.

Illustration – if the agreement between the farmer and the tractor owner is given force under the
law, then it becomes a contract.

Agreement

According to section 2 (e) defines agreement as, “Every promise and every set of promise,
forming the consideration for each other, is an agreement.”

In agreement, there is a promise from both sides. For example, A promises to deliver his watch
to B and in return B promises to pay a sum of Rs. 2000 to A, there is said to be an agreement
between A and B.

A promise is a result of an offer (proposal ) by one person and its acceptance by the other. For
example – when A makes a proposal to sell his watch to B for Rs. 2,000 and B accept his
proposal, it results from a promise between the two persons.

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Illustration – Such a promise between the tractor owner and the farmer which involves a
consideration of an Rs. 1000 is called an agreement.

The promise in the Indian Contract Act

According to section 2 (b) defines promise as, When the person to whom the proposal is made,
signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted,
becomes a promise.’’

Thus, when there is a proposal from one side and the acceptance of that proposal by the other
side, it results in a promise. This promise from the two parties to one another is known as an
agreement. The person who makes the proposal is called the promisor. The person who accepts
such a promise is called the promise.

Illustration – if in the given example, the farmer accepts the proposal of the tractor owner to
transport his produce from the farms to the market, the proposal then becomes a promise.

“All contracts are agreements but all agreements are not contracts” , because agreements of
moral, religious or social nature e.g.., a promise to lunch together at a friend’s house or to take a
walk together are not contracts because they are not likely to create a duty enforceable by law for
the simple reason that the parties never intended that they should be attended by legal
consequences.

In business agreements the presumption is usually that the parties intend to create legal relation
for e.g. An agreement to buy certain specific goods at an agreed price e.g.., 10 bags of wheat at
Rs. 500 per bag is a contract because it gives rise to a duty enforceable by law , and in case of
default on the part of either party an action for breach of contract could be enforced through a
court provided other essential elements of a valid contract as laid down in Section 10 are present,
namely, if the contract was made by free consent of the parties competent to contract, for a
lawful consideration and with a lawful object.

The various agreements may be classified into two categories :

 Agreement not enforceable by law (Any essential of a valid contract is not available )

 An agreement enforceable by law(All essentials of a valid contract are available )

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Conclusion

Thus we see that an agreement may be or may not be enforceable by law, and so all agreement
does not contract. Only those agreements are contracts, which are enforceable by law, In short.

Contracts = Agreement = Enforceability by law

Hence, we can conclude “All contracts are agreement, but all agreements are not contracts .”

UNIT-2

PRIVITY OF CONTRACTS.
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Historical Development

The doctrine of privity of contract is basically a common law doctrine. It was during the British
regime in India that the Indian Contract Act was enacted in the year 1872. The Act, therefore, is
mostly based on the principles of English legal system. Therefore a discussion of historical
development of the doctrine in England will help in better understanding the development of law
in India.

Position in England:

The doctrine of privity of contract owes its origin to the common law courts. This doctrine
originated during the period when the judges were busy in discovering a suitable principle for
determining as to who was entitled to sue for breach of a promise. It, however, took considerable
time to come to prominence. The doctrine of privity of contract was, for the first time, applied in
the case of Jordan v. Jordan1'8'. In this case the suit of a non-party to a promise did not lie. But,
in Lever v. Keys the court overruled the decision in Jordan v. Jordan and allowed the stranger's
suit on a contract. In this case the father of a girl promised the father of a boy that if he would be
willing to give his consent to the marriage of the boy with the girl and assure pounds 40 to the
son, he would pay pounds 200 to the son in marriage. The action of assumpsit was brought by
the son upon breach of the promise. It was held that the son was entitled to sue.

But, in Taylor v. Foster reaffirmed the decision in Jordan's case and applied the doctrine of
privity of contract and a stranger to the contract was prevented to maintain his action upon
breach of the contract. In this case, the defendant, in consideration that the plaintiff would marry
his daughter, promised to pay pounds 100 in two instalments to one J.S., to whom the plaintiff
was indebted. The court held that the plaintiff was the proper person to sue and not J.S. But,
again in Provender v. Wood the court overruled the Taylor's case and allowed stranger's action
on a contract. Similarly, in Sprat v. Agar the father of a girl promised the father of a boy to
transfer certain land to the boy in consideration of the boy's marriage with his daughter. It was
held that the son, although, not a promisee, could sue.

But, in the leading case of Bourne v. Mason the court overruled the Provender ' and Spratx cases
and held that the doctrine of privity of contract was applicable. In this case there was one Parry
who was indebted to Bourne, Mason and Robinson (who was a co-defendant). Chaunter was

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indebted to Parry. Mason, in consideration that Parry would allow Mason to sue Chaunter
promised to pay to Bourne a part of the sum owed to him by Parry. The plaintiff's action to sue
the contract failed. The court held that the plaintiff was not a proper person to sue. It said that the
plaintiff was a stranger and no meritorious cause moved from him.

It appears from this judgment that the court has based its verdict on the ground that the plaintiff
has neither incurred any loss nor provided benefit to the defendant and therefore, he should be
treated as a stranger to the contract. In other words, as the consideration did not move from the
plaintiff, he could not be held entitled to bring an action for enforcing his claim on breach of
contract. However, in Dutton v. Poole the court of King's Bench again overruled the decision in
Bourne v. Mason case and upheld the stranger's claim ,but on a different ground. The court did
not follow the doctrine of privity of contract strictly. The court observed- that the stranger was
having very close relations to the promise. He could, therefore, maintain an action on a contract
as a beneficiary. In this case the father of the defendant wanted to sell some timber trees. The
defendant promised (in consideration that his father would refrain from cutting down the trees) to
pay to his sister Grizil pounds 1000. Grizil (as Mrs. Dutton) with her husband sued for breach of
the promise. It was held that the action was maintainable.

It appears that the basic ground in this case for ignoring the doctrine of privity of contract was
the very near and affectionate relation between the plaintiff and her father who was the promisee
under the contract. The court was of the opinion that natural love and affection could constitute
consideration. Therefore, the consideration and promise to the father could extend to the children
for there exists natural love and affection between them. The plaintiff was no doubt, a stranger to
the contract , but not a stranger to the consideration, she was deemed to have furnished
consideration, so she was held entitled to sue.

It is submitted that this was the case where an idea emanated that if the stranger, upon whom
contractual benefit was to be conferred, was closely related by blood to the promisee, a right of
action would vest in him.

Crow v. Roger was a case where a stranger couldnot base his claim on breach of a promise. In
this case, a person named Hardy owed pounds 70 to Crow. An agreement was made between
Rogers and Hardy whereby Rogers promised to repay Hardy's debt in consideration that Hardy

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would give a house to him. On the basis of this promise Crow sued Rogers. But, the court
rejected his claim on tine ground that he was a stranger to the agreement and consideration.

The above view was confirmed in the leading case of Price v. Easton . However, in the present
case, the court preferred to accept only one of the two reasons given for rejecting the claim in
Crow v. Rogers. This reason was that as the plaintiff was a stranger to the contract he could not
enforce the contract. The facts of the case were that one W.P. owed pounds 13 to Price. He
promised to work for Easton who in lieu of it, promised to repay his debt to Price. W.P. did the
work but, Easton failed to repay the debt. Price sued Easton for breach of this promise. The suit
was rejected. The observation of the court in this case in defence of privity of contract is worth
quoting:

"No one may be entitled to or bound by terms

of a contract to which he is not an original

party."

Tweddle v,Atkinson is the case in which the doctrine of privity of contract was finally
established by the Court of Queen's Bench in l86l. In this case in consideration of an intended
marriage between plaintiff and daughter of one W. Guy the plaintiff's father entered into a
contract with W. Guy. By this contract both agreed to pay the plaintiff a definite sum of money.
But, Mr. Guy failed to do so. The plaintiff sued his executors. The suit was dismissed by the
court.

It is to be noted that the court in rejecting plaintiff's claim laid more emphasis on doctrine of
privity of consideration than on the doctrine of privity of contract. Nevertheless, the doctrine of
privity of contract acquired a definite shape in this case.

An analysis of above judicial decisions reveals that although the origin of the doctrine of privity
of contract may well be traced in some earlier decisions, but it was the decision in Tweddle v,
Atkinson, which indeed ended the uncertainty about the doctrine and gave a finality to it. Ever
since the decision of this case, the doctrine of privity of contract has been followed.

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The above mentioned judicial decision also makes it clear that the doctrine of privity of contract
lays down two general principles of law of contract. Firstly, it purports to say that a stranger to a
contract cannot sue. Secondly, it states that a stranger to a contract is not bound by the contract.

It is pertinent to mention that a doctrine which had been toiling hard for its existence in the
nineteenth century has finally succeeded in getting the final seal of approval by the House of
Lords in the leading case of Dunlop Pneumatic Tyre Co.,Ltd. V. Selfridge & Co. Ltd., 1 in the
year 1915- The plaintiff in this case sold a number of tyres to Dew & Co. with an agreement that
Dew & Co. would not resell them below a fixed price. Dew & Co. sold the tyres to Selfridge
who agreed to observe the restriction and promised to pay to Dunlop Co. pound 5 for each tyre if
he violated the restriction clause. But, Selfridge sold the tyres to another at a price which was
below the price fixed by restriction clause in the agreement. The court rejected the claim of the
plaintiff and held that a stranger to a contract had no right to sue upon it. It is clear that the
plaintiff was a stranger to the contract between Dew & Co. and Selfridge. It is submitted that the
claim of the plaintiff was rightly rejected, as in the absence of such an attitude of the court the
commerce would have suffered badly.

It is to be noted that in some subsequent cases efforts were made to abolish the doctrine. For
example, in Drive Yourself Hire Co, Ltd,(London) v. Strutt, Lord Denning (who opposed the
doctrine) observed, "For the last two hundred years before l86l it was settled law that, if a
promise in a single contract was made for the benefit of a third person in such circumstances
that, it was intended to be enforced by him, then the common law would enforce the promise at
his instance, although he was not a party to the contract."

In Beswick v. Beswick the views expressed by both Lord Denning and Dankwerts L.J. in the
court of Appeal was that the doctrine of privity of contract could not be applied. But, the House
of Lords, rejecting the views of Lord Denning and DankwertsL.J. unanimously emphasised the
utility of the doctrine of privity of contract. In this case, there was a contract between the
plaintiff's husband and her husband's nephew transferring the coal business by the husband to his
nephew. It was held that the plaintiff was not entitled to enforce obligation in her personal
capacity since she was a stranger to the contract, however, she could as the personal

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representative of her husband {the promisee) obtain specific performance of the promise in
favour of herself as third party.

In Jackson v. Horizon Holidays Ltd. J a very important question came before the court for
consideration. The question was as to whether the promisee could recover substantial damages
(due to breach of contract) for loss suffered by a third party and not by himself. The court of
Appeal upheld the award.

In Wooder Investment Development Ltd., v. Wimpey Construction U.K, Ltd. similar arguments
were taken before the court. The facts of the case in brief were that the defendant agreed to buy
from the plaintiff l4 acres of land for pounds 8,50,000. It was agreed that on completion pounds
1,50,000 of this sum would be paid by the defendant to a third party, T.T. Ltd. The plaintiffs
sued for damages for breach of contract and repudiation of contract. The majority view of the
House of Lords was that the contract was actually not repudiated. Their Lordships agreed that if
the contract had been repudiated, the plaintiffs could not, without showing that they had
themselves suffered loss or were agents or trustees for T.T. Ltd. , have recovered damages for
non-payment of the pounds 1,50,000. This judgement shows that the court proceeded on the
assumption that a stranger to a contract cannot sue even if made for his benefit. But, Lords
Salmond and Russel forming the minority view dissented. They expressed that the defendant's
conduct amounted to a repudiatory breach. However, the majority view Is correct because it
allows the promisee to recover damages for loss suffered due to failure of promisor to pay the
agreed sum to the third person.

Thus, the doctrine of privity of contract came into prominence in England in l86l in the case of
Tweddle v.Atkinson. J Ever since the decision in this case, it has been regarded as one of the
basic principles of law of contract in England. However, the doctrine is not absolute. Certain
limiations have also been imposed upon it. For instance, trust and agency are the most common
examples of such limitations. Besides, the legislature has also enacted some limitations through
various enactments. These limitations constitute exeptions to the doctrine.

Position in India:

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As, we know there is no independent' enactment on thedoctrine of privity of contract in India.
But, fortunately, unlike England, the law of Contract in India is codified. The Indian Contract
Act deals with general principles of the law of contract and certain specific contracts. It is to be,
however, noted that the Indian Contract Act does not explicitly contain a single provision
relating to the doctrine of privity of contract. Therefore, the position of the doctrine may be
visualised in the light of various provisions of the Contract Act.

For instance, Section 2 (h) of the Indian Contract Act, 1872 defines the term 'contract' in the
form of an agreement. It states that "an agreement enforceable by law is a contract." In other
words, a contract is nothing but a valid agreement. The 'agreement' has been defined under
section 2(e) of the Indian Contract Act, 1872. According to section 2(e), "Every promise and
every set of promises forming the consideration for each other is an agreement." Thus, an
agreement is a precondition to the contract. The agreement may be divided into two parts -
'promise' and 'consideration of the promise.' The term 'promise' has been defined under section 2
(b) of the Contract Act. According to section 2 (b), "a proposal when accepted becomes a
promise." Thus, finally we find two terms - proposal and acceptance. The 'proposal' has been
defined under section 2 (a) of the Contract Act and the 'acceptance' under section 2 (b) of the
Act. According to section 2 (a), 'when a person signifies to another his willingness to do or to
abstain from doing anything, with a view to obtaining the assent of that other to such act or
abstinence, he is said to make a proposal.' Section 2 (b) of the Act says that 'when the person to
whom the proposal is made signifies his- assent thereto, the proposal is said to be accepted.' It is
evident that only that person can accept the proposal to whom the proposal is addressed. The
proposal is generally regarded as a starting point of a contract and on the other hand, an
acceptance as its concluding point. The person who makes a proposal may be called the
proposer, offeror or promisor and the person to whom a proposal is made or who accepts the
proposal may be said the acceptor, offeree or the promisee. Section 2 (c) of the Act defines the
term 'promisor' and 'promisee'. According to it, "the person making the proposal is called the
'promisor' and the person accepting the proposal is called the promisee."

It can, therefore, be inferred from the above provisions of the Contract Act that the promisor is
answerable to the promisee and the promisee is answerable to the promisor. That is to say, that
only parties to a Contract are the appropriate persons who can enforce the contractual rights and
shoulder the contractual obligations. A person who is not a party to a contract can neither sue nor

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be sued for the breach of the contract. Thus, there exists a privity of contract between parties to
the contract.

Further, it is obvious from Section 73 of the Indian Contract Act, 1872 that the party who suffers
by breach of a contract is entitled to receive damages from the other party to the contract. In
view of section jh of the Act, it can be said that if a sum is named in the contract as the amount to
be paid in case of breach of a contract, the party complaining of breach is entitled to receive a
reasonable compensation not exceeding the amount so named, or as the case may be, the penalty
stipulated for. Section 75 of the Act provides that a person who rightfully rescinds a contract is
entitled to compensation for any damage which he has sustained through non-fulfilment of the
contract. It follows from section 73, 74 and 75 (which deal with consequences of breach of
contract) that only that person is entitled to sue for breach of the contract who is a party to the
contract and has suffered loss due to such breach. A person who is not a party to the contract i.e.
a stranger cannot , therefore, bring an action for breach of the contract.

Thus, from the provisions of Indian Contract Act discussed above it is implied that it
incorporates the doctrine of privity of contract. However, certain statutory and non-statutory
exceptions to the doctrine are accepted in India as well.

Doctrine of Privity of Consideration:

The doctrine of privity of consideration must be distinguished from the doctrine of privity of
contract. The doctrine of privity of consideration lays down that a contract can be enforced only
by that party to a contract who has himself given the consideration. The doctrine emphasises that
the consideration must move from the promisee and not from a stranger. On the other hand, the
doctrine of privity of contract means that a person who is not a party to a contract can neither sue
nor he sued for breach of the contract.

These two doctrines are basically different. To illustrate, it can be submitted that the plaintiff
may be a party to a contract, but he may be a' stranger to the consideration. For example, A, B,
and C constitute a contract whereby A promises to pay Rs .500 to B and C provided B will repair
his car. Accordingly, B repairs the car. No doubt, C is a party to the contract, but he is a stranger
to the consideration. He has not done the act of repair i.e. he has given no consideration.

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On the other hand, a person may not be a party to a contract, but he may be a party to the
consideration. For example, A and B agree that A will pay Rs. 100 to B if C paints a picture for
him. C does so. C is a stranger to the contract which has been made between A and B, but as he
has given consideration, he is not a stranger to the consideration.

In the English case of Tweddle v. Atkinson both of these doctrines were emphasised. The court
held that no action could lie as the plaintiff was not only a party to the contract, but also no
consideration had moved from him. Further, in Dunlop Pneumatic Tyre Co., Ltd. v. Selfridge &
Co.it was held that certain principles are fundamental.

One is that only a person who is a party to a contract can sue on it. The second is that if a person
with whom a contract, not under seal, has been made is to be able to enforce it consideration
.must have been given by him. That is to say, under English law there are two important
principles of law of contract-doctrine of privity of contract and doctrine of privity of
consideration. About the doctrine of privity of consideration it is notable that it is not enough that
consideration should have been given; it must have have been given by the promise. In other
words, the consideration under English law must move from the promisee.

However, in India it is not necessary that the consideration should have been given by the
promisee; it may be given by a stranger also. Section 2 (d) of the Indian Contract Act makes it
amply clear that the acts which amount to a consideration may be done by the promisee or by
any other person. The special mention of the expression "the promisee or any other person"
under section 2(d) of the Contract Act which defines the term 'consideration' reveals that the
consideration may move from the promisee or from a stranger provided the promisor so desires.
An agreement made without consideration is void J i.e. an agreement cannot be enforced unless
it contains consideration. But, it is immaterial as to who has given the consideration – the
promisee or a third person.

The principle that the consideration may also be given by a stranger was affirmed in the leading
case of Venkata Chinnaya Rau Garu v. Venkata Ramaya Garu and others. In this case, Lakshmi
Venkanna Rau, a lady made a gift of her estate to the defendant Chinnaya Rau, her daughter by a
registered deed. She directed her to make annual payment of Rs. 653/- to her brothers, (the
plaintiffs) and their descendants until she gave them a village yielding the same income. The gift
deed contained this direction. She gave such direction because she was paying Rs. 653/- annually

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to her brothers till the gift was made. On the same day, the defendant executed an agreement in
favour of the plaintiffs to carry out her mother's direction. However, the defendant did not pay
the stipulated amount. The plaintiffs sued for breach of contract. Thus, briefly stating, the
defendant promised to pay Rs. 653/- to the plaintiffs, but the consideration to this promise was
given by the plaintiff's sister. That is, the plaintiffs were although a party to the contract, they
were strangers to the consideration.

The Madras High Court dismissed the appeal and held that the plaintiffs were entitled to sue.

It is to be noted that the consideration given by a stranger lias the same effect as consideration
given by the promisee. In other words, the doctrine of privity of consideration is not applicable in
India.

It follows from the above discussion that the doctrine of privity of contract lays down two
fundamental principles of law of contract. Firstly, a contract cannot be enforced except by a
party to the contract. In other words, a stranger to the contract cannot sue for breach of the
contract, even though the contract is made for his benefits; and Secondly, a contract cannot bind
except parties to it i.e. a stranger to a contract cannot be sued for breach of the contract even if
the contract imposes burden upon him.

The doctrine of privity of contract is a common law doctrine. It has its genesis in the decision of
an English leading case of Tweddle v. Atkinson. But, it is equally applicable in India. Although
there is no specific provision under the Indian Contract Act, dealing with the doctrine, it is to be
noted that the doctrine is implicit in various provisions of .the Contract Act. However, the
doctrine is not absolute; it operates under certain limitations – both statutory and non-statutory.

General Rule

The Doctrine

The general rule at common law states that a contract creates rights and obligations only as
between the parties to such contract. As a corollary, a third party neither acquires a right nor any
liabilities under such contract. This is what the proclaimed doctrine of “privity of contract”
enunciates and establishes as the overarching rule underlying any contractual relation.

Rule of Consideration

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Consideration must flow from the promise. In other words, “if a person with whom a contract
has been made is to be able to enforce it consideration must have been given by him to the
promisor”- Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847, 853. Thus, while
this rule of consideration is distinct and separate from the doctrine of privity, as upheld
in Kepong Prospecting Ltd v Schmidt [1968] AC 810, it yields the same result so as to be closely
connected.

Right of Action

It is worthwhile to highlight that what the doctrine prohibits is the right of action or enforcement
in favour or against a third party, and not beyond. That is, a contract may bestow benefits to a
third party, although such imposition of liabilities remains a bar. In the former case, a breach
may be enforced by the other contracting party for and on behalf of the third party, by way of
remedies such as specific performance, stay of proceedings, and damages, as discussed below.

Specific Performance

Lloyd’s v Harper (1880) 16 Ch D 290 - Where a contract is made with A for the benefit of B, A
can bring an action for benefit of B, and recover all dues as if the contract was made with B
himself. The contracting party may, singly or jointly with the third party, have the contract
performed by way of a court order for specific performance. Accordingly, the claim of the wife
as the administrator (as a contracting party) succeeded to obtain an order for specific
performance by way of payment of all dues and arrears.

Stay of Proceedings

This remedy is relevant where a contract provides for a covenant not to sue the third person.
Where a party institutes a legal action against the third person in breach of such covenant, the
other contracting party may seek to discontinue such proceedings by way of a stay order.

Having said that, the following conditions must be satisfied to obtain a stay- Gore v Van Der
Lann [1967] 2 QB 31:

(i) The contract must provide for an undertaking by the promisor not to sue the third person, and

(ii) The promisee must have a sufficient interest in the enforcement of the promise.

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Damages:

As a general rule, a contracting party can sue for damages only in respect of his own loss, and
not for losses suffered by a third person - Alfred McAlpine Construction Ltd v Panatown
Ltd [2001] 1 AC 518.

This rule, however, has been applied with exception where the third person had no alternate
course of remedy available to make good the loss, commonly referred to as a situation of “legal
black hole” Darlington Borough Council v Wiltshier Northern Ltd [1995] 1 WLR 68, 79.

Exceptions to the Doctrine

Statutory Exceptions

Some of the earliest statutory right of third person to enforce contractual obligation of another
can be found in section 56(1) of the Law of Property Act 1925 (invoked in Beswick v Beswick),
section 11 of the Married Women’s Property Act 1882, section 14(2) of the Marine Insurance
Act 1906, and section 148(7) of the Road Traffic Act 1988 (all of the above relating to policy of
assurance/insurance for benefit of family or third persons). Also, section 2 of the Carriage of
Goods by Sea Act 1992 bestows a holder of bill of lading with all rights of legal action
permissible under the contract of carriage, notwithstanding that he was not a party to it when
originally drafted.

The Contracts (Rights of Third Parties) Act 1999

The most frequently invoked statutory exception lies in the Contracts (Rights of Third Parties)
Act 1999 (1999 Act).

The 1999 Act prescribes a two-fold test to allow a third person action or enforcement of contract,
namely (section 1) -

1. Where the contract expressly provides for it, or

2. Where the contract purports to confer a benefit on such third person.

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For either of the conditions, the third person must be clearly identifiable. Notably, such
identification must be specific and express, ruling out any scope for identification by
construction or inference- (Avraamides v Colwill [2006] EWCA Civ 1533).

Further, the test (i) if satisfied, also covers negative rights as specified in section 1(6), such as
right of exclusion or limitation of liability (Himalaya clause) - the subject matter of much dispute
in common law.

The position as regards test (ii) however remains controversial. This is because it indicates
towards an implied case of third person right, where no express stipulations exist in the
contract. This leaves much scope for subjectivity and lack of predictability, as under the
common law exceptions- Trident General Insurance Co Ltd v McNiece Bros (1988) 165 CLR
107.

Also, the condition does not enable a third person action where the intention of the contracting
parties appears to the contrary in the contract (section 1(2)). This rebuttal was invoked in the
case of Nisshin Shipping Co Ltd v Cleaves & Co Ltd [2003] EWHC 2602, where it was asserted
on the ground that the third person had a right of action otherwise, so that such right under the
1999 Act was not necessary.

Moreover, the 1999 Act prevents the variation or rescission of a contract where such third person
right to action is established, except by way of consent of the third person (section 2).

All in all, the 1999 Act (although an exception) does not abrogate the doctrine of privity of
contract, which continues to remain the predominant overarching rule governing contractual
relations. Additionally, the 1999 Act does not alter the legal position, including the exceptions,
under common law, which continue to be applied by courts alongside.

Common Law Exceptions

Collateral Contracts

This exception is much conflicted as it depends upon the finding of the court of a contract in
existence where the claimant is an actual contracting party, and not a third person. Whether or
not such collateral contract exists depends upon evidence of the generally applicable constituents
of a valid contract, namely - offer, acceptance, intention to create legal relations and

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consideration- Gravy Solutions Ltd v Xyzmo Software GmbH [2013] EWHC 2770. Where any
of such elements is absent, the exception enabling third person action will not be triggered-
Independent Broadcasting Authority v EMI Electronics (1980) 14 Build LR 1.

Trust

The way for this exception was paved by the ruling in Dunlop Pneumatic Tyre Company Ltd v
Selfridge and Company Ltd [1915] AC 847, 959, where it was held that although privity of
contract does not allow third person action, such a “right may be conferred by way of property,
as for example, under a trust”. This was affirmed in Les Affreteurs Reunis v Walford [1919] AC
801. In this case, Walford (broker) negotiated a contract between the charter party and the ship
owner, containing a stipulation as regards certain commission payable to Walford. Upon failure
of such payment, Walford sued the ship owner. The court found a trust to have been created
owing to Walford receiving benefit under the agreement.

Caution should, however, be exercised to not confuse this exception with that of a simple
contract executed for benefit of a third person. Not in every such contract involving third person
beneficiary is a trust of contractual right created. This was highlighted in the case of Re
Schebsman [1944] Ch 83, 89. Schebsman employment was terminated with a company,
following which he entered into an agreement with the company for certain payments against
such termination. The payments, in the event of his death, were to be made to his wife and
daughter. Upon his death and failure of payments by the company, it was argued that the contract
between Schebsman and the company created a trust in favour of the wife and daughter.

Assignment

A contracting party can assign his rights (not liabilities, except by way of consent) under the
contract to a third person. Having said that, a mere right to litigate or sue for damages cannot be
so assigned, unless the third person has a commercial interest in assuming such right, as
enunciated in Trendtex Trading Corporation v Credit Suisse [1982] AC 679. Moreover,
defences of the promisor and the extent of remedy available to the third person would be as what
was contemplated and applicable under the original contract - Offer Hoar v Larkstore Ltd [2006]
EWCA Civ 1079.

Agency

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This exception can be traced from the Dunlop Pneumatic Tyre Company Ltd case, i.e., a
principal not named in the contract may sue upon it if the promisee really contracted as his agent,
and consideration was directed personally or via the promisee in the capacity of an agent. In
other words, the real right of action then rests with the principal as the contracting party, as the
agent (promisee) then moves out of the arrangement so as not to sue or be sued- Wakefield v
Duckworth [1915] 1 KB 218.

Action in Tort

In the event of a breach of duty of care, an independent claim for negligence can be instituted by
the person having suffered the loss, regardless of any contractual arrangement otherwise. This
can be best asserted through the case of Donoghue v Stevenson [1932] AC 562, where despite
the claimant having no contractual relation with the ginger beer manufacturer, a claim in tort
could be successfully sustained.

Restrictive Covenants

In an example of sale and purchase of land, any terms of conveyance will generally be confined
to the seller and the buyer, and not extend to subsequent buyers/owners. Having said that, a
restrictive or negative covenant such as bar on use of the land for commercial purposes or on
constructing permanent fixtures on the land, may be carried forward with the land and enforced
by the seller against subsequent owners. This was upheld in Tulk v Moxhay [1848] 41 ER 1143.

Exclusion/Limitation/Himalaya Clause

The question whether or not a third party could take benefit of an exclusion or limitation clause
(popularly known as the Himalaya clause) in a contract, more particularly, in a contract of
carriage, has been subject to much judicial bargain- E McKendrick, Contract Law (Oxford
University Press 2012).

In the early case of Elder Dempster v Paterson Zochonis [1924] AC 522, where oil was damaged
by bad stowage in relation to a contract between the claimant and the carrier, the court extended
the exclusion in the bill of lading to the ship owner, notwithstanding the absence of any direct
contract of the ship owner with the claimant. This was so because the clause expressly
mentioned ship owners, reckoned to have operated as the agent of the carrier. This stance was,

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however, soon refuted in Scruttons Ltd v Midland Silicones Ltd [1962] AC 446, which
enumerated several requirements for such an extension of exclusion clause to a third person,
such as stevedore, namely- (i) declaration of agency in the clause itself that the carrier had
contracted as agent of the stevedore for the purpose of securing the benefit, and (ii) carrier must
have the authority from the stevedore to do so (even if by later ratification). In this case, drums
of chemicals were damaged by stevedore during carriage under a contract between the carrier
and the claimant. The court ruled that, as the stevedores were not parties to the carriage contract,
they could not avail the exclusion clause.

UNIT-3

TYPES OF CONTRACT

INTRODUCTION

Section 2(e) of the Indian Contract Act, 1872 defines an agreement as “every promise and every
set of promises forming consideration for each other”.An agreement which is enforceable by law
is called a contract. The conditions of enforceability are provided in Section 10 of the Act.

According to this section, an agreement is a contract when it is made for some consideration,
between parties who are competent, with their free consent and for a lawful object. There are
many types of Contracts on a different basis.

On the basis of its enforcement, mode of creation and extent of its execution, contracts may be
classified into different types:-

Validity Formation Preference

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  Valid Express Executed
 Void Implied Executory
 Voidable Quasi Voidable
 Illegal agreement Unilateral
 Unenforceable agreement Bilateral

I. Types of Contracts on the basis of its enforcement

A. Valid Contract

An agreement enforceable by the law is a contract (Section 2(h)). To be enforceable it has to

satisfy the requirements under Section 10 of the Indian Contract, 1872. They are:

 There is some consideration for it.

 The parties are competent to contract
 Their consent is free.
 Their object is lawful

B. Voidable Contract

Section 2(i) of the Act defines a voidable contract. An agreement which is enforceable by
law at the option of one or more of the parties thereto, but not at the option of the other, is a
voidable contract.

As mentioned above, free consent which is defined in Section 14 of the Act is an essential
element of a valid contract. Consent is free when it is not obtained by coercion(sec-15),
undue influence(sec-16), fraud(sec-17), misrepresentation(sec-18) or mistake(sec-20,21,22).
Where consent to an agreement is caused by coercion, undue influence, fraud or
misrepresentation, the agreement is a contract voidable at the option of the party whose
consent was so caused.

A voidable contract remains valid until rescinded. A voidable contract can be made valid by
the party who has a right to rescind it by giving up his right of rescinding it.

C. Void Contract

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 A void agreement is not enforceable at the option of either party. Section 2(g) of the Act
explains the meaning of a void agreement.

Section 2(j) of the Act speaks about a valid contract which subsequently becomes void. “A
contract which ceases to be enforceable by the law becomes void when it ceases to be
enforceable”.

No obligation or right arises from a void contract. They are not covered by the law. Such
contracts cannot be made valid by the parties to the contract by giving their consent.

If consent to a contract is caused by mistake, the agreement is void as provided in Section 20

of the Act. If the parties to a contract are under a mistake as to a matter of fact essential to the
agreement, the agreement is void.

Sections 24-30 of the Act deals with void agreements.

The following types of Agreements are declared to be void:

 Agreements unlawful in part(S. 24)

 Agreements without consideration(S. 25)
 Agreements in restraint of marriage(S. 26)
 Agreements in restraint of trade(S.27)
 Agreements in restraint of legal proceedings(S. 28)
 Unmeaning agreements(S. 29)
 Wagering agreements(S. 30)

Section 24 comes into play when a part of the consideration for an object or more than one
objects of an agreement is unlawful. The whole of the agreement would be void unless the
unlawful portion can be severed without damaging the lawful portion.

Every agreement in restraint of marriage of any person, other than minor is void. It is
immaterial whether the restraint is general or partial.

Every agreement by which anyone is restrained from exercising a lawful profession, trade or
business of any kind, is to that extent void. There is no distinction between total restraint and
partial restraint of trade.

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 Section 28 of the Act renders two kinds of agreement void. They are:

An agreement by which a party is restrained absolutely from enforcing his legal rights arising
under a contract by the usual legal proceedings in the ordinary tribunals.

An agreement which limits the time within which the contract rights may be enforced.

D. Unenforceable Contract

It is one which is good in substance, but because of some technical defect, one or both parties
cannot be sued on it. These defect may be the absence of writing, registration, time-barred by
the law of limitation, etc.

E. Illegal/unlawful Contract

Section 23 of the Act describes some condition’s when an agreement may be unlawful or
illegal. A distinction has to be made between void contracts and illegal contacts. Agreements
whose object or consideration is forbidden by law are called illegal contracts. In the case of
void agreements, the law may merely say that if it is made, the courts will not enforce it.

Thus all illegal agreements or contracts are void, but all void agreements are not illegal. In
the case of both illegal and void contracts, the similarity is that in either case, the primary
agreement is unenforceable. Nothing can be recovered under either kind of agreement and if
something has been paid, it cannot be recovered back. Thus a guilty party has no right of
action on an illegal contract.

II. Types of Contracts on the basis of mode of creation

Depending on the way in which a contract is created, Types of Contracts may be classified
into three. They are:

A. Express Contracts

The first part of Section 9 of the Indian Contract deals with promises which are expressly
made. Contracts arising from expressly made promises are called express contracts.

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 According to Section 9 “insofar as the proposal or acceptance of any promise is made in
words, the promise is said to be express”. Thus contracts entered into between the parties by
words, spoken or written, are known as express contracts.

B. Implied Contracts

The second part of Section 9 of the Act deals with implied contracts. It says “insofar as such
proposal or acceptance is made otherwise than in words, the promise is said to be implied.”
Thus contracts entered into between parties by virtue of their conduct are called implied
contracts.

The terms of the agreement are not expressed in written or oral form but are inferred from
their conduct.

Implied in fact: A contract in which an agreement is seemingly intended among the parties
involved, but not particularly verbally (in writing).

Example: You go to the doctor for the treatment of an illness; you and the doctor do not
negotiate the terms of the treatment, how much you will pay or how the doctor will conduct
the examination. You appreciate that he will do whatever appropriate examinations to
establish the cause of your illness; and that you will pay fees for the doctor’s effort.

Implied-In-Law Contract: This is also known as a Quasi-Contract. It isn’t actually a

contract; rather, it is a way for the courts to rectify situations in which one party would be
unfairly enriched, were they not obliged to compensate the other party.

Example: At the scene of an accident, a doctor treats an unconscious patient who has not
agreed to pay the doctor for the emergency services. The patient was not required to pay the
doctor for his services; and therefore, the patient would be unfairly enriched by the doctor’s
services.

C. Quasi-Contract

A contract which does not arise by virtue of any agreement between the parties, but due to
certain special circumstances, the law recognizes it as a contract. Such contracts come into
existence because of interference from courts in the interest of justice.

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 There are many several situations in which law, as well as justice, require that a certain
person is required to conform to an obligation, although he has neither broken any contract
nor committed any tort. The principle is that there should not be “unjust enrichment” i.e.,
enrichment of one at the cost of another.

The Indian Contract Act does not define the term Quasi-contract. It does not mean that the
principle behind the same hasn’t been recognized. Chapter V of the Act deals with such
situations under the heading of “Of Certain Relations Resembling Those Created by
Contract”.

They are constructive contracts imposed by law. This contract creates a right in personam
which means that the right is available against a particular person not against the entire
world. They are based on the principles of equity, good conscience and justice.

III. Types of Contracts on the basis of the extent of execution

A. Executed Contracts

When both the parties have completely performed their respective obligations under the
contract, it is said to be executed contract. It means that whatever was the object of the
contract has been carried out. In most executed contracts the promises are made and then
immediately completed.

The buying of goods and/or services usually falls under this category. There is no confusion
about the date of execution of the contract since in most cases it is instantaneous.

B. Executory Contract

An executory contract is one which is one in which one or both parties are still to perform
their obligations. Such controls are future contracts. In such contracts, the consideration is the
promise of performance or obligation. In executory contracts, the consideration for the
promise made is carried out sometime in the future.

For example – Delivery and payment are to be made after 15 days. The contract is executory.
Another good example of an executory contract is that of a lease.

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 C. Unilateral Contract

They are one-sided contracts. A unilateral promise is a promise from one side only and
intended to induce some action by the other party. The promisee is not bound to act, for he
gives no promise from his side. But if he carries out the act desired by the promisor, he can
hold the promisor to his promise.

His act is simultaneously acceptance of and consideration for the promise. “An act done at
the request of the offeror in response to his promise is a consideration, and consideration in
its essence is nothing else but the response to such a request.

D. Bilateral Contracts

A bilateral contract is a legally binding contract formed by the exchange of reciprocal

promises. Here both parties are outstanding at the time of formation of the contract. In such a
case, each party is a promisor and promise. They are also known as reciprocal contracts
because mutuality of obligation is essential for their enforceability.

In the case of bilateral contracts, an offer made is accepted in the form of a counter-promise.
They are very common in everyday life.

E-CONTRACTS

INTRODUCTION

What Are Contracts?

The term “contract “is defined in sec 2(h) of the Indian contract act ,1872 as AN AGREEMENT
ENFORCEABLE BY LAW IS A CONTRACT; thus for the formation of a contract there must
be –

1. An agreement, and
2. The agreement should be enforceable by law.

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What are e-contracts?

E-Contract is an aid to drafting and negotiating successful contracts for consumer and business e-
commerce and related services. It is designed to assist people in formulating and implementing
commercial contracts policies within e-businesses. It contains model contracts for the sale of
products and supply of digital products and services to both consumers and businesses.

An e-contract is a contract modeled, executed and enacted by a software system. Computer

programs are used to automate business processes that govern e-contracts. E-contracts can be
mapped to inter-related programs, which have to be specified carefully to satisfy the contract
requirements. These programs do not have the capabilities to handle complex relationships
between parties to an e-contract

An electronic or digital contract is an agreement “drafted” and “signed” in an electronic form.

An electronic agreement can be drafted in the similar manner in which a normal hard copy
agreement is drafted. For example, an agreement is drafted on our computer and was sent to a
business associate via e-mail. The business associate, in turn, e-mails it back to us with an
electronic signature indicating acceptance. An e-contract can also be in the form of a “Click to
Agree” contract, commonly used with downloaded software: The user clicks an “I Agree” button
on a page containing the terms of the software license before the transaction can be completed.
Since a traditional ink signature isn’t possible on an electronic contract, people use several
different ways to indicate their electronic signatures, like typing the signer’s name into the
signature area, pasting in a scanned version of the signer’s signature or clicking an “I Accept”
button and many more.

E-Contracts can be categorized into two types i.e. web-wrap agreements and shrink-wrap
agreements. A person witnesses these e-contracts everyday but is unaware of the legal intricacies
connected to it. Web-wrap agreements are basically web based agreements which requires assent
of the party by way of clicking the “I agree” or “I accept” button e.g. E-bay user agreement,
Citibank terms and conditions, etc. Whereas Shrink-wrap agreements are those which are
accepted by a user when a software is installed from a CD-ROM e.g. Nokia pc-suite software.

Under the provisions of the Information Technology Act, 2000 particularly Section 10-A, an
electronic contract is valid and enforceable.

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 The only essential requirement to validate an electronic contract is compliance with the
necessary pre-requisites provided under the Indian Contract Act, 1872.

Also, the courts in India give due regard to electronic contracts under the provisions of the
Indian Evidence Act, 1872.

The provisions of the Information Technology Act, 2000 (IT Act) give legal recognition to
an electronic (E -Contract) particularly section 10-A of the IT Act which states:

"Section 10-A: Validity of contracts formed through electronic means. -

Where in a contract formation, the communication of proposals, the acceptance of proposals,

the revocation of proposals and acceptances, as the case may be, are expressed in electronic
form or by means of an electronic record, such contract shall not be deemed to be
unenforceable solely on the ground that such electronic form or means was used for that
purpose."

The above provision was introduced by the Information Technology (Amendment Act), 2008
after recognizing the growing dependence on electronic means to reach commercial
agreements. This applies where contract formation, communication of the proposal and
acceptance is carried out electronically.

How E - Contracts Can Be Entered Into: E-Contracts can be entered into through modes
of communication such as e-mail, internet and fax. The only essential requirement to validate
an E-Contract is compliance with the necessary pre- requisites provided under the Indian
Contract Act, 1872. Which are:

 Offer and Unconditional Acceptance - Which may be made online or by e-mail

communication.

 Lawful Purpose and Consideration - A contract is enforceable by law only when it is

made for a lawful purpose and for some consideration. It must not defeat any provision of
law and must not be fraudulent in nature.

 Capacity of Parties and Free Consent - Parties to a contract are capable of entering into
a contract, if they satisfy the requirements of Section 11 and 12 of the Indian Contract

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 Act, 1872 (capacity to contract), and consent of the parties must be free as per Section 13
of the Indian Contract Act, 1872.

The simplicity of the execution of an E-Contract being confounding, many sometimes

wonder about its validity, especially when compared to a traditional written contract. The
simple truth lies in the fact that the Indian Contract Act, 1872 has not specifically laid out
any specific way of communicating an offer and what constitute its acceptance. The same
can be achieved verbally, in writing or even through conduct. This shows that even in its
simplicity, an E-Contract is as valid as a traditional written contract; the only condition/
requirement being that an E-Contract should possess all the essentials of a valid contract as
mentioned above.

Unless an inference can be drawn from the facts, that the parties intend to be bound only
when a formal agreement has been executed, the validity of an agreement would not be
affected by its lack of formality. Hence, once the parties are at consensus-ad-idem, then the
formal execution of the contract is secondary. Therefore, once an offer is accepted through
modes of communication such as e-mail, internet and fax then a valid contract is formed
unless otherwise specifically provided by law in force in India; such as the Registration Act,
1908, the various Stamp Acts etc. Also, Section 1(4) of the IT Act lists out the instruments to
which the IT Act, does not apply, which are as follows:

1. Negotiable Instruments;

2. Powers of Attorney;

3. Trust deeds;

4. Wills;

5. Contracts for Sale or Transfer of Immovable Property

Law governing e-contract :-

Section (11) of information technology Act, 2000[ii]

An electronic record shall be attributed to the originator—

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(a) if it was sent by the originator himself;

(b) by a person who had the authority to act on behalf of the originator in respect of that
electronic record; or

(c) by an information system programmed by or on behalf of the originator to operate

automatically.

Section(12) of information technology Act, 2000[iii]

Acknowledgement of receipt-

(1) Where the originator has not agreed with the addressee that the acknowledgment of receipt of
electronic record be given in a particular form or by a particular method, an acknowledgment
may be given by—

(a) any communication by the addressee, automated or otherwise; or

(b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record
has been received.

(2) Where the originator has stipulated that the electronic record shall be binding only on receipt
of an acknowledgment of such electronic record by him, then unless acknowledgment has been
so received, the electronic record shall be deemed to have been never sent by the originator.

(3) Where the originator has not stipulated that the electronic record shall be binding only on
receipt of such acknowledgment, and the acknowledgment has not been received by the
originator within the time specified or agreed or, if no time has been specified or agreed to within
a reasonable time, then the originator may give notice to the addressee stating that no
acknowledgment has been received by him and specifying a reasonable time by which the
acknowledgment must be received by him and if no acknowledgment is received within the
aforesaid time limit he may after giving notice to the addressee, treat the electronic record as
though it has never been sent.

Section (13) of the information technology act[iv] :-

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Time and place of despatch and receipt of electronic record.-

(1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an
electronic record occurs when it enters a computer resource outside the control of the originator.

(2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an
electronic record shall be determined as follows, namely :—

(a) if the addressee has designated a computer resource for the purpose of receiving electronic
records,—

(i) Receipt occurs at the time when the electronic, record enters the designated Computer
resource; or

(ii) If the electronic record is sent to a computer resource of the addressee that is not the
designated computer resource, receipt occurs at the time when the electronic record is retrieved
by the addressee;

(b) If the addressee has not designated a computer resource along with specified timings, if any,
receipt occurs when the electronic record enters the computer resource of the addressee.

(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is
deemed to be dispatched at the place where the originator has his place of business, and is
deemed to be received at the place where the addressee has his place of business.

(4) The provisions of sub-section (2) shall apply notwithstanding that the place where the
computer resource is located may be different from the place where the electronic record is
deemed to have been received under sub-section (3).

(5) For the purposes of this section, —

(a) If the originator or the addressee has more than one place of business, the principal place of
business, shall be the place of business;

(b) If the originator or the addressee does not have a place of business, his usual place of
residence shall be deemed to be the place of business;

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(c) “usual place of residence”, in relation to a body corporate, means the place where it is
registered.[v]

Digital signature:- when a contract is entered into through the mode of computer internet, it is
necessary for the enforcement of such contract to establish the genuineness of the transaction to
prove that the proposal emanated from the originator and acceptance was signified by the
acceptor from the appropriate persons. The signature of the parties is taken into consideration. It
is a personalised thumb print and it is the encryption of an electronic document using a private
key .It performs three different functions in order to ensure the security of the system and
genuineness of the transaction[vi] :-

1. Data integrity-A digital signature discloses if there have been any data tampering of the file or the
message.
2. Data authentication-A digital signature helps in verifying the initials of the person signing the
message.
3. No chance of disown-No message signed and sent could be disowned by the receiver.[vii]

Case:- Mehta v J Pereira Fernandes S.A [viii]

Facts of the case:-

There was an appeal against a District Court judgment which awarded the plaintiff company JPF
a sum of nearly £25,000. The amount was awarded on the grounds that the defendant Mehta had
personally guaranteed the amount. Mehta appealed on the grounds that the alleged guarantee was
not enforceable since it did not comply with the requirements of the Statute of Frauds.

The alleged guarantee arose from an email sent by Mehta to JPF’s solicitors. The email was in
the following terms:

“I would be grateful if you could kindly consider the following. If the hearing of the Petition can
be adjourned for a period of 7 days subject to the following:

A Personal Guarantee to be given in the amount of £25,000 in favour of your client – together
with a list of my personal assets provided to you by my solicitor.”

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The email was unsigned but the headers indicated that it was from Nelmehta@aol.com. This
email address also appeared on other, signed, emails sent to JPF’s solicitors. Mehta
acknowledged that the email had been sent, with his authority, by an employee.

JPF’s solicitors telephoned Mr Mehta and accepted the proposal. Although they also sent him a
written agreement, this was never signed by Mr Mehta.

Judgement:-

The court of chancery held that the offer sent through an unsigned e-mail communication is not
sufficient and the e-mail address of the defendant cannot be deemed as his signature.

Legal issues involved in e-contracts

1. How can an electronic record be attributed to the originator?

Solution:-

According to sec (11) the electronic record can be attributed to the originator where:

 It could be determined that the electronic record or electronic data is sent by the originator
himself.
 It could be determined that the electronic record has been sent by a person who has the authority
to act on behalf of the originator.
 An electronic record has been sent by an information system programmed by or on behalf of the
originator.

2. How to determine the acknowledgement of an electronic record when the originator has not
agreed with addressee regarding acknowledgement of receipt?

Solution:-

According to sec (12)(i) the acknowledgement of the electronic record when the originator has
not agreed with the addressee regarding acknowledgement of receipt in particular form can be
done in the following manner:

 Any communication by the addressee to the originator either electronically or otherwise. OR

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  Through any conduct sufficient to communicate to the originator that the electronic record has
been received by the addressee.

Case law: The United States case Corinthian Pharmaceutical Systems Inc. v. Lederle
Laboratories[ix] serves as a guide. In that case, an “order tracking number” issued by an
automated telephone ordering system was found to be merely an acknowledgment of the order,
rather than an acceptance which formed a binding contract. Applying the same reasoning to
common electronic commerce practices, this could mean that a computer-generated message
acknowledging receipt of an electronic order may not be sufficient to create a binding contract.
The purpose of the message may be solely to confirm receipt of the order. It does not necessarily
signify acceptance.

3. How to determine time and place of dispatch of an electronic record?

Solution :- section 13 deals with the time and place of despatch of electronic records as if the
originator or addressee has or has not agreed ,the the dispatch of an electronic record is complete
when it enters the computer resource of the addressee as to outside the control of the originator.

 According to section 13 (2) the time of receipt of an electronic record can be determined in the
following ways :-

(a) if the addressee has designated a computer resource for the purpose of receiving
electronic records.

(i) Receipt occurs at the time when the electronic, record enters the designated Computer
resource.

(ii) If the electronic record is sent to a computer resource of the addressee that is not the
designated computer resource, receipt occurs at the time when the electronic record is retrieved
by the addressee;

(b) If the addressee has not designated a computer resource along with specified timings, if any,
receipt occurs when the electronic record enters the computer resource of the addressee.

 According to section 13(4) :-

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  the place where the computer resource is located may be different from the place where the
electronic record is deemed to have been received under sub-section (3).
 According to section 13(5) :-

(a) If the originator or the addressee has more than one place of business, the principal place of
business, shall be the place of business.

(b) If the originator or the addressee does not have a place of business, his usual place of
residence shall be deemed to be the place of business.

(c) “usual place of residence”, in relation to a body corporate, means the place where it is
registered.

CASE: – P.R. Transport Agency vs. Union of India & others[x]

Background of the case

Bharat Coking Coal Ltd (BCC) held an e-auction for coal in different lots. P.R. Transport
Agency’s (PRTA) bid was accepted for 4000 metric tons of coal from Dobari Colliery The
acceptance letter was issued on 19th July 2005 by e-mail to PRTA’s e-mail address. Acting upon
this acceptance, PRTA deposited the full amount of Rs. 81.12 lakh through a cheque in favour of
BCC. This cheque was accepted and encashed by BCC. BCC did not deliver the coal to PRTA.
Instead it e-mailed PRTA saying that the sale as well as the e-auction in favour of PRTA stood
cancelled “due to some technical and unavoidable reasons”. The only reason for this cancellation
was that there was some other person whose bid for the same coal was slightly higher than that
of PRTA. Due to some flaw in the computer or its programme or feeding of data the higher bid
had not been considered earlier. This communication was challenged by PRTA in the High Court
of Allahabad.

Issues raised by PRTA :-

1. The communication of the acceptance of the tender was received by the petitioner by e-mail at
Chandauli (U.P.). Hence, the contract (from which the dispute arose) was completed at Chandauli
(U.P). The completion of the contract is a part of the “cause of action”.

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 2. The place where the contract was completed by receipt of communication of acceptance is a place
where ‘part of cause of action’ arises.

Points considered by the court

1. With reference to contracts made by telephone, telex or fax, the contract is complete when and
where the acceptance is received. However, this principle can apply only where the transmitting
terminal and the receiving terminal are at fixed points.
2. In case of e-mail, the data (in this case acceptance) can be transmitted from anywhere by the e-
mail account holder. It goes to the memory of a ‘server’ which may be located anywhere and can
be retrieved by the addressee account holder from anywhere in the world. Therefore, there is no
fixed point either of transmission or of receipt.
3. Section 13(3) of the Information Technology Act has covered this difficulty of “no fixed point
either of transmission or of receipt”. According to this section “…an electronic record is deemed
to be received at the place where the addressee has his place of business.”
4. The acceptance of the tender will be deemed to be received by PRTA at the places where it has
place of business. In this case it is Varanasi and Chandauli (both in U.P.)

Decision of the court

1. The acceptance was received by PRTA at Chandauli /Varanasi. The contract became complete by
receipt of such acceptance.
2. Both these places were within the territorial jurisdiction of the High Court of Allahabad.
Therefore, a part of the cause of action had arisen in U.P. and the court had territorial jurisdiction.
3. What in case the acceptance is not communicated to the offerer?

Solution:

According to Section(12) :-

Acknowledgement of receipt-

(1) Where the originator has not agreed with the addressee that the acknowledgment of receipt of
electronic record be given in a particular form or by a particular method, an acknowledgment
may be given by—

(a) any communication by the addressee, automated or otherwise; or

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(b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record
has been received.

(2) Where the originator has stipulated that the electronic record shall be binding only on receipt
of an acknowledgment of such electronic record by him, then unless acknowledgment has been
so received, the electronic record shall be deemed to have been never sent by the originator.

(3) Where the originator has not stipulated that the electronic record shall be binding only on
receipt of such acknowledgment, and the acknowledgment has not been received by the
originator within the time specified or agreed or, if no time has been specified or agreed to within
a reasonable time, then the originator may give notice to the addressee stating that no
acknowledgment has been received by him and specifying a reasonable time by which the
acknowledgment must be received by him and if no acknowledgment is received within the
aforesaid time limit he may after giving notice to the addressee, treat the electronic record as
though it has never been sent.

Case: – J.K. Enterprises V. State of Madhya Pradesh and Ors.[xi]

According to the plaintiff he made an offer to the defendant, for the purchase of Tendu Leave of
lot No. 1095 at the rate of Rs. 30/- per standard bag. It is the stand of the plaintiff that he was
never informed that his offer has been accepted.

He made the offer on 11-1-1993 and when he did not get the acceptance till 3-3-1993, and thus
by a fax message sent on 3-3-1993 he withdrew his offer.

In the return filed on behalf of defendant it has been stated that the offer of the plaintiff dt. 11-1-
1993 was accepted and communication under registered cover on the address disclosed by the
plaintiff itself, was sent by letter dt. 12-2-1993, which was returned as the address was
incomplete.

Defendant further stated in their return that the alleged fax message dt. 3-3-1993 withdrawing the
offer was not received by the defendant as it was sent on the wrong fax no.

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Thus, according to the above mentioned facts the court held that as the communication of
acceptance of the offer made by the plaintiff was never made by the defendant and as the
defendant failed to communicate his acceptance within the given time period the offeror can
withdraw his offer.

5. Is e-contract a valid contract?

Contract law does not, as a general rule, set any requirements for the form of a contract in order
for a contract to be valid. Both oral and written contracts are legally valid. Only certain types of
contract are required to be made in writing. In contract law, entering into an electronic contract is
considered equivalent to entering into a written contract. This means that even an offer sent by e-
mail and an approval received in response are considered a legally valid contract that binds the
parties. The terms of such a contract are based on the e-mail correspondence between the parties
and on the laws applicable to the type of transaction.

Clickwrap :-

The term “clickwrap” refers to agreements that obtain a user’s affirmative acceptance
electronically. You see clickwrap contracting virtually every time you install a piece of software.
During the installation, you are usually presented with check boxes to either “accept the terms of
the License Agreement” or “not accept the terms of the License Agreement” along with a link to
view the text of the end-user license agreement.

But, the use of clickwraps is not limited to software. They are often used for acknowledgements
of assent to contracts for online services, too. In those cases, the text usually invites the user to
click to accept the terms of a service agreement covering the online offering.

Courts have treated clickwrap agreements as valid and enforceable contracts.

Case: – Rudder v. Microsoft Corporation:-

The plaintiffs commenced a class action lawsuit alleging breach by Microsoft of certain payment
related terms of Microsoft’s MSN Member Agreement. The Member Agreement was an on-line
“click-wrap” agreement that required each prospective member to scroll down through several
pages of terms and conditions and then indicate their agreement to the terms by clicking an “I

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Agree” button before being provided with access to the services. Although the plaintiffs wished
to rely on several terms of the Member Agreement, in bringing the action the plaintiff’s disputed
the choice of law and forum selection clauses that the defendant Microsoft sought to
enforce. The plaintiffs asserted that because not all of the Member Agreement was visible at one
time they did not receive adequate notice of such provisions and that as a consequence they were
not enforceable. The court determined that the Member Agreement was enforceable stating that
scrolling through several pages was akin to having to turn through several pages of a multi-page
paper contract and to not uphold the agreement “would lead to chaos in the marketplace, render
ineffectual electronic commerce and undermine the integrity of any agreement entered into
through this medium”

Evidentiary Value of Electronic Records: The courts in India recognize electronic documents
under Section 65-A of Indian Evidence Act, 1872. The procedure for furnishing electronic
documents as evidence is provided under Section 65-B of the Indian Evidence Act, 1872.

As per Section 65-B of the Indian Evidence Act, 1872 any information contained in an
electronic record produced by a computer in printed, stored or copied form shall be deemed
to be a document and it can be admissible as evidence in any proceeding without further
proof of the original. But, admissibility of the same is subject to various conditions
prescribed under section 65-B of the said act. It is required that the document or e-mail
sought to be produced from a computer, was in regular use by a person having lawful control
over the system at the time of producing it; the document or the e-mail was stored or received
during the ordinary course of activities; the information was fed into the system on a regular
basis; the output computer was in a proper operating condition and has not affected the
accuracy of the data entered.

CONCLUSION

It may be concluded that where various steps of a contract have been affected through
electronic means, the parties are at consensus-id-idem and such an agreement fulfills all the
essentials of a valid contract under the Indian Contract Act, 1872 mentioned above, then,
such contract is valid and legally enforceable.

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Today with the recent advancement in the areas of computer technology, telecommunications
technology, software and information technology have resulted in changing the standard of
living of people in an unimaginable way. The communication is no more restricted due to the
constraints of geography and time. Information is transmitted and received widely and more
rapidly than ever before. And this is where the electronic commerce offers the flexibility to
business environment in terms of place, time, space, distance, and payment. With the growth of
e-commerce, there is a rapid advancement in the use of e-contracts.

E-contracts are well suited to facilitate the re-engineering of business processes occurring at
many firms involving a composite of technologies, processes, and business strategies that aids
the instant exchange of information. The e-contracts have their own merits and demerits. On the
one hand they reduce costs, saves time, fasten customer response and improve service quality by
reducing paper work, thus increasing automation. And on the other hand the law governing e-
contract lacks certain provisions like -There is nothing to determine the intention of the parties to
enter into a legally enforceable contract.

With this, E-commerce is expected to improve the productivity and competitiveness of

participating businesses by providing unprecedented access to an on-line global market place
with millions of customers and thousands of products and services.

The content of this article is intended to provide a general guide to the subject matter.
Specialist advice should be sought about your specific circumstances

ESSENTIAL ELEMENTS OF A CONTRACT

A contract has been defined in

Section 2(h) as ‘an agreement enforceable by law.’

To be enforceable by law, an agreement must possess the essential elements of a valid

contract According to Section10, all agreements are contracts if they are made by the free
consent of the parties competent to contract, for a lawful consideration, with a lawful object,
are not expressly declared by the Act to be void, and, where necessary, satisfy the
requirements of any law as to writing or attestation or registration. The essential elements of
a valid contract are as follows:

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 1. Offer and acceptance.

There must be a ‘lawful offer’ and a ‘lawful acceptance’ of the offer, thus resulting in an
agreement. The adjective ‘lawful’ implies that the offer and acceptance must satisfy the
requirements of the Contract Act in relation thereto.

2. Intention to create legal relations.

There must be an intention among the parties that the agreement should be attached by legal
consequences and create legal obligations. Agreements of asocial or domestic nature do not
contemplate legal relations, and as such they do not give rise to a contract. Agreements
between husband and wife also lack the intention to create legal relationship and thus do not
result in contracts.

3. Lawful consideration.

The third essential element of a valid contract is the presence of ‘consideration’.

Consideration has been defined as the price paid by one party for the promise of the other.
An agreement is legally enforceable only when each of the parties to it gives something and
gets something. The something given or obtained is the price for the promise and is called‘co
nsideration’. The ‘consideration’ maybe an act (doing something) or forbearance (not doing
something) or a promise to do or not to do something. It may be past, present or future.

Example: John aggress to sell his car to Jake for 2000. So, John’s promise to sell the car is
for Jake’s consideration to pay 2000. Similarly, Jake’s promise to pay 2000 is for John’s
consideration to sell his car to Jake.

A contract will not be enforced by the courts unless it is supported by valuable consideration;
an agreement without consideration is void; therefore consideration is an essential element in
contracts. For a contract to be valid, the consideration must be real and it must not be
unlawful or illegal or opposed to public policy.

4. Capacity of parties.

The parties to an agreement must be competent to contract, otherwise it cannot be enforced

by a court of law. In order to be competent to contract the parties must be of the age of

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 majority and of sound mind and must not be disqualified from contracting by any law to
which they are subject (Sec. 11).

5. Free consent.

Free consent of all the parties to an agreement is another essential element of a valid
contract. ‘Consent’ means that the parties must have agreed upon the same thing in the same
sense(Sec. 13). There is absence of ‘free consent’ if the agreement is induced by (i) coercion,
(ii) undue influence, (iii) fraud, (iv) misrepresentation, or (v) -mistake (Sec. 14).

6. Lawful object.

For the formation of a valid contract it is also necessary that the parties to an agreement must
agree for a lawful object. The object for which the agreement has been entered into must not
be fraudulent or illegal or immoral or opposed to public policy or must not imply injury to
the person or property of another (Sec. 23). If the object is unlawful for one or the other of
there a sons mentioned above the agreement is void.

7. Writing and registration.

According to the Indian Contract Act, a contract may be oral or in writing. But in certain
special cases it lays down that the agreement, to be valid, must be in writing or/and
registered. Similarly, certain other Acts also require writing or/and registration to make the
agreement enforceable by law which must be observed. An agreement for a sale of
immovable property must be in writing and registered under the Transfer of Property Act,
1882 before they can be legally enforced.

8. Certainty.

Section 29 of the Contract Act provides that Agreements, the meaning of which is not
certain or capable of being made certain, are void.’ In order to give rise to a valid contract the
terms of the agreement must not be vague or uncertain. It must be possible to ascertain the
meaning of the agreement, for otherwise, it cannot be enforced.

9. Possibility of Performance.

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 It must be capable of performance. Section 56 lays down that ‘An agreement to do an act
impossible in itself is void’. If the act is impossible in itself, physically or legally, the
agreement cannot be enforced at law.

10. Not expressly declared void.

The agreement must not have been expressly declared to be void under the Act. Sections
24—30 specify certain types of agreements which have been expressly declared to be void.

UNIT - IV FORMATION
OFFER AND ACCEPTANCE

OFFER OR PROPOSAL

ESSENTIAL ELEMENTS OF A VALID CONTRACT DISCUSSED IN DETAIL

Section 2(a) defines an offer as, “a proposal made by one person to another to do an act or
abstain from doing it.” The person who makes the offer is known as the
promisor or offer or and the person to whom an offer is made is known as the promisee or the
offeree.

An offer may require a unilateral act or an acts by two or more parties. Thus if X gifts Y his

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horse, it is an offer of unilateral acts as Y has to do nothing or pay nothing to X in return of the
gifts of X. But in case of offers of bilateral acts or requiring actions by two or more persons, then
the offeree is supposed to act or respond in a specified manner. Now suppose X offers to sell his
horse for Rs. 1000 to Y then here Y also is expected to pay Rs. 1000 to X. It is only the second
type of offers about which we are concerend in the Indian Contract Act. Thus an offer can be
analysed into two parts comprising of :-
(a) a promise by the offeror, and
(b) a request to the offeree for something in return of the offer.
When the person to whom the proposal is made signifies his assent thereto, the proposal is said
to be accepted. A proposal, when accepted, becomes a promise.

Determination of an Offer (Test of an offer)

Every proposal made by an offeror is not legally regarded as an offer. Three tests are applied to
determine whether or not an offer has actually been made:
1. Does the offer show a clear intenton on the part of the offeror to be bound by it.
2. Whether the proposal is definite?
3. Whether the offer is communicated to the offeror?

Offer must be distinguished from

(i) Mere invitation to an offer. Offer should be distinguised from a mere invitation to an offer.
Catalogue of goods, an advertisement inviting tenders or application for a job, a prospectus of a
company; an auctioneer’s request for bids or display of goods in showcase with prices marked
upon them etc., are mere invitations to offers and not actual offers. A statement of the lowest
price at which a landowner is prepared to sell has been held not to be an offer thus, when an
owner of property says he will not accept less than Rs. 5,000 he does not make an offer, but
merely invites offer. Similarly, a term in a partnership deed that any of

the parties wishing to sell his share will sell to the others at the market value is not an offer but

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an undertaking to make an offer. Thus, in such cases the person who responds to an invitation to
an offer, makes the actual offer. The party issuing an invitation for the offers has a right to accept
or not to accept the offers received. As such in a case where brokers in Bombay wrote to
merchants in Delhi stating their terms of business and the merchants afterwards placed orders
with the brokers; no contract was made until the orders given by the brokers were accepted by
the merchants. A bank’s letter with quotation as to particulars of interest on deposits, in answer
to an enquiry, is not an offer but only a quotation of business terms.

Example: A shopkeeper displays goods for sale in a shop with price tags attached to each article.
This is only an invitation to an offer. The shopkeeper cannot be compelled to sell the goods at
the price mentioned.

(ii) Mere statement of Intention: A declaration by a person that he has the intentions to do
something does not amount to an offer. The person making the declaration will not be liable to
the person who has suffered some loss because of relaince on the delcared intention.

Seller cannot be held liable for any loss caused to a prospective buyer by not adhering to the
advertisement for sale of goods by auction at a particular time and place because the
advertisement was a mere statement of intention (Hari V. Naickersor (1873). Similarly, the
announcement made on loudspeakers do not result into any binding offers.

Examples : T said in conversation to W that he would give Rs. 1000 to anyone, who married his
daughter with his consent. W married T’s daughter with his consent. Thereafter, T refused to pay
Rs. 1000/- We filed a case against T for the alleged promise. It was held that words used by T
were mere statement of intention and do not constitute an offer, therefore, W could not succeed
in his claim (Weeks V. Tybald 1605).

(b) A father wrote to his would be son-in-law that his daughter would have a share in all the
assets that he would leave. It was merely a statement of intention and, therefore, neither the
daughter nor the son-in-law can hold the promisor liable for anything if he does not leave any
assets. (Farina V. Fickus) (1900).

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ESSENTIALS OF A VALID OFFER

1. The offer must disclose an intention to create legal relations:

If the offer does not contemplate to give rise to legal relationship, it is no offer in the eyes of
law, e.g. invitation to a dinner which has no intention to create relationship. An offer must
impose some legal duty on the party making it.

2. The terms of offer must be clear and certain and not indefinite, lose or ambiguous:

The terms of the offer must be definite, unambiguous, clear and certain and not lose and vague.
The offer must not be based on a condition which is uncertain or incapable of performance.
Though the proposer is free to lay down any terms and conditions in his offer, but they should be
certain and legal, otherwise its acceptance will amount to a vague agreement which the courts
will not enforce. But, where an agreement contains its own machinery for clarifying vague term,
the agreement will not be vague in Law. (Foley V. Classque Coaches Ltd.) (1934). In some
circumstances, the courts might imply a term based upon the presumed, intention to the parties.

Examples:-(a) A says to B “I will sell you my clar:.A owns four different cars.

The offers is not valid because it is not definite.

(b) A made a contact with B and promised that if he was satisfied with him as a customer he
would favourably consider his application for the renewal of the contract. The promise is too
vague to create any legal relationship.

3. Offer may be general or specific:

An offer may be made to definite person or persons or to the world at large. When it is made
to some specific person or persons it is called a specific offer. When it is made to the world at

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 large it is called a General offer. A specific offer can be accepted only by the person to whom
the offer has been made and in the manner, if any specified in the terms of the offer.

But a general offer can be accepted by any persons having notice of the offer by doing what is
required under the offer. The most obvious example of such an offer is where a reward is
publicity offered to any about that object, who will recover a lost object or wll give some
information, there the party claiming the reward has not to prove anything more than that he has
performed the conditions on which the reward was offered. The time table of railways is a
general proposal to run trains

according to the table, which is accepted by an intending passenger tendering the price of the
ticket.

Carlill V. Carbolic Smoke Ball Co. (1983). In this case, the Company advertised that a reward of
£ 100 would be given to any person who contracted influenza after having used the smoke-balls
of the Company as directed. Mrs. Carlill used the smoke-balls according to the directions of the
company. but contracted influenza. It was held, that the offer was a general one, and Mrs. Carlill
had accepted it by acting in accordance with the advertisement, and therefore, the company could
not get away from its responsibility by saying that they had not meant it seriously. She was
entitled to the reward.

In India, the principle was applied in the case of Har Bhajan. Lal V, Han Charan Lal. In this case
offer of reward was made to any one tracing a lost boy and bringing him home. Harbhajan Lal
who knew of the reward. found out the boy and took him to the Police Station. It was held that he
was entitled to the reward.

4. Offer may be express or implied:

An offer made by words, spoken or written is termed as an ‘express offer’.

Example: If A says to B that he is willing to sell him his car for a sum of Rs. 10,000 it is an
express offer.

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‘Implied offer’ means an offer made by conduct, an offer may also be implied from the conduct
of the parties or the circumstances of the case. This is known as an implied offer. When one
person allows the other to perform certain acts under such circumstances that nobody would
accept them without consideration it will amount to an offer by conduct and the permission of
the party, who is benefitted by such performances, will amount to his acceptance.

Example : A bus company runs a bus on a particular route. This is an implied offer by the bus
company to take any person on the route who is prepared to pay the prescribed fare. The
acceptance of the offer is complete as soon as a passenger gets into the bus.

5. Offer must be communicated:

The offer, to be valid must be communicated to the offeree. An offer becomes effective
only when it has been communicated to the offeree so as to give him an opportunity to
accept or reject. An acceptance of the
offer, in ignorance of the offer, is no acceptance and, therefore, no valid contract can arise.

6. Statement of Price:

If a party makes a statement of price, it cannot be taken as an offer to sell at that price.
The decision made in case of Harvey and Facey, is important to note in this connection.
Example : A asks B, “Will you sell us Bumper Hall Pen? Telegraph lowest cash price-answer
paid”. B replies telegraphically “lowest price for Bumper Hall Pen £ 900”.
A responds by telegram “We agree to buy Bumper Ball Pen for the sum of £ 900 asked by you”.
It was held that no contract was concluded between A&B.

Leading case: Lalman Shukla V. Gauri Dut (1913):

In this case, G’s nephew has absconded. He sent his munim L in search of the missing boy. In his
absence, G issued hand bills oferring a reward of Rs, 501/- to anyone who might find out the boy
L found out the boy before seeing the hand bills. Later on, he came to know of the reward and
sued G for the reward. Here he could not claim the reward as he did not know about the offer.

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 7. Offer nust be made with a view to obtain the consent:

The offer must be made with a view to obtain the consent of the other party and not merely with
a view to disclosing the intention of making an offer. A proposer cannot also dictate terms under
which the offer can be refused. At best, he can lay down the mode of acceptance.

Offer should not contain a Term the non-

compliance of which would amount to acceptance: The offer should not contain

a term the non-compliance of which would amount to acceptance for example a person cannot
make such an offer that if the acceptance of the offer is not received upto Monday, the offer
would be presumed to have been accepted.

8. Special conditions attached to an offer must also be communicated:

Though an offeror is free to lay down any terms and conditions in his offer, but it is the
responsibility of the offeror to bring all the terms of the offer to the notice of the other
party, the acceptor is bound only for those conditions which (i) have
expressly communicated to him or (ii) have so clearly been written that he ought to have known
them or (iii) have reaonsable notice of the existence of those terms. He will also be bound by the
conditions if he knew of their existence, though they are in a language unknown to him. It is his
duty to get them explained.

Examples :

(a) A passenger had purchased a ticket for a journey. On the back of the ticket, there were
certain terms and conditions. One of the terms was that the carrying company was not liable for
losses of any kind. But there was nothing on the face of the ticket to draw the attention of the
passenger to the terms and conditions on the back of ticket. Held, the passenger was not bound
by the terms and conditions on the back side of the ticket. (Henderson V. Stevenson) (1875).

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(b) T, an illiterate, purchased a railway ticket on the front of which was printed
“for conditions seek back”. One of the conditions was that the railway company would not be
liable for personal injuries to the passenger. An accident caused some injuries to T. Suit for
damages brought by T was dismised as he was bound by the conditions printed on the reverse of
the ticket. (Thompson V. L. M. & S. Rly.) (1930).

Now it is the established law that wherever on the face of a ticket words to the effect “for
conditions see back” are printed, the passenger concerned is bound by the conditions, it is
immaterial whether he actually reads them or not. If conditions are printed on the back of the
ticket, but there is nothing on the face of it to draw attention of the person to these conditions, he
is not bound by the conditions.

Thus, it is to be noted that a person, who accepted without objection a document containing
terms of the offer, which he knows or ought to have known, will be bound by those terms even if
he had not read them. However, this rule will not be applicable if the conditions are so irrelevant
for unreasonable that an assent to them cannot reasonably be presumed. Similarly, where a
condition to an offer is against public policy, it will not be enforced merely because it has been
accepted by the acceptor.

Example: A garment of B was lost due to the negligence of laundry owner. On the back of the
laundry receipt, it was mentioned that in the event of loss only 15% of the market price or value
of the article would be recovered by the customer. In a suit by R, it was held that the term being
prima facie opposed to public policy it
could not be enforced even though there was tacit acceptance by the customer of the terms (Lily
White V. Munnuswami) 1966.

The acceptor would be bound by the terms and conditions only when all the following conditions
are satisfied:
1. The acceptor knows about the writing or printing on the ticket.
2. He also knew the writing or printing on the ticket contained conditions regarding terms of
the contract.

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3. The conditions must not be against public policy or the fundamental principles of contracts.
4. The offeror had done all that was reasonably sufficient to give the acceptor notice of the
conditions. For example, if printing of the ticket is not clearly visible due to the smallness of the
type it could not be taken that the carrying company had made sufficient arrangement for the
communication of the conditions. (Richardson V. Rowntree) (1894).
5. The notice of the conditions should be given before or at the time of the contract but not
afterwards. A subsequent notice about the conditions will not bind the other party.
Example:
A hotel put up a notice in a bed room. “The proprietors will not hold themselves responsible for
articles lost or stolen unless handed to the manager for safe custody”. Held, the notice was not
effective as it came to the knowledge of the customer only after the contract had been made and
the customer had already paid the rent.
6. Conditions must not be contained in a voucher or receipt for payment of money because they
will not bind the person receiving the voucher or receipt (chapleton V. Barry U.D.C.) 1940.

TENDER
A person may invite tenders for the supply of specific goods or services. Thus, a tender, in
response to an invitation, is an offer. A tender may be either:

(i) A definite or single offer, or

(ii) A standing or an open offer.

Tender as a definite offer :

If a tender has been submitted for goods or services in specified quantities it is termed as a
definite offer, A binding contract comes into existence as soon as the tender is accepted.

Example:
A invites tenders for the supply of 100 tons of local X, Y and Z submit the tenders. A accepts
Y’s tender. There is binding contract between A and Y.

Tender as a standing offer.

Standing offer or tender may be of the nature of a continuing offer. Thus, a tender to supply

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goods as and when required over a certain period amounts to a standing offer. Here, the tenderer
must supply whenever an order is placed. But he cannot insist on any order being made at all.

Example:
(a) A tendered to supply goods upto a certain amount to B over a certain period. B’s order did
not come upto the amount expected and A sued for breach of contract. Held, each order made
was a separate contract and A was bound to execute the orders made. B was under no obligation
to make any order at all. (Percival Ltd. V.L.C.C.) (1918).

(b) A railway company invited tenders for the supply of certain iron articles over a period of 12
months. W’s tender was accepted. After supplying for sometime, W refused to execute on order
placed during the currency of the tender. Held, W could not refuse within the terms of the tender.
(Great Northern Railway V. Witam).

Cross Offers :
Identical offers made by two parties in ignorance of each other’s offer, are termed as cross offers.
They will not constitute acceptance of one’s offer by the other. (Tinn V. Hoffman) 1873.

Example:
A, by a letter offers to sell his car to B for Rs. 10,000 B, by a letter which crosses A’s letter in
the post, offers to buy it for Rs. 10,000. The offers are cross- offers and no binding contract will
arise. Both A and b are ignorant of each other’s offer. There can be no automatic acceptance of
each other’s offer, rather a new acceptance from either of the two parties would be required.

ACCEPTANCE
A contract comes into being from the acceptance of an offer. When the person to whom the offer
is made signifies his assent thereto, the proposal is said to be accepted (Sec. 2(b). Thus,
acceptance of the offer must be absolute and unqualified. It cannot be conditional.

WHO CAN GIVE ACCEPTANCE

When an offer is made to particular person or to a group of persons, it can be accepted only by

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that person or member of the group. If it is accepted by any other persons, there is no valid
acceptance.

Example:
B sold his business to P without disclosing the fact to his customers. J, who had a running
account with B, placed an order with B for supply of certain goods. The new owner without
disclosing the fact of himself having purchased the business, executed the order. J refused to pay
P for the goods because he, by entering into contract with B intended to set off his debt against
B. Held, the new owner of could not recover the price. “The rule of law is that if you promise to
make a contract with A, then B cannot substitute himself for A without your consent and to your
disadvantage, securing to himself all the benefits of the contract”.

When an offer is made generally to the public at large, any person or persons who have the
notice of the offer, may come forward and accept the offer. By doing what is required to be done
under the offer, offer is said to be as accepted and there will be valid contract, (Carlill V.
Carbolic Smoke Ball Co. 1893).

ESSENTIALS OF A VALID ACCEPTANCE

1. Acceptance must be absolute and unqualified:

Section 7 of the Contract Act requires that the acceptance must be absolute and
unqualified. It must correspond with all the terms of the offer. Conditional acceptance
is no acceptance. If there is a variation in the terms of the acceptance, it is not an
acceptance, but a counter-offer, which the proposer may or may not accept. A
counter-offer destroys the original offer. Thereafter the offeree cannot rever to the
original offer and purport to accept it. (Erollope & Colls Ltd. V. Atomic Power
Construction Ltd. (1963)

Example:
A offers to sell his house for a sum of Rs. 20,000 B sends his acceptance to purchase it for a sum
of Rs. 19,000. There is no acceptance. It will be taken as a new offer from B, which may not be

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accepted by A.

2. ACCEPTANCE MUST BE IN THE MODE PRESCRIBED:

A proposal must be accepted accroding to its terms. If the proposal lays down a
mode of acceptace, the acceptance must be according to the mode prescribed.
Therefore, if the proposer choses to require that the goods shall be delivered at a
particular place, he is not bound to accept delivery at any other place. It is not for
the acceptor to say that some other mode of acceptance which is not according to
the terms of the proposal will do as well. If the acceptance is not given in the
made prescribed, the proposer may reject the acceptance and intimate the offeree
within a reasonable time. But if he does not inform the offeree, he is deemed to
have accepted the acceptance.

If the proposer has not prescribed any mode of acceptance, it must be given and communicated
in some usual and reasonable manner.

Example:
An offer is made to take shares indicating that the acceptance is to come by a telegram. If the
acceptance is sent by ordinary post then it is not an acceptance according to the mode prescribed
and the offer will be deemed to be not accepted. The offeror need not inform the offeree that the
acceptance is not according to the mode prescribed.

3. ACCEPTANCE MUST BE COMMUNICATED TO THE OFFEROR:

Acceptance must be communicated to the offeror to create a binding contract.
Mental acceptance is no acceptance in the eyes of law. But where the offer is to
be accepted by being acted upon, no communication to the offer will be
necessary.

Example:
The manager of a railway company received a draft agreement. The manager wrote the word

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“approved” and put the draft in the drawer of his table. By some oversight the document
remained in the drawer and was never communicated. It was held that there was no contract as
the acceptance had not been communicated. (Brogden V. Metropolition Rly. Co.) (1877).

4. SILENCE CANNOT BE PRESCRIBED AS MODE OF ACCEPTANCE:

The offer cannot frame his offer in such a way as to make the silence or inaction
of the offeree to operate
as an acceptance. In other words, the offeror can prescribe the mode of acceptance but not the
mode of rejection.

Leading case: Felthouse V. Bindley (1863). F offered by letter to buy his nephew’s horse for
£30 adding, “If I hear no more about it, I shall consider the horse as mine for £30. Nephew did
not give any reply, but he told an auctioneer who was selling his horses not to sell that particular
horse becaue it was sold to his uncle. By mistake auctioneer sold the horse. Held: F had no claim
against the auctioneer because the horse had not been sold to him and the horse did not belong to
F. Silence cannot be prescribed as a mode of acceptance because if that was so the offeree will
be put to a great deal of inconvenience because he shall have to unnecessary write in clear terms
that he is not accepting the offer.

5. Acceptance must be given within the time stpulated or within a reasonable time if time is
not mentioned. Further, acceptance must be given before the offer lapses or before the
withdrawn.

6. There can be no acceptance before the communication of the offer. There can be no
acceptance of an uncommunicated offer. Acceptance cannot precede an offer. A person who has
no knowledge of an offer cannot be said to have accepted it merely because he happened to act
just by chance in the manner prescribed by the offer. (Lalman V. Gauri Dutt).

7. Acceptor must in indicate intention to fulfil the promise. Acceptance, in order to be valid,
must be made under circumstances which would show that the acceptor is able and willing to
fulfil the promise. Acceptance must show an intention on the part of the acceptor to fulfil the
promise. If no such intention is present, the acceptances is not valid.

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8. If the proposal is made through an agent, it is sufficient if the acceptance
is communicated to him: If A sends the offer to B by an agent C, and B give his
acceptance to C, the acceptance is complete resulting into a valid contract. It is immaterial
whether C communications the acceptance of B to his principal A or not.

9. Acceptance of the proposal will mean acceptance of all the terms of the offer. Acceptance
subject to contract, when an offer is accepted by an offeror
“subject to contract” or subject to formal contract” or “subject to contract to be approved by
solicitors,” the matter is known to be at the negotiation stage and the parties do not intend to be
bound until a formal contract is made and signed by them.

Agreement to agree in future. If the parties have failed to agree upon the terms of the contract but
have made an agreement to agree in future, there is no contract, example: An actress was
engaged by a theatrical company for a certain period. One of the terms of the agreement was that
if the party was, shown in London, she would be engaged at a salary to be mutually agreed upon.
Held, there was no contract. (Luftus V. Roberts, (1902) 18 T.L.R. 532).

Communication of offer: Acceptance and Revocation

An offer and its acceptance, to be valid must be communicated to the other party.

Communication of offer: (Se.4)

The communication of an offer is complete when it comes to the knowledge of the person to
whom it is made. When an offer is made by post, its communication will be complete when the
offeree receives the letter.

Example: A proposes, by letter, to sell a house to B at a certain price. The communication of the
proposal is complete when B receives the letter.

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Communcation of Acceptance (Sec.4)

The communication of an acceptance is complete:-

(i) as against the proposer, when it is put in the course of transmission to him, so as to be out
of the power of the acceptor to withdraw, and

(ii) as against the acceptor, when it comes to the knowledge of the offeror.

Example: B accepts A’s proposal by a letter sent by post. The communication of the acceptance
is complete as against A, when the letter is posted; as against B when the letter is received by A.

Communication of Revocation : (Sec.4)

The word ‘revocation’ means “taking back”. Both an offer as well as an acceptance may be
revoked. The communication of Revocation is complete:

(i) as against the person who makes it, when it is put into the course of transmission to the
person to whom it is made, so as to be out of the power of the person who makes it;

(ii) as against the person to whom it is made, when it comes to his knowledge.

Example: Thus in the above example:

A revokes hs proposal by telegram. The revocation is complete as against A, when the telegram
is despatched. It is complete as against B when B received it.

B revokes his acceptance by telegram. B’s revocation is complete as against B when the telegram
is despatched, and as against A when is reaches him.

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The time during which an offer or acceptance may be revoked is dealt with in Sec.5 as
follows:

Revocation of a proposal

According to Sec.5 “proposal may be revoked at any time before the communication of its
acceptance is complete as against the proposer, but not afterwards”.

Example: A proposes, by a letter sent by post, to sell his house to B.

B accepts the proposal by a letter sent by post. A may revoke his proposal at any time before or
at the moment when B posts his letter of acceptance, but not afterwards.

In an auction sale, a bidder may withdraw his bid at any time before the any time before or at the
moment when B posts his letter of acceptance, but not afterwards.

In an auction sale, a bidder may withdraw his bid at any time before the fall of the hammer
(acceptance).

Revocation of an Acceptance

An acceptance may be revoked at any time before the communication of the acceptance is
complete as against the acceptor but not afterwards.

Example: In the above example, B may revoke his acceptance at any time before or at the
moment when the letter communicating it (acceptance) reaches A but not afterwards.

In case, the letter of acceptance and the letter of revocation of acceptance reach simultaneously,

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which of the two is opened first will decide the issue. When the letter of revocation reaches prior
to the letter of acceptance, the acceptance will be treated as revoked.

Modes of Revocation or lapse of offer

Sec.6 deals with various modes of revocation of offer, these cases are as follows:

1. By communication of the notice of revocation:

An offer may be revoked by the communication of the notice of revocation. It

may be revoked only before its acceptance is complete as against the offeror. The acceptance is
complete as against the offeror when the letter of acceptance is put in transmission to him.
Notice of revocation will take effect only when it comes to the knowledge of the offeree.

2. By lapse of specified time: If time is mentioned in the offer for its acceptance, it is revoked by
the lapse of time. If no time is mentioned then it lapses on the expiry of reasonable time.

Example: M applied for shares of a company in June. Allotment was made in November held,
the offer had lapsed, because period of five months was not a reasonable time. So M could not be
treated as shareholder of the company.

3. By the failure of the acceptor to fulfil a condition precedent to the acceptance: An offer lapses
if the offeree fails to fulfil a condition precedent to the acceptance.

Example: A offers to sell his car to B for a sum of Rs. 10,000 provided B sends an advance of
Rs. 500 with his acceptance. B accepts the offer but does not send the advance. The offer may be
taken as revoked.

4. By the death or insanity of the proposer. The death of the proposer puts an end to the offer,
provided the fact of death or nstantly comes to the knowledge of the acceptor before acceptance.
If the proposer dies after the acceptance of the offer, the legal representatives of the proposer
shall be bound by the contract. The acceptance of an offer in ignorance of the death or insanity of

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the proposer is valid. But according to English Contract Law, no notice of death is required to
the offeree. An offer shall automatically stand revoked in the case of death or insanity of the
proposer.

No provision has been made in the Act for a case where the person to whom the proposal is
made dies before the acceptance for the obvious reason that the prop0sal can never be meant to
be made to a dead or his executors.

In addition to the above-mentioned cases dealt with in Sec.6 following two more cases should
also be added.

5. A counter offer also amounts to a revocation of the original offer.

6. If an offer is not accepted according to the mode prescribed it will lapse provided the
offeror gives notice for the offeree that the acceptance is not according to the prescribed mode.

It is to be noted here that the rejection of a proposal by the person to whom it is made is wholly
distinct from revocation.
Contract through Post:

When the contracting parties make contracts through post, i.e. by letter or telegram, it is
observed that “The Post Office is the servant employed by the party making the offer to deliver
the offer and receive the acceptance.”

The rules of contract by post may be summarised as follows:-

(a) An offer is made only when it reaches to the offeree and not before.

(b) An acceptance is complete when the letter of acceptance is put in the course of
transmission, so as to be out of the control of acceptor. If the letter of acceptance is properly
addressed, stamped and posted, it is immaterial whether it reaches the offeror or not. Loss of
letter in the post, late delivery or miscarriage etc. will not

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affect the valdity of the contract. It was observed in Dunlop V. Higgins (1866)”. If the party
accepting the offer puts his letter into the post on the correct day, has he not done everything that
he was bound to do? How can be responsible for that over which he has no control?

(c) An offer may be revoked before the letter containing the acceptance is posted and not
therefater.

(d) An acceptance may be revoked before, it reaches the offeror. But the acceptor will be
bound by his acceptance only when the letter of acceptance has reached the proposer.

In English law an acceptance cannot be revoked, once the letter of acceptance is properly posted,
the contract is concluded for both the parties.

Contracts over telephone :

Contracts over telephone or telex are treated on the same principles as those when the parties are
facing each other. In both cases offer is made and oral acceptance is expected.

The Supreme Court, in the case of Bhagwandas Goverdhandas Kedia V. Girdharilal Purshottam
Dass & Co. (1966) ruled by a majority judgement that post office rules of communication are not
applicable to contracts over telephone or telex. In case of such contracts, the contract will be
complete only when the acceptance has been communicated to the offeror and not when it is put
in the transmission as in the case of post.

In case a person makes an offer to another person and in the course of his reply the line goes
dead, on account of which the offeror does not hear the offeree’s word’s of acceptance there is
no contract at that time. If the whole conversation is repeated and the offeror hears the words of
acceptance, the contract is complete

(Kanhaiyalal V. Dineshwar Chand’s (1959). Contract will come into existence at the place where
the acceptance has been recieved.
Ananson has beautifully compared an offer with a train of gunpowder and acceptance with a

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lighted match in the following words”- Acceptance is to an offer what a lighted match is to a
train of gunpowder. It produces something which

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cannot be recalled or undone. But the powder may have laid until it has become damp, or the men
who has laid the train may remove it before the match is applied. So an offer may lapse for want
of acceptance or be revoked before acceptance.

Acceptance converts the offer into a promise and then it is too late to remove it.”

Just as when the lighted match is brought near the gunpowder, it explodes. Similarly an offer
when accepted becomes a contract and will give rise to legal obligations. Further, explosion can
be prevented if the gunpowder becomes damp or is removed before the lighted match is brought
near it. Similarly, no contract arises if the offer has already lapsed on account of no acceptance,
or acceptance not being given within a reasonable or fixed time or it has been withdrawn by the
offeror before its acceptance.

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 UNIT – V TERMS OF CONTRACT

In a contract of sale, the subject matter is ‘goods’. There are millions of sale transactions which
occur in the normal course, all around the world. There are certain provisions which need to be
fulfilled because it is demanded by the contract. These prerequisites can either be a condition and
warranty. The condition is the fundamental stipulation of the contract of sale whereas Warranty
is an additional stipulation.

In a contract of sale, the subject matter is ‘goods’. There are millions of sale transactions which
occur in the normal course, all around the world. There are certain provisions which need to be
fulfilled because it is demanded by the contract. These prerequisites can either be a condition and
warranty. The condition is the fundamental stipulation of the contract of sale whereas Warranty
is an additional stipulation.

Comparison Chart

BASIS FOR
CONDITION WARRANTY
COMPARISON

Meaning A requirement or event that A warranty is an assurance given

should be performed before the by the seller to the buyer about the
completion of another action, is state of the product, that the
known as Condition. prescribed facts are genuine.

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 BASIS FOR
CONDITION WARRANTY
COMPARISON

Defined in Section 12 (2) of Indian Sale of Section 12 (3) of Indian Sale of

Goods Act, 1930. Goods Act, 1930.

What is it? It is directly associated with the It is a subsidiary provision related to

the object of the contract.

objective of the contract.

Result of breach Termination of contract. Claim damages for the breach.

Violation Violation of condition can be Violation of warranty does not

affect the condition.
regarded as a violation of the

warranty.

Remedy available to Repudiate the contract as well as Claim damages only.

the aggrieved party on claim damages.
breach

Definition of Condition

Certain terms, obligations, and provisions are imposed by the buyer and seller while entering into
a contract of sale, which needs to be satisfied, which are commonly known as Conditions. The
conditions are indispensable to the objective of the contract. There are two types of conditions, in

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 a contract of sale which are:

Expressed Condition: The conditions which are clearly defined and agreed upon by the parties
while entering into the contract.

Implied Condition: The conditions which are not expressly provided, but as per law, some conditions are
supposed to be present at the time making the contract. However, these conditions can be waived off through
express agreement. Some examples of implied conditions are:

 The condition relating to the title of goods.

 Condition concerning the quality and fitness of the goods.

 Condition as to wholesomeness.

 Sale by sample

 Sale by description.

Definition of Warranty
A warranty is a guarantee given by the seller to the buyer about the quality, fitness and performance of the
product. It is an assurance provided by the manufacturer to the customer that the said facts about the
goods are true and at its best. Many times, if the warranty was given, proves false, and the product does
not function as described by the seller then remedies as a return or exchange are also available to the
buyer i.e. as stated in the contract.

A warranty can be for the lifetime or a limited period. It may be either expressed, i.e., which is
specifically defined or implied, which is not explicitly provided but arises according to the nature
of sale like:

Warranty related to undisturbed possession of the buyer.

 The warranty that the goods are free of any charge.
 Disclosure of harmful nature of goods.

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  Warranty as to quality and fitness

Key Differences Between Condition and Warranty

The following are the major differences between condition and warranty in business law:

A condition is an obligation which requires being fulfilled before another proposition takes
place. A warranty is a surety given by the seller regarding the state of the product.

The term condition is defined in section 12 (2) of the Indian Sale of Goods, Act 1930 whereas
warranty is defined in section 12 (3).

The condition is vital to the theme of the contract while Warranty is ancillary.

Breach of any condition may result in the termination of the contract while the breach of
warranty may not lead to the cancellation of the contract.

Violating a condition means violating a warranty too, but this is not the case with warranty.

In the case of breach of condition, the innocent party has the right to rescind the contract as well
as a claim for damages. On the other hand, in breach of warranty, the aggrieved party can only
sue the other party for damages.

Conclusion:
At the time of agreeing to the contract of sale, both the buyer and seller puts some stipulations
regarding payment, delivery, quality, quantity, etc. These stipulations can be either condition or
warranty, which depends on the nature of the contract. Every contract of sale has some implied
conditions and warranties.

The Principle of Caveat Emptor deals with the implied conditions and warranties. The term
caveat emptor refers, ‘let the buyer beware’ i.e. it is not the duty of the seller to reveal all the
defects in the goods and so he should not be held responsible for the same. The buyer should

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satisfy himself completely before purchasing a product. However, there are certain exceptions to
this rule.

UNIT VI – CONSIDERATION

Consideration:

“Something which is given and taken. ”Section 2 (d) of the Contact Act 1872
defines contract as “When at the desire of the promissory, the promise or any other person has
done or abstained from doing or does or abstains from doing or promise to do or abstain from
doing. Something such act or abstinence or promise is called a consideration for the promise.”

“When at the desire of the promissory, the promise or any other person has done or abstained
from doing or does or abstains from doing or promise to do or abstain from doing. Something
such act or abstinence or promise is called a consideration for the Promise.”

1. Importance of consideration:

Consideration is the foundation of ever contract. The law insists on the existence of
consideration if a promise is to be enforced as creating legal obligations. A promise without
consideration is null and void.

Types of Consideration

1. Executory,

2. Executed

3. Past consideration

Executed consideration is an act in return for a promise. If ,for example, A offers a reward for
the return of lost property, his promise becomes binding when B performs the act of returning
A’s property to him. A is not bound to pay anything to anyone until the prescribed act is done.

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Executory consideration is a promise given for a promise. If, for example, customer orders goods
which shopkeeper undertakes to obtain from the manufacturer, the shopkeeper promises to
supply the goods and the customer promises to accept and pay for them. Neither has yet done
anything but each has given a promise to obtain the promise of the other. It would be breach of
contract if either withdrew without the consent of the
other.

Past consideration which as general rule is not sufficient to make the promise binding. In such a
case the promisor may by his promise recognize a moral obligation (which is not consideration),
but he is not obtaining anything in exchange for his promise(as he already has it before the
promise is made).

2. Essentials of a valid consideration:

The essentials of valid consideration are as under:

1. At the desire of the promisor.

2. Promisee or any other persons.
3. Consideration may be past, present, and future.
4. Consideration may be real.
1. Consideration must move at the desire of the promisor:
In order to constitute legal consideration, the act or abstinence forming the consideration for the
promise must be done at the desire or request of the promisor. Thus acts done or services
rendered voluntarily, or at the desire of third party, will not amount to valid consideration so as
to support a contract.

2. Consideration may move from the promise or any other person:

The second essential of valid consideration, as contained in the definition of consideration in

Section 2(d), is that consideration need not move from the promisee alone but may proceed from
a third person.

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Thus, as long as there is a consideration for a promise, it is immaterial who has furnished it. It
may move from the promisee or from any other person. This means that even a stranger to the
consideration can sue on a contract, provided he is a party to the contract. This is sometimes
called as ‘Doctrine of Constructive Consideration’.

3. Consideration may be past, present or future:

The words, “has done or abstained from doing; or does or abstains from doing; or promises to do
or to abstain from doing,” used in the definition of consideration clearly indicate that the
consideration may consist of either something done or not done in the past, or done or not done
in the present or promised to be done or not done in the future. To put it briefly, consideration
may consist of a past, present or a future act or abstinence. Consideration may consist of an act
or abstinence:

Past consideration: When something is done or suffered before the date of the agreement, at
the desire of the promisor, it is called ‘past consideration.’ It must be noted that past
consideration is good consideration only if it is given by the promisee, ‘at the desire of the
promisor.

Present consideration: Consideration which moves simultaneously with the promise is called
‘present consideration’ or ‘executed consideration’

Future consideration: When the consideration on both sides is to move at a future date, it is
called ‘future consideration’ or ‘executory consideration’. It consists of an exchange of promises
and each promise is a consideration for the other.

Consideration must be ‘something of value’: The fourth and last essential of valid
consideration is that it must be ‘something’ to which the law attaches a value. The consideration
need not be adequate to the promise for the validity of an agreement.

Conclusion:

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Consideration is a benefit which must be bargained for between the parties, and is the essential
reason for a party entering into a contract. Consideration must be of value and is exchanged for
the performance or promise of performance by the other party (such performance itself is
consideration). In a contract, one consideration (thing given) is exchanged for another

consideration. Acts which are illegal or so immoral that they are against established public policy
cannot serve as consideration for enforceable contracts.

Contracts may become unenforceable or rescindable for failure of consideration when the
intended consideration is found to be worth less than expected, is damaged or destroyed, or
performance is not made properly. Acts which are illegal or so immoral that they are against
established public policy cannot serve as consideration for enforceable contracts.

Without lawful consideration is not meaningful for any valid contract. Contract considered many
essential elements and lawful consideration is integral part or element of a valid contract. Which
Lawful consideration follows some rule then we called good consideration. But some exceptions
to the rule – No consideration, No contract. In English law a contract under seal is enforceable
without consideration.

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 UNIT – VII INTENTION TO CREATE LEGAL
OBLIGATION.

Intention to create legal relations is part of elements in contract. Intention to create legal
relations is defined as an intention to enter a legally binding agreement or contract. Intention to
create legal relations is one of the necessary elements in formation of a contract. It is because,
intention to create legal relations consists of readiness of a party to accept the legal sequences of
having entered into an agreement. Intention to create legal relations is a motion of every
contracting party must have the necessary intention to enter into a legally binding contract.

Based on the case of studies, Mr John has an intention to create legal relations when he decided
to do some window shopping at SOGO Shopping Complex last Sunday.

There are a few concept of intention to create legal relations. Intention to create legal relations
also means an intention to be serious about agreement significance:

a) The contracting parties mind will be obvious to enter a serious contract

When two parties decided to enter in the environment of a contract, their mind will understand
the contents of the contracts. This is due to their ‘intention' to be consenting mind which both of
the parties have to agree. If there is no agreement by both of the parties, it may make the contact
being a void agreement. Thus, both of the contracting parties will enable to be serious into the
contract.

b) If there is no intention to create legal relations the contract would not be enforceable,

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legal and binding

Intention to create a legal relation is one of the essential elements of contract. So, if there is no
intention to create a legal relation, the contract can be assumed as a not legal. Due to that, the
contract may not being enforceable because there is no intention to create legal relations at the
beginning which not making contracting parties to be legally binding.

c) Without intention to create legal relations, the parties cannot sue each other

With no intention to create legal relations, it may cause the contracting parties are not being
legally binding and this circumstances may cause the contract is enforceable. Therefore, when
the contract is enforceable, the contracting parties cannot sue each other and this will spoil their
business crisis. This will make the contracting parties hard to enquire their justice.

d) Without intention to create legal relations the contract may become a mere promise
In addition, with no intention to create legal relations, it will make any contract to become a
mere promise. Mere promises simply like a simple promise arise when there is no intention to
create legal relations. Based on the case of studies, the situation of mere promises can be seen
when Nathan, the Comfortable Furniture Sdn Bhd salesman have no intention to create legal
relations. He did not accept cash deposit from Mr John to obey the company policy. When the
mere promise occurs, the salesman still can sell the dining set to other people because they is no
legal contract between Nathan and Mr john.
e) Without intention to create legal relations the contract may lack the binding effect

Besides that, when there is no intention to create legal relations, it will make the contract or
agreement become less powerful due to whether one or both of the parties does not have a
consent mind. So, if the contract lack of binding effect, it will cause the difficulty to the party
involved in future.
Domestic and social agreements of intention to create legal relations can be broken down into
three groups which are firstly commercial or business relations, secondly social friend's relations
and thirdly family or domestic relations.

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a) Commercial or business relations
In term of general rules of commercial or business relations, there is a presumption or intention
to be legally binding. Otherwise in term of exception the presumption is rebuttable.

Case example: Kleinwort Benson Ltd V Malaysia Mining Corporation Bhd in year 1989

The case shows the letters of comfort. In this case, the plaintiff (bank) agreed loan to MMC
Metals, subsidiary of MMC. The bank asked MMC to guarantee loan. MMC said not policy to
guarantee loans to subsides offered letter of comfort stating: "It is our policy to ensure that the
business of MMC (Metals) is at all times in a position to meet its liabilities under the
arrangements”. The bank accepted but charged higher rate of interest and the market collapsed
and MMC went into liquidation. The plaintiffs tried to claim balance from MMC. First instance
the court found in favour of plaintiff, relying heavily on Skyways (1964) ruling overturned on
appeal and the judge said Skyways case not was about promise supported by consideration so not
applicable here. Hence, ruled no intention to create legally binding agreement statement was not
meant to act as guarantee, stating on current position, not future intention.

b) Social friend's relations

In term of general rules of social friend's relations, there is no presumption to be legally binding.
Otherwise, in term of exception the presumption is rebuttable.

Case example: Simpkins V Pays in year 1955

The case shows mutuality. In this case .the defendant, her granddaughter and the plaintiff
(paying lodger) regularly took part in newspaper competition. All contributed but entered in
defendant's name. There is no set of arrangement that state payment of postage etc. When entry
of the competition is successful, defendant refused to share with plaintiff. The plaintiff sued for
his share. Court ruled legally binding relationship as sufficient mutuality in the arrangements
between parties.

c) Family or domestic relations

In term of general rules of family or domestic relations, there is no presumption to be legally
binding. Otherwise, in term of exception the presumption is rebuttable.

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Case example: Balfour v Balfour in year 1919
The husband brought wife to England from Sri Lanka. The husband had to return but wife stayed
for medical reasons. He promised to pay her £30/month until his return. When he failed to pay,
the wife sued the husband. Wife's action failed because there is no consideration moved from her
and there is no intention to create legally binding agreement found. The court stated in husband
and wife cases, burden of proof is on plaintiff to prove intention to create legally binding
agreement.

UNIT – VIII CAPACITY TO CONTRACT

Section 10 of the Contract Act–

All agreements enforceable by law must be made by the parties competent to contract.

Section 11 of the contract Act –It States “every person is competent to contract, who is of
theage of majority according to the law to which he is subject, and who is of sound mind and is
disqualified from contracting by any law to which he is subject.”

Who are not Competent to Contract ?

The following types of persons are not having the personal capacity to Contract:


Disqualification by infancy, i.e. minors (18 /21)

Disqualification by insanity, i.e. lunatics.

Declared insolvents by Courts

Any Other disqualifications by Government, personal laws, such as conviction, alien
enemies etc.

1. Disqualification by Infancy

Age of Majority:

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A valid agreement requires that both the parties to contract should understand the legal
implications of their conduct. They must have mature & sane mind. They should be major in age.

According to Indian Majority Act, 1875, every person domiciled in India shall be deemed to
have attained his majority when he shall have completed his age of eighteen years and not
before. In case, guardian has been appointed to the minor or where the minor is under the
guardianship of the court of wards, the person shall become major on the completion of the age
of 21 years. Relating to Minor’s Agreement

The Act makes it essential that all contracting parties should be competent to contract, and if a
person is incompetent to contract by reason of infancy, he cannot make a contract within the
meaning of the Act. Therefore, an agreement with a minor is void and a minor can neither sue
nor be sued upon it. The Contract is also not capable of ratification in any manner. The parents of
a minor are not legally responsible for his contracts unless he acts as their agent.

Following important provisions govern agreements made with a minor.

1.Agreement is absolutely void:

An agreement by or with a minor is void-ab-initio. It is considered to be a nullity and non-
existing from the very beginning. Thus, if a party who has parted with goods, can trace them
with the minor then he can recover damages for the breach of contract or recover their price. Nor
can money lent to such a minor be recovered because if that were to be allowed it would
tentamount of enforcing the contract.

Leading case: Mohiri Bibi V. Dharmodus Ghosh.

In this case a minor executed a mortgage for Rs. 20,000 and received Rs.8,000 from the
mortgagee.

The minor sued for setting aside the mortgage. The mortgage claimed the sum which he had
actually paid, i.e. Rs. 8,000. The Privy Council held that as the minor’s contract was absolutely
void, and no question of money could arise in these circumstances.

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However, if the minor has carried out his obligations, he can bring a suit against the other party
for the enforcement of the other party’s obligations.

Example:
A, a minor, advanced money to B against a mortgage. It was held that the mortgage was
enforceable by him or by the other person on his behalf, (Satyadev V. Tribeni) (1936).
But the contract is enforceable only when the minor has performed his part, the agreement is
unenforceable.

Example:
M entered into a contract on behalf of a minor with S to purchase some immovable property. On
S’s non-fulfilment of his promise, the minor filled a suit against S. It was held that the agreement
was void because the contract is still executory. Therefore, his plea could not be accepted. (Mir
Sawargan V. Fakhrudin Md. Chowdhry) (1912).

2.No ratification:
Since the contract is void ab initio it cannot be ratifed by the minor on attaining the age of
majority. However, a minor who, on attaining majority, takes up and carries on transaction
commenced while he was under disability, will bind himself for the whole transaction.

Example :(A)
F, an infant speculated on the stock exchange and became liable to the stockbrokers for £547.
After attaining the age of majority, he gave two bills for £50 each in satisfaction of the original
debt. Held F was not liable on the bills (Smith V. King, (1892) 2 R.B. 543).

Example :(B)
A, a minor, takes a loan of Rs. 1,000 from B during his minority. After attaining age of majority,
A applies for a fresh loan of Rs. 1,000 B gives the loan and obtain from A a combined
promissory note of Rs.2,000. This will be taken as a new contract and will therefore, be
enforceable.

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3.No restitution:
When a contract becomes void, it is not to be performed by either party. But if any party has
received any benefit under such a contract from the other party he must restore it or make
compensation for it to the other party. This is called restitution.

A minor is not liable to repay any money or compensation for any benefit that he might have
received under a void contract. Court, may however, in certain cases, while ordering for the
cancellation of an instrument at the instance of the minor, require him to pay compensation to the
other party to the instrument under Sec. 33 of the Specific Relief Act.

4. No Estoppel:
A minor is not bound by his mis-representations. If a minor procures a loan or enters into any
other agreement by representing that he he is of full age. He cannot be prevented from pleading
his minority in his defence. He will not be held liable under the contract. It was held in Sadiq Ali
Khan V. Jai Kishore (1928) that a deed executed by a minor is a nullity there can be no estoppel
against a statue, Thus the rule of estoppel as per S.115 of the Evidence Act, 1872 is not applied
against a minor.

But this does not mean that the minors are allowed to cheat and to enjoy the fruits of their fraud.
According to S.33 of the Sepcific Relief Act, 1963 Court will order, on equitable considerations
for restitution if the minor is still in possession of the money or things purchased out of it. The
minor shall have no liability if the money or things cannot be traced out in his hands.

Examples:

(a) A minor borrowed Rs. 1000 on a fraudulent representation that he was a major, and he spent
the whole of the money in a picnic tour of Kashmir. In this case the creditor cannot sue for the
realisation of the money so advanced by him.

(b) A minor fraudulently over states his age and takes delivery of a motor car after executing a
promissory note in favour of the trader for its price, though the minor cannot be compelled to pay
on the promissory note; but the court on equitable grounds may order the minor to return the car

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to the trader, if it is still with the minor.

3. Mino’s liability for necessities: All contracts relating to the necessities supplied to a minor
according to this status in life are valid. But only the minor’s property is liable for necessities,
and no personal liability is incurred by him.

Necessities must be things which the minor actually needs; therefore it is not enough that they be
of a kind which a person of his condition may reasonably want for ordinary use, they will not be
necessities if he is already sufficiently supplied with things of that kind, and it is immaterial
whether the other party knows this or not. Objects of mere luxury cannot be necessities nor can
objects which, though of real use, are excessively costly. The fact that buttons are normal part of
any kinds of clothing, but it will not make pearl or diamond buttons necessities.

Example:

A grocer supplies monthly rations for 6 months to B who is aged 17 years. On B’ failure to pay,
he sues him for the realisation of his dues. In this case B’s property is liable for the payment of
credit rations consumed by B during the period of his minority.

Costs incurred in successfully defending a suit on behalf of a minor in which his property was in
jeopardy are “necessities”.

6.Minor as a beneficiary:
All such contracts under which the minor is to receive some benefit or which are beneficial to
him are valid. These contracts include agreements which provide for the teaching, instruction or
employment of a minor. It is to be noted that only his property is liable for liabilities arising out
of such contracts. In no case he will be personally liable.

English law has expressly made a contract for the minor’s benefit enforceable. But in India all
contracts made by minors are void. Still majority of the contracts for the benefit of minor have
been held to be enforceable on the ground that it will be unjust in the circumstances to deprive a
minor of a benefit which he may be entitled to get under a contract.

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7.Minor as Agent:
A minor can be appointed as an agent. He can represent his principal in dealings with other
parties. Since minor does not incur any personal liability, he cannot be held responsible for his
any act of negligence or fault. Therefore the principal will be responsible to the third parties for
the acts of his minor agent. He cannot hold the minor agent personally liable for any wrongful
acts. Thus the principal runs a great risk.

8.Minor as a partner:
A minor cannot be a partner of a firm. An agreement of partnership making a minor a full-
fledged partner is invalid between all partners. However, he may be admitted to the benefits of
an already existing partnership firm with the unanimous express consent of all the existing
partners. Such an agreement may be entered into by his guardian on his behalf with the partners.
A minor admitted to the benefits of partnership, has a right to share the property and profits of
the firm in the proportion agreed upon by him with the other partners. Further, he has a right to
have access to and inspect and copy any of the accounts of the firm but not the books of accounts
of the firm. He liability is limited to the extent of his share in the firm.

9.Minor as a member of a company:

A minor cannot be a member of a company since he is incompetent to enter into a contract.

A minor may be allotted shares. His name may remain on a company’s register of members, but
during minority he incurs no liability. On attaining majority and becoming aware of the presence
of his name in the register of members, the major has the option to repudiate his shares within a
reaonsable time. Where he does not do so he may safely be taken to have accepted his position.
His liability as a share-holder then commences.

However, it a minor has been allotted shares through ignorance and his name has been entered in
the Register of members both the compoany and the minor, can repudiate the allotment of shares
during his minority.

10.Surety for a minor:

A person who stands as a surety for a loan taken by the minor will be liable to the creditor for

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payment of the loan, even though minor was not liable.

11.Mortages and sales in favour of minors :

A sale or mortgages of his property by a minor is void. But a duly executed transfer by way of
sale or mortgage in favour of a minor who has paid the consideration money is not void and it is
enforceable by him or any other person on his behalf. A minor, therefore, in whose favour a deed
of sale is executed is competent to sue for the possession of the property conveyed thereby.

A minor can not be declared as an insolvent even for his necessities of life. Only his property is
liable even for necessities of life and he, personally, is not liable for the same.

Thus, the contract made with the minors can be under three heads.

(i) Valid Contracts:

They include
(a) contracts for necessities which include goods as well as services.
(b) Contracts for loans taken to purchase “necessities”.

(ii) Voidable Contracts:

This category of voidable contracts is not recognised our country. This category includes those
contracts in which minor is a beneficiary. Only minor is entitled to enforce but not the other
party. They can be reasonably called as contract voidable at the option of the minor.

(iii) Void Contracts:

All contracts by a minor other than those referred to above shall be void. Salmond has
defined the position of a minor in the following words:

“The law protects their persons, preserves their rights and estates, excuseth their laches and
assists them in their pleadings, the judges are their counsellors, the jury are their servants and law
is their guardian.”

Disqualificatioin by insanity

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According to Sec.12 “A person is said to be of sound mind for the purpose of making a contract
if, at the time when he makes it, he is capable of understanding it and of forming a rational
judgement as to its effect upon his interests.”

A person who is usually of unsound mind, but occasionally of sound mind, may make a contract
when he is of sound mind.

A person who is usually of sound mind, but occasionally of unsound mind, may not make a
contract when he is of unsound mind.

Example:

(a) A patient in a lunatic asylum, who is at intervals of sound mind, may contract during those
intervals.

(b) A sane man, who is delirous from fever, or who is so drunk that he can not understand the
terms of a contract or form a rational judgement as to its effect on his interests, can not contract
during such delirium or drunkness.

Thus, idiots, lunatics and drunkard are not considered to be persons of sound mind.
(i) Idiot : A person who is devoid of any faculties of thinking or rational judgement. All
agreements, other than those for necessaries of life, with idots are absolutely void.

(ii) Lunatic: A person whose mental powers are derange is called a lunatic. Lunatic is not a
person who is continuously in state of unsoundness of mind but he may have lucid intervals.
period in which he is to his senses. Agreement with lunatics are void except those made during
lucid intervals and made for necessities of life. However, for necessities of life, the property of
such persons is liable. He does not have personal liabilities.

(iii)Drunkards: A person under the influence of drink or drugs, stands on the same footing as
lunatic. Mere drunkenness affords no ground for resisting a suit to enforce a contract. But where

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the judgment of one party was, to the knowledge of the other part, seriously affected by drink,
equity will generally refuse specific performance at the suit of the other. And, where the court is
satisfied that a contract disadvantageous to the party affected has been obtained by “drawing him
into drink” or that three has been real unfairness in taking advantage of his position, the contract
may be set aside.

12. Persons disqualified by any other laws:

Certain types of people are specifically disqualified by special statues from entering into valid
contracts.

(I) Alien Enemies:

A person who is not an Indian citizen is an alien. An alien may be either an alien friend or an
alien enemy. An alien friend is one, whose state or Sovereign is at peace with India. He has
full contractual capacity like an Indian Citizen subject to certain restrictions put by the
Government of India, e.g., and alien can not acquire any ownership interests in any Indian
ship. On the declaration of war between India and alien’s country he becomes an alien
enemy. A contract with an enemy becomes unenforceable on the outbreak of war. With
regard to a contract with an alien enemy following rules will apply:

(i) Since trading with an alien enemy is considered illegal, no contract can be made with an
alien enemy during the subsistence of war except with the prior approval from the Central
Government.

(ii) Contracts entered into before the outbreak of war will be suspended during the course of
war. They will be performed after the war is over.

(II) Foreign Sovreigns and Ambassadors:

Foreign sovereigns and accredited representatives of foreign states, i.e., Ambassadors. High
Commissioners. enjoy a special priviledge in that they can not be used in Indian courts, unless
they voluntarily submit to the jurisdiction of Indian courts. Though they can enter into contracts
through agents residing in India. In such cases the agent becomes personally liable for the due
performance of the contracts.

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 (III) Corporations:
A corporations is only an artificial person created by law, e.g. a company registered under
the Companies Act, public bodies created by statue such as Industrial Finance Corporation of
India, A corporation exists only in contemplation of law, it has no physical body or form. It
can hold property, can sell or purchase goods and can sue or be sued in relation to any of the
contracts entered into by it. Being a mere creature of law it cannot go beyond those
objectives which have been laid down in the charter of its creation, i.e., Memorandum of
Association. Further, its capacity and powers to contract are also limited by its charter. Any
contract beyond such powers is ultra vires and void. Such ultravires contracts can not be
ratified even by the unanimous vote of all its members.

Besides that a Company etc. can not make certain contracts at all e.g., a contract to marry.

(IV) Convicts:
While undergoing sentence a convict is incapable of entering into a contract. This inability
comes to an end on the expiration of the sentence or if he has been “pardoned”.

(V) Professionla persons:

In England barristers-at law, are prohibited by the etiquette of their profession from suing for
their fees. So also are the Fellow Members of the Royal College of Physicians. In our country
no such professional disqualification exists.

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 UNIT IX FLAW IN CONSENT

Free Consent

Contracts are usually described as valid, void and voidable. Valid Contract is an agreement enforceable at the
law courts. Those agreements which are not enforceable at the law courts, i.e., for the enforcement of which
legal recourse cannot be taken, are known as Void Contracts. In between the valid and the void contracts are
the voidable contracts. Such contracts are the outcomes of Flaw in Consent. At an early stage you have read
that, “an agreement can be called a contract provided it is made with the Free Consent of the parties, competent
to contract for a
lawful consideration and for a lawful object and is not expressly declared to be void”. When we analyse
this statement we come to know that to be a contract, an agreement must be made with the Free Consent
of the parties to the contract. Here is the importance of “Free Consent” which is very much necessary for
the validity of the contract. The genuineness of the consent implies that the parties to the contract must
mean the some thing in the same sense and not only that but they should mutually agree voluntarily. If
their minds do not meet at the same thing in the same sense voluntarily, then their consent shall not be
called Free or Voluntary. The consent in such case might have been obtained under Fraud or

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Misrepresentation or Coercion or undue influence. In such a case the party giving his consent under any
of these four elements shall have a right to withdraw his consent. Such a contract where the consent of a
party or parties to the contract is caused by any of the elements stated above, i.e. Fraud Misrepresentation,
Coercion or Undue Influence/shall be called a Voidable Contract and shall be enforceable at the option of
the aggrieved party or parties and not at the option of the other or others.

Let us make our point clear with the help of an example. Suppose A is willing to sell his car to B for Rs.
15,000, but B is willing to purchase it for Rs. 10,000 only. A tells B if he (B) refuses, to purchase the car
for Rs. 15,000 he (A) shall fire upon him. Due to this threat of getting himself hit by A’s gun, B gives his
consent to purchase the car for Rs.15,000 only. Here B’s consent cannot be said to be obtained freely or
voluntarily. It is cause by threat to the injury of B’s person. Therefore B has a right to withdraw his
consent even at a later stage. B’s consent shall be said to be caused by Coercion. Such similar examples
can be multiplied. Thus Free Consent plays a very important role in the validity of a Contract. If there is
no Consent, there is no

Contract. Sir John Salmond has called flaws in Consent as ‘Error in Causa’. According to him error
has been made in causing consent of one of the parties to the agreement which has become
responsible for vitiating the validity of the contract. Error in Causa is created by the cause of either
Coercion, or Undue Influence or Fraud or Misrepresentation.

Let us now take up these elements, i.e. Coercion, Undue Influence, Fraud and Misrepresentation
responsible to vitiate Free Consent one by one.

Coercion (Section 15)

Meaning:
It is committing, or threatening to commit, any act forbidden by the Indian Penal Code (XLV of 1860),
or the unlawful detaining or threatening to detain, any property to the prejudice of any person whatever,
with the intention of causing any person to enter into an agreement.

Explanation :
It is immaterial whether the Indian Penal Code (XL V of 1860) is or is not in force in the place
where coercion is employed.

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Characteristics:

The above definition as stated by Sec. 15 of the Indian Contract Act specific certain characteristics of
the term ‘Coercion’ which vitiates the consent of the parties to a contract.

These characteristics are:

Example:
An agent refused to hand over the account books to a business man to a new agent unless the
principal released him from all liabilities. The principal had to give a release deed as demanded.

It was decided in Muthia vs Muthu Karuppa (1927, 50 Mad. 786) that the release deed was given
under Coercion and the principal could avoid it. It is necessary that the Indian Penal Code is in
force at the place where Coercion is employed.

Example :
A on a ship on the high sea threatens to murder B, if he (B) does not write a pronote in his (A’s)
favour A’s act amounts to Coercion, although Indian Penal Code does not apply on the high seas.

Coercion by threat need not necessity be directed by a party to the contract. It may or may not
emanate from a stranger to the contract. Similarly, it may be aimed at any person. either a party to the
contract or a strange to the contract. But the idea or intention of the party resorting to coercion should
be to cause a person to enter a contract.

Example :

(a) A threatens to Kill C (B’s son), if B does not lend Rs. 10,000 to A. B agrees to lend the
aforesaid amount. The agreement is caused by Coercion.
(b) A threatens to Kill B if B does not lend Rs. 10,000 C.B agrees to lend the amount to C. This
agreement is made under Coercion.

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Effect of Coercion

Coercion vitiates Free Consent. The party or parties whose consent is taken under the effect of
Coercion get a right to avoid the contract, if he so likes. However, if the aggrieved party has
received any benefit under the contract which he is avoiding on the basis of Coercion, he has to
return that benefit to the other party or parties (S.72). The point can be made clear by the
following example:

A enters into a contract with B to sell his horse for Rs. 5000 B takes A’s consent under Coercion.

A at the time of entering into an agreement receives Rs. 1000 as an advance from B. Later on, A
avoids the sale of the horse on the basis of Coercion. A has to return Rs. 1000 to B. He cannot
retain the money received as an advance from B.

Burden of Proof: The party avoiding the contract has to prove that Coercion was exercised upon him and
his consent received is not voluntary or he has not exercised his consent freely.

Threat to commit suicide : It is an important question whether threat to commit suicide amounts to
‘Coercion? The act of committing suicide is forbidden by the Indian Penal Code and on this basis
Madras High Court has decided in Amiraju vs Seshamma (1918, 41 Mad. 33) that threat to commit
suicide amounts to Coercion and the party affected is entitle to avoid the contract. Wallis, C.J and
Seshhagiri Iyer J. held the threat of suicide amounted to Coercioin The learned judged observed, “it
was impossible to hold that an act which it is made punishable to abet or attempt is not forbidden by
the Indian Penal Code, especially as the absence of of any section punishing the act itself is due to
the fact that the suicide is in the nature of things beyond the jurisdiction of the Court.” However, Old
Field J. gave a dissent. He held that the section should be strictly construed and that an act not
punishable under the Penal Code could not be said to be forbidden by the code.

However, it is not a well recognized fact that threat to commit suicide is an offence punishable
under the Indian Penal Code and amounts to Coercion.

The facts of the case are as under:

Amiraju held out a threat to commit suicide to his wife and son, if they did not execute a release

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in favour of his brother in respect of certain properties. The wife and the son executed the release
deed under the threat. Later on the wife and the son took the plea of Coercion to avoid the release
deed.

Coercion and Duress distinguished

(a) Coercion is the term applied under the Indian law of Contracts while Duress is the term applied under
the English law of Contracts.
(b) Coercion has a wide scope than Duress, Coercion includes threat to property also while Duress
includes actual act of violence over the person and not of property.
(c) Coercion can be applied by even a stranger, while Duress must be applied by a party to the Contract
upon the other party or to his wife or patent or child.

Undue Influence (S.16)

Definition as per S.16: (1) A contract is said to be induced by “undue influence” where the relations subsisting
between the parties are such that one of the parties is in a position to dominate the will of the other and uses
that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is
deemed to be in a position to dominate the will of another.

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary
relation to the other; or

(b) when he makes a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with
him, and the transaction appears, on the fact of it or on the evidence adduced, to be unconscionable,
he burden of proving that such contract was not induced by undue influence shall lie upon the person
in a position to dominate the will of the other.

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Nothing in this sub-section shall affect the provision of section III of the Indian Evidence Act
1872.

Illustrations

(a) A, a man enfeebled by desease or age, is induced, by B’s influence over him as his medical
attendant, to agree to pay B an unreasonable sum for his profession services. B employs undue
influence.

(b) A being in debt to B, the money-lender of his village, contracts a fresh loan on terms which
appear to be unconscionable. It lies on B to prove that the contract was not induced by indue
influence.
Salient Features

The above definition has got the following salient features:-

(1) One of the two parties to the contract is in a position to dominate the will and mind of the other party.
This is presumed when the parties to the contract have a real or apparent authority over the other or one of
the parties has got a fiduciary relationship which puts him in a position to win over the mind of the other
party. Such position or relationship exists in the cases of minor and guardian; trustee and beneficiary; son
and father, wife and husband or vice-versa.

The positon is also presumed where the party is disabled or infirm and has to depend upon the
other party to the contract. Mentally deficient and physically disabled people can take the plea of
undue influence in avoiding the contract.

(2) The dominating party should have obtained an unfair advantage from the weaker party: and

(3) The transaction between the contracting parties is unconscionable. The bargain is called

‘unconscionable’ where the two parties are not on equal footing and one of them is making an
exhorbitant profit of the other’s distress.

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Unless all the three above stated conditions exist, the contract can not be avoided on the pretext of Undue
Influence. In the words of Sir Samuel Romilly undue influences is presumed in “all the variety of
relations in which dominion may be exercised by one person over another”.

Effect of Undue Influence (S.19-A)

A contract vitiated by undue influence is voidable at the option of weaker party. The court can
set aside such contract-
(i) either wholly: or
(ii) where the weaker party has enjoyed some benefit under the terms of the contract, then upon
just and equitable terms

Examples

(a) A’s son has forged B’s name to a promissory note. B under threat of prosecuting A’s son
obtains a bond from A for the amount of the forged note. If B sues on this bond, the court may
set the bond aside.

(b) A, a money-lender, advances Rs. 100 to B, an agriculturist, and by undue influence induces B to
execute a bond for Rs. 200 with interest at 6 per cent per month. The Court may set the bond aside,
ordering B to repay Rs. 100 with such interest as may seem just.

Burden of Proof

The weaker party has a right to avoid the transaction on the plea of Undue Influence. It is the other
party who is to prove that he has not exercised any undue influence in getting the consent of the
weaker party. If the other party is unable to prove it, the court shall set aside the transaction. (Refer to
example (b) given after definition of Undue (Influence).

(a) Parties suffering with physical or mental distress e.g. a patient suffering with actue pain
entering into a contract with a doctor.

(b) Parties having confidential relations. Confidential relationship is presumed in between

parent and child; guardian and ward; solicitor and client; managing clerk of an attorney and his

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client; trustee and cetstui que trust; doctor and patient Chela (disciple) and a Guru (spiritual
advise; fiance and fiancee. There is no undue influence in the relationship of mother and
daughter; husband and wife; grandfather and grandson and landlord and tenant; credtior and
debtor.
Rebuttal: all cases of prescribed Undue Influence can be rebutted on the following grounds:

(i) full disclosure of material facts was made to the weaker party;

(ii) adequate consideration existed; and

(iii) the weaker party received independent legal advice.

Transaction with Parda-nishin women: Who is a parada-nishin women? A woman who observes complete
seclusion due to the prevailing custom in her community is said to be parda-nishin. She does not act
independently but has to depend upon someone else for performing her outward duties. A woman going
to the Court to give her evidence, settling gent with her tenant, collecting rents from them, dealing with
other parties in matters of business, falling to outsiders can not be regarded as a Parda- nishin woman.
The training, habit and surrounding circumstances are the main elements to be considered to decide
whether a woman is a Parda-nishin or not Wearing a Burga does no make a woman a Parda- nishin.

A Parda-nishin woman can be influenced by undue influence. Persons entering into contracts
with such a woman have to be very careful because they may be required to prove
(1) that such woman understood the contents of the contracts;
(2) she had free and independent advice and
(3)she exercise her free will.

The Privy Council has stated in 1931 in Tara Kumari Vs Chandra Mauleshwar that the principles
to be applied to transactions with such women are not merely deductions from the law as to
undue influence but have to be founded upon wider basis of equity and good conscience. A good
number of cases have been decided not only by the privy Council but also by the Indian High
Courts over the point.

Distinction between Coercion and Undue Influence

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We can distinguish between Coercion and Undue Influence. The distinction can be made
on the following basis:
(a) Definition, Coercion is an act punishable under the Indian Penal Code, while Influence is not
a penal act.
(b) Nature of force used, Coercion requires physical force exercised by one of the parties to
contract, while undue influence requires moral force.
(c) Parties Even a stranger’s act may account to coercion, but undue influence can be exercised
only by one of the parties to the contract. Stranger has no place in undue influence.
(d) Effect. Coercion gives a right to the effected party to repudiate the contract in full but under
undue influence court may set aside the contract absolutely or modify the terms of the contract
on such terms which it feels just and equitable.

2. FRAUD AND MISREPRESENTATION

“Fraud” : (S.1)

“Fraud” means and includes any of the following acts committed by a party to contract or with
his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to
induce him to enter into the contract:

(1) the suggestion, as to fact, of that which is not true, by one who does not to believe it to be
true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fited to deceive;
(5) any such act or commission as the law specially declares to be
fraudulent. Explanation

Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless
the circumstances of the case are such that, regard being had to them it is the duty of the person keeping
silence to speak, or unless his silence is in itself, equivalent to speech.

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1. Sir Samuel Romilly argued in Hurgamin Vs. Raseley (1807) Ves. 285;Mulla on the
Indian Contract Act 10th Ed. P. 53.

Examples
(a) A sells, by auction to B, a horse which A knows to be unsound. A says nothing to B about
the horse’s unsoundness. This is not fraud by A.

(b) B says to A “If you do not deny it, I shall assume that the horse is sound”. Here, A’s silence
is equivalent to speech. Here, the relation between the parties would make it A’s duty to tell B if
the horse is unsound.

(c) 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 if the horse is unsound.

(d) A and B, being traders, enter upon a contract. A has private information of a chnage in prices
which would after B’s willingness to proceed with the contract. A is not bound to inform B.

Characteristics

From the above definition we can state the following characteristics of Fraud:

(1) The act done by the party is done with an intention to device.

(2) The act may be done by the party himself or with his connivance by some one else or by his
agent.

(3) The act amounting to fraud may be a suggestion of fact (suggestion false) i.e., the statement
being made is without belief to its truth.

(4) The act may amount to an active concealment of a fact (suppressio veri) i.e. the party has
concealed a fact which was duty bound to disclose.

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(5) The act amounting to fraud is in the form of a false promise.

(6) The act or mission is declared fraudulent by the Court or regarded by the Court as a deceit.

(7) The act committed must have deceived the other party and the party has suffered the
damage

on account of it. If the party does not suffer a damage on account of the fraudulent act committed
by the other party, it shall not amount to fraud.

Is silence a Fraud?

Explanation to S.17, states in clear terms that mere silence is not fraud. Where silence amounts to active
concealment, it shall amount to fraud. Thus generally silence does not amount to fraud. However where a party
chooses to speak, he must do so clearly and fully. He should not make a partial and fragmentary statements of
fact, so that the other party is misled. The court has decided in Bimla Bai vs Shankarlal (AIR 1959 M.P. 8) that
a partial statement verbally accurate may be as false a statement as if it has been misstated fully. A father
called his illegitimate son, a

‘son’ at the time of fixing his marriage. It was held that the statement was false and thereby
fraudulent.

Effects of Fraud

Fraud gives the following rights to the aggrieved party.

(1) He can avoid the contract and file a suit on the other party for damages; or

(2) He can revoke the contract, or

(3) He can refuse to fulfill his part of the promise and defend the suit filed by the other party for

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the breach of contract for damages or specific performance, or

(4) He can treat the contract as a valid one and ask for the specific performance, or for damages
in addition to the substitution of the original contract.

Misrepresentation (S.18)

Misrepresentation has been defined by the Act as follows: “Misrepresentation” means and
includes:-

(a) the positive assertion, in a manner not warranted by the information of the person making it,
of that which is not true though he believes it to be true;

(b) any breach of duty which without an intent to deceive, gains an advantage to the person
committing it, or any one claiming under him, by misleading another to his prejudice or to the
prejudice of anyone claiming under him.
(c) causing, however innocently, a party to an agreement to make a mistake as to the substance
of the thing which is the subject of the agreement.

Characteristics

The ingreditients of a contract vitiated by misrepresentation are:

(a) There must be a misstatement of a material fact.

(b) The statement must not be a mere opinion, or hearsay, or commendation, because praise
carries no obligation.

(c) The mis-statement must be made with the intention that the other party shall act upon he
contract.

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(d) The other party must have been induced by the mis-statement.

(e) The statment being made is a wrong one, although the party making it has not known it to be
false.

(f) The statement has been made by the party to the contract or his agent and not by a stranger.

Kinds

The term misrepresentation as defined by S.18 is quite exhaustive as can be seen by the words

“Means and Includes”. Misrepresentations may be of any of the three kinds:-

(1) It may take the form of an unwarranted positives statement which is not true, but the party
believes it to be true; or

(2) It may take form of breach of duty on the part of one party which misleads the other party to
his prejudice or to the prejudice of anyone claiming title under him. This kind of

misrepresentation includes such cases which are named as ‘Constructive Fraud’ by the Courts of
equity. The party getting a benefit under the Act even under an obligation is not making full
disclosure of facts but his non-disclosure misleads the other party.

(3) It may take the form of causing a party to the contract to make a mistake as to the subject matter of the
contract. For example, if erroneous statement is made as to the tonnage of a ship,
the contract can be avoided on the basis of misrepresentation. This decision was given in
Oceanic Steam Navigation Co., vs Soonderdas (1890, 14 Bomb.92).

Effect of Misrepresentation

The party being affected by misrepresentation has got the following rights:

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(1) He can avoid or revoke the contract; or

(2) He can affirm the contract and insist on the misrepresentation to be made good, if it is
possible to do so; or

(3) He can rely upon the misrepresentation as a defence to an action of the contract.

When the aggrieved party loses his rights?

The aggrieved party shall not be able to exercise any of the above rights in the following cases:-

(a) If he comes to know of mis-representation and even then takes the benefit of the contract or
approves the contract; or

(b) If the parties can not be brought back to their original position. Such situation arises where
the subject matter of the contract has already been consumed or destroyed.

(c) If the contract cannot be rescinded in full, then it can not be rescinded at all. Such decision
has already been given in Sheffield Nickel Co. vs Dawin (1872, 2 Q.B.D. 215).

(d) If the aggrieved party has transferred the rights under the contract ot the third party and the
has acquired these rights in good faith and for consideration. (Phillips Vs Brroks, 1919, K.B.
243)

Distinction between Fraud and Misrepresentation

Fraud and Misrepresentation can be distinguished on the following basis:

(a) Intention: In Fraud the party’s intention is to deceive the other party and got the benefit from
him, while in Misrepresentation the party does not have any intention to deceive. It makes a
careless misstatement of facts of only.

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(b) Rights: Faurd gives two rights to the aggrieved party, a right to action for damages and also
to avoid the contract, i.e. while misrepresentation give only one right, i.e. to avoid the contract. It
does not allow any damages.

(c) Plea: Fraud does not allow the defendant to take the place that the plaintiff had means to
discover the truth but defendant is allowed to take this plea in case of misrepresentation.

(d) Penalty: The party defrauding the other can be prosecuted for cheating under I.P.C. also but
such is not the case in misrepresentation.

DISCHARGE OF CONTRACTS

A contracts is discharged when the obligations created by it come to an end. A contract may be
discharged in any of the following ways:

1. By agreement.

2. By performance of the contract.

3. By lapses of time.

4. By operation of law.

5. By material alteration.

6. By subsequent impossibility of the performance.

7. By breach.

1. By Agreement Sec. (62-64)

The parties may agree to terminate the existence of the contract by any of the following ways:-

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(a) By Novation (Sec. 62): Substitution of a new contract in place of the old existing one is
known as ‘inovation of contract’. New contract may be either between the same parties or between
different parties, the consideration being mutually the discharge of the old contract.

(i) Substitution of a contract with new terms for an old contract between the same parties.

(ii) Substitution of a new party for an old one, the contract remaining the same. Promisee will
now look to the third party for the performance of the contract. Original promisor is released of
the obligations under the old contract.

Examples
(i) A owes money to B under a contract. It is agreed between A, B and C that B shall
henceforth accept C as his debtor, instead of A. The old debt of A to B is at an end and a new
debt from C to B has been contracted.

(ii) A owes B 10,000 rupees. A enters into an arrangement with B, and gives B a mortgage of
his (A’s) estate for 5,000 rupees in place of the debt of 10,000 rupees. This is a new contract and
extinguishes the old.

(iii) A owes B 1,000 rupees under a contract. B owes C 1,000 rupees. B orders A to credit C
with 1,000 rupees in his books but C does not assent to the arrangement. B still owes C 1,000
rupees, and no new contract has been entered into.

Novation can take place only with the consent of all the parties. It cannot be compulsory.
(Appukuthan V. Athapa, 1966).

As a result of novation, old contract is completely discharged and law will not entertain any
action based upon the terms of the old contract.

(b) By rescission (Sec. 64) : Rescission means cancellation of the contract. A contract can be
rescinded by any of the following ways :-

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(i) By mutual consent :- Parties may enter into a simple agreement to rescind the contract
before it’s breach.

(ii) By the aggrieved party :- Where a party has committed a breach of the contract, the
aggrieved party can rescind the contract without in any way effecting his right of getting
compensation for the breach of contract.

(iii) By the party whose consent is not free:- In case of a voidable contract, the party whose
consent is not free can, if so decides, rescind the contract.

A contract may also be taken to be impliedly rescinded wherenone of the parties has performed
his part till a long and no party has any complaint against the other.

(c) By alteration: Alteration means change in one or more of the conditions of the contract.
Alteration made by the mutual consent of the parties will be perfectly valid. But any material
alteration in terms of a written contract by the one party without the consent of other party will
discharge such party from its obligations under the contract.

In case of novation a new contract replaces an old contract. The parties may also change. While
in case of alteration only some of the terms of the contract are changed. Parties also continue to
be the same.

(d) By remission (Sec. 63) : Remission means acceptance of a lesser performance than what
was actually due under the contract. According to Sec. 63 a party may dispense with or remit,
wholly or in part, the performance of the promise made to him. He can also extend the time of
such performance or accept instead of any satisfaction which he deems fit. A promise to do so
will be binding even though there is no consideration for it.

Example:

(1) A owes B Rs. 5,000. A pays to B and B accepts in satisfaction of whole debt Rs. 2,000 paid at the

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time and place where Rs. 5,000 were payable. The whole debt is discharged.

(ii) A owes B, under a contract, a sum of money., the amount of which has not been ascertained.

A without ascertaining the amount gives to B, and B, in satisfaction therefore, accepts the sum of Rs.
2,000. This is a discharge of the whole debt whatever may be its amount.

Accord and satisfaction: These two terms are used in English Law. In England, a promise to accept
less than what is actually due under the contract is not enforceable, but if this promise has been
actually carried out, it will give a valid discharge to the other partly.

Example:

A is B’s debtor for a sum, of Rs. 500. B agrees to accept Rs. 300 in full satisfaction of his claim.
This promise is unenforceable. However, if A pays Rs. 300 and B accepts the payment, A will be
discharged from his liability for the whole debt.

‘Accord means promise to accept less than what is due under the contract. ‘Satisfaction’ implies the
payment or the satisfaction of the lesser obligation. An accord not followed by satisfaction will be
unenforceable. Actual performance of the new promise and its acceptance by the other party is essentail
to discharge the old obligations by accord and satisfaction. The original cause of action is not discharged
so long as the satisfaction, agreed upon, remains executory.

(e) Owing to the occurrence of an event, on the happening of which it was previously agreed
that all rights and liabilities should cease.

(f) By waiver (Sec. 63) : A contract may be discharged by agreement between the parties to waive their
rights arising from the contract. Thus, in case of waiver, the person who is entitled to any right under the
contract, intentionally relinquishes them without consideration and without a new agreement. Under
English law waiver is possible only by agreement under seal.

Example: A promises to paint a picture for B.B afterwards forbids him to do so. A is no longer
bound to perform the promise.

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2. By performance of the contract (Sec. 37)

When parties fulfil their obligations and promises under a contract the contract is said to have been
performed and discharged. Performance should be complete and according to the real
intentions of the agreement. Offer of performance shall have the same effect as performance. A
party to a contract shall become free from all obligations if it had offered to perform his part of
the promise but it was not accepted by the other party.

(3) By Lapse of time

Every contract must be performed either within the period fixed or within a reasonable time of
the contract. Lapse of time may discharge the contract by barring the right to bring an action to
enforce the contract under the Limitation Act.

4. By operation of Law

A contract is discharged or terminated by operation of other laws in the following cases:

(a).Merger.
Merger implies coinciding and meeting of an inferior and superior right on one and the same
person. In such a case inferior right available to a party under an agreement will automatically
vanish.

Examples: A is holding a property under lease. He subsequently buys that property. A’s right as
a tenant is inferior to his right as an owner of the property. The right as a tenant and right as
owner have coicided and met in one persion i.e. A. Thereofre, A’s rights as a lesee will
terminate.

(b).Death:
In case a contract is of a personal nature, the death of the promisor will discharge the contract. In
other caes, the rights and liabilities of the deceased person shall pass to his legal representatives.

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(b) By complete loss of evidence of the existence of the contract.

(c) By insolvency. An insolvent is released from performing his part of the contract by law.
Order of discharge, however gives a new lease of life to the insolvent and he is discharged from
all obligations arising from all his earlier contracts.

5. By material alternation

Any material alteration made intentionally in a written contract by the promisee or his agent without
the consent of the promisor entitles the later to regard the contract as rescinded.

An alternation will be taken to be material if it directly or indirectly affects the nature or

operation of the contract or the identity, validity or effect of the document.

6. By supervening impossibility of performance (Sec. 56)

Supervening impossibility arises due to the happening of certain events which were neither in the
contemplation of the parties when they entered into the agreement nor either of the parties are
responsible for causing the performance of the contract impossible. In such a case the contract
will be void as soon as such events make the performance of the contract impossible. The
impossibility must be either legal or physical but not commercial. This is called “Doctrine or
Supervening Impossibility”. Section 56 of the Indian Contract Act lays down:

“An agreement to do an impossible act is void”.

A contract to do an act, which after the contract is made, becomes impossible, or by reason of
some event which the promisor could not prevent, becomes void when the act becomes
impossible or unlawful. This is called “Supervening Impossibility”, i.e. impossibility arising
subsequent to the formation of the contract. The supervening impossibility may be due to any of
the following causes:

(a) By the destruction of the subject matter. If the subject matter of the contract is destroyed
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subsequent to the formation of the contract, without any fault of either of the parties, the contract
shall become void.

Example:

(i) A music hall was let for a series of concerts on certain days. The hall was burnt down before
the date of the first concert. The contract was held to be void.

(ii) A person contracted to deliver a part of a specific crop of potatoes. The potatoes were
destroyed through no fault of the party. The contract was held to be discharged. Howell V.
Coupland,1876).

(b) By the non-existence of a state of things necessary for the performance. If a contract is
made on the basis of continued existence of certain state of circumstances, the contract stands
discharged if the state of things ceases to exist.
Example:

(i) H hired a room from K for two days to witness the coronation procession of King Edward VII. K knew
the object of the contract though the contract contained no reference to the coronation. Owing to King’s
illness the procession was cancelled. It was held that H was excused from paying rent for the room, as the
existence of the procession as the basis of the contract and its abandonment discharged the contract.
(Krell V. Henry 1903).

(ii) A and B contracted to marry each other. Before the time fixed for marriage, A goes mad. The
contract become void.

(c) Death or personal incapacity of the promisor. Contracts involving personal skill of the
promisor will stand discharged in the case of his death or personal incapacity.

Example:

A contracts to act at a theatre for six months in consideratin of a sum paid in advance by B. On
several occasions A is too ill to act. The contract to act on the occasions becomes void.

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(d).Change of law.
On account of subsequent change in law, the performance of the contract may become impossible. The
object of the contract may be declared to be unlawful.

Example:
(i) A, who is governed by Muslim law and who already had a wife promises to marry B.
Subsequent to this promise and before it is carried out, Special Marriage Act prohibiting
polygamy is passed. The contract to marry becomes void.

Example:
(ii) X sold to Y a specific parcel of wheat in a godown. Before delivery could be made, the
godown was sealed by the Government and the entire quantity was requisitioned by the
Government under Statutory Power. The contract was held discharged (Re Shipp, Anderson &
Co. V. Harrison Brs. and Co’s Arbitration (1915).

(E) Outbreak of War. A contract entered into with an alien enemy during the war is unlawful
and, therefore, void ab initio contracts made before the outbreak of war either suspended or
declared void by the Government. If they are suspended, they may be performed after the
termination of the war.

Example:

A contracts to take in cargo for B at a foreign port. A’s Government afterwards declared war
against the country in which port is situated. The contract becomes void when war is declared.

It is worthwhile to not that the word “impossible” under Section 56 has not been used in the
physical or literal sense. A contract may not have become literally or physically impossible to
perform but if an untoward event has happened which has totally upset the very foundations of
the contract will be taken to be impossible to perform.

Cases not Covered by Supervening Impossibility

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It may be stated that impossibility to perform arising subsequently to the agreement will not, as a rule,
relieve the promisor from performing his part in all cases, because, “Where there is a positive contract to
do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although
in consequence of unforseen accidents, the performance of his contract has become unexpectedly
burdensome or even impossible (Tayler V. Caldwell (1863). Therefore, in the following cases the
doctrine of supervening impossibility wll not apply.

(a) Difficulty in performance. A contract can be avoided on the ground of supervening

impossibility only when the events taking place make the performance of the contract physically
or legally impossible as contemplated by the parties at the time of the making of the contract.
Difficulty in performance will not discharge a contract on the ground of impossibility of
performance.

Example: (i) A sold to B a certain quality of Finland timber to be delivered between July and
September1914. Before any timber was supplied, war brokeout in the month of August and
transport was disorganised so that A could not bring any timber from Finland. It was held, B was
not concerned with the way in which A was going to get timber, and, therefore, impossibility of
getting timber from Finland did not excuse performances. Blakburn Bobbin Co. V.T.W. Allen &
Sons, 1918).

(ii) X promised to send certain goods from Bombay to Antwerp in September. In August war
brokeout and shipping space was not available except at very high rates. It was held that the
increase of freight rates do not excuse performance.

(b) Commercial impossibility: A party cannot be discharged from performing his part of the
contract simply on the ground that it will be now-profitable for him to perform the contract.

Example: A agrees to supply certain goods to B. Due to outbreak of war the price of goods
suddenly shoots up. A is not discharged from his liability to supply goods to B.

(c) Impossibility due to behavior of a third person: A contract, the performance of which

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depends on the behavior of a third person, shall not become impossible of performance merely
because the third party acted in a particular manner agreed upon, on the ground that if a person
chooses to answer for the voluntary act of third person, he must be held to warrant his ability to
procure that act.

Example:

X enters into a contract with Y for the sale of certain goods to be produced by Z a manufacturer
of those goods. Z does not manufacture the goods. X is liable to Y for damages.

(d) Strikes, lockouts and civil disturbances:

Strikes lock-outs and civil disturbances will not discharge a party from performing his part of
the contract unless a specific provision to this effect has been made in the contract.

Example: X agreed to supply certain goods to Y. The goods were to be procured from Algeria.
Due to riots and civil disturbances in that country goods could not be procured. It was held that
there was no excuse for the non-performance of the contract. (Jacobs V. Credit Ilyonnais 1884).

(e) Partial Impossibility: Where there are several purposes for which a contract is made, failure
of one of the objects will not terminate the contract.

Example: A company agreed to let a boat to H to view, (i) the naval review at the coronation;
and (ii) to cruise round the fleet. Due to the illness of the King the naval review was cancelled,
but the fleet was assembled. The boat, therefore, could sail round the fleet. Held, the contract
was not discharged. (H.B. Steamboat Co. V. Hulton, 1903).

Effects of supervening Impossibility

1. The contract becomes void in case its performance becomes subsequently impossible Parties to the
contract will be released from further performance (Sec. 56 para 2).
2. The person, who has recieved any advantage under a contract which becomes subsequently
void is bound to restore it or to make compensation for it to the person from whom he received it

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(Sec. 65).

3. Where one person has promised to do something which he knew or with reasonable diligence
might have known, and which the promisee did not know to be impossible or unlawful, such
promisor must make compensation to such promisee for any loss which such promisee sustains
through the non- performance of the promise (Sec. 56 para 3).

Example: A contracts to marry B being already married to C and being forbidden by the law to
which he is subject to practice polygamy. A must make compensation to B for the loss caused to
her by the non-performance of his promise.

7. By Breach

Breach means failure of a party to perform his or her obligation under a contract Breach of
contract may arise in two ways.

1. Actual Breach.

2. Anticipatory Brerach.

Actual Breach : Actual breach means breach committed either; (i) at the time when the

performance of the contract is due; or (ii) during the performance of the contract.

Example: (i) agrees to supply to B on the 1st February, 1975, 1000 bags of sugar. On 1st
February, 1975 he fails to supply. This is actual breach of contract at the time when the
peroformance is due. The breach has been committed by A.

(ii) If on 1st February, 1975 A is prepared to supply the required number of bags of sugar and B
without any valid reasons refuses to accept them, B is guilty of breach a contract.

Anticipatory Breach

Breach of a contract committed before the date of performance of the contract is called

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anticipatory breach of contract. (Sec. 39). The contract in this case is repudiated before the time
fixed for its performance arrives and is so discharged.

Example: (i) A agrees to employ B from 1st of March. On 1st February, he writes to B that he
need not join the service, the contract has been expressly repudiated by A before the date of its
performance.

(ii) A agrees to marry B. But before the date A marries C. The contract has been repudiated by A
by his conduct before the due date of its performance.

Anticipatory breach of contract does not give rise to a right of action unless the promisee elects
to treat it as equivalent to actual breach.

Remedies in the case of anticipatory breach

Two remedies are open to a promisee in the case of an anticipatory breach of contract. He
may exercise any one of them:

1. To take the anticipatory breach as actual breach and sue for damages and other rights that may
be available to him under the law. Thus, promisee may treat the contract as over without waiting
for the arrival the due date of the performance of the contract.

Example:

K promised to marry F soon after the death of K’s father. During the father’s lifetime
K absolutely refused to marry F. It was held that through the time of performance of the contract
had not arrived. F was entitled to sue for the breach of promise to marry. (Frost V Knight (1872).

2. To wait till the due date of performance of the contract and then avail of legal remedies in case

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of breach of contract available against the party guilty of breach.

If the promisee decides to enjoy the first remedy i.e., termination of the contract at the time when
anticipatory breach of contract is communicated to him, the quantum of damages will be
assessed by the difference of prices prevailing on the date of breach and the contract price. But if
the party keeps the contract alive till the due of performance arrives, damages will be measured
by the difference between the contract price and the prices prevailing on the date fixed for the
performance of the contract.

In a case when the promisee keeps the contract alive the contract will remain operative for the
benefit of both the parties. If during the interval i.e. the date of breach and the due date for the
performance of the contract, special circumstances intervene which operate for the benefit of the
promisor, the promisor would also be legally entitled to take advantage of them. He may still
perform the contract irrespective of his earlier repudiation (Phul Chand V. Jugal Kishore).

REMEDIES FOR BREACH OF CONTRACT

In the case of breach of contract on the part of one party, the aggrieved or injured party has the
following remedies available:-

1. Rescission of the contract.

2. Damages.
3. Quantum meruit.
4. Specific Performance.
5. Injunction.

Rescissioin of the Contract

Rescission means the setting aside of the contract. The aggrieved party may be allowed by the court
of treat the contract at an end and thereby, terminate all his liabilities under the contract. The court,
however, will not allow recession of the contract in the following cases:

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(i) Where the party wishing to set aside the contract has expressly or impliedly ratified the
contract.

(ii) Where only a part of the contract is sought to be set aside and that part cannot be separated
from the rest of the contract.

(iii) Where without fault of either party, there is a change in the circumstances since the making
of the contract, on account of which the parties canot be substantially restored to the position in
which they were before the contract was made.

(iv) Where during the subsistence of the contract, third parties have acquired rights in the subject
matter of the contract in good faith and for value.

The party rescinding the contract will have to restore all benefits received by him under the
contract to the other party. Of course, he will be entitled to get compensation for the loss suffered
by him on account of non-fulfillment of the contract.

Damages

Damages mean monetary compensation payable by the defaulting party to the aggrieved party in
the event of the breach of a contract. The object of providing damages is to put the aggrieved
party in the same position, so far as money can do, in which he would have been, had the
contract been performed.

Types of Damages

Damages may be.

1. Ordinary damages.

2. Special damages.

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3. Exemplary or vindictive damages.

4. Nominal damages.

1. Ordinary damages: Damages which arise in the ordinary course of events from the breach of contract
are called ordinary damages. These damages constitute the direct loss suffered by the
aggrieved party. They are estimated on the basis of circumstances prevailing on the date of the
breach of the contract. Subsequent circumstances tending to change the quantum of damages are
ignored.

2. Special damages: They are those which result from the breach of the contract under special
circumstances. They constitute the indirect loss suffered by the aggrieved party on account of
breach of the contract. They can be recovered only when the special circumstances responsible
for the special losses were made known to the other party at the time of the making of the
contract.

3. Exemplary or vindictive damages: They are quite heavy in amount and are awarded only
in two cases:

1. Breach of a contract to marry.

2. Dishonour of a customer’s cheque by the bank without any proper reason. These damage are
awarded with the intention of punishing the defaulting party. They are of a different nature and their
object is to prevent the parties from committing breach. In the case of breach of contract to marry
damages will include compensation for the loss of the feelings and the reputation of the aggrieved party.
In the case of dishonour of a cheque damages are awarded taking into consideration the loss to the
prestige and goodwill of the customer and the general rule is that the smaller the cheque the greater is the
amount of damages.

(4) Nominal Damages: These damages are quite small in amount. They are never granted by way of
compensation for the loss. In such usually actual loss is very negligible. They are awarded simply to
recognize the right of the party of claim damages for breach of the contract.

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Rules regarding the determination of damages (Sec. 73)

The rules regarding damages have been very explained in an English case of Hadley V.
Baxendale.

The case is discussed below:

“His mill was stopped on account of the breakage of a crankshaft B, a common carrier was
entrusted with the delivery of this machine part for taking it to its makers at Green which as a
pattern for a new one. B, did not have this information that delay in carrying the machine would
result in loss of profits. The delivery was delayed beyond a reasonable time by some neglect on
the part of B. H. claimed from B compensation for the wages of workers and depreciation
charges which were incurred during the period the factory was idle for the delayed delivery and
for loss of profit which might have been made if the factory was working the first two items were
allowed because they were the natural consequences of breach but the loss of profit was
disallowed as it was special or remote loss which could be recovered only when the party had
information of it.”
Alderson, J. Observed in the above case as follows.

“Where two parties have made a contract which one of them has broken, the damages which the
other party ought to receive in respect of such breach of contract should be such as may fairly
and reasonably be considered either arising naturally, i.e. according to the usual course of things,
from such breach of contract itself or such as may reasonably be supposed to have been in the
contemplation of the parties, at the time they made the contract as the probable result of the
breach of it.”

Rules regarding the ascertainment of the amount of damages can be summarised as

follows:

1. The principal upon which damages are to be assessed is that where a party sustains a loss by
reason of breach of contract, he is, so far as money can do it, to be placed in the same situation
with respect to damages if the contract had been performed. Aggrieved party shall be allowed

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compensation only for the actual loss suffered by him.

2. A party who sustains loss by the breach of a contract is entitled to recover from the party
breaking it, compensation for any loss or damages caused to him:

3. Compensation can be claimed for damages:-

(a) Which arise naturally in the usual course of things from breach of contract itself. (Hadley V.
Baxendale, 1854) Damages are paid only for the proximate consequences of the breach of a
contract; or

(b) As may reasonably be supposed to have been in the contemplation of both the parties, at the
time they made the contract, as the probable result of the breach of it.

Claim for damages must be fair and reasonable.

4. Special or indirect loss can be recovered only when the special circumstances have been made
known to the other party. Examples (1) A contracts to buy of B, at a stated price, 50 maunds of
rice, no time being fixed for delivery. A afterwards informs B, that he will not accept the rice if
tendered to him. B is entitled to receive from A, by way of compensation, the amount, if any, by
which the contract price exceeds that which B can obtain for the rice at the time when A informs
B that he will not accept it.

(ii) A contracts with B to pay B Rs. 1,000 if he fails to pay B Rs. 500 on a given day. A fails to
pay B Rs. 500 on that day. B is entitled to recover from A such compensation, not exceeding Rs.
1,000 as the court considers reasonable.

5. The party suffering from the breach is expected to take reasonable step to minimise the loss. He cannot
claim as damages any loss which he has suffered due to his own negligence.

Example

A fires B’s ship to go to Bombay, and agrees to take on board on the first of January, a cargo which

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A is to provide, and to bring it to Calcutta, the freight to be paid, when earned. B’s ship does not go
to Bombay, but A has opportunities of procuring suitable conveyance for the cargo upon terms as
advantageous as those on which he had chartered the ship. A avails himself of those opportunities;
but is put to trouble and expense in doing so. A is entitled to receive compensation from B in respect
of such trouble and expense.

6. Damages are given by way of restitution and compensation and not by way of punishment.
Aggrieved party can recover only the actual pecuniary loss sustained by him and not exemplary damages,
except in the circumstances already stated in the previous pages.

7. Nominal damages may be granted when breach of a contract is committed without any real
loss.

8. In contracts of sale and purchase of goods the measure of damages will be the sum by
which the contract price falls short of the price at which the purchaser might have obtained goods
of life quality at the time and place that they should have been delivered. When no date has been
fixed for the performance of the contract and the promisor commits a breach, the measure of
damages will be the difference between the contract price and the market price at the date of the
refusal to perform.

It is to be noted that in case of such a contract if the promisor (seller) retains the goods after the
breach of the contract by the promisee (buyer), he cannot recover from the buyer and further loss
if the market fails, nor will be liable to have his damages reduced if the market rises, (Jamal V.
Molla Dawood and Sons (1916).

Example

A agreed to sell certain shares to B to be delivered on 30th December. On account of heavy fall
in the value of shares on the date B declined to accept the delivery of shares. Subsequently A
sold the shares at a price higher than that prevailing on 30th December. Since his shares had
picked up in the mean time. In a suit brought A it was held that he was entitled to recover from B
the difference between the contract price of the shares and their market price on 31st December

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and B was not entitled to the benefits of the profits accured after the breach.

9. As regards damages arising from the breach of contracts for the payment of money on a
particular date, interest on the principal sum from the date on which the sum was agreed to be
paid till the actual date of payment will be sufficient compensation to the aggrieved party.

10. If a sum is named in the contract as the amount to be paid in case of its breach if the contract
contains any other stipulation by way of penalty for failure to perfrom his part of the obligation
under a contract, court will allow reasonable compensation not exceeding the amount so named
in the contract, (Kemble V. Farren 1829).

11. Damages for breach of services contracts by the employers will be determined with
reference to the usual terms of wages for the employment contracted for and the time that would
be lost before similar employment can be obtained.

12. A carrier of goods can be held responsible for damages arising from deterioration caused by
delay even without any prior notice. deterioration in the value of goods includes both physical
damage to the goods as well as damages arising from the loss of special opportunity for sale.
(Wilson V. Luncashire and Yorkshire Rly. Co.)

Quantum Meruit

Literally speaking the words “Quantum Meruit” mean “as much as merited” or “as much as
earned”. It is principle which provides for payment of compensation under certain circumstances,
to a person who has rendered goods or services to another person under a contract which could
not or has not been fully performed.

Example (i) :A person renders some service to a company under contract of employment which
is duly approved by the Board of Directors of that compnay. Subsequently the constitution of

Board of Director’s found to be illegal and, therefore, the contract of employment becomes void.

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The employee who has rendered some service to the company shall be entitled to claim
remuneration for his service under the doctrine of quantum meruit.

(ii) X forgets certain goods at Y’s house. He had no intention to have them with him
gratuitously. Y uses those goods for his personal benefit. X can compel Y to pay for those goods.
Doctrine of Quantum meruit is however, subject to the following limitation:

(a) In a contract which is not divisible in to parts and a lumpsum of money is promised to be paid for
the complete work, past performance will not entitle the party to claim any payment.

Example: A mate was engaged on the term that he would be paid in a lumpsum for a complete
voyage. He died before that voyage was completed. It was held that his representatives could not
recover the lumpsum neither could they sue for payment for the services rendered by the
deceased. (Cutter V. Powel, 6: TR.320).

(b) A person, who himself is guilty of breach of contract, cannot be allowed claim any payment
under the doctrine of quantum meruit.

Example: A, a builder, undertakes to build a house on the land of X for a lumpsum. After A has
done part of the work he refuses to finish it, and X completes the building using some fo the
materials left on the premises by A. Can A recover compensation for the work he has done and
for the materials used by X?

A contract being a complete entity no action lies against X, either on the original contract or on a
quantum meruit respecting the work done. The fact that X completes the work is no evidence of
an undertaking to pay for what he has been following the rule in Sumpter V. Hedges (1878).

If in completing the premises X uses the materials belonging to A, A will have a good claim in
respect of the value of the materials used.

But the above rule is subject to the following exception:-

(i) In case of a divisible contract, part performance will also entitle the defaulting party to
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claim compensation the basis of quantum meruit if the other party has taken the benefit of what
has been done.

(ii) If a lumpsum is to be paid for the compensation of an entire work and the work has been
completed in full though, badly the defaulting party can recover the lumpsum less a deduction
for bad workmanship.

(c) Any claim based upon the doctrine of quantum meruit cannot be entertained unless there is an
evidence of express or implied promise to pay for the work which has already been done.

Following two remedies are available to the aggrieved party under equity for breach of a
contract.

Specific performance: Law courts can at their discretion, order for the specific performance of a
contract according to the provisions of the Specific Relief Act in those cases where
compensation will not be an adequate remedy or actual damages cannot accurately be assessed.

Specific performance means the actual carrying out by the parties to contract, and in proper cases
the court will insist on the parties carrying out their agreement. Specific performance of
agreement will not be granted in the following cases:-

(1) Where the agreement has been made without consideration.

(2) Where the court cannot supervise the execution of the contract e.g. a building contract.

(3) Where the contract is of a personal nature.

(4) Where on of the parties is a minor.

Specific performance is usually granted in contracts connected with land or sale of rare articles.
It is, however, to be noted that the plaintiff who seeks specific performance must, in his term
perform all the terms of the contract which he ought to have performed at the date of the action

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(Pudi Lazarus V. Rev. Johnson Edard. 1976 A.P. 243).

Injunction:

Where a contract is of a negative character, i.e., a party has promised not to do come thing and
he does it, and thereby commits a breach of the contract, the aggrieved party may under certain
circumstances, seek the protection of the court and obtain an injunction forbidding the party from
committing breach. An injunction is an order of the court instructing a person to refrain from
doing some act which has been the subject matter of a contract, Courts, at their discretion, may
grant a temporary or a perpetual injunction for an indefinite period.

For example: A agreed to sing at B’s theatre and to sing nowhere else for a certain period.
Afterwards A made a contract with E to sing at E’s theatre and refused to sing at B’s theatre. The
court refused to order specific performance as the contract was of a personal nature but granted
an injunction to restrain the breach of A’s promise not to sing else where.

Equitable rights of specific performance or injunction may be lost by laches. Equity is for the
benefit of the diligent and not for the sleepy.

Frustration is an act outside the contract due to which the completion of a contract becomes
impossible. After the parties have concluded a contract, events beyond their control may occur
which frustrate the purpose of their agreement, or render it very difficult or impossible, or as
even illegal, to perform. An example of this is where a hall, which has been booked for the
performance of a play, is destroyed by fire, after the contract has been concluded, but before the
date of performance of the play.

The origin of the 'Doctrine of Frustration' as many other laws has been from the Roman laws. It
was part of the Roman contract law which extinguished obligations of innocent parties where the
'thing is destroyed without the debtor's act or default', and the contract purpose has "ceased to be
attainable". It was applied in Roman times, for instance, to save, from liability, a man who
promised to deliver a slave by a certain day if the slave died before delivery.

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Centuries later in England in 1863, in the case of Taylor vs. Cardwell1 it was held that when an
opera house, which was rented for holding concerts, was destroyed by fire, the contract was
frustrated. This was because the very thing on which the contract depended on ceased to exist.
Thus it was held that for the doctrine of frustration it must be so that the nature of contract is
such that it would not operate if a thing ceased to exist.Again in Paradine vs. Jane2 it was held
that, 'In common rule of contract a man was bound to perform the obligation, which he had
undertaken, and could not claim to be excused by the mere fact that performance had
subsequently become impossible; because the party could expressly
provide in their agreement, the upon fulfillment of a condition or occurrence of an event, either
or both of them would be discharged of some or all of their obligations under the contract. This
was the concept of 'absolute contract'. After various instances of people being excused for failure
of performance of contract, the Doctrine was named in England in a rent case of Krell vs.
Henry3 in 1903, when an Englishman named Krell leased his apartment in London to C.S Henry
to be used for viewing a royal procession, which subsequently got cancelled and Henry refused
to pay krell the balance of the rent. Krell sued, but the English court held against him on the
ground that the purpose of the contract between them was "frustrated". The court thought if Krell
and Henry had foreseen the cancellation of the King's procession, they would not have entered
into the agreement. It found that the procession was the foundation of the contract. The English
law extended the principle beyond cases where the subject matter of the contract was destroyed
rendering performance impossible, to cases where impossibility of performance follows the
cessation of an "express condition or state of things" essential to the contract.

The doctrine of frustration is present in India u/s. 56 of the Indian Contract Act 1852. It says that
any act which was to be performed after the contract is made becomes unlawful or impossible to
perform, and which the promisor could not prevent, then such an act which becomes impossible
or unlawful will become void. It lays down a rule of positive law and does not leave the matter to
be determined according to the intension of the parties. This section clearly does not apply to a
case, in which although consideration of contract is lost, performance of promise on other side is
still possible.

In Satyabrata v. Mugneeram4 the Supreme Court has observed that various theories have been
propounded regarding the juridical basis of the doctrine of frustration yet the essential idea upon

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which the doctrine is based is that of the impossibility of performance of the contract. In fact the
impossibility of performance and frustration are often interchangeable expression. Also the
meaning of the term 'impossible' was explained u/s 56. The Supreme Court made it clear that
unlike English law the word impossible has not been used in the sense of physical or literal
impossibility. The performance of an act may be impracticable and useless from the point of
view of the object and whether it forms the basis of the contract rightfully has to be decided by
the courts. Also in Sushila Devi vs. Hari Singh5, it was observed that the impossibility
contemplated by section 56 of the Contract Act is not confined to something which is not
humanely possible. As it was a case of lease of property, which after the unfortunate partition,
the property in dispute which was situated in Gujranwala, went onto the side of Pakistan, hence
making the terms of the agreement impossible.

In another Supreme Court case, Nirmala Anand vs. Advent Corporation Pvt. Ltd.6, the case was
relating to suit for specific performance of agreement for purchase of a flat in a building
construction on plot leased out by municipality. The court held that unless the competent
authorities have been moved and application for consent or sanction have been rejected once and
for all and such rejection made finally became irresolutely binding and rendered impossible the
performance of the contract resulting in frustration u/s 56 the relief cannot be refused for the
pointing out of some obstacles.

It is well settled that frustration automatically brings the contract to an end at the time of the
frustrating event. This is in contrast to discharge by breach of contract where the innocent party
can choose whether to treat the contract as repudiated. Moreover, a contract, which is discharged
by frustration, is clearly different from one, which is void for mistake. A frustrated contract is
valid until the time of the supervening event but is automatically ended thereafter, whereas a
contract void on the grounds of mistake is a complete nullity form the beginning.

We have to see that unless the law provides for a fair distribution of the loss resulting from the
supervening event, it may not be satisfactory simply to hold that the contract is frustrated.

LAWFUL CONSIDERATION OR OBJECTS

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An agreement, the consideration or the object of which is not lawful, cannot be enforced by law.
This is because courts will not allow polluted hands to touch the pure fountains of justice.

According to Sec. 23, “The consideration or object of an agreement is lawful unless:-

(a) it is forbidden by law; or

(b) is of such a nature that, if permitted, it would defeat the provisions of any law; or

(c) is fraudulent; or

(d) involes or implies injury to the person or property of another; of

(e) the court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every
agreement of which the object or consideration is unlawful is void.”

The objects and the consideration of an agreement shall be unlawful in the following cases.

1. If it is forbidden by law: An act is said to be forbidden by law if it has expressly been declared
to be unlawful by any of the laws of the country for the time being in force. And, for this
purpose, both the parties are presumed to know the law. If a contract can be performed in one of
the two ways, i.e., legally or illegally, it is not an illegal contract, though it is unenforceable at
the suit of a party who chooses to perform it illegally.

Examples:

(a) A, B and C enter into an agreement for the division among them of gains acquired, or to be
acquired, by them by fraud. The agreement is void, as its object is unlawful.

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(b) A promises to obtain for B an employment in the public service, and B promises to pay
1,000 rupess to A. The agreement is void, as the consideration for it is unlawful.

2. If it is of such a nature that, if permitted, it would defeat the provisions of law: The term

“Law” includes any enactment or rule of law for the time being in force in India. This may be
considered under three heads:

(i) An agreement which defeats the provisions of any legislative enactment

Example:

An agreement by which an insolvent who had obtained his personal, but not his final discharge,
settled the claim of one creditor without notice to the official assignee or his other creditors and
by which that creditor agreed not to oppose his final discharge, was void as inconsistent with the
policy of the statute.

(ii) If defeats the rules of Hindu and Mohomedan Law

The rules must of course be such as are recognised and enforceable by courts of law; they do no
include rules of exclusively religious character.

An agreement that would defeat the provisions of Hindu Law would be unlawful within the
meaning of the present clause.

Example:

(a) A contract to give a son in adoption in consideration of an annual allowance to the natural
parents. A suit will not lie to recover any allowance on such a contract, though the adoption has
been performed.

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(b) An agreement entered into before marriage between Mohamedan wife and husband by which it is
provided that the wife shall be at liberty to live with her parents after marriage is void.

(iii) Other rules of law in force in India

Example:

An engagement of a Chartered Accountant to be paid on the basis of a percentage of the relief

obtained in an income-tax case of an assesee is opposed to the provision of the Chartered
Accountants Act.

3. If it is fraudulent: When the object of an agreement is to cheat the other party by

concealment of any material fact or otherwise, it is said to be fraudulent. An agreement to
defraud revenue is illegal, including the revenues of a foreign country.

Example:

When the object of an agreement between A and B was to obtain a contract from the
Commissairate Department for the benefit of both, which could not be obtained for both of them
without practising fraud on the Department. Held, that the agreement was fraudulent and,
therefore, void.

4. If it involves or implies injury to the person or property of another: The consideration or

object of an agreement is unlawful when it involves or implies injury to the person or property of
another.

Example:

An agreement which compels a debtor to do manual labour for the creditor as long as the debt is
not repaid in full is void.

(5) If the court regards it as immoral: The definition of the word immoral has been kept

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limited only to those acts which the court regards as immoral. This shows that what is ‘immoral’
depends upon the standards of morality prevailing at a particular time and as approved by courts.
In most cases the meaning is restricted to sexaul immorality.

A landlord cannot recover the rent of his house knowingly let to a prostitute who carries on her
vocation there. Similarly, money lent to a prostitute expressly to enable her to carry on her trade
cannot be recovered. Likewise money advanced by the palintiff to the defendant to enable the
defendant to continue cohabitation with a dancing girl cannot be recovered. Ornaments lent by a
brothel keeper to a prostitute for attracting men and encouraging prostitution cannot be recovered
back.

A promise to pay for the past co-habitation has been held to be legal (Dhiraj Kumar V. Bikramjit
Singh). But where co-habitation - even not adulterous is also not enforceable. An agreement to
pay maintenance for an illegitimate child is not illegal. A loan made for the purpose of teaching
to dancing girls has nothing immoral in its object.

Example:

A agrees to let her daughter to B for concubinage. The agreement is void, because it is immoral,
though the letting may not be punishable under the Indian Penal Code.

(b) Agreement which are considered by the courts to be opposed to public policy: The principle
of public policy is this: ex dolo malo non oritur actio- No court will lend its aid to a man who
found his cause of action upon an immoral or an illegal act. No exhaustive list can be prepared of
all the agreements opposed to public policy. Anything which goes against the interest of general
public will be deemed to be opposed to public policy.

The doctrine of public policy was summarised by the Supreme Court in Gherual Parek V.
Mahadeodas (1959).

“Public policy or the policy of the laws is an illusive concept; it has been desrcibed as
“untrustworthy guide”, “variable quality”, “uncertain one”, “unruly horse”, etc: the primary duty

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of a court of law is to enforce a promise which the parties have made and to uphold the sancity of
contracts which from the basis of society, but in certain cases, the court may relieve them of their
duty on a rule founded on what is called the public policy.”

The law relating to public policy is not a fixed and immutable matter, rather it is alterable by the
passage of time.

The general head of public policy covers wide range of topics. Some of these are:

(i) Trading with the enemy: Those contracts which tend either, to benefit an enemy country or
to disturb the good relations of a country with a friendly country, are against public policy.
Contracts made before the outbreak of hostilities may be performed after the cessation of
hostilities unless already cancelled by the parties or the Government.

(ii) Siffling Prosecution : Agreements for shifting prosecution are a well-known class of those
countracts which the courts refuse to enforce on this ground. The principle is “that you shall not
make a trade of a felony”. If a person has committed an offence he should be punished and,
therefore, “no court of law can countenance or give effect to an agreement which attempts to
take the administration of law out of the hands of the judges and put it in the hands of private
individuals.” (Sudhindra Kumar V. Ganesh Chandra (1939). Thus, a criminal offence cannot be
arbitration. but an agreement to refer a civil dispute to arbitration is perfectly valid.

Example:

A promises B to drop a court case which he has instituted against B for robbery and promises to
restore the value of the things taken. The agreement is void, as its objects is to stifle prosecution.
(iii) Agreements for improper promotion of litigation : In this connection there are two types of
agreements (i) Maintenance and (ii) champerty.

Maintenance: When a stranger agrees to render assistance by money or otherwise to another

person in a suit in which that third person has himself no legal interest, for its prosecuton or
defence, it is called maintenance.

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Champert: Champerty is a species of maintence. It is a bargain whereby one person promises to
assist another in recovering property in consideration of the latter giving the former a share in the
property so recovered.

According to English Law, all Maintenance and Chamerty agreements are illegal and
unenforceable. But in India, they are perfectly valid if they are made with the bonafied object of
assisting a claim believed to be just and the amount of compensation is reasonable. In Bhagwat

Dayal Sing V. Debi Dayal Sahu, it was held that “An agreement champertuous according to

English Law is not necessarily void in India, it must be against public polciy to render it void
here.”

Thus, a fair agreement to supply funds to carry on a suit in consideration of having a share of the
property it recovered ought not to be regarded as being per se opposed to public policy. But
agreements of this kind ought to be carefully watched and when found to be extortionate and
unconscionable so as to be inequitable against the party, or to be made, not with the bonafide
object of assisting claim, but for improper objects, as for the purpose of gambling in litigation so
as to be contrary to public policy. The quantum of the share which the financier would get under
the agreement is an important matter to be taken into consideration in judging the fairness or
otherwise of the agreement.

Examples:

(a) A claim was of a simple nature and in fact no suit was necessary to settle it, an agreement to
pay Rs. 30,000 to the plaintiff for assisting in recovering the claim was held to be extortionate
and inequitable (Harilal Nath V. Bhailal Pranlal, 1940).

(b) R agreed to file an appeal in the name of A with the terms that in case of success A would
pay half the costs to R and half the purchase price. Held that an agreement to share the property
half and half the purchase price. Held that an agreement to share the property half and half is
hampertous and opposed to public policy and, therefore, void.

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(iv) Agreements to interfere with course of justice: An agreement for the purpose or to the
effect of using improper influence of any kind with judges or offices of justice is void. Thus, an
agreement whereby one person agreed to assist another in carrying out litigation for the purpose
of delaying execution of a decree as held to be unenforceable.

(v) Agreements to vary the period of limitation: Agreements the object of which is to curtail
or extend the period of limitation prescribed by the Law of Limitation, are void. Agreements
cannot be allowed to defeat the provisions of Law unless otherwise so provided in the law itself.

(vi) Marriage brokage contracts: An agreement to procure marriage for reward is void. Of
course validity of marriage will not be affected but money actually paid cannot be recovered or,
if not paid, suit for the recovery of the promised award cannot be maintained.

Example:

(a) A promises to a purohit to pay Rs. 20 in consideration for procuring a second wife for
A. The promise is illegal.

(b) An agreement to pay money to parents or the guardians in consideration of his giving his
daughter in marriage is void.

(vii) Sale of public offices: Traffic by way of sale of public offices and appointment obviously
tends to the prejudice of public service. Such agreements are void. An agreement to pay money
to public servant to induce him to retire, and thus, make way for the appointment of the promisor
is virtually a trafficking with reference to an office, and is void. Similarly a promise to make an
annual payment to a person on condition that he withdraws his candidature for a public office in
favour of the promisor is unenforceable. Where money is paid under such an agreement, it
cannot be recovered back from defendant, though he has failed to procure employment for the
plaintiff in public service.

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(viii) Contracts in restraint of marriage and marriage agreements against public policy: A
contract in general restraint of marriage is unentroceable on the ground of public policy. Such
agreements may relate to not to marry at all or not to marry any particular person or class of
persons. An agreement to marry is illegal as against public policy if one of the parties at that time
is married. But the contract is enforceable if at the time the contract was made one of the parties
was unaware of the fact. Money paid by a person to obtain a divorce by another is money paid
for an illegal or immoral purpose.

(iv) Agreements in restraint of parental rights: father is the natural guardian of his minor child
and in the absence of father, mother has this authority. This right of guardianship is in the nature
of sacred trust and, therefore, cannot be bartered away by any agreement. He may, in his
discretion, as gurdian entrust the custody and education of his children to another. But this
agreement is essentially a revocable one, in the welfare and interest of the child, therefore, an
agreement, in which a father agreed to transfer guardianship of his two minor childern in favour
of a lady, was held to be void, though the father agreed not to revoke the authority of the lady.
Giddu Narayanish V. Mrs. Annie Besant (1907).

(v) Agreements tending to create interest against duty : An agreement with public servant
which might cast upon the public servant obligations inconsistent with his public duty is void.
An agent must not deal in the subject matter of the contract of agency on his own account, as it is
against his duty. A person should not place himself in such position where his duty will come in
clash with his interest.

(vi) Agreements to create Monoplies: Agreements having for their object the creation
monopolies are void as opposed to public policy.

(vii) Agreements, the consideration of which is unlawful in part

(i) If the legal part of the agreement cannot be separated from the illegal part then.

(a) If there are several objects but several consideration, the agreement is void if any one of the

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consideration is unlawful. (Sec. 24)

(ii) Where there is reciprocal promise to do things legal and also other things illegal the legal part
which can be separated from the illegal part can constitute a valid contract and the illegal part
shall be void (Sec. 57).

A agrees that he will sell to B a house for Rs. 10,000, but if B uses the house for gambling
purposes, he shall pay Rs. 50,000, to A. The first part of hte agreement shall be valid and
binding. But the second part shall be void and unenforceable.

(ii) In the case of an alternative promise, one branch of which is legal and the other illegal, the
legal branch alone can be enforced.

Example:

A and B agree that A shall pay B Rs. 10,000 for which B shall afterwards deliver to A, either car
or smuggled opium. There is a valid contract to deliver car and void contract as to opium.

Agreements to defraud creditors or revenue authorities. If the object of an agreement is to

defraud the creditors or the revenue authorities, that agreement is not enforceable, because it is
opposed to public policy . If a transfer of property is made and the transfer is declared insolvent
on a petition presented within two years of the date of the transfer, this transfer is void against
the official receiver or asignee, provided transfer is not made (i) before and in consideration of
marriage, or (ii) to a buyer in good faith and for valuable consideration.

QUASI CONTRACTS

The name ‘Quasi Contracts’ is given by the English Law to such transactions in which there is in
fact no contract between the parties, but the rights and obligations are created similar to those
created by a ‘contract’.

For a contract there must be offer and acceptance, free consent, lawful consideration and object

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and such other elements described under Sec. 10 of the Indian Contract Act. But Quasi Contracts
do no have such essential elements of a contract and, therefore, Indian Contract Act has now here
used the term ‘Quasi or Implied’ Contracts’. Instead it has referred to “certain relations
resembling those created by Contract” under Chapter V of the Act. Such relations are deal with
in the Contract Act under Sections 68-72.

You may raise a question here. When the essential conditions are not fulfilled an agreement
remains unenforceable at Law, this is a rule. Then why these relations dealt with under Sections
68-72 are recognised by the Indian Contract Act. The answer to your question is based upon the
law of Equity. Where you have received an advantage or got a benefit from some other party
which you were not entitled to receive it becomes your duty to compensate fully the other party.
Therefore, the Contract Act also, by its Sections 68-72, has given recognition to these relations.
These five sections are based upon equitable considerations that such obligations should be fairly
compensated. A person who has received the benefit is under an obligation to compensate the
person giving the benefit.

In an American case, Miller V. Schloss (218 N.Y. 400, N.E. 337) it has been stated that, “A
quasi or constructive contract rests upon the equitable principle that a person shall not be allowed
to enrich himself unjustly at the expense of another. In truth, it is not a contract at all. It is an
obligation which the law creates, in the absence of any agreement, when and because the act of
the parties or others have placed in the possession of one person money or its equivalent, under
such circumstances that in equity and good conscience he ought not to retain it, and which ex ae
quo bono (in justice & fairness) belongs to another. Duty and not a promise or agreement or
intention of the person sought to be charged, defines it. It is fictitously deemed contractual in
order to fit the cause of action to the contractual remedy.”

The types of relations dealt here in the Contract Act in these sections are stated as below:

1. Supplier of necessaries to minors. Lunatics, married women etc. (S. 68).

2. Person paying moneys due by another (S.69).

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3. Person enjoying benefit to non-gratutious act or Quantum Meruit. (S. 70).

4. Finder of goods (S.71).

5. Person receiving money or goods belonging to another under mistake or under coercion
(S.72). Let us now take these cases one by one

1. Claim for necessaries suppled to a person Incapable of contracting (Section 68)

If a person, incapable to entering into a contract, or anyone whom he is legally bound to support,
is supplied by another person with necessaries suited to his life, the person who has furnished
such supplies is entitled to be reimbursed from the property of such incapable person.

Illustration

(a) A supplies B, a lunatic, with necessaries suitable to his conditions in life. A is entitled to be
reimbursed from B’s property.

(b) A supplied the wife and children of B lunatic with accessaries suitable to their conditions in
life A is entitled to be reimbursed from B’s property.

The situation discussed by the above section is covered by Section 11 of the Act also, which
deals with agreements with persons incompetent to contract. The two illustrations given above
here also state the same position. However, the situation arises only in dealing with the incapable
persons. Two points here are to be kept in mind.

(1) The amount is recoverable from the property and not from the person. Such person is not
personally liable. If he has got any property, then only the creditors shall be able to get their re-
imbursement. If no property belongs to such person or persons the creditors shall not be left with
any right.

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(2) The object supplied must be necessities of life. The word necessities of life is used here in its
technical sense, and has a wide scope. It does not only concern with food, and clothes but with
every thing which the circumstances permit. In England, in one case an engagement ring for

one’s Finance has been treated as a necessity, but vanity bag has not been included, under this
term. (Elkington & Co. V. Amery 1936).

In India, the term necessities, has also included in its perview the costs of defending a suit on
behalf of a minor, in respect of his property (Watkins V. Dhunoo,) moneys lent for marriage
expenses of a minor and others, say his sisters (Nardan Prasad V. Ajhudhia Prasad) and also a
loan to the minor to save his property from execution. (Kedarnath V. Ajhudhia, 1883). Thus the
term ‘necessities’ is to be viewed in its proper perspective.

The following conditions are to be satisfied for the use of the term ‘necessaries’

(a) Things supplied must be suited to the minor’s conditions in life;

(b) These must be necessary for minor’s requirements, when actually sold or delivered; and

(c) The minor must be having such things in sufficient quantity at the time of such supply.

Non-fulfillment of any of these above stated conditions shall effect adversely the rights of the
other party.

Nature of Remedy: Remember, a supplier of necessaries has been granted a remedy under this
section against the property of the person and not the person himself.

2. Reimbursement to person paying money due by another in payment of which he is

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interested (Section 69).

A person who is interested in the payment of money another is bound by law to pay and who,
therefore, pay it, is entitled to be reimbursed by the other.

Illustration:

B hold land in Bengal, on a lease granted by A, the zamindar. The revenue payable by A to the
Government being a arrear, his land is advertised for sale by the Government. Under the revenue
law, the consequence of such sale will be the annulement of B’s lease to prevent the sale and the
consequent annulement of his own lease, pays to the Government the sum due from A. A is
bound to make good to B the amount so paid.

The above illustration is based on the decision given in Faiyazunissa V. Bajrang Bahadur Singh
(1927).

The above case taken up under Sec. 69 is an exception to the rule regarding consideration Sec.
2 (d) of the Act defining the term ‘Consideration’, starts with “When at the desire of the
promisor, the promisee or any other person has done.....”, If there is no desire of the promisor,
the act or abstinence of the stranger or even the promiser shall not amount to consideration and
in the absence of lawful consideration, there shall not be any contract. It is clear from the above
illustration, that the payment of the revenue by B to the Government has not been made with the
concurrence of A. Yet, Principles of Equity has created an obligation upon A to reimburse B, the
payment made by him to the Government.

Section 69, lays down three important conditions for its operation:

(a) The person who is interested in the payment of money, should have paid for the protection of
his own interest. If the payment is not bonafide for the protection of his own interest, but is made
without any such notice, then he shall be having no right for reimbursement.

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Let us make our point more clear with the help of the following examples:

(i) A purchases property from B, and the sale is fictitious. A cannot recover from B money paid
by him to save the property from being sold in execution of a decree against B. (Janki Prasad
Singh v. Baldeo Prasad (1908). But where the sale is bonafide, he shall be entitled to recover the
amount from B.

(ii) A’s goods are wrongfully attached in order to releae arrears of Government revenue due by

B, and A pays the amount of save the goods from sale, A is entitled to recover the amount from
B. (Tulsa Kunwar V. Jageshwar Prasad (1906). Another case on the point is Abid Hussain V.
Ganga Sahai (1928).

It is sufficient to show that the person claiming the benefit had an interest in paying the money at
the time of the payment. In a case decided by Madras High Court, a similar decision is given.
Sami Pillai V.B. Naidu (1972) a mortgagee of a tenant’s crop paid the amount due to

Government in respect of a loan given to the tenant (Mortgagor) and raised the attachment. The
mortgagee being interested in payment at the time of payment and therefore, was entitled to
recover from the mortgagor (tenant) the amount so paid to the Government. Remember, this
section does not require from the person interested in payment to have legal propritory interest in

the property in respect of which the payment has been so made. Decision in Govindram v. State
of Gandal (1950), Bombay bears in testimony to this point.

(b) The payment should be a voluntary one. If the payment is made voluntarily, the other party
then is not under an obligation to make the payment back. While deciding in Ram Tuhul Singh
V. Biseswar Lal the judicial Committee, observed,” It is not in every case in which a man has
benefitted by the money of another that an obligation to repay that money arises. The question is
not to be determined by nice considerations of what may be fair or proper according to the
highest morality. To support such sa suit there must be an obligation in the case of a voluntary
payment by A of B’s debt.

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Example

A canal company owned a canal and was under a statutory duty to keep the bridge on the canal
under repair. The bridge fall into disrepair and the plaintiffs, the highway authority called upon
the canal company to repair it. When the canal company failed to do so, the plaintiff’s
themselves repaired the bridge and broughtan action to recover the money paid. Held, the
plaintiff could not recover as they act as mere volunteers. (Macclesfiled Corporation V. Great
Central Rly. 1911).

The payment made by such as the other party was bound by law to pay. The liability for which
payment may be made under this section need not be statutory. Contractual liability is not a
necessary element. Let us make the point clear with the help of the following Examples:-

(i) W was the owner of a warehouse. G imported certain goods and kept them in the ware
house. The goods were stolen without any negligence on the part of W. The authorities made a
demand on W for the payment of the custom duties which W paid. Held W could recover the
amount from G. (Brook’s Wharf Ltd. V. Goodman Bros. 1937).

(ii) The goods belonging to A are wrongfully attached in order to realize areas of Government
revenue due by G. A pays the amount to save the goods from sale. A is entitled to recover the
amount from G. (Abid Hussain V. Ganga Sahai, 1928).

Obligation of a person enjoying benefit of non-gratuitous act (Sec.70)

Where a person lawfully does anything for another person or delivers anything to him not
intending to do so gratuitiously, and such other person enjoys the benefit thereof, the latter is
bound to make compensation to the former in respect of, or to restore the thing so done or
delivered.

Illustrations:

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(i) A, trade men, leaves goods at B’s house by mistake. B treats the goods as his own. He is
bound to pay A for them.

(ii) A saves B’s property from fire. A is not entitled to compensation from B, if the
circumstances show that he intended to act gratuitously. A manages the estate of his wife and
sisters-in-law and is under the impression that he will receive remuneration for his services. He is
entitled to get reasonable remuneration.

(iii) The right of action this section arises only after the fulfillment of the following three
conditions:-

(a) The thing must be done lawfully;

(b) The thing must be done by a person not intending to act gratuitously; and

(c) The person for whom the act is done must enjoy the benefit of it.

(a) The thing must be done lawfully: Here the word ‘lawfully’ is quite significant. It indicates that
after something is done or delivered to one person by another and the thing is accented and enjoyed
by the former, a lawful relationship occurs between the two. Such decision has been given in
Chaturbhuj Vilthaldas V. Moreshwar (1954). However, it should be noted that the thing done or
delivered must not have been delivered or done with fraud or dishonesty.

(b) The thing should not be done or delivered gratuitously: If the benefit to the other person has
been done by a person gratuitously i.e., without any intention to get a reward, he shall not be able to
give any right under this section. The section requires other person to use his right of rejecting the
thing, if he so likes. The section is applicable for those acts only which are done with the intention of
being paid for. Services freely rendered, without any co-operation of a reward for them do not lie
under the preview of this section.

A saves B’s property from fire. He does the act on the basis of humanity and fellow-feeling.
Here A cannot get any reward from B under section 70. On the other hand if the Salvage Crops
of an Insurance Co. with which the property is insured renders its services for saving the house
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property from fire, from the objective is for getting the payment of the services so rendered,
although no such agreement has taken place.

(c) The person for whom the act is done must enjoy the benefit of it. If such person has not
enjoyed such benefit, he shall not be liable to pay for it.

Examples

(i) A village was irrigated by a tank. The Government effected certain repairs to the tank for its
preservation and had no intention to do so gratuitously for the zamindars. The zamindars enjoyed
the benefit thereof. Held, they were liable to contribute. (Damodar Mudaliar V. Secretary of
State for India, 1894).

(ii) A Railway Company had constructed a culvert near Madura, which in 1938 it widened at
considerable expense, on a requisiton in that behalf being made by the Provincial Government.
The company had done the work under protest, alleging that the order was illegal and that they
would claim to recover the expenditure, from the government or the Madura municipality, or
both. These two latter, however, had repudiated their liability. In a subsequent suit on behalf of
the Railway Company against the Madura municipality, it was held by P.C. that Sec. 70 could
not be invoked to assist the Railway, for through the work was done lawfully and without
intending to do it gratutiously, the defendants could not made liable, therefore, as it was not done
for the defendants, nor had the defendants enjoyed benefit of it (Pallonji Edulji & Sons V.
Lonavla Municipality)

Remember Section 70 does not apply to persons who are incompetent to contract. In Simohaj
Khan V. Bangi Khan (1931) it has been made clear that Section 70 refers to circumstances in
which the law implies a Promise to pay, and where there could not have been a legally binding
contract, a promise to pay cannot be implied.

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Quantum Meruit

It is a phrase which means, “payment in proportion to the amount of work done”. Quantum
meruit literally means, “as much as earned” or as much as merited. “Under English Law a party
who for some reason can not claim under the contract, may under certain circumstances claim
way of Quantum merit i.e., reasonable remuneration for work done. Thus Quantum is a remedy
and not any alternate to the form of damages. When the party injured by the breach, has at the
time of breach done part, but not all of that which he is bound to do under a contract, and is
seeking to be compensated for the value of the work done, he can get a remedy under this
concept, for example when the contract provides that payment is to be made on completion of
the work, the party can not demand any remuneration under the contract as the work has not been
completed. But he can claim on the basis of quantum meruit for the work done by him.

Lord Atkin has explained this concept in very simple words with the help of an example in the
case of Steven V. Bromby & Son (1919). To quote him, “If I order from a wine merchant 12
bottles of whisky at so much a bottle, and he sends me ten bottles of whisky and two of brandy,
and I accept them, I must pay a reasonable price for the brandy”.

Lest us take on more example:-

The defendant proposed to erect and let seats to view the funeral of the Duke of Wellington. It
agreed that the plaintiff should advertise the seats outside England and sell tickets, and that he
should receive a commission on all the tickets thus sold. The plaintiff prepared advertisements
and paid printers, but, before he had sold any tickets, the defendant wrongfully revoked his
authority.

It was held in De Bernardy V. Harding (1853) be Alderson B. that the plaintiff could could one
in quantum meruit for the work already done.

Alderson B. said “Where one party has absolutely refused to perform or has rendered himself
incapable of performing, his part of the contract, he puts it in the power of the other party either

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to sue for a breach of it or to rescind the contract and sue on a quantum meruit for the work
actually done.”

The objective of Quantum meruit is differ it from that of awarding damages. Damages are
awarded to put the party in the same position as if the contract as if the contract was performed
by the other side and to compensate the injured party for the injury suffered by the breach. On
the other hand, remedy under quantum meruit is to compensate a party for the work he had done
and to place him in the same positioin as if there was no contract between the parties.

The right of claiming Quantum Meruit, like damaged does not arise out of contract. It is a right
conferred by law. It is a Quasi-Contractual right and not a contractual right.

Claims on Quantum Meruit

Claim on Quantum Meruit arises under the following cases:

(1) Work done under void contracts (Sec. 65): Where a person redners services under an
agreement which later on is being discovered as void or has rendered services on pursuance of a
transaction, supposed by him to be a contract, but the contract in truth, is without legal validity,
he gets a right to be compensated for the advantage received by the other party from him.

Craven Ellis V. Canons Ltd. (1936) serves a good example for elucidating this point.

The plaintiff was appointed managing director of a company by an agreement under the
company’s seal which provided for his remuneration, By the articles of association each director
was required to obtain certain qualification shares within two months of his appointment. Neither
the plaintiff nor the other directors ever obtained these shares. The plaintiff nevertheless,
purporting to act under the agreement rendered services for the company and sued for the sums
specified in the agreement, or, alternatively, for a reasonable remuneration on a quantum meruit.

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(2) Work done with on non-gratutious basis (Sec. 70) : When a person does some work or
renders some serivce, with an intention not to do so gratutiously and the other person takes the
benefit of such work or service, the person rendering such service or doing such work can claim
compensation from the person enjoying such benefits, or get the goods so delivered back from
him.

Example

A, a trader, leaves some goods at B’s house by mistake. B. Treating the goods as his own uses
them. He is bound to pay A for them.

(3) Abandonment or refusal of performance of a contract: When one of the parties abandons
the work or refuses to perform the contract, the other party can get compensation for the work
done by him. Decision given by C.J. Tindal in the case of Planche V. Colbut (1831) is a good
example to illustrate this point. The facts of the case are:-

The plaintiff had agreed to writer for “The Juvenile Library”, a series published by the
defendants, a book on Costume and Ancient Armour. He was to receive £100 on the completion
of the book. He collected material and wrote part of the book, and then the defendants abandoned
the series. There were negotiations for the publication of the books as a separate work, but these
fell through, apparently as the plaintiff that he had written especially for children and that to
publish his work as a magnum opus would injure his reputation. He claimed alternatively on the
original contract and on a quantum meruit.

(4) Divisible Contract: Where a contract is divisible and the party not in default has recieved the
advantage out of it, the defaulting party can get compensation under quantum Meruit. But
remember, the party in default can not get this right in case of indivisible contract on the basis of
this principle.

The case of Sumpter V. Hedges (1898) provides a good example on this point.

S undertook to build a house for H for Rs. 50,000. After completing half of the work, S

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abandoned the construction work. He afterwards got the house constructed by some one else. It
was decided, S could not recover the remuneration for the construction work done by him since
the payment was to be made only after the completion of the building.

(5) Badly performed indivisible contracts: Where an indivisible contract has been performed
the work is badly done, the performance can get the remuneration, but the other party also gets a
right to make deduction for the bad work.

The case of Hoemig V. Isaacs (195) serves a good examples to illustrate the point.

A, a decorator undertook to decorate B’s flat for a lumpsum of Rs. 10,000. B. laid down certain
requirements. A completed the work but B pointed out certain defects in the work done A. B got
those defects removed from C at a cost of Rs. 500/- Held A could recover (10,000-500=)9,500/-
from B.
Responsibility of a finder of goods (Section 71)

A person who finds goods belonging to another, and takes them into his custody, is subject to the
same responsibility as bailee.

Hollins V. Fowler, is a good case over the point. The facts of the case are :

H picked up a diamond on the floor of K’s shop and handed it to K to keep it till the owner
appeared. In spite of wide advertisement in the newspapers no one appeared to claim it. After the
lapse of some weeks, A tendered to K the cost of advertisement and an identity bond and
requested him to return the diamond to H.K. refused. K is liable for damages. His entitled to
retain the goods as against every one except the true owner, so if after wide advertisement the
real owner does not turn up and if H is prepared to given indemnity to K, K must deliver the
diamond to H.

The position of finder of Good is s akin to that of a Bailee. Section 71 charges the finder of
goods with certain obligations. But Sec. 168 and 169 strengthen him with certain rights.

Obligations:
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The finder of goods must take all reasonable measures to find out the true owner and take all
reasonable care for the protection of the goods. If he does not make reasonable efforts for finding
out the true owner, he shall be liable of wrongful conversion of property.

Rights :

The finder of goods has a right to retain the goods so found till he finds out the true owner, has
got a right to claim for the reward if any from the true owner. He has got a right to claim for the
reasonable expenditures incurred by him. He can also sell out such goods under the following
circumstances.

(a) Where the goods are perishing.

(b) Where the owner has not been found out even after great diligence.

(c) Where the owner is found out, but he refused to pay the reasonable expenses incurred by the
finder of goods, for finding out the owner, as well as for preserving the goods.

(d) Where the reasonable charges so incurred by him, amount to more than two thirds of the
value of the thing found.

5. Liability of person to whom money has been paid or anything delivered, by mistake or
under correction (Secton 72) : A person to whom money has been paid, or anything delivered
by mistake or under coercion must repay or return it.

Illustrations.

(a) A and B jointly owe to 100 Rs. to C. A alone pays the amount to C, and B not knowing this

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fact, pays 100 Rs. over again to C.C is bound to repay the amount to B.

(b) A railway refused to deliver certain goods to the consignee, except upon the payment of
illegal charge for carriage. The consignee pays the sum charged in order to obtain the goods. He
is entitled to recover so much of the charges as was illegally excessive.

(c) K paid sales tax on his forward transactions of bullion. Subsequently this tax was declared
ultra vires. Held K. could recover the amount of Sales Tax and that Section 72 is wide enough to
cover not only a mistake of fact but also a mistake of law. (Sales Tax Officer, Benaras V.
Kanakiya of Saraf 1959).

The above examples clearly state the scope of Section 72. The principle involved in this Section
is applicable regardless of the fact whether a privity of contract does or does not exist between
the parties. The principles is based on equity.

The person enjoying the benefit is made liable to compensate the aggrieved party, not on the
basis of any contract between the concerned parties but on the basis of advantage taken by him
due to mistake of or coercion on another. The mistake may relate to facts or even of law (See
Example ‘c’ above).

The liability to repay money under this Section can be enforced either by the person who has
paid the money or by the person who becomes aggrieved due to non-discharge of such liability.
Many cases have been decided over these issues by the various High Courts of India.

VOID AGREEMENT

Void agreements are those agreements which are not enforced by law courts. Section 2(g) of the
Indian Contract Act defines a void agreement as, “an agreement not enforceable by law”. Thus
the parties to the contract do not get any legal redress in the case of void agreements .

Void agreements arise due to the non-fulfillment of one or more conditions laid down by
Section 10 of the Indian contract Act. The Section states as follows:

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All agreements are contracts if they are made with free consent of parties competent to contract,
for a lawful, consideration and with a lawful object, and are not hereby expressly declared to be
void.

Nothing herein contained shall affect any law in force in India, and not hereby expressly
repealed, by which any contract is required to be made in writing or in the presence of witness,
or any law relating to the registration of documents.

From the above, it is quite clear that non-fulfillment of any of these conditions by one of the
parties to a contract shall make an agreement void. These conditions being:-

1. Free consent of the parties;

2. Competency of the parties to contract;

3. Existence of a lawful consideration;

4. Existence of a lawful object;

5. Agreement being not included in the list of those specially declared to be void by the Indian
Contract Act by its Section 26, 27, 28, 29, 30, and 56;

6. Completion of certain formalities required by any other law of the country like transfer of
Property, Act, Company Act, etc.

Difference between a Void Agreement and a Void Contract

Most of the students do not make any distinction between the two terms. They treat them in one
and the same sense. But this is wrong. Agreement shall be called a contract only when it fulfills
all the conditions laid down by Section 10 of the Act.

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The students can make a distinction between an agreement and a contract on the following
basis:-

1. Definition: void agreement is defined by Section 2(g) viz., an agreement not enforceable by
law is void agreement. Void contract is defined by Section 2(j) viz., a contract which ceases to be
enforceable by law is a void contract since the time it ceases to be enforceable.

Thus it is very clear from the two definitions that a void agreement is void from the very
beginning and does not create any legal effect, while a void contract is not void from the
beginning, it becomes void at a subsequent stage due to the occurrence of an event or change in
the original conditions. We may illustrate this with the help of an example. A, an Indian, enters
into a contract with B, a Pakistani national, to supply woolen a carpets after three months. After
some time war breaks out between India and Pakistan. The contract in between A & B shall
become void at the outbreak of war.

2. Rights: A void agreement does not create any legal right or obligation upon the parties to
the agreement. On the other hand, a void contract does create a right and an obligation upon the
parties. A party to the void contract is within his rights to get back the benefit which he had
given to the other party in terms of money, goods or services and the other party enjoying such
benefit under a void contract is placed under an obligation to return that benefit to him. This is
true in many cases but not in all cases e.g., a voidable contract being rescinded shall make, it
obligatory on the aggrieved party to return the benefit which he has already derived from the
contract. But if a contract becomes void due to supervening impossibility the benefit enjoyed by
the promisor shall not be returned to the promisee by him.

3. Treatment: void agreements have been specifically stated in Chapter II of the act under
Sections 11, 20, 23, to 30, and 56. But no such specific mention is made for void contract in any
Chapter of the Act.

Difference between Illegal and opposed to Public Policy Agreements

All these three terms are the outcome of Section 23 of the Indian Contract Act which deals

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with lawful consideration and lawful object. The five cases stated in this section are:-

(a) it is forbidden by law; or

(b) is of such nature that, if permitted, it would defeat the provisions of laws; or

(c) is fraudulent; or

(d) involves or implies injury to the; person or property of another; or

(e) the court regards it as immoral or opposed to public policy.

The first four acts listed above i.e., from (a) to (d) form part of illegal acts, while the fifth act
refers to immoral acts as well as those opposed to public policy. Let us know these acts before
we distinguish them.

Illegal acts are not supported by Law. “Es turpi causa non oritur actio”, which means that no
right of action can spring out of an illegal contract, is an old and well-known legal maxim. It is
founded on good sense and expresses a clear and well recognized legal principle.

Illegal acts may take any of the following forms:-

(a) Act which is prohibited by law.

A is granted a licence to ply a bus on a particular route. The licence is to be used by him only
and not to be tranferred in somebody else’s name. He forms a partnership with B and transfers
the licence in the firm’s name. The transfer is illegal since it is prohibited or forbidden by law.

(b) Any act which defeats the provisions of any law.

A agrees to lend B Rs. 1000 for six months provided B does not raise the plea of limitation under
the Indian Limitations Act. The agreement is illegal since it defeats the provisions of Limitations

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Act.

(c) Any act which is Fraudulent.

A, B and C enter into an agreement for the division among them of gains acquired, to be
acquired, by them by fraud.

The agreement is illegal since its object is fraudulent.

(d) Any act which involves an injury to the person or property of another.

A enters into an agreement with B, an editor of newspaper, to pay Rs. 500 if he (B) publishes a
libellous matter in his paper against C. Here B cannot recover the money from A since the object
of the agreement is to injure the person of C and thereby it is illegal.

Immoral: The word immoral is very comprehensive and concerns every aspect of personal life
and conduct deviating from the standards and norms of the human life. Normally, acts contrary
to sound and positive morality as recognised by law are immoral acts ‘Ex dolo malo non oritur
actio’ is a maxim founded on general principles of policy and the courts are not prepared to help
the persons whose action is based upon immoral act. Supreme Court of India in its decision
confirmed in the case Cherulal Parekh V. Mahadee Das A.I.R. 1959 has stated that judicial
decisions have confirmed the operation of the doctrine to the cases of sexual morality.

On the above basis immoral acts can be divided into the following two categories:-

1. Where the consideration of the agreement forms an act of sexual immorality. This category
includes case of illicit cohabitation or prostitution.

2. Where the object of the agreement promotes sexual immorality. Lending money to a
prostitute to help her in the furthernace of her vocation forms part of such category.

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Cases of immoral acts can be the following examples based on cases decided by the varioius
courts, Indian as well as English.

(a) A made gift to a husband and a wife for the consideration that the wife shall maintain
immoral relations with him (donor). Held the agreement is unlawful as it is immoral.
Kandaswami V. Narayanswami, 1923, 45 Mad.L.J 551.

However, there has been a controversy about the past cohabitation. Allahabad and Madras. High
Courts have treated an agreement to give woman sum of money in consideration of past
cohabitation asgood consideration as being a reward for past services under S. 25(2), but
Bombay High Court and Mysore High Court have taken the view that gift made for past-co-
habitation is void.

(b) A makes an agreement with B for hire of his house to be used by B for promoting
prostitution. The agreement is void since the object is to promote immorality. All Baksh v.
Chunia 1877 Punjab. Hiring, sale of a house or property or giving ornaments for adopting
vocation of prostitution or running a brothels declared immoral by the various Indian as well as
English Courts. However, if money is borrowed by a dancing girl to teach singing or dancing to
her own daughters, the agreement is not void because singing is not acquired with a view to
practise prostitution. Khubchand v Beram (1889, 13 Bombay 150).

(c) A firm of coach-builder shired out a carriage to a prostitute, knowing that it was to be used by
the prostitute to attract men. Held, the coach-builders coult not recover the hire as the agreement
was based on immorality. (Peace v Brooks 1866. L.R. 1 Ex. 213).

Opposed to Public Policy: agreement harmful to the public welfare said to be opposed to public
policy. Lord Truro in Egerton v Brownlow (1953; 4 H...Cas. 1) has stated that Public Policy is
that principal of law which holds that no subject can lawfully do that which has a tendency to be
injurious to the public or against the public good-which may be termed the policy of the law, or
public policy in relation to the law.

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No precise definition can be given of term. Certain classes of acts are said to be against public
policy or against the policy of the law when the law refuses to recognize it on the plea that they
have a mischievous tendency and shall be injurious to the interests of the state or the Public.
Agreements may not be in the interest of the Country and the are therefore not to be enforced.
During the war, trading with enemies is one such example, pollutioin in the society or adversely
affect the character of the youth. All such cases are to be dealth with under the head ‘Opposed to
Public Policy’. There is no limit to such acts which can be included under jurisdiction of this
head, and therefore, Lord Halsbury in Nanson v Driefontein consolidated Mines (1902, A.C.

484, 491) very rightly stated “no court can invest a new head of public policy”. Lord Davey in
1902 said in the House of Lord’s that ‘Public Policy is always an unsafe and treacherous ground
for legal decision’. All those statements were made on account of reason that there is every scope
of providing a judge with an excuse for invalidating any contract which is violently disliked.
Burrough J. was excited to say that (public policy was a very unruly horse, and when you once
get astride it you never know where it will carry you.” (Richardson v Mallish, 1824, Bing
229,252).

However, the jurisdiction of the head ‘agreements opposed to public policy’ has been restricted
by the Supreme Court’s decision in Gherulal Prakh v Mahadeodas Mariya & Ors., (1959,

S.C.A.,342) by the words, “it is advisable in the interest of stability of the society not to make
any attempt to discover new heads in these days”. It does not mean that the doors have been
closed, but caution is given and the courts are permitted to evolve a new head but only under
extraordinary circumstances which give rise to incontestable harm to the society.

The Indian Contract Act has tried to restrict the scope of agreements opposed to Public
policy. The following heads usually cover the agreements/opposed to public policy:

1. Agreements for trading with enemy countries;

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2. Agreements for stifling prosecutions.

3. Agreements included under “Champerty and Maintenance” under the English Law. Such
agreements relate to the promotion of litigation. However, these are not declared void in India.

4. Agreement creating interference with course of justice, e.g., agreements to use any kind of
pressure of influence on judges or officers of justice shall be void.

5. Marriage brockerage contracts e.g., agreement to pay brockerage for getting a spouse shall
be void.

6. Agreements tending to create interest against duty e.g., agreement by agents to deal in their
own name instead in the name of their principals, without principal’s knowledge.

7. Agreements for sale of public offices e.g. agreement to pay some money in return of getting
a job in an office, shall be declared void.

8. Agreements to create monopolies.

9. Agreements not to bid in an action sale.

10. Agreements in restraint of trades.

The above discussion, on agreements opposed to public policy, clearly states the grounds and
explains that all such agreements which are contrary to the welfare of the state by interfering
with the civil or judicial administration or with the individual freedom of the citizens shall be
unlawful as opposed to public policy.

Agreements under Mistake of Law

Indian Contract Act has nowhere defined mistake. However, it can be defined as an erroneous
belief about something. Mistake is of two broad types.

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(1) Mistake as to fact, and

(2) Mistake as to Law.

Sec. 21 of the Act deals with the effect of Mistake as to Law, but is silent over other issues
relating to such types of mistake.

A contract is not voidable because it was caused by a mistake as to any law in force in India but
a mistake as to law not in force in India has the same effect as a mistake of fact.

Illustration

A and B make a contract grounded on the erroneous belief that a particular debt is barred by the
Indian Law of Limitation. The Contract is not voidable.

A a widow, is entitled to certain occupancy rights. A remarries and believing that she has lost her
occupancy rights by reason of her second marriage agrees to take the land from B, her Zamindar,
on an increased rate of rent. Both A and B honestly believe that A has lost her occupancy rights.
The contract is not voidable.

Now first of all we should see what a Mistake of Law pertains to ignorance of some Law of the
land. It is expected from every citizen of a country to be conversant with the Law of the land. If
he violates any law, he cannot be excused on the plea that he had no knowledge about the law,
e.g., if a motorist crosses the road without carrying for the red-light signal is a punishable
offence. He is to be prosecuted for the offence and is to be fined by the magistrate if challaned.
Thus the maxim.

‘Ignorantia jusrisdon excusalt’, meaning “Ignorance of Law is no excuse”, holds good in every
country.

It has been stated by many jursits without some arbitrary rule, imposing upon each citizen the

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duty of well considering and understanding the consequences of his own acts and contracts there
would be no limit to the excuse of ignorance and there shall be no security in any contract. Of
course in some individual cases this maxim may put severe hardships, but it brings stability and
certainty to the general transactions of Commerce. In the absence of such a rule such transaction
shall become fluctuating and insecure.

However, Mistake of Law is again classified into two-

(1) Mistake as to Indian Law;

(2) Mistake as to Foreign Law;

Mistake as to Foreign Law is treated as Mistake as to Facts and therefore, an agreement based
upon Mistake as to Foreign Law is declared void by the Indian Law Courts.
Mistake as to Indian Law does not universally or generally invalidate the transactions which are
based upon it. It is due to the simple reason that the maxim Ignorantial juris non excusat is
restricted in its operation to ignorance of the general law of the country. Sec. 21, as has been
stated above, does not give any relief to the aggrieved party in respect of Mistake of Indian Law.
It has been argued that when the mistake is so fundamental as to prevent any real agreement
upon the same thing in the same sense for being formed, it is immateral of what kind of mistake
was and how it was brought about. Therefore Sec. 21, does not grant any validity to such
apparent agreement which do not satisfy the conditions of Free and real Consent. These
conditons have have been stated by the provisions of sections 10-13 of the Indian Contract Act.
Such a decision has been given in Balaji Ganoba v Annapuranabai (A.I.R. Nag 1952) also. Thus
mistake of Indian Law does not vitaite the contract of the parties. They have to perform their part
of promise otherwise shall face the consequences of the Breach of Contract.

You should remember one thing in this context. Private rights of property are usually treated to
be matter of facts. If any party to the contract does not have knowledge of his private rights of
property and enters into a contract which forms part of the same subject matter, certainly the
contract shall be avoided as soon as the aggrieved party comes to realise mistake on his part.

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This shall all the more be clear from the following illustration.

A agrees to purchase a house from B who is distant relation of his father, never knowing that he
is the actual owner of the house. After getting registration of transfer deed in his favour he comes
to know of his ownership of the said house but could not get back the consideration money from
B.

Agreements by Way of Wager

Agreements by way of wager are void and no suit be bought for recovering anything alleged to
be won on any wager, or entrusted to any person to abide by the result of any game or other
uncertain event of which any wager is made.

This section shall not be deemed to render unlawful a subscription or contribution, or agreement
to subscribe or contribute, made or entered into for or towards any place, prize or sum of money
of the value of amount of five hundred rupees or upwards, to be awarded to the inner or winners
of any horse race.

Nothing in this section shall be deemed to legalise any transaction connected with horse racing to
which the provisions or section 294-A of the Indian Penal Code apply. (sec.30).

Section 30 of the Indian Contract Act states “agreements by way of wager are void quo no watt”
for the recovery of the amount won shall not be tenable. The section does not define Wager.
What is Wager?

William Anson has defined Wager as a contract by A to pay money to B on the happening of a
given event in consideration of B paying to him money on the event not happening. (Hampden v
Wash, 1876 1 A.B.D. 189, 192). According to Justice Hawkins, a wagering contract is one by
which two persons professing to hold opposite views touching the issue of a future uncertain
event mutually agree that, dependant on the determination of that event, one shall win from the
other, and that other shall pay or hand over to him, a sum of money or other stake, neither or the

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contracting parties having any other interest in that contract then the sum of stake he will win or
lose, there being no other real consideration for the making of such contract by either of the
parties. It is essential to wagering contract that each party may under it either win or lose,
whether he will win or lose being dependant on the issue of the event, and therefore remaining
uncertain until that issue is known. If either of the parties win and cannot lose, or may lose but
cannot win, it is not a wagering contract (Carlil v Carbolic Smoke Bail Co., 1892, 2 Q.B. 484)
Jenkins C.J. has stated in Sasson v Tokersy (1904, 28 Bom. 616, 621). “It is of the essence of a
wager that each side should stand to win or lose according to the uncertain or unascertained
event, in reference to which the chance or risk is taken.”

Characteristics

From the above, we can state that a Wager must have the following characteristics:

a. It is a promise to pay money or money’s worth.

b. The promise depends upon the happening or not happening of an event.

c. The event upon which the promise is to depend is uncertain, the parties do not know the
occurrence of the event.

d. None of the parties has a control on the occurrence of the uncertain event.

e. None of the parties has an interest in the occurrence or non-occurrence of the event. We can
explain our point with the help of the following examples:-

1. On a cloudy day A bets Rs. 10 with B that it will rain, B being of the view that it shall not
rain. A says to B, if it rains he will receive Rs. 10 from B, but it is does not rain A shall pay Rs.
10 to B. It is a Wager.

2. A lottery is also a wager since it is a game of chance. An agreement to buy a ticket for a
lottery is also a wagering agreement. When the lottery is authorised by the state, the person

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conducting the lottery is not punished, but that does not make the lottery a valid one, it remains a
wagering transaction.

A wager may have all other requisities of a legal contract. It may have two or more parties
consideration, subject matter and the identity of minds of the parties. But the peculiarity lies in
its performance. Its performance is in the alternative, i.e., one party has to pay the amount to the
other. Only one party is to gain and the other is to lose.

There is no difference between the expression ‘gaming and wagering’ used in the English Statute
and repealed by Indian Contract Act XXI of 1848, and the expression ‘by way of wager’ used in
this section. (Kong Yee Lone & Co. v Lowjee Nanjee 1901, 29 Cal 461, L.R. 28 I.A. 239).

Transactions which are not Wager

1. Prize competitions, according to the Prize Competition Act, 1955 in games of skill, if the
prize does not exceed Rs. 100. Crossword puzzle is such an example, since it depends upon the
skill.

2. Games of skill like athletic competition, wrestling bouts.

3. Subscription or contribution or an agreement to subscribe or contribute, towards any prize,

plate or sum of money to be awarded to the winners of the horse race.

4. Tezi Mandir transactions or deals in shares and stocks, where the party’s intention is to
deliver the goods or securities.

5. Insurance contracts.

Distinction of wager with a conditional promise and a guarantee

The main distinction the wager and the valid conditional is that of intention and interest. In the
wager either of the parties has no interest in the agreement except of again or loss. If the event

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goes in favour of one party he is to gain, if vice-versa he is to lose and one of the parties is to
lose, the other to gain. But in valid conditional contracts, both the parties have proprietary
interest. This proprietary interest in the language of Insurance is called Insurable Interest. The
insurable interest only makes a difference between a wager and the insurance, contracts, whether
of life, fire or marine the parties having an insurance policy have an insurable interest which is a
pecuniary interest. An insurance policy wherein the insured has no insurable interest shall be
treated as Wager.

Secondly, in wager the parties bet. They depend upon the chance. The uncertain future event
may be in their favour or against, they do not know. They have to gain or lose depending upon
the result of the uncertain event. But in conditional contracts, like insurance contracts, the
insured pays the consideration i.e., premium to the Insurance Company, whether there is loss or
not. In the event of the loss sustaned by the Insured (policy holder), the Insurance Company is to
make good the loss. Thus the party taking an insurance policy in no case is to bet or take an
advantage of the position of the other party.

Wager and collateral Transaction

Section 30 of the Indian Contract has stated in clear terms that an agreement by way of wager is
void. It does not speak that the agreement is illegal. Many cases arise in the law courts of such
nature. The decision given by various courts in cases of such nature have proved that wager does
not taint Collateral Transactions and therefore, the collateral transactions can be enforced. For
example, a suit can be brought to recover a loan to help the payment of gambling debt (Beni
Madho Das v Kaunsal, 1900, 22 All 452) or to enable a man to continue speculation or to
recover brokerage.

Wager is void but not forbidden by law. Except in Maharastra Wager is neither immoral or
opposed to public policy under section 23 of the Indian Contract Act. Therefore the object of an
agreement collateral to a wager is not unlawful (except in Maharashtra). A partnership to carry
on wagering transactions with third parties has not been declared unlawful (Gherulal Parakh v
Mahadedoas, A.I.R. 1959, S.C. 781). The courts have decided similarly in many cases. In one
case Bridgerv Savage (1885, Q.E.D. 363) (it was held) that an action would lie against

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commission agent who had recovered moneys on account of bets made for the plaintiff. Madras
decision in Muthuswami v Veeraswami A.I.R. 1936, and allahabad decision in Bhola Nath v
Mulchand in 1903 also testify this rule. A betting agent or a broker, after the bets were lost, paid
for the bets, could also recover the same from the defendant. (Read v Anderson).

To conclude, an agreement by way of wager though is void a contract collateral to it or in repect

of a wagering agreement is not void except in the Maharashtra State. To bring in uniformity the
Contract act may be reviewed to inorporate the the provisions of the Bombay Act. The Bombay
Act (Act III of 1865) has declared wagering transactions as illegal and so is the rule in England.
(Gaming Acts of 1835, 1845 and 1892). The collateral transactions, in Bombay as well as in
England are also regarded illegal but in the rest of India (except Maharashtra) the collateral
transactions to wagering agreements are valid ones, although wagering agreements are decided
void.

Wager and a Contingent Contract

Before we distinguish a wager and a contingent contract, we must know what a contingent may
be said a conditional contract. The performance of the Contract is dependent upon the happening
or not happening of some event. Thus certain contracts are dependent upon the occurence of an
event, while others are dependent upon the non-occurence of the event.

Section 31 of the Indian Contract Act has defined a Contingent Contract, as a contract to do or
not to do something if some event, collateral to such contract, does or does not happen.

Characteristics

A contingent contract has got the following characteristics:

a. A contingent contract is to be performed upon the happening or not happening of some event
in future. On the basis of this characteristics this contract is distinguished from other types of
contracts.

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b. The future event is uncertain. Where the event is bound to happen, the contract is to be
fulfilled and therefore, there does not remain any contingency.

c. The future event upon which the performance of the contract depends is incidental or
collateral to the contract. It is not the main part of the Contract.

Examples of Contingent contracts can be found in the Contracts of Insurance, Indemnity

and Guarantee.

Contingent Contracts are of two types:

1 . Those depending upon happenings of an event; and

2. Those depending upon the non-happening of an event. Examples of such contracts are as
follows:

A contracts to pay B Rs. 10,000 if B’s house is burnt. This is a contingent contract, here if B’s is
burnt A shall be liable to pay B Rs. 10,000. If B’s house is not burnt, A is discharged from his
liability.

We may take another example. A promises to pay B Rs. 2,000 if B does not marry C. If B
marries C, A discharged from his liability. But if B does not marry C but marries D, A is liable to
pay Rs.2,000.

Rules regarding Continent Contracts are given in sections 32 to 36 of the Indian Contract
Act.

Section 32 states about the enforcement of contracts contingent on an event happening e.g. A

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makes a contract with B to buy B’s horse if A survives C. This contract cannot be enforced in
law unless and until C dies in life time.

Section 33 states about the enforcement of contract contingent on an event not happening e.g. A
agrees to pay B a sum of money if a certain ship does not return. The ship is sunk. The contract
can be enforced when the ship sinks.

Section 35 states about the performance of a contingent contract within a fixed period, otherwise
it shall become void. This section states about both the types of the contracts. Example being.

(a) A promises to pay B a sum of money if a certain ship returns within a year. The contract
may be enforced if the ship returns within the year, and becomes void if the ship is burnt, within
the year.

(b) A promises to pay B a sum of money if a certain ship does not return within a year. The
contract may be enforced if the ship does not return within the year or is burnt within the year.

Sec. 36 states that the agreement contingent on impossible events are void. Example relating to
this are:

(i) A agrees to pay B 1,000 rupees if two straight lines should enclose a space. The agreement
is void.

(ii) A agrees to pay B 1,000 ruppes if B will marry A’s daughter.

(iiii) C was dead at the time of the agreement. The agrrement is void.

Distinction between a Wagering and a Contingent Contract

After knowing about a wager and a contingent contract we can easily distinguish between these
two. The distinction can be made on the following basis.

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1. Definition: The Indian Contract Act does not define a wager. Sec.30 of the act states the
effect only i.e. wagering agreement is void. But the Act by Sec. 31 defines a Contingent Contract
as the very name suggests is a contract.

2. Nature: A wager is an agreement only but a contingent contract as the very name suggests is
a contract.

3. Promise: In a wagering agreement both the parties of the agreement promise to each other
i.e. A shall pay B if the event favours B and B shall pay A if the event favours A. But in a
contingent contract the promisor only makes a promise and not the promisee.

4. Result: In wagering agreement the loss of one is gain for the other party and vice-versa. But
in a contingent contract it is not necessary that one party must lose and the other must gain.

5. Enforceability: A wagering agreement is void. It is not enforceable by law. But a contingent

contract is valid and can be enforced on the happening or not happening of a future uncertain
event collateral to the contract.

So far, You have read that the Indian Contract Act has specifically declared certain agreements
void. Till now you have known about the following void agreements:

(1) Agreements made by parties not possessing capacity to contract.--S 11

(2) Agreements made under Mistake of Facts—S.23

(3) Agreements having unlawful objects and consideration-S.23

(4) Agreements having unlawful objects and consideration in part-S.24. Some other agreements
declared void are:

(5) Agreement made without considered as S.25

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(6) Agreement in restraint of marriage. S.26

(7) Agreement in restraint of trade. S.27

(8) Agreement in restraint of legal proceedings S.28.

(9) Agreements to do impossible acts.-S.56.

These four types of agreements are being discussed here.

I. Agreements in restraint of marriage-(S.26)

Agreements in restraint of marriage have been declared void u/s 26 of the Indian Contract Act
since they are illegal. Sec. 26 states, “Every agreement in restraint of the marriage of any person,
other than a minor, is void. This is because of the fact that every person has got a right as well as
freedom of choice to marry. If an agreement is made interfering in this right, that is unlawful.

Although a person is not bound by law to marry, but an agreement whereby a person is bound
not to marry or whereby his freedom of choice is hindered, is opposed to public policy and
illegal. This is the reason, why the act has specifically declared such agreements as void. In Rao
Ram Vs Gulab, (A.I.R., 1942, Alld. 351) the Allahabad High Court expressed doubt on the
question whether partial or indirect restraint on marriage can be brought under the jurisdiction
and purview of this section. Now it has also been decided that partial or Indirect restraint on
marriage shall also be covered by this section. Indian law of contract differs with the English law
over this point. Under English Law partial or Indirect restraint on marriage is not covered by this
section. Such agreements shall not be declared void. Only agreements with total restraint shall be
declared void.

However, agreement in restraint of marriage is not declared void under the following
cases:-

1. Where a Hindu husband at the time of the marriage enters into an agreement with his first

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wife not to marry a second wife, till she (the first wife) is alive.

2. Where a husband under strained relations with his wife enters into an agreement with her to
pay her maintenance allowance during separation.

3. Where an agreement is made to pay a woman certain annuity, until death or marriage or
during widowhood.

4. Where a Muslim husband enters into an agreement with her first wife that she can divorce
him if he marries a second wife. Under these circumstances the divorce shall be valid and the
wife who divorces her husband shall be entitled to get maintenance allowances for the period of
iddat. Babu v. Badaraumesa (1919 29 CIJ.230)

II. Agreements in Restraint of Trade: (Sec.27)

Every person has a lawful right to do or adopt any lawful profession, trade or business. If any
agreement is made to put restriction over this right, that shall be an infringement of his
fundamental right and shall also be against Public Policy. This is why the Indian Contract Act
has specifically declared such agreements void.

Section 27 states:

Every agreement by which any one is restrained from exercising a lawful profession, trade or
business of any kind, is to that extent void.

Exception 1-One who sells the goodwill of a business may agree with the buyer to refrain from
carrying in a similar business, within specified local limits, so long as the buyer, or any person
deriving title to the goodwill from him, carries on a like business therein: Provided that such
limits appear to the Court reasonable, regard being had to the nature of the business.

Exception 2.--Repealed

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Exception 3.--Repealed

Exception 2 and 3 have been repealed by the Partnership Act. These exceptions have been
included in the Act under the provisions of Secs. 11(2), 36 (2), 54 and 55 (3).

In India trade has been in its infacny and it is desirable to develop trade. Therefore, through the
stringent provisions of Sec. 27 every agreement interfering with the right to trade has been
specifically declared void. Public policy required that every citizen be allowed freedom to work
for himself and should get the benefit of labour to himself or to the State. He should not enter
into any agreement by which he may not be able to utilise his skill or talent for his benefit or to
the benefit of his country. If he does so by an agreement, he shall not be allowed to do so.
Jankins, C.J. has given such decision in Fraser & Co. V. The Bombay Ice Manufacturing Co.
(1904, 29 Bombay 107 at P. 120). The objective of this section thus has been to protect trade. To
cite Kindraley J. in Oakes & Co. V. Jackson (1976, 1, Madras, 134, 145), the legislature may
have desired to make the smallest number of exceptions to the rule of agreements where trade
may be restrained.

Indian law is very stringent on this point. It has invalidated many agreements on this around
although they could have been allowed by the English Common Law. English Law has waivered
from time to time with the changing conditions of the trade. Till some time Past it considered
agreements in total restraint of trade to be valid, but in Nordenfalt V. Maxim Guns Co. it has
been decided in 1894 that when restraint is reasonable it should be allowed and the agreement be
not declared void on the plea of opposed to public Policy. In Madhub Chunder V. Raj Coomar,
(14 Bengal L.R. 76), Couch, C J, has decided that, whether the restraint is general or partial,
qualified or unqualified, if it is in the nature of a restraint of trade it is void and the fact that the
restraint is limited inpoint of time or place is impartial. Thus in India the courts have not been
allowed to consider the degree of reasonableness or otherwise of the restraint.

The words, “To that extent”, included in the provisions of Sec.27 are very important. These
words clarify the position of a situation where the agreement can be broken up into parts. If the
agreement can be broken into parts and some of these parts are not affected by the provisions of
this section, i.e. are not vitiated as being in restraint of trade, the agreement pertaining to these

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parts shall be held valid. However, where the agreement is not divisible, the whole of the
agreement shall be declared void.

Let us now think over the cases where agreements in restraint of trade are not treated as void, by
the courts in India also. The courts take the plea of reasonableness of limits as also their degree.
The cases are covered under the head Exceptions.

Exception

The rule enunciated under section 27, i.e., agreement in restraint of trade are void, shall not hold
good under the following cases:

1. Trade Combinations: Persons engaged in the same trade or Industry may from a combine to
protect themselves from the uneconimic competition. If they enter into some agreement not to
produce more than a certain quantity, or sell below a certain price, or to pay profits into a
common fund, i.e. to pool the profits and divide it in certain proportion, then all such agreements
shall be valid ones. They shall not be treated by the courts in India, also as against Public Policy.
Sir Lawrence Jenkins, C.J. expressed a decided opinion in Fraser & Co. V. The Bombay Ice
Manufacturing Co., (1904, Bombay) that a stipulation restraining the parties to a combination
agreement from selling ice manufactured by them at a rate lower than the rate fixed in the
agreement was not void unde the provisions of this section. Can you forsee Why? The simple
reason is, that such agreements do not restrain the parties from carrying out their business
activities. They are simply to observe certain terms in carrying out business. In Kuber Nath V.
Mahali Ram (1912, 34 Alld., 587) the Allahabad High Court has decided that such agreements,
do neither restrain the trade not are opposed to public policy.

The following two cases also serve as a good illustration under the above head, although they
have been decided by the English Courts. In one case, Palmolive Co. V. Freedman (1928, Ch.
163, CA) a manufacturer of goods sold them to the wholesalers by a contract whereby the
purchases (wholesalers) were not to sell these goods to the retailers below a certain price. The
wholesalers sold some of the goods to the retailers without getting the required undertaking. It
was decided that the wholesalers made a breach of the agreement.

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In the other case, Rawlings V. General Trading Co. (1921, I.K.B. 635 C-A.) two merchants
entered into an agreement according to the terms of which one of them was to bid in an auction
sale and the goods so purchased to be divided between them. This agreement was entered into
with the objective to avoid competition. Held the agreement was valid, and enforceable.

2. Contracts of Service: Where an agreement is entered into between the employer and the
employee that during service contract, the employee shall not undertake any or the service, the
agreement shall be valid one and be enforceable by the employer in case the employee makes a
breach of the contract. In many cases the English and Indian Law Courts have decided likewise.
An important case over the point is of Charelesworth V. Macdonald (1899, 23, Bombay 103)

However, where the employee is wrongfully dismissed by the employer then, he (employee) is
within his rights to treat the dismissal as a repudiation of the contract by the employer and then
shall be free from the terms imposing upon him such restrictions. The tests regarding validity of
restraints between employees and employees or servants are fully discussed in the Gopal Paper
Mills V. Surendra (A.I.R., 1962 Calcutta, 61)

But where the restriction included in the terms of serivce agreement seem to be unreasonable, the
agreements shall be delcared void. This point can be illustrated with the help of the following
example:

A medical assitant and two general practitioners entered into an agreement that the assistant shall
not, during the service period, serve at any other place and for a period of five years after leaving
the service shall not serve in any dispensary or department of medicientor surgey or midwifery
within a radius of ten miles from the dispensary of the medical parctitioners. It was decided that
the restrictions placed were unreasonable. Such decision was given in Routh v. J. Jones (1947, I
Alld. E.R. 758). All agreements containing unreasonable restrictions or trade are declared void,
unless there are special circumstances to justify them. In such circumstances the onus of proving
such special circumstances lies on the party alleging them.

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An agreement by which a person is even partially restrained from competing with his former
employer after the expiry of the period of his employment shall also be declared void.

3. Sale of Goodwl : Exception 1 to Section 27 states about the sale of Goodwill. Goodwill is the
benefit or advantage which a business has in its connection with its customers. It is believed that
old customers shall keep their contracts with the old firm and therefore the purchaser of the firm
shall get the benefit of these customers. “Goodwill represents business reputation which is a
complex of personal reputation, local reputation and objective reputation and of the products of
business. While one of these elements will predominate others will depend on the facts and
circumstances of each case.”

Thus a person who purchases the goodwill of a firm can enter into an agreement with the seller
not to carry on the same trade or business within a local limit and upto a certain period. But these
restrictions of time and place should be reasonable. What is reasonable restriction is a question of
fact and is to be decided on the merits of the individual cases. However, in Nordenfelt v Maxim
etc. Co., (1894, A.C. 535) the meeting of the word reasonable was explained. The word
resonable means such as would afford a fair protection to the interests of the party concerned and
not so large as to interfere with the interests of the public.

Thus a seller of goodwill of a business may be asked to carry on (a) the same trade or business,
(b) within specified local limits (c) so long as the purchaser or his rerpesentative in the title
carried on a like business, But such restrictions shall be reasonable as to time and space.

4. Partner’s agreements: Exceptions 2 and 3 of Section 27 have been repealed by the

Partnership Act since they related to certain agreements between partners. The provisions of
these exceptions have now been contained in Sections 11 (2), 36 (2), 54 and 55 (3) of the India
Partnership Act.

Sec. 11 (2) states that a partner shall not carry on any other business other than the business of
the firm.

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Sec. 36 (2) states that a retiring partner may agree with the existing partner of the firm not to
carry on a competing business within a specified period and specified local limits.

Sec. 54 states that in anticipation of a dissolution of the firm all partners may agree not to carry
on a business carried by the firm within a specified area and a specified period.

Sec 55 (3) states that any partner of a firm upon the sale of a firm enter into an agreement with
the buyer not to carry on a similar business upto a specified perioid and specified limits.

However, the restrictions concerning and area limits should be reasonable, otherwise such
agreements shall be declared void as per the provisions of Sec. 27.

III Agreements in restraint of Legal Proceedings. (Sec. 28)

Every agreement by which any party thereto is restricted absolutely from enforcing his rights
under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or
which limits the time within which he may thus enforce his rights, is void to that extent.

Exception 1: This section shall not render illegal a contract by which two or more persons agree
that any dispute which may arise between them in respect of any subject or class of subjects shall
be referred to arbitration, and that only the amount awarded in such arbitration shall be
recoverable in respect of the dispute so referred.

Exception 2: Nor shall this section render illegal any contract in writing, by which two or more
persons agree to refer to arbitration any question between them which has already arisen, or
effect any provision of any law in force for the time being as to arbitration.

Section 28 of the Indian Contract Act, as is evident from the above, clearly states agreements
retraining legal proceedings to be void. In India, as also in England, agreements perverting the
course of justice are declared void, because their object is illegal. Neither the Law favours an
agreement the object of which is to change the jurisdiction of a court of law nor it permits an

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agreement the object between the parties to invest a court which has no Jurisdiction, with
authority to try the disputes arising out of a contract. But when two courts have jurisdiction to try
a case, and the parties by an agreement limit the jurisdiction to one court only, then such an
agreement shall not be declared as void.

Illustration

R of Ratlam sells out some good to M of Madras. R & M both agree that all disputes arising of
transactions between them shall be settled only at Ratlam. Here the agreement limits the
jurisdiction of Madras Court. Although Madras court can also try the case but the agreement
between the parties has ousted the jurisdicton of Madras court as the parties have decided to go
to Ratlam Court only and the Law does not take it bad, hence such an agreement is not declared
void. By such an agreement none of the parties loses the right to go to the court of law to rederes
its grievances.

But when the rights of the parties to go to the court of law for getting their grievances redressed
are lost or limited, then surely, the agreement shall be termed as an agreement in restraint of
legal proceedings, and shall form the subject matter of Sec. 28. Where an agreement restricts the
rights of the parties from going to the court of law but to refer all their disputes to arbitration,
then too the agreement shall not be treated as an agreement in restraint of legal proceedings.
Such an agreement is not intended to oust the jurisdiction of a court because an arbitrator himself
acts as a Judge of a court and the award given by him can be modified revised, remitted or set
aside under certain circumstances.

The provisions of the above section were also held good in cases where an agreement provides
that a suit should be brought for the breach of any terms of the agreement within a time shorter
than the period of limitation, prescribed by the Law of Limitation. The agreement under such
circumstances shall be declared void. This is so because the effect of such an agreement is
absolutely to restrict the parties from enforcing their rights after the expiration of the stipulated
period, though it may be within the period of limitation.

There are cases which do not limit the time within which the party is required to enforce his

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rights, but which provide for release or forfeiture of rights if no suit is brought within the
stipulated period, stated in the agreement. Such cases do not fall under the purview of Sec. 28
cases are binding upon the parties. They are valid agreements. Usually the Insurance Companies
insert such clauses in their agreements with the insured. Let us take an example.

Suppose an insurance policy is taken by X Co., against fire for goods storted in the godown. The
Insurance Company inserts a clause in the policy, which reads as follows:

“If the claim is made and rejected, and an action or suit be not commenced within three months
after such rejection all benefits under this policy shall be forfeited.”

The policy shall not be treated void, because the clause so inserted operates as a release or
forfeiture of the rights of the assured if the condition be not complied with and the party shall not
be able to maintain a suit after the expiry of three months from the date of rejection of the claim
preferred by the insured. The High Court of Bombay gave such a decision in Baroda Spg &
Wvg. Co. Ltd. v Satyanarayana Marine & Fire insurance Co. Ltd. (1914, 38 Bom. 544).

Exception 1: This exceptionn applies only to a clause of contracts, where as in Scott v Avery
(1885, 5 H.L. 811)the parites have agreed that no action shall be brought until some question has
first been decided by a reference, as for instance, the amount of damage which the assured has
sustained in a marine or fire policy. Such an agreement does not exclude the jurisdiction of the

Court; it only stays the plaintiff’s hand till some particular amount of money has been
ascertained by reference.” Such decision was given by Garh C.J. In Corings Oil Co. Ltd. v.

Koegler (1876, 1 Cal. 466, 469).

Illustration

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A conductor of a tramway company agreed to be bound by the manager of the company as
regards a deposit and wage of the current month in case of any breach by him of the rules. The
agreement was held valid. Such decision was given in Aghore Nauth v Calcutta Tramway
Company (1885 11, Calcutta 232).

Exception 2: This exception relates to those agreements whcih refrain the parties going to the
Law Courts but in the event of disputes they shall refer them to the Arbitration. Such agreement
shall not be declared void. The Courts shall recognise the agreements and give effect to them by
staying proceedings in the Court. Mulji v Rans (1910, 34 Bom. 13) is such case where the
decision has been given on similar lines.

IV. An agreement to do an act impossible in itself is void (S.56)

Impossibility of performance of an act does not give or creat any obligation upon the parties to a
contract. Section 56 of the Act, declared such contract as void. This section states as follow:

An agreement to do an act impossible in itself is void.

A contract to do an act which, after the contract is made, becomes impossible, or by reason of
some event which the promisor could not prevent, becomes void when the act becomes
impossible or unlawful.

Where one person has promised to do something which he knew, or with reasonable diligence,
might have known, and which the promisor did not know to be impossible or unlawful, such
promisor must make compensation to such promise for any loss which such promise sustains
through the non- performance of the promise.

Illustrations

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(a) A agrees with B to discover treasure by magic. The agreement is void. (b) A and b contract to
marry each other. Before the time fixed for the marriage. A goes mad. The contract becomes
void. (c) A contracts to marry B, being already married to C, and being forbidden by law to
which he is subject to practice polygamy. A must make compensation to B for the loss. (d) A
contracts to take in cargo for B at a foreign port. A’s Government afterwards declares war
against the country in which the port is situated. The contract becomes void when war is
declared. (c) A contracts to act a theater for six months in consideration of a sum paid in advance
by B. On several occasions A is too ill to act. The contract to act on those occasions becomes
void.

After going through the provisions of S.56 as stated above we find that impossibility is of two
types (1) Impossibility at the time of entering into a contract, and (2) Subsequent impossibility,
i.e. after the contract has taken place. We should like to know in detail about these tow types of
impossibilities.

1. Impossibility from the very beginning, i.e. at the time of entering the contract. Agreements
which are based upon acts the performance of which is impossible are declared void since the
Law does not recognise impossible acts.

Impossible act from the very beginning may further be divided into two categories:

(a) WHERE SUCH ACTS ARE KNOWN TO THE PARTIES:- Such impossibility is termed
as Absolute Impossibility and in such cases the agreement is delcared void ab initio. If a tantric
promises B to put life in the dead body of C for a consideration of Rs. 5,000 the promise forming
this agreement shall be void ab initio, since it is a hard fact that life cannot be put in a dead body
again.

(b) WHERE SUCH ACTS ARE NOT KNOWN TO THE PARTIES:- There may be cases
where the parties to the contract do not know about the reality of the fact at the time of entering
into contract but after a certain time they come to know that the performance of such act is
impossible. Soon the parties come to know about the impossibility of performance, the

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agreement becomes void. Such agreements are covered under the provisions of S.20 dealing with
Mistake. In majority of cases such agreements relate to the non-existence of the subject matter of
the contract at the time of entering into an agreement. Therefore, the agreement is vitiated by
Mistake as to the existence of the subject matter of the contract. The following example will
make the point all the more clear.
A agrees to sell out to B the timber lying in his Meerut godown for Rs. 2,000. He did not know
that timber was already destroyed by fire. The contract is void under the provisions of S.20, i.e.
Mistake as to the existence of subject matter of contract.

One important point in this connection is to be remembered. If one of the parties knows about the
impossibility of performance, even then enters into an agreement with the other party, then the
other party gets a right to be compensated for the loss or damage which he has suffered. Such an
agreement tantamounts to Fraud as discussed by S. 17 of the Act. For example of A knew that
the timber for which he is making an agreement to sell to B, has already been destroyed by fire,
then his agreement with B shall not be covered by this section but by S.17 of the Act. Another
good example is example (c) of S.56 wherein A contracts to marry B being already married to C,
and being forbidden by the law to which he is subject to practice poligamy. A must make
compensation to B for the loss caused to her by the non-performance of promise.

2. Impossibility which arises after the formation of the contract

A second category of Impossibility relates to such contracts which are valid in the beginning but
becomes void subsequnetly because of some act or happening beyond the control of the parties.
Such Impossibility is termed as Supervening Impossibility. The effect of such impossibility is
also to make a contract void. Paragraph 2 of S.56 has stated about such impossibility. The
common Law of England fixes responsibility upon a person to perform his promise without any
qualification. Where the parties to the contract feel that there may be any hindrance in the
performance of the contract thus in order to limit their obligation or to qualify the agreement they
may impose such terms and condition which they deem fit. But a condition need not always be
expressed in words. Conditions are implied also, which are to be fulfilled for a valid performance

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of the contract. If an event takes place which is beyond the control of the parties to the contract,
and the performance of the contract is made impossible by such event, the parties shall
be excused from performing their obligations. Many important decisions have been given

in such cases by various English as well as Indian Court. Krell v Henry (1903, 2 K.B. 750 C.A.)
and Taylor V. Caldwell (1863, 3 B, & S. 826), are important among the English
decidedSatyabrata Ghose v Mungeeram Bangur (1954, SCR 310: A.I.R. 1954S.C. 44); Sushila
Devi v. Harishing 1971, A.S.C. 1756; India/Pakistan Partition), are some important Indian cases
relating to Superveing Impossibility.

A contract is declared void on the principle of Supervening Impossibility, if without promisor’s

fault, any one of the following positions has arisen:

(a) Performance is rendered impossible by Law. The Law of the land, after the agreement is
entered into, may also take a change and thereby make the promisor helpless in meeting out his
obligation. Under the circumstances he shall be excused for non-performance of his part of the
promise.

A agrees to sell the product of his field to B on 1st November 1977. On 1st October, 1977, the
state government makes a Law to purchase all the crops from the producers. Here in spite of the
desire to sell the producer to B, A is rendered helpless and performance is made impossble by
law.

(b) A specific subject-matter assumed by the parties to exist or continue in existence is

accidentally destryoed or fails to be produced, or an event or set of things assumed as the
foundation of the contract does not happen or fails to exist, although performance of the contract
according to its terms may be literally possible.

In this second case, where the subject matter of the contract is destroyed by the act of God, the
parties to the contract shall not be able to perform the promise. Therefore, they are excused for
non- performance.

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A music shall is taken on rent for several nights for arranging a series of concert. The hall is
burnt down before the date of the first concert. The contract shall be declared void on the ground
of supervening impossibility. A similar decision was given in Taylor Cadwell (1963, 3 B. & S.
826).

In the case of non-existence or non-occurence of a particular state of things also the contract
shall be discharged on the plea of supervening impossibility since the non-occurence or non-
existence of a particular state is on account of some act beyond the power of parties.

A agrees to marry B. Before the time fixed for such marriage B goes and mad. A shall not marry

B and he shall be relieved of his obligatioin. Here B’s mental state has made the contract void.

Similarly, where a room in a hotel is taken for witnessing a procession on a particular date, and
the specific purpose, is made known the to the other party of the contract also, the change in the
route of the procession shall make the contract void. Krell v. Henry is an interesting case over
the point. Failure of the object of such nature is also termed as ‘Frustration of the contract.’

(c) The promise was to perform something in person and the promisor dies or is disabled by
sickness or misadventure. Such cases are usually seen in the practical seen in the practical world.
The contract is to be performed by the promisor only and not by his agent or any third party
since the performance of the contract is based upon the personal skill or qualities. In such cases
the contract shall be declared void, if the promisor becomes sick or is disabled or even dies. The
case ofRobinson v Davision (1871, L.R. 6 Ex. 269) is an important case over this point. A, an
artist, entered into an agreement to paint a picture for B in 15 days time. A fell ill and could not
paint the picture and deliver the same to B within the agreed time. Held A was discharged from
his liability on account of Supervening Imposibility.

(d) Outbreak of War. Alien enemy does not have capacity to contract and an enemy country
during the war, it shall not be enforceable on the ground of trading with an enemy. Where a
contract is made with a country and after some time due to war the country is declared an enemy
country, the contract shall be suspended till the war is over may be revived later on.

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A, an Indian, entered into a contract with P of Lahore to supply some cloth. Before the
performance of the contract war broke out with the Pakistan. The contract was suspended till the
war was over.

Is impossibility of performance an excuse? This is a very important question. Ordinarily a person

is expected to perform his obligation, unless its performance becomes absolutely impossible due
to any of these causes stated above. To quote Scrutton L. “Impossibility of performance is, as a
rule, not an excuse from performance.”

A contract shall not be discharged on the ground of Impossibility under the following
cases-

1. The promisor feels difficulty in performing it, due to some unexpected events or delays.

A entered into a contract with B to supply some goods to be brought by a ship via Suez Canal.
The canal was closed for traffic and the shipowner refused to bring the goods through the route
of Cape of Good Hope since it was a longer route. A took the plea of Supervening Impossibility
to be exonerated from his liability. Held A had to compensate B for breach of the contract. This
decision was given in Tsakiroglon & Co. Ltd. v. Noble Thorl G.M.B.H. (1962, A.C.93).

2. Commercial impossibility. Where a party is unable to perform his part of the promise due to
the unfavourable market, then he can not escape his liabilities for breach of the contract.

A agreed to supply 100 bales of Egyptain Cotton to B on 15th November, 1977. Due to lesser
supply the price of the cotton rose in the market and A did not purchase it and delivered it to B.
A shall not be allowed to take the plea of supervening impossibility.

3. Failure on account of third person’s inability to do the work upon which the promisor relied
upon, also shall not allow the promisor to plead supervening impossibility.

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A agreed to supply B 1000 pieces of shawls to be manufactured by Lal Imli Mills. The mills did
not go for production due to lock out. A cannot be allowed to plead supervening impossibility.
He has to pay damages to B.

4. Strikes, lock-outs and civil disturbances also do not exonerate the promisor from his
responsibility of performance. If the parties want a relief from such events, they should specify
in the terms of contract specifically.

A agreed to supply 100 quintals of Burma rice to B upto 20th December, 1977. Due to Port strike
the rice could not be loaded at Singapore and did not arrive in the market. A was not allowed to
plead supervening impossibility. Jacobs v Credit Lyonnais (1884, 12 Q.B.D. 589) is a good case
where a similar decision was given.

5. Failure of one object, where a contract is based on several objects, shall also not discharge the
contract on this ground.

A agreed to let out a boat to D for (i) viewing a naval review on the occasion of the Coronation
of Edward VII and (ii) to sail round the fleet. The king fell ill and the naval review was
abandoned but fleet was assembled. The boat therefore, could be used to sail round the fleet.
Held the contrct was not discharged. This decision was given in Herne Bay Steamboat Co., v
Hutton (1903) 2 K.B. 683.

Effects of Supervening Impossibility

(1) The contract is declared void as per the provisions of Sec. 56 para 2.

(2) The promise is entitled for compensation, if the promisor knows about the impossibility of
the performance at the time of entering into the contract, (Sec. 56, para 3).

(3) The parties receving any benefit shall have to restore back or to make compensation to the
other party in case the contract is declared void.

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CONTINGENT CONTRACT AND QUASI CONTRACT

CONTINGENT CONTRACTS

According to the Contract Act a contingent contract is one whose performance us uncertain. The
performance of the contract which comes under this category depends on the happening or non-
happening of certain uncertain-events. On the other hand, an ordinary or absolute contract is such
where performance is certain or absolute in itself and not dependent on the happening or non-
happening of an event. A contingent contract is defined as a contract to do or not to do
something, if some event, collateral to such contract, does or does not happen (sec. 31).

Example-

(A) A contracts to pay Rs. 50,000 if B’s house is destroyed by five. This is a contingent contract
as the performance depends on the happening of an event.

(B) A asks B to give loan to M and promises that he (A) will repay the loan if M does not return
it in time.

Characteristics of a Contingent Contract

A Contingent Contract must have three essential characteristics. There are:

(1) The performance of the contract depends on he happening or non-happening of a certain

event in future. This dependence on a probable future event distinguishes a contingent contract
from an ordinary contract.

(2) This event must be uncertain, that means happening or non-happening of the future event is
not certain, i.e., it may or may not happen. If the event is hundred percent sure to happen, and the
contract in that case has to be performed any way, such a contract is not called a contingent
contract.

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(3) The event must be collateral or incident to the contract.

Therefore, contracts of indemnity, guarantee and insurance are the most common instances of a
contingent contract.

Rules regarding contingent contracts

To enforce the performance of a contingent contract the following rules have to be followed:

1. Where the performance of a contingent depends on the happening of an uncertain future event,
it cannot be enforced till the event takes place. And if the happening of the event becomes
impossible, such contracts become void (sec. 32).

Example- A contracts to sell B a piece of land if he (A) wins the legal case involving that piece
of land. A loses the case. The contract becomes void.

2. Where the performance of a contingent contract depends on the non-happening of a future

event, the contract can be enforced if the happening becomes impossible (sec. 33).

Example- A agrees to sell his house to B if Y dies. This contract cannot be enforced till Y is
alive.

3. If the contract is dependent on the manner in which a person will act at an unspecified time,
the event shall be considered to become impossible when such person does anything which
makes it impossible that he should so act within any definite time or otherwise than under further
contingencies (sec. 34).

4. Contingent contract to do or not to do anything, if a specified uncertain event happens within

a fixed time, becomes void if the event does not happen and the time expires or its happening
becomes impossible before the time expires [sec. 35(1)].

5. Contingent contract to do or not to do anything, if a specific event does not happen within a

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specified time, may be enforced when the time so specified expires and such event does not
happen, or before the time so specified it becomes certain that such event will not happen [sec.
35(1)].

6. Contingent agreements to do or not to do any thing, if an impossible event happens, are void,
whether or not the fact is known to the parties at the time when it is made (sec. 36).

SPECIFIC RELEIF ACT

Specific Relief Act, 1963 is an act to provide specific Relief in deserving cases. It extend whole
of India except in the state of Jammu & Kashmir. The act came into force on 1st March, 1964.

In Civil Law, legal remedies are for enforcing primary rights or for enforcing secondary rights.
When there is a breach of contract, if the court orders specific performance in favor of innocent
party, this is in nature of enforcement of a primary rights. If court orders for payment of
compensation against damage this is enforcement of secondary rights of parties. The Specific
Relief Act, 1963 is to protect and enforce primary rights of parties.

Following types of Injunctions are granted by the Court.

Temporary and Permanent Injunctions ( Sections 36 & 37)

Perpetual Injunctions ( Section 38)

Mandatory Injunctions ( section 39)

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Damages in lieu of or in addition to Injection( Section 40)

Injunction to perform a negative covenant( section 42)

We shall now discuss all injunctions respectively;

Temporary and Permanent Injunction;

An injunction is an order of competent court which-

Which forbids commission of a threatened wrong, or

Forbids the commission of a wrong already began, or

Commands the restoration of status quo

Clauses 1 and 2 deal with preventive relief, whereas clause 3 refer to mandatory injunction,
which seeks to rectify the defendants’ wrongful conduct
The Preventive Injunction wills b granted on sole discretion of the court, which will be based and
guided by sound and reasonable judicial principals.

Temporary Injunctions or Interim Injunctions are those which remain in force until specified
time or till date of next hearing of the case, or until further orders of the court. Such injunctions
can be granted at any stage of the suit and are governed by Order 39 of the Code of Civil
Procedure, 1908 and not by Specific Relief Act, 1963.

Permanent Injunctions on the other hand, are contained in a decree passed by the court after fully
hearing the case. Such an injunction perpetually prohibits the defendants from asserting a right or
committing an act which would contrary to the rights of plaintiff. It is based on end suit. It
remains in force for all time to come.

Perpetual Injunctions may be granted, at the discretion of the court, to prevent the breach of an

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obligation existing in the plaintiff’s favor, whether expressly or by implication.

Whenever the defendant invades or even threatens to invade the plaintiff’s right to property or
the enjoyment thereof, the court may grant a Perpetual Injunction to the plaintiff in the following
four cases;

Where the defendant is a trustee of the property for the plaintiff.

Where there is no standard for ascertaining the actual damage caused, or likely to be caused, to
the plaintiff, by invasion of his rights.

Where the invasion of the plaintiff’s right is such that compensation in money would not afford
adequate relief.

Where injunction is necessary to prevent multiplicity of judicial proceedings.

If the payment of damages will not adequately compensate the plaintiff, the court will grant an
injunction, unless there is special reason against it. The court may refuse injunction and award
damage in the following cases, if the injury is (i) small and (ii) capable of being estimated in
money and being adequately compensated by a sum of money and grant of injunction would be
oppressive. An injunction may also be refused on the ground of the plaintiff’s acquiescence and
delay. Similarly, injunctions should not be granted where they inflict more injury on the person
sought to be injected than advantage on the applicant as decided in the case of Tituram V.
Cohen.

Perpetual Injunction when refused (section 41) in following cases perpetual injunction cannot be
granted;

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 multiplicity of
judicial cases.

To restraint any person from insulting or prosecuting any proceeding in a court not subordinate
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to that from which injunction is sought.

To restraint any person from applying any legislative body.

To restraint any person from instituting or persecuting any proceeding in a criminal matter.

To prevent breach of a contract, the performance of which would not specifically enforced.

To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a
nuisance.

To prevent a continuing breach in which the plaintiff acquiesced.

When equally efficacious relief can certainly be obtained by any other usual mode of proceeding,
except in case of breach of trust.

When conduct of plaintiff or his agent is such to disentitle him to the assistance of the court.

When the plaintiff has not personal interest in the matter.

The provisions of Section 41 is not exhaustive a refusal of injunction will depend on the
discretion of the court.

Mandatory Injunctions (section 39) at times it so happens that, in order to prevent the breach of
an obligation, it is necessary to compel the performance of certain acts which the court is capable
of enforcing. In such case the court may in its discretion , grant an injunction
(i) to prevent such breach , and also
(ii) to compel the performance of the requisite acts.

This relief is applicable to the breach of any obligation, whether arising out of a contract or tort.
It may be perpetual or temporary, though in rare cases that of temporary injunction of this nature
will be issued.

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An injunction is, in its nature, prohibitory. The defendant is first called up to restore the place to
the position in which it was before the act was done, and then he is restrained , when he has so
restored it, from doing anything in respect of it which would be breach of obligation on his part.
The object in every case is to compel the defendant to restore things to their former condition.
This type of injunction will be granted to prevent more injury and damages to the plaintiff.

Lane V New gate, a lased his land to B for erecting a mills and bound himself to supply water
thereto from canals and reservoirs on his own land. An impeded the enjoyment of water by B, by
keeping works out of repair by the use of locks, and by removing the stop-gate. B asked for an
injunction which was granted. In this case an affirmative covenants were enforced.

Damages in lieu of, or in addition to, injunction ( section 40) When a plaintiff sues for Perpetual
Injunction or a Mandatory Injunction , he may also claim damages, either in addition to , or in
substitution for , theinjuction, and the court, if it thinks fit , award such damages.

An injunction or damage are not alternate remedies but can be granted at the discretion of the
court.

The damages cannot be granted unless the plaintiff has claimed damages in the plaint or in
proceedings he will be allowed to amend the plaint by incorporating clause for damages.

Injunction to perform a negative covenant (section 42) some time in a given contract, there may
be affirmative agreement to do certain act, coupled with a Negative Covenant, express or
implied, not to do a certain other act. Now the fact that the court is unable to compel specific
performance of the affirmative part does not mean that it cannot grant an injunction in respect of
the negative part. It is necessary in this case that the plaintiff has performed its part mentioned in
the contract.

Lumley V Wagner , A a singer , agreed that she would sigh for 12 months at B’s theatre and that
she would not sing elsewhere in the public during that period. Here B cannot obtained specific
performance of the first part of the contract (i.e. to sing at his theatre), but he is entitled to an
injunction, restraining A from singing at other public places during that period. In this case
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though there is one contract but contain two parts one is positive and other is negative. The two
parts are independent contracts. In this case court cannot debar itself to give injunction in case of
negative covenant.

The Supreme Court has also observed that the jurisdiction to grant an injunction under the Act is
discretionary and must be exercised according to sound principals of law, and ex debito justito.
The plaintiff cannot claim this relief as a matter of right. Before refusing or granting the
injunction, the court must weigh the pros and cons in each case, consider the facts and
circumstances in their proper perspectives, and then exercise its discretion in the best interest of
justice.

Declaratory decree under Specific Relief Act

If any person entitled to any legal character, or to any rights as to any property is denied by
another and if any suit is filed by the person so denied it is called a declaratory suit. A
Declaratory decree is a binding declaration of right in equity without consequential relief. In
simple terms, a declaratory decree is cone which settles the right and removes the confusion of
the status of the party.

Provision regarding declaratory decree has been provided in sections 34 and 35 of the Specific
Relief Act, 1963. Section 34 of Specific Relief Act reads as:

“Any person entitled to any legal character, or to any right as to any property, may institute a suit
against any person denying, or interested to deny, his title to such character or right, and the
court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need
not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits to do so.

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Explanation: A trustee of property is a "person interested to deny "a title adverse to the title of
someone who is not in existence, and for whom, if in existence, he would be a trustee.”

Essentials of a declaratory suit

The person filing the suit must be entitled to legal right or any right as to any property
The person against whom the suit is to be filed must actually be denying the right or is interested
in denying the right of the plaintiff Passing a declaratory decree is on the discretion of the court.
Effect of declaration

The provision for the effect of declaration has been provided under section 35 of Specific Relief
Act. Section 35 reads as:
“A declaration made under this Chapter is binding only on the parties to the suit, persons
claiming through them respectively, and, where any of the parties are trustees, on the persons for
whom, if in existence at the date of declaration, such parties would be trustees.”
That means a declaratory decree is binding only on the parties to the suit and upon the
representatives of the parties to the suit. So, declaratory decree is “in personam” and not “in
rem”. So a declaratory decree is one which resolves the legal uncertainty of the rights and status
of the parties. However, passing of a declaratory decree is a matter of discretion of court and it
cannot be claimed a right.

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 I YEAR OF 3 YEAR LL.B
SEMESTER - I
ODD SEMESTER

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SUBJECT : LAW OF TORTS
SUBJECT CODE : TA1D

Page 2 of 124
 SYLLABUS
TA1D - LAW OF TORTS
Unit - I General Principles

Origin and Development of Torts Definition of Tort-distinction between Tort and Crime -
Tort and Contract, Tort and breach of Trust - Foundation of Tortious Liability - Fault as a
condition of liability. Essential condition of liability in Tort - Duty of Care - Damnum sine
injuria, Injuria sine damno-Relevance of malice - The impact of Insurance on Tort Liability,
(Individual and Collective) Motor Accidents Claims.

Unit - II General Defences

Volenti - Non fit injuria - Inevitable Accident, Necessity - Private Defence - Mistake,
Statutory Authority - Act of God.

Unit - III Parties and their capacity

The State and its Subordinate Officers - Minors, Lunatic and Drunkards - Married
Women, Corporation Union - Corporate Bodies - Foreign Ambassadors.

Unit - IV Masters and Servants

Servant - Independent Contractors, Course Employment and Common Employment -

Master's Duties to Servant and vice versa.

Unit - V Joint Tortfeasors.

Unit - VI Remedies.

Unit - VII Remoteness of Damage - Novus Actus Interveniens.

Unit - VIII Successive actions on the same facts - Effect of Merger and Death.

Unit - IX Specific Torts:

(a) Wrong to Persons and Reputation - Death, Assault, Battery false, Imprisonment, Nervous
shock, Defamation, Status.
(b) Wrongs to Property to Land and Chattels.
(c) Negligence.
(d) Nuisance - Nuisance and Injury of Servitude's Highways etc.
(e) Strict & Absolute Liability - Liability for dangerous chattels animals and structures or
Premises.

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 (f) Conspiracy, Interference with freedom of contractual and Business relationship -
Injurious falsehood slander of title or of goods - Passing off - Abuse of legal procedure.
(g) Foreign Torts - Miscellaneous and: Doubtful Torts Invasion of Privacy.
Unit - X Discharge of Torts.

Books for Reference:

1. V.N. Shukla : Law of Torts

2. B.M. Gandhi : Law of Torts
3. P.S.A. Pillai : Law of Torts
4. Ratanlal Dhirajlal : Law of Torts
5. R.K.Bangia : Law of Torts
6. Winfield : Law of Torts
7. Salmond : Law of Torts
8. Ramasamy lyer, S. : Law of Torts
9. Mitra : Motor Vehicles Act
10. B.M. Gandhi : Law of Torts
11. Atchutham Pillai : Law of Torts
12. Clerk & Lindsell : Law of Torts
********************************

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 UNIT – I

GENERAL PRINCIPLES

“Tort is an infringement of a right in rem of a private individual giving a right of

compensation at the suit of the injured party.”

- Fraser

Law is any rule of human conduct accepted by the society and enforced by the state for the
betterment of human life. In a wider sense it includes any rule of human action for example,
religious, social, political and moral rules of conduct. However, only those rules of conduct of
persons which are protected and enforced by the state do really constitute the law of the land in
its strict sense. According to Salmond, the law consists of rules recognized and acted on by
courts of justice. The entire body of law in a state (corpus juris) may be divided into civil and
criminal.

The law of tort is a branch of civil law. It is a breach of some duty independent of contract which
has caused damages to the plaintiff giving rise to civil cause of action and for which remedy is
available. If there is no remedy it cannot be called a tort because the essence of tort is to give
remedy to the person who has suffered injury.

Tort may be classified into those involving intention, those involving negligence, and the wrongs
of strict liability. They may also be classified into torts affecting the person, the family,
reputation, property, economic rights and certain miscellaneous torts such as conspiracy.

ORIGIN AND DEVELOPMENT OF TORT:

The word ‘tort’ is derived from the Latin term ‘tortum’, which means ‘to twist’. Thus, ‘tort’
means “a conduct which is not straight or lawful, but, on the other, twisted, crooked or
unlawful”. It is equivalent to the English term ‘wrong’.

The term ‘tort’ is found in Common Law systems for a civilly actionable harm or wrong, and for
the branch of law dealing with liability for such wrongs. Historically, there was no general
principle of tortious liability, but the King’s Courts gave remedies for various forms of trespass,
for direct injuries, and later allowed an action on the case for harm indirectly caused.

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The law of Tort in India is developed and evolved from the law of Torts in England. Most
popularly known as “judge made law” this law does not come from a statute and is not codified.
Irrespective of this, it has been in existence over a number of years. Its origin is linked with the
establishment of British Courts in India.

Later the Supreme Court of India has through its numerous landmark judgments helped in
shaping the law of Torts in India. The Principles of Torts have also been applied in newer
legislations such as the Environmental Protection Act, 1986, the Consumer Protection Act, 1986,
the Motor Vehicles Act, 1988. However, it is still observed that the branch of Torts as a whole is
still growing and developing in India as compared to the development of Torts in countries like
UK and USA.

DEFINITION OF TORT:

So far no scientific definition has been possible which could mention certain specific elements,
the presence of which could constitute a tort. Some of the important definitions are given below,
which indicate the nature of this branch of law:

1. “Tort means a civil wrong which is not exclusively a breach of contract or breach of
trust”- Sec 2(m), the Limitation Act, 1963.
2. “It is a civil wrong for which the remedy is a common law for unliquidated damages and
which is not exclusively the breach of a contract or the breach of a trust or other merely
equitable obligation”- Salmond.
3. “Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty
is towards persons generally and its breach is redressible by an action for unliquidated
damages”- Winfield.

Thus, it may be observed from the above definitions that:

 Tort is a civil wrong;

 This civil wrong is other than a mere breach of contract or breach of trust;
 This wrong is redressible by an action for unliquidated damages.

DISTINCTION BETWEEN TORT AND CRIME, TORT AND CONTRACT, TORT

AND TRUST, TORT AND QUASI-CONTRACT:

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TORT AND CRIME:

 The wrongs which are comparatively less serious are considered to be private wrongs and
have been labeled as civil wrongs, whereas more serious wrongs have been considered to
be public wrongs and are known as crimes. Private wrongs are the infringement or
privation of private or civil rights belonging to individuals and are thereupon frequently
termed civil injuries. Public wrongs are breach and violation of public rights and duties
which affect the whole community and are distinguished by the harsher application of
crimes and misdemeanours.

There are various wrongs which find their place both under criminal law and law of torts.
Some examples of such wrongs are assault, defamation, negligence, conspiracy and nuisance.

 In torts, the injured party himself has to file a suit as a plaintiff. But in the case of crime,
even though the immediate victim is an individual, the criminal wrong is considered to be
a public wrong, i.e., a wrong against the public at large or wrong against the state,
therefore, the criminal proceedings against the wrongdoer are not brought by the injured
party but by the State.
 In the case of tort, the ends of justice are met by awarding compensation to the injured
party. In the case of crime, the wrongdoer is punished. The idea of awarding
compensation to the injured party under civil law is to make good the loss suffered by
him.

TORT AND BREACH OF CONTRACT:

 A breach of contract results from the breach of a duty undertaken by the parties
themselves. The agreement, the violation of which is known as a breach of contract is
made by the parties with their free consent. A tort, on the other hand, results from the
breach of duties which are not undertaken by the parties themselves but which are
imposed by law.
 In a contract, the duty is based on the privity of contract and each party owes duty only to
the other contracting party. It is based on the rule that stranger to a contract cannot sue.
Duties imposed by law under law of torts are not towards any specific individual or
individuals but they are towards the world at large. However, even in a tort, only that
person will be entitled to sue who suffers damage by the breach of the duty.

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  Damages is the main remedy both in an action for the breach of contract as well as in an
action for tort. In a breach of contract, the damages may be ‘liquidated’ whereas in an
action for tort, they are always ‘unliquidated’.

Privity Of Contract

the doctrine of privity of contract is a common law principle which provides that a contract
cannot confer rights or impose obligations upon any person who is not a party to the contract.
But this fallacy had its end in 1932. In Donoghue vs. Stevenson, the consumer could bring an
action in tort against the manufacturer even though there was no contract between the
manufacturer and the consumer.

TORT AND TRUST:

Trust is a branch of the law of property. Under it a person called trustee holds property in his
name for the use and benefit of another person called beneficiary. If a trustee misappropriates
property which he holds upon trust for beneficiary, the beneficiary can claim compensation. But
that compensation amount will usually be the value of the property concerned. It can be
ascertained beforehand and as such the damage claimed will be a liquidated sum and not
unliquidated.

Thus tort is distinguishable from trust mainly on the ground that while unliquidated damages are
claimed in tort, only liquidated damages are claimed in trust transactions.

TORT AND QUASI-CONTRACT:

When a person gains some advantage or benefit to which some other person was entitled to, or
by such advantage another person suffers an undue loss, the law may compel the former to
compensate the latter in respect of advantage so gained. The law of quasi-contract covers such
obligations. The law implies a contract on the part of the person so gaining the advantage to
compensate the other party even though, in fact, there is no such contract.

The common point between a tort and a quasi-contract is that the duty in each case is imposed by
the law. The main distinctions between a quasi-contract and a tort is that the law of quasi-
contract gives a right only with respect to money, and generally, it is a liquidated sum of money.
Moreover, a claim from damages under the law of torts is always for an unliquidated sum of
money.

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Another distinctive point is that in a quasi-contract, the duty is always towards a particular
person, whereas under the law of torts, the duty is always towards persons generally.

FOUNDATION OF TORTIOUS LIABILITY:

Tortious liability arises from the breach of a duty primarily fixed by the law, such duty is
towards persons generally and its breach is compensated by an action for unliquidated damages.
There are two wider and narrower competing theories with regard to the basic principle of
liability in the law of tort or torts.

Sir John Salmond in the year 1910, asked “Does the law of Torts consist of (a) a fundamental
general principle that it is wrongful to cause harm to other persons in the absence of some
specific ground of justification or excuse, or (b) does it consists of a number of specific rules
prohibiting certain kind of harmful activity, and leaving all the residue outside the sphere of legal
responsibility?”

Thus the question is:

(a) Is it Law of Tort, i.e., Is every wrongful act, for which there is no justification or excuse
to be treated as a tort; or
(b) Is it the Law of Torts, consisting only of a number of specific wrongs beyond which the
liability under this branch of law cannot arise?

The first theory is supported by Professor Winfield. He takes the position that “all injuries done
by one person to another person are torts, unless there is some justification recognized by law”.
According to this theory, if I injure my neighbor, he can sue me in tort whether the wrong
happens to have particular name like assault, battery, deceit, slander, or whether it has no special
title at all; and I shall be liable if I cannot prove lawful justification. This leads to the wider
principle that all unjustifiable harms are tortious. Thus this theory is called “wider theory”. This
theory enables the courts to create new torts and make defendants liable irrespective of any
defect in the pleading of the plaintiff. This theory resembles the saying “my duty is to hurt
nobody by word or deed”. This theory is also supported by Pollock and courts have repeatedly
extended the domain of the law of torts. For example, negligence became a new specific tort only
by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from
one’s premises was laid down in 1868 in the leading case of Rylands v. Fletcher.

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The second theory is supported by Salmond. For Sir John Salmond there was no English law of
tort; there was merely an English law of torts. His book is called the LAW OF TORTS.
According to this theory, I can injure my neighbor as much as I like without fear of his suing me
in tort provided my conduct does not fell under the rubric of assault, deceit, slander or any other
nominate tort. Thus the theory is called “narrower theory”.

Salmond also compared his theory with the pigeon-holes. So it is also called ‘Pigeon-hole’
theory. There is no general principle of liability and if the plaintiff can place his wrong in any
one of the pigeon-holes, each containing a labeled tort, he will succeed. If the defendant’s wrong
will not fit any of these pigeon holes, he has committed no tort.

Victoria Park Racing and Recreation Grounds Co. Ltd. vs.Taylor

The High Court of Australia denied the view that wherever damage is caused an action lies
unless the defendant can justify an action. In this case, the defendant has erected a tower on his
land so that he could observe the races on the plaintiff’s racecourse. The defendant then allowed
a broadcasting company to describe the races which was done so effectively that the plaintiff
suffered loss through falling attendances. The action was one to protect the right of privacy and
this tort had not yet found a foothold. The majority of High Courts held that there is no remedy.

As between these two extremes it would seem more realistic to approach from a middle ground.
It is true that there are number of nominate torts. But it is equally true that a person sustaining a
loss has to find a label to describe a tort in order to obtain compensation.

Lala Punnalal vs. Kasturichand Ramaji

In an Indian decision, it was pointed out that there is nothing like an exhaustive classification of
torts beyond which courts should not proceed. If we are asked to express our preference between
the two theories we will have to choose the first broader theory of liability than the subsequent
narrower one.

FAULT AS CONDITION OF LIABILITY:

Fault means a negligent or intentional failure to act reasonably or according to law or duty. It is
an essential ingredient of tort law. Despite the emphasis on the requirement of fault as an

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essential condition of liability, the law of tort contains principles of “strict liability” i.e. liability
imposed without proof of fault.

According to Sir John Salmond, the liability should always be based on fault. A man should
always be held liable for a wrongful act only if he has done it either intentionally or with
culpable negligence. There is no justice in making a man pay a certain amount by way of
damages to the injured party if the act of injury was unintentional or accidental. The purpose of
the decree awarding damages to the plaintiff is not mere compensation to the injured party but
also punishment of the wrongdoer. The principle of criminal law that an accused person can be
convicted only if he had particular mens rea was considered fit for civil liability as well.

But now the fault has never been and is not today an essential element of tortious liability.

Fault When Relevant:

In many of the branches of law of torts like assault, battery, false imprisonment, deceit,
malicious prosecution and conspiracy, the state of mind of a person is relevant to ascertain his
liability. When the circumstances demand care and a person fails to perform the duty to take
care, he is liable for the tort of negligence. On the other hand, if the defendant has taken such
care as was expected from him, he is not liable for the damage to the plaintiff. Mental element
may become relevant in another way also. If the defendant’s conduct is innocent insofar as the
act done was due to an inevitable accident, he may be excused from liability.

Liability Without Fault:

There are certain areas where the mental element is quite irrelevant and the liability arises even
without any wrongful intention or negligence on the part of the defendant. In such cases,
innocence of the defendant or an honest mistake on his part is no defence. The principle of
Rylands vs. Fletcher is against fault liability.

Rylands vs. Fletcher

Rylands got a reservoir constructed, through independent contractors, over his land for providing
water to his mill. There were old disused shafts under the site of the reservoir, which the
contractors failed to observe and so did not block them. When the water was filled in the
reservoir, it burst through the shafts and flooded Fletcher’s coal mines on the adjoining land.
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Rylands did not know of the shafts and had not been negligent although the independent
contractors had been. Even though Rylands had not been negligent, he was held liable.

The Recent Trend:

The recent trend is to shift the liability to those shoulders who can bear it or those who can pass
the loss on to the public. In the leading case of White vs. White, Lord Denning observed, the
“recent legislative and judicial developments show that the criterion of liability in tort is not so
much culpability, but on whom should the risk fall”. In India as well as in England, various
enactments like the Fatal Accidents Act and the Workmen Compensation Act provides
compensation to the victims without going into the question of fault. The reason is that those
who are made to pay compensation are either considered to be in a better position to bear the
burden or are in such a position that they can pass the loss on to the public in the form of higher
charges for their services or the products.

The Motor Vehicles Act, 1988 provides for a fixed amount of compensation in case of death or
permanent disability of the accident victim, even if the driver or owner of the vehicle is not at
fault. In such a case, even a contributory negligence of the accident victim is no defence.

ESSENTIAL CONDITION OF LIABILITY IN TORT:

To constitute a tort, it is essential that the following two conditions are satisfied:

1. There must be some act or omission on the part of the defendant, and
2. The act or omission should result in legal damage (injuria), i.e., violation of a legal right
vested in the plaintiff.

1. ACT OR OMISSION:

In order to make a person liable for a tort, he must have done some act which he was not
expected to do, or, he must have omitted to do something which he was supposed to do. Either a
positive wrongful act or an omission which is illegally made, will make a person liable. For
example, A commits the act of trespass or publishes a statement defaming another person, or
wrongfully detains another person, he can be made liable for trespass, defamation or false
imprisonment, as the case may. Similarly, if a corporation, which maintains a public park, fails to
put proper fencing to keep the children away from a poisonous tree and a child plucks and eats
the fruits of the poisonous tree and dies, the Corporation would be liable for such omission.

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It may be noted that the wrongful act or a wrongful omission must be one recognized by law. If
there is a mere moral or social wrong, there cannot be a liability for the same.

2. LEGAL DAMAGE:

In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal
damage caused to him. Unless there has been violation of a legal right, there can be no action
under law of torts. If there has been violation of a legal right, the same is actionable whether, as a
consequence thereof, the Plaintiff has suffered any loss or not. This is expressed by the maxim
“Injuria sine damno”. ‘Injuria’ means infringement of a right conferred by law. ‘Damnum’
means substantial harm, loss or damage in respect of money, comfort, health or the like.

When there is no violation of legal right, no action can lie in a court of law even though the
plaintiff has suffered some harm or loss. This is expressed by the maxim “Damnum sine injuria”.
It means that damage without the violation of a legal right is not actionable in a court of law.
Thus, if only the right vested in the plaintiff is violated, the defendant is held liable.

Injuria sine damno:

Injuria sine damno means violation of a legal right without causing any harm, loss or damage to
the plaintiff. There is no need to prove that as a consequence of an act, the plaintiff has suffered
any harm. For a successful action, the only thing which has to be proved is that the plaintiff’s
legal right has been violated, i.e. there is injuria.

Ashby vs. White

It is a leading case explaining the maxim injuria sine damno. In this case, the Plaintiff succeeded
in his action, even though the defendant’s act did not cause any damage. The plaintiff was a
qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully
refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for
whom he wanted to vote won the election in spite of that. It was held that the defendant was
liable.

Bhim Singh vs. State of J & K

The petitioner, an M.L.A. of J & K Assembly, was wrongfully detained by the police while he
was going to attend the Assembly session. He was not produced before the Magistrate within
requisite period. As a consequence of this, the member was deprived of his constitutional right to
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attend the Assembly session. There was also violation of fundamental right to personal liberty
guaranteed under Article 21 of the Constitution. By the time the petition was decided by the
Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary
damages amounting to Rs. 50,000 were awarded to him.

Damnum sine injuria:

It means damage which is not coupled with an unauthorized interference with the plaintiff’s
lawful right.

Gloucester Grammar School Case

The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the
competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per
quarter. It was held that the plaintiffs had no remedy for the loss suffered them.

Mogul Steamship Co. vs. McGregor Gow and Co.

A number of steamship companies combined together and drove the plaintiff company out of the
tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no
cause of action as the defendants had by lawful means acted to protect and extend their trade and
increase their profits.

RELEVANCE OF MALICE:

The term ‘malice’ has been used in two different senses:

i. In its legal sense, it means a willful act done without just cause or excuse and it is
known as ‘malice in law’.
ii. In its narrow and popular sense, it means an evil motive, and the same is known as
‘malice in fact’.

Malice In Law:

‘Malice in law, does not connote an act done with an improper or evil motive but simply
signifies “a wrongful act done intentionally without just cause or excuse”

Malice, in law, simply means a wrongful intention which is presumed in case of an unlawful act,
rather than a bad motive or feeling of ill will. For example, in an action for defamation, it may be

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mentioned that the alleged statement was published falsely and ‘maliciously’. Here, it simply
means that the statement is false and is also made without lawful justification.

Malice In Fact Or Evil Motive:

‘Malice in fact’ or ‘actual malice’ means an evil motive for wrongful act. When the defendant
does a wrongful act with a feeling of spite, vengeance or ill will, the act is said to be done
‘maliciously’.

Bradford Corporation vs. Pickles

A lawful act does not become unlawful merely because of an evil motive. In this case, the
defendant made certain excavations over his own land as a result of which the water, which was
flowing in unknown and undefined channels from his land to the adjoining land of the
Corporation was discolored and diminished. It was done by the defendant with a motive to
coerce the plaintiffs to purchase the defendant’s land at a high price. In this case, the damage was
caused maliciously, but at the same time, the defendant was making a lawful use of his own land.
It was held by the House of Lords that the defendant was not liable.

Exception to the Rule:

In the following exceptional cases, the malice or evil motive becomes relevant in determining
liability under the law of torts:

1. When the act is otherwise unlawful and wrongful intention can be gathered from the
circumstances of the case.
2. In the torts of deceit, conspiracy, malicious prosecution and injurious falsehood, one of
the essentials to be proved by the plaintiff is malice on the part of the defendant.
3. In certain cases of defamation, when qualified privilege or fair comment is pleaded as
defence, motive becomes relevant.
4. Causing of personal discomfort by an unlawful motive may turn an otherwise lawful act
into nuisance.
5. Malice or evil motive may result in aggravation of damages.

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 UNIT II

GENERAL DEFENCES

General defences are a set of defences or ‘excuses’ that can be undertaken to escape liability in
tort. But, in order to escape liability, the plaintiff brings an action against the defendant for a
particular tort. There are some specific defences which are peculiar to some particular wrongs,
for example, in an action for defamation, the defences of privilege, fair comment or justification
are available. There is also some general defence which may be taken against the action for a
number of wrongs. The general defences are given below:

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1. VOLENTI NON FIT INJURIA:

The literal meaning of the maxim is “that to which a man consents, cannot be complained of as
an injury”. Really it means that no act is actionable as a tort at the suit of any person who has
expressly or by impliedly assented to it.

Thus, when a person consents to the infliction of some harm upon himself, he has no remedy for
that in tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to
complain for that and his consent serves as a good defence against him. No man can enforce a
right which he has voluntarily waived or abandoned. Consent to suffer the harm may be express
or implied.

Many a time, the consent may be implied or inferred from the conduct of the parties. For
example, a player in the games of cricket or football is deemed to be agreeing to any hurt which
may be likely in the normal course of the game. Similarly, a person going on a highway is
presumed to consent to the risk of pure accidents.

For the defence of consent to be available, the act causing the harm must not go beyond the limit
of what has been consented.

Padmavati vs. Dugganaika

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In this case, while the driver was taking the jeep for filling petrol in the tank, two strangers took
lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way
toppling the jeep. The two strangers were thrown out and one of them died as a consequence of
the same. It was held that neither the driver nor his master could be made liable, firstly, because
it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and
as such, the principle of volenti non fit injuria was applicable to this case.

Hall vs. Brooklands Auto Racing Club

The plaintiff was a spectator at a motor car race being held at Brooklands on a track owned by
the defendant company. During the race, there was a collision between two cars, one of which
was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff
impliedly took the risk of such injury, the danger being inherent in the sport which any spectator
could foresee, the defendant was not liable.

Wooldrige vs. Sumner

The plaintiff, who was a photographer, was taking photographs at a horse show while he was
standing at the boundary of the arena. One of the horses, belonging to the defendant, rounded the
bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell into the
horses’ course and he was seriously injured by the galloping horse. The horse in question won
the competition. It was held that since the defendants had taken due care, they were not liable.

THE CONSENT MUST BE FREE:

For the defence to be available, it is necessary to show that the plaintiff’s consent to the act done
by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under
compulsion or under some mistaken impression, such consent does not serve as a good defence.
When a person is incapable of giving his consent because of his insanity or minority, consent of
such person’s parent or guardian is sufficient.

Lakshmi Rajan vs. Malar Hospital Ltd.

The complainant, a married woman, aged 40 years, noticed development of a painful lump in her
breast. The lump had no effect on her uterus, but during surgery, her uterus was removed without
any justification. It was held that the hospital was liable for deficiency in service.

CONSENT OBTAINED BY FRAUD

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Consent obtained by fraud is not real and that does not serve as a good defence.

R. vs. Williams

The accused, a music teacher, was held guilty of rape when he had sexual intercourse with a girl
student of 16 years of age under the pretence that his act was an operation to improve her voice.
If, on the other hand, the mistake which the fraud induces is not such which goes to the real
nature of the act done, it cannot be considered to be an element as vitiating the consent.

MERE KNOWLEDGE DOES NOT IMPLY ASSENT:

For the maxim volenti non fit injuria to apply, two points have to be proved:

i. The plaintiff knew that the risk is there.

ii. He, knowing the same, agreed to suffer the harm.

If only first of these points is present, i.e., there is only the knowledge of the risk, it is no defence
because the maxim is volenti non fit injuria. Merely because the plaintiff knows of the harm does
not imply that he assents to suffer it.

Smith vs. Baker

The plaintiff was a workman employed by the defendants on working a drill for the purpose of
cutting a rock. By the help of a crane, stones were being conveyed from one side to the other,
and each time when the stones were conveyed, the crane passed from over the plaintiff’s head.
While he was busy in his work, a stone fell from the crane and injured head. The employers were
negligent in not warning him at the moment of a recurring danger, although the plaintiff had
been generally aware of the risk. It was held by the House of Lords that as there was mere
knowledge of risk without assumption of it, the maxim volenti non fit injuria did not apply, the
defendants were liable.

Dann vs. Hamilton

A lady, knowing that the driver of the car was drunk chose to travel in it instead of an omnibus.
Due to the driver’s negligent driving, an accident was caused resulting in the death of the driver
himself and injuries to the lady passenger. In an action by the lady passenger for such injuries

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against the representatives of the driver, the defence of volenti non fit injuria was pleaded but the
same was rejected and the lady held entitled to claim compensation.

LIMITATION ON THE SCOPE OF THE DOCTRINE:

The scope of application of the doctrine of volenti non fit injuria has been curtailed:

(i) in Rescue cases, and

(ii) by the Unfair Contract Terms Act, 1977 (England).

In spite of the fact that the plaintiff has consented to suffer the harm, he may still be entitled to
his action against the defendant in these exceptional situations.

(i) Rescue Cases:

‘Rescue cases’ form an exception to the application of the doctrine of volenti non fit injuria.
When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger
created by the wrongful act of the defendant, he cannot be met with the defence of volenti non fit
injuria.

Haynes vs. Harwood

The defendant’s servant left a two-horse van unattended in a street. A boy threw a stone on the
horses and they bolted, causing grave danger to women and children on the road. A police
constable, who was on duty inside a nearby police station, on seeing the same, managed to stop
the horses, but in doing so, he himself suffered serious personal injuries. It being a ‘rescue
cases’, the defence of ‘volenti non fit injuria’ was not accepted and the defendants were held
liable.

Baker vs. T.E. Hopkins & Son

In the case, due to the employer’s negligence, a well was filled with poisonous fumes of petrol
driven pump and two of his workmen were overcome by fumes. Dr. Baker was called but he was
told not to enter the well in view of the risk involved. In spite of that, Dr. Baker preferred to go
into well with a view to make an attempt to help the two workmen already inside the well. He
tied a rope around himself and went inside, while two women held the rope at the top. The doctor
himself was overcome by the fumes. He was pulled from the well and taken to the hospital. He,
however, died on the way to the hospital. The two workmen inside the well had already died.
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The doctor’s widow sued the workmen’s employers to claim compensation for her husband’s
death. The defendants pleaded volenti non fit injuria. It was held that the act of the rescuer was
the natural and probable consequence of the defendant’s wrongful act which the latter could have
foreseen, and therefore, the defence of volenti non fit injuria was available. The defendants were,
thus, held liable.

(ii) Unfair Contract Terms Act, 1977 (ENGLAND):

Unfair Contract Terms Act, 1977 limits the right of a person to restrict or exclude his liability
from his negligence by a contract term, or by notice.

2. PLAINTIFF THE WRONGDOER:

Under the law of contract, one of the principles is that no court will aid a person who found his
cause of action upon an immoral or an illegal act. The maxim is “Ex turpi causa non oritur
action” which means, from an immoral cause no action arises. Thus, it has to be seen as to what
is the connection between plaintiff’s wrongful act and the harm suffered by him. If his own act is
the determining cause of the harm suffered by him, he has no cause of action. On the other hand,
if the wrongful act of the defendant is the determining cause of accident, the defendant will be
liable.

Bird vs. Holbrook

The plaintiff, a trespasser over the defendant’s land was entitled to claim compensation for injury
caused by a spring gun set by the defendant, without notice, in his garden.

Thus, merely because the plaintiff is a wrongdoer is no bar to an action for the damage caused to
him. He may claim compensation if his wrongful act is quite independent of the harm caused to
him.

3. INEVITABLE ACCIDENT:

“It does not mean absolutely inevitable, but it means not avoidable by any such
precautions as a reasonable man, doing such an act then and there, could be expected to
take”

- Pollock

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Damage is said to be caused by inevitable accident when it is not caused intentionally and could
not possibly have been avoided by the exercise of ordinary care and caution on the part of him
who caused it. In the words of Chief Justice Shaw of the Massacheusetts Supreme Court:
“Inevitable accident is an accident such as the defendant could not have avoided by the use of the
kind and degree of care necessary to the exigency and in the circumstance he was plead”.

It may be noted that the defence of inevitable accident is available when the event is
unforeseeable and consequences unavoidable in spite of reasonable precautions. Even if the
event is like heavy rain and flood but if the same can be anticipated and guarded against and the
consequences can be avoided by reasonable precautions, the defence of inevitable accident
cannot be pleaded in such a case.

The law is derived from a famous American case known as Nitroglycerine case, where there
was a sudden unexpected explosion from a case containing nitroglycerine, causing damage to the
building rented by the defendant. The carriers were held not liable on the ground that it was
unexpected accident. In those days the highly-inflammatory nature of nitroglycerine was not
well-known.

Holmes vs. Mather

The defendant’s horses were being driven by his servant on a public highway. The horses were
so startled by the barking of a dog that become unmanageable, and, in spite of best care by the
defendant’s servant to control them, they knocked down the plaintiff. It was held that the
defendant was held liable.

Stanley vs. Powell

The plaintiff and the defendant, who were members of a shooting party, went for pheasant
shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and
injured the plaintiff. It was held that injury was accidental and the defendant was not liable.

4. ACT OF GOD OR VIS MAJOR:

“Act of God may be defined as an operation of natural forces so unexpected that no

human foresight or skill could reasonably be expected to anticipate it”.

- Winfield and Pollock

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Act of God is a defence which is closely analogous to the defence of inevitable accident. In the
case of Act of God, the resulting loss arises out of the working of natural forces like
exceptionally heavy rainfall, storms, tempests, tides and volcanic eruptions. The rule of Strict
Liability, i.e. the rule in Rylands vs. Fletcher, also recognizes this to be a valid defence for the
purpose of liability under that rule.

Two important essentials are needed for this defence:

1. There must be working of natural forces;

2. The occurrence must be extraordinary and not one which could be anticipated and
reasonably guarded against.

(i) WORKING OF NATURAL FORCES:

Nichols vs. Marsland

There the defendant created some artificial lakes on his land by damming some natural streams.
Once there was an extraordinary heavy rainfall, stated to be the heaviest in human memory, as a
result of which, the embankments of the lakes gave way. The rush of water washed away four
bridges belonging to the plaintiff. It was held that the defendants were not liable as the loss
occurred due to Act of God.

(ii) OCCURRENCE MUST BE EXTRAORDINARY:

Kallulal vs. Hemchand

The wall of a building collapsed on a day when there was a rainfall of 2.66 inches. That resulted
in the death of the respondent’s two children. The Madhya Pradesh High Court held that the
defendant (appellant) could not take the defence of Act of God in this case, as that much of
rainfall during the rainy season was not something extraordinary but only such as ought to have
been anticipated and guarded against. The appellant was, therefore, held liable.

5. PRIVATE DEFENCE:

Every person is entitled to use a reasonable degree of force for the protection of his person or
property. This is called the right of private defence, a well recognized defence in criminal law.

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Section 96 of the Indian Penal Code specifically says that “Nothing is an offence which is done
in exercise of the right of private defence”.

For the protection of property also, the law permits taking of such measures as may be
reasonably necessary for the purpose.

Ramanuja Mudali vs. M.Gangan

The defendant, a land owner had laid some live electric wire on his land. The plaintiff while
crossing it at 10 p.m. in order to reach his own land, received a shock from the wire and
sustained injuries. The defendant had given no visible warning about such wire. He was,
therefore, held liable for the injuries caused to the plaintiff.

6. MISTAKE:

Mistake, whether of fact or law, is generally no defence to an action for tort. There is the well-
known maxim ‘ignorantia juris non excusat’ which means that ignorance of law is no excuse,
ignorance may be either of law or of fact. When a person willfully interferes with the rights of
another person, it is no defence to say that he had honestly believed that there was some
justification for the same, when, in fact, no such justification existed.

Consolidated Co. vs. Curtis

An auctioneer was asked to auction certain goods by his customer. Honestly believing that the
goods belonged to the customer, he auctioned them and he paid the sale proceeds to the
customer. In fact, the goods belonged to some other person. In an action by the true owner, the
auctioneer was held liable for tort of conversion.

To this rule, there are some exceptions when the defendant may be able to avoid his liability by
showing that he acted under an honest but mistaken belief.

Special Case in which a Mistake is a Good Defence:

(1) The mistaken prosecution of an innocent man is not in itself an actionable wrong; for
such a rule would effectively prevent the administration of criminal law. A prosecutor
incurs no liability unless he acted both maliciously and without reasonable care.

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 (2) So the mistaken arrest of an innocent man on suspicion of felony is not actionable, if the
felony has been actually committed and if there is reasonable ground for believing that
the person arrested is guilty of it.
(3) Mistake is always a defence where the plaintiff must prove malice.

7. NECESSITY:

An act causing damage, if done under necessity to prevent a greater evil is not actionable even
though the harm was caused intentionally. Throwing goods overboard a ship to lighten it for
saving the ship or person on board the ship, or pulling down a house to stop a further spread of
fire are its common examples.

Kirk vs. Gregory

After A’s death, A’s sister-in-law removed some jewellery from the room where he lay dead to
another room, thinking that to be a safer place. From there, the jewellery was stolen. In an action
by A’s executors against A’s sister-in-law for trespass to the jewellery, it was held that since the
interference was not reasonably necessary, she was liable.

8. STATUTORY AUTHORITY:

A person cannot complain of a wrong which is authorized by the Legislature. The damage
resulting from an act, which the legislature authorizes or directs to be done, is not actionable
even though it would otherwise be a tort. When an act is done, under the authority of an Act, it is
complete defence and the injured party has no remedy except for claiming such compensation as
may have been provided by the statute.

Vaughan vs. Taff Valde Rail Co.

In this case, sparks from an engine of the respondent’s railway company, which had been
authorized to run the railway, set fire to the appellant’s woods on the adjoining land. It was held
that since the respondents had taken care to prevent the emission of sparks and they were doing
nothing more than what the Statute had authorized them to do, they were not liable.

Smith vs. London and South Western Railway Co.

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The servants of a Railway Co. negligently left trimmings of grass and hedges near a railway line.
Sparks from an engine set the material on fire. By a heavy wind, the fire was carried to the
plaintiff’s cottage, 200 yards away from the railway line. The cottage was burnt. Since it was a
case of negligence on the part of the Railway Co. they were held liable.

ABSOLUTE AND CONDITIONAL AUTHORITY:

The Statute may give absolute or conditional authority for the doing of an act. In the former case,
even though nuisance or some other harm necessarily results, there is no liability for the same.
When the authority given by the Statute is conditional, it means that the act authorized can be
done provided the same is possible without causing nuisance or some other harm. Such a
condition may be express or implied.

UNIT III

PARTIES AND THEIR CAPACITY

Capacity indicates the competency of parties to sue and their liability to be sued. Generally,
every person has a capacity to sue, liability to be sued in tort. The following are the most
important types of persons whose position require legal scrutiny: The State and its Subordinate
Officers, Minors, Married Women, Lunatics, Corporations, Foreign Ambassadors.

1. THE STATE AND ITS SUBORDINATE OFFICERS:

There is no remedy against the Crown for a tort. This is based on the principle of English
Constitution, ‘King can do no wrong’. A personal action will not lie against the sovereign or a
King. This position has been changed by the Crown Proceedings Act, 1947. Under the provisions
of this Act, crown shall be subject to all those liabilities in tort to which, if it were a person of
full age and capacity, it would be subject.

An act done in exercise of sovereign power in relation to another State or subjects of another
State is an Act of State and cannot be questioned by municipal courts.

The essentials of an Act of State are:

a. The act is done by the representative of a State.

b. The act is injurious to some other State or its subject.

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 c. The act may be either previously sanctioned or subsequently ratified by the State.

OFFICERS OF STATE:

The officers of a State can be roughly divided into two categories, namely executive officers and
judicial officers, in accordance with their main functions. Of these, the latter class of officers
enjoys a much higher degree of immunity than the former. The immunity of the Crown does not
extend to its agents or servants. Since the King can do no wrong he can authorize no wrong.
Hence his Ministers are personally responsible for all their wrongful acts and no charges of any
violation of laws, the command of the King will be no justification.

The above is the principle of constitutional law. But no action is maintainable against a Minister
or any other servant of the Crown for anything done by him purely in his official capacity.

The principle of vicarious responsibility is not applicable in the case of Government officers. It is
the ordinary rule of civil liability that a master is liable for all the torts committed by his servant
in the course of his employment. But this rule is not to be applied to the heads of department

POSITION IN INDIA:

As the British Crown took over control of the administration of India from the English East India
Company in 1858, it had to undertake the responsibilities of the company which were incidental
to its trading transactions. Hence the Government of India had to bear a twofold responsibility,
one in the nature of a pure act of State and the other the ordinary liability of a private party. But
no action is maintainable against the Government for things done in exercise of its sovereign
functions.

Peninsular and Oriental Steam Navigation Company vs. Secretary of State for India

In that case, the plaintiff’s servant was travelling in a horse driven carriage and was passing by
the Kidderpore Dockyard in Calcutta, which is the government property. Due to negligence on
the part of the defendant’s servants, a heavy piece of iron, which they were carrying for the
repair of a steamer, fell and its clang frightened the horse. The horse rushed forward against the
iron and was injured. The plaintiff filed a suit against the Secretary of State for India in Council
for the damage which was caused due to the negligence of the servants employed by the

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Government of India. The court tried to look to the liability of the East India Company. A
distinction was drawn between the sovereign and non-sovereign functions of the East India
Company. It was held that, if the act was done in the exercise of sovereign functions, the East
India Company would not have been liable, but if the function was a non-sovereign one, i.e.,
which could have been performed by a private individual without any delegation of power by the
Government, the Company would have been liable. Maintenance of the dockyard was considered
to be a non-sovereign function and, as such, the Government was held liable.

Constitutional Provisions:

Now there are statutory provisions in the Indian Constitution with regard to the filing of suits
against the Union Government and the States. Article 300 of the Indian Constitution provides:
“The Government of India may sue and be sued by the name of the Union of India and the
Government of a State may sue or be sued by the name of State”. But it should be noted that this
Article refers only to the procedure and does not exempt the Government concerned from their
tortious liability.

State of Rajasthan vs. Vidyawati

The Supreme Court of India held that the State of Rajasthan vicariously liable for the tort
committed by its servant. In this case the driver of a motor jeep in the service of the Government
while bringing back the car after repairs in the workshop to the Collector’s bungalow, by his rash
and negligent driving caused injuries to a pedestrian walking by the side of the public road. The
latter subsequently died of these injuries in the hospital. His widow and children sued the
Government for damages on the principle of vicarious liability for the negligent driving of the
jeep by their servant, the driver. Although the State authorities set up the plea of sovereign
immunity the Supreme Court rejected that contention and made the defendants liable.

Judicial Officers:

The rule is that no action lies for acts done or words spoken by a Judge in the exercise of his
judicial office although his motive is malicious and the acts or words are not done or spoken in

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the honest exercise of his office. The rule is highly necessary in order to maintain the
independence and integrity of Judges.

2. MINOR:

CAPACITY TO SUE:

A minor has a right to sue like an adult with the only procedural difference that he cannot
himself sue but has to bring an action through his next friend.

Pre-natal injuries:

There are no English or Indian decisions on the point. The problem had arisen in an Irish, a
Canadian case.

Walker v. G.N. Ry. Co. of Ireland

The plaintiff, a child, sued the railway company for damages on the ground that he had been
born crippled and deformed because the injury was caused to it (before birth) by an accident due
to railway’s negligence, when the plaintiffs pregnant mother travelled on the defendants railway.
It was held that the defendants were not liable for two reasons. Firstly, the defendants did not
owe any duty to the plaintiff as they did not know about his existence; secondly, the medical
evidence to prove the plaintiffs claim was very uncertain.

Montreal Tramways v. Leveille

The Supreme Court of Canada allowed an action by a child born with club feet two months after
an injury to its mother by the negligence of the defendants. Majority of the writers are in favour
of the view that an action for pre-natal injuries should also be recognized, once the act of the
defendant is considered to be tortious.

In England, the position on this point has been made clear by legislation. On the
recommendation of the Law Commission on “Injuries to Unborn Children” in 1974, Congenital
Disabilities (Civil Liability) Act, 1976 was passed. The Act recognized an action in case of
children born disabled due to some person’s fault.

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This is a welcome legislation. Interests of children in India can also be protected if there is a
similar legislation in this country.

CAPACITY TO BE SUED:

Minority is no defence under law of torts and a minor is liable in the same manner and to the
same extent as an adult for tort committed by him. On the other hand, a minor is incompetent to
contract, his agreement being void ab initio, no action can be brought under the law of contract
against him. Under Criminal Law, a child below seven years of age cannot be held liable for any
offence as he is presumed to ne doli incapax (incapable of doing a wrongful act).

The law of torts does not make any distinction on the basis of age. Thus, a child of seven years
could be sued for trespass like a person of full age. However, if the tort is such as requires a
special mental element such as deceit, malicious prosecution or conspiracy, a child cannot be
held liable for the same unless sufficient maturity for committing that tort can be proved in this
case

Walmsley v. Humenick

The Supreme Court of British Columbia held that the defendant, a child of five years could not
be held liable for negligence because he “had not reached that stage of mental development
where it could be said that he should be found legally responsible for his negligent acts”

Liability of Parents for Children’s Torts:

As a general rule, a parent or a guardian cannot be made liable for the torts of a child. There are
two exceptions to this rule:

(1) When the child is father’s servant or agent, the father is vicariously liable. It may be
noted here that, in such a case, the father is liable for son’s torts, not as his father, but in
the capacity of an employer or principal.
(2) When the father himself, by his own negligence, affords his child an opportunity to
commit a tort, he is liable.

Bebee v. Sales

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The father supplied an air gun to his son, aged 15 years. Even after some complaints of mischief
caused by the use of the gun, he allowed the gun to remain with the boy, who, thereafter,
accidentally wounded the plaintiff. The father was held liable.

3. LUNATICS:

Although insanity is a defence in criminal law, it is not a defence against civil liability. Even in
criminal law, it is a defence only in case where it is quite clear to the court that the accused was
at the act “so totally deprived of understanding and memory”.

But in torts (except in those specific torts where particular intent is an essential ingredient of
liability), dementia is not in general a valid defence.

Ranganagulu v. Mullakal Devaswam

A lunatic entered the temple wearing shirt and shoes (contrary to the Devaswam rules) and broke
the idol of the deity. He was held liable in damages, though he had previously been acquitted by
the criminal court for offences of criminal trespass and mischief on the ground of insanity. The
count said that in a civil under torts the plea of insanity will not be a valid defence.

Three reasons have been suggested for making a lunatic liable. They are:

(1) Where one of two innocent persons must bear a loss, the loss must fall on him who did
the act.
(2) Public policy. In order to induce the relatives of the lunatic to keep him under restraint
and to prevent tortfeasors from pretending insanity.
(3) The lunatic must bear the loss occasioned by his torts as he bears his other misfortunes.

4. MARRIED WOMEN:

At Common Law, there could be no action between husband and wife for tort. Neither the wife
could sue her husband nor could the husband sue his wife, if the other spouse committed a tort.
Married Women’s Property Act, 1882 made a change and permitted a married woman to sue her
husband in tort for the protection and security of her property.

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The rule prohibiting actions between spouses has been abolished by the Law Reform (Husband
and Wife) Act, 1962. Now the husband and wife can sue each other as if they were unmarried.

Husband’s Liability for Wife’s Torts:

At Common Law if the wife committed a tort, there could be an action against both husband and
wife because the wife could not be sued alone. A husband was thus liable for the torts of his wife
committed after marriage. The Law Reform (Married Women and Tortfeasors) Act, 1935 has
changed the position and now husband is not liable for any tort of his wife, whether committed
by her before or after marriage merely because he is her husband.

5. CORPORATIONS:

A Corporation is an artificial person distinct from its members. Being an artificial person, it
always acts through its agent and servants and as such, its liability is always vicarious for the acts
done by other persons.

A corporation is always liable if the scope of authority or employment of its agents or servants
acting on its behalf was within the power of the corporation. If the act of the company’s servants
or agents is ultra vires, i.e., not within the statutory or legal limits of the corporation’s powers,
the company cannot be made liable for the same.

Poulton v. L. &S.W. Ry

In this case, a railway company had the power to arrest a person for non-payment of ‘passenger
fare’, but the station-master arrested the plaintiff for the non-payment of ‘freight payable for the
horse’. It was held that the railway company was not liable for the act of the station-master. The
real reason for the decision appears to be that the station-master did not have ‘implied authority’
to make such an arrest on behalf of the railway company and as such, the latter could not be
vicariously liable for the same.

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 UNIT-IV

MASTERS AND SERVANTS

Generally, a person is liable for his own wrongful acts and one does not incur any liability for the
acts done by others. In certain cases, however, vicarious liability, that is the liability of one
person for the act done by another person, may arise. The modern rule of vicarious liability may
be thus stated: “A master is liable for any tort which the servant commits in the course of his
employment. There is no doubt that the servant is liable for his act”.

PRINCIPAL AND AGENT:

Where one person authorizes another to commit a tort, the liability for that will be not only of
that person who has committed it but also of that authorized it. It is based on the general
principle “Qui facit per alium facit per se” which means that “the act of an agent is the act of the
principal.” For any authorized by the principal and done by the agent, both of them are liable.
Their liability is joint and several.

Lloyd vs. Grace, Smith & Co.

Mrs. Lloyd, who owned two cottages but was not satisfied with the income therefrom,
approached the office of Grace, Smith & Co., a firm of solicitors to consult them about the
matter of her property. The managing clerk of the company attended her and advised her to sell
the two cottages and invest the money in a better way. She was asked to sign two documents,
which were supposed to be sale deeds. In fact, the documents got signed were gift deeds in the

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name of the managing clerk himself. He then disposed of the property and misappropriated the
proceeds. He had acted solely for his personal benefit and without the knowledge of his
principal. It was held that since the agent was acting in the course of his apparent or ostensible
authority, the principal was liable for the fraud.

State Bank of India v. Shyama Devi

The plaintiff’s husband gave some amount and cheques to his friend, who was an employee in
the defendant bank, for being deposited in the plaintiff’s account. No proper receipt for the
deposits was obtained. The bank employee misappropriated the amount. It was held by the
Supreme Court that the employee, when he committed the fraud, was not acting in the scope of
bank’s employment but in his private capacity as the depositor’s friend, therefore, the defendant
bank could not be made liable for the same.

PARTNERS

The relationship as between partners is that of principal and agent. The rules of the law of agency
apply in case of their liability also. For the tort committed by any partner in the ordinary course
of the business of the firm, all the other partners are liable therefor to the same extent as the
guilty partner. The liability of each partner is joint and several.

MASTER AND SERVANT:

If a servant does a wrongful act in the course of its employment, the master is liable for it. The
servant, of course is also liable.

For the liability of the master to arise, the following two essentials are to be present:

(1) The tort was committed by the ‘servant’

(2) The servant committed the tort in the ‘course of his employment’.

WHO IS A SERVANT?

A servant is a person employed by another to do work under the directions and control of his
master. As a general rule, master is liable for the tort of his servant but he is not liable for the
tort of an independent contractor.

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LIABILITY OF THE EMPLOYER FOR THE ACTS OF AN INDEPENDENT
CONTRACTOR:

As a general rule, the master is liable for the torts committed by his servant, but an employer is
not liable for the torts committed by an independent contractor employed by him.

Morgan v. Incorporated Central Council

The plaintiff, while he was on a lawful visit to the defendant’s premises, fell down form an open
lift shaft and got injured. The defendants had entrusted the job of keeping the lift safe and in
proper order to certain independent contractors. It was held that for this act of negligence on the
part of the independent contractors in not keeping the lift in safe condition, the defendants could
not be made liable.

EXCEPTIONS:

The general rule that an employer is not liable for the acts of an independent contractor is subject
to some exceptions.

1. If an employer authorizes the doing of an illegal act, or subsequently, ratifies the same, he
can be made liable for such an act.
2. An employer is liable for the act of an independent contractor in cases of strict liability.
3. The liability of the employer also arises for dangers caused on or near the highway.

Tarry v. Ashton

The plaintiff was injured by the fall of a lamp overhanging the footway adjoining the defendant’s
house. The lamp was attached to his house by the defendant through some independent
contractors. It was held that it could not escape his liability by getting the job done through
independent contractors.

4. If the wrong caused to the plaintiff is nuisance in the form of withdrawal of support from
the neighbour’s land, the defendant would be liable irrespective of the fact that the act
causing the said damage was done by an independent contractor.

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 5. When the tort results in the breach of a master’s Common Law duties to his servant, he
would be liable for the same and it is no defence that the master was acting through an
independent contractor.

THE COURSE OF EMPLOYMENT:

A master, like a principal, is liable for every tort which he actually authorizes. The liability of a
master is not limited only to the acts which he expressly authorizes to be done but he is liable for
such torts also which are committed by his servant in the course of employment. An act is
deemed to be done in the course of employment, if it is either: (1) a wrongful act authorized by
the master, or (2) a wrongful and unauthorized mode of doing some act authorized by the master.
So, a master can be made liable as much for unauthorized acts as for the acts he has authorized.

National Insurance Co., Kanpur v. Yogendra Nath

The owner of a car authorized his servants and orderlies to look after the car and to keep the
same dusted while he was out of town for a long period. One of the servants took the car to a
petrol pump for getting the tyres inflated and for checking the oils, etc., and negligently knocked
down and injured two boys, aged about 11 years and 13 years, who were going on cycle. The act
of the servant in this case was held to be within the course of employment of his master, for
which the master was liable.

THE DOCTRINE OF COMMON EMPLOYMENT:

POSITION IN ENGLAND:

The rule known as the doctrine of common employment was an exception to the rule that a
master is liable for the wrongs of his servant committed in the course of his employment. The
rule was first applied in 1837 in Priestley v. Fowler, developed in 1850 in Hutchinston v.
York, New Castle and Berwick Rail Co. and it was firmly established as a part of English law
by subsequent decisions. The doctrine was that a master was not liable for the negligent harm
done by one servant to fellow servant acting in the course of their common employment.

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 Priestly v. Fowler

The plaintiff, who was the defendant’s servant, was injured at his thigh due to breaking down of
an overloaded carriage in the charge of another servant of the defendant. Since both the
wrongdoer and the injured person were the servants of the same master, the doctrine of common
employment was applicable and the master was held not liable.

The essentials for the application of the defence of common employment are:

(1) The wrongdoer and the person injured must be fellow servants, and

(2) at the time of the accident, they must have been engaged in common employment.

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 UNIT V

JOINT TORTFEASORS

When two or more persons commit some tort against the same plaintiff, they may either be
independent tortfeasors or joint tortfeasors.

INDEPENDENT TORTFEASORS:

When the acts of two or more persons, acting independently, concur to produce a single damage,
they are known as independent tortfeasors. For example, two motorists driving negligently and
coming from the opposite direction collide and a pedestrian is crushed between the two cars,
these motorists are independent tortfeasors.

JOINT TORTFEASORS:

Two or more persons are said to be joint tortfeasors when the wrongful act, which has resulted in
a single damage, which has resulted in a single damage, was done by them, not independently of
one another, but in furtherance of a common design. When two or more persons are engaged in a
common pursuit and one of them in the course of and in furtherance of that commits a tort, both
of them will be considered as joint tortfeasors and liable as such.

Brook vs. Bool

A and B enter Z’s premises to search for an escape of gas. Each one of them, in turn, applied
naked light to the gas pipe. A’s application resulted in an explosion, causing damage to Z’s
premises. In this case, even though the act of A alone had caused the explosion, but both A and B
were considered to be joined tortfeasors and thus held liable for the damage.

COMPOSITE TORTFEASORS:

The courts in India have not necessarily followed the distinction between joint and independent
tortfeasors, as recognized in England. When two or more persons are responsible for a common

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damage (whether acting independently or jointly), they have been termed as composite
tortfeasors.

LIABILITY OF JOINT OR SEVERAL JOINT TORTFEASORS:

The liability of tortfeasors is joint and several. The plaintiff has a choice to sue anyone of them,
some of them or all of them, in an action. Each one of them can be made to pay the full amount
of compensation. Thus, for the wrong done by the agent, both the principal and agent are jointly
and severally liable.

POSITION IN INDIA:

In India, there is no legislation corresponding to the English Law Reform Act of 1935 or the
Civil Liability (Contribution) Act, 1978. In the absence of legislation on the point or an
authoritative pronouncement by the Supreme Court, our courts are free to adopt the position
which they consider just according to the condition prevailing in this country. There, however,
appears to be no justification in following the rule prevailing in England prior to 1935.

RELEASE OF JOINT TORTFEASORS:

It has been a well established rule of English law since long that the release of one of the joint
tortfeasors releases all the others and the same has not been affected by the passing of Law
Reform Act of 1935. In the case of joint tortfeasors, the cause of action being only one and
indivisible, the release of one of them releases all the others, and the cause of action against the
other join tortfeasors is extinguished. The rule applies whether the release is under seal or by
way of accord and satisfaction.

Khusro vs. N.A. Guzder

In this case, the plaintiffs filed a suit against various dependants for defamation. After the plaint
had been filed and before the written statement was submitted, one of the defendants tendered an
unconditional apology to the plaintiffs. The plaintiffs accepted the apology and a request was
made to the court that the claim against the defendants apologizing be disposed of in terms of the
settlements between the plaintiffs and that defendants. A decree was passed accordingly. In the
written statement, the other defendants contented that the release of one of the joint tortfeasors

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extinguished the plaintiff’s right to sue the remaining defendants and claim damages from them.
It was held that this compromise would not be treated to be a full satisfaction for the tort alleged
to have been committed by the defendants, and, therefore, the other tortfeasors had not been
released by the compromise.

THE RIGHTS OF TORTFEASORS:

1. Contribution Between Joint Tortfeasors:

It has been noted that the liability of the joint tortfeasors is joint or several. The plaintiff, has,
therefore, a right, if he so likes, to make only one of the joint tortfeasors to meet the whole of his
claim.

Merryweather vs. Nixan

One Starkey brought an action against the present plaintiff and defendant for tort. He recovered
the whole amount of pounds 840 as damages only from him the present plaintiff, who thereon
sued sued the defendant to recover from him his share of contribution. It was held that the
plaintiff was entitled to claim any contribution from the defendant as there can be no
contribution between the joint tortfeasors.

The rule in Merryweather vs. Nixan, providing that there can be no contribution amongst joint
tortfeasors, has been abrogated by the Law Reform (Married Women and Tortfeasors) Act, 1935.
After the passing of the Act, a tortfeasor, who has been made to pay more than his share of
damages, can claim contribution from the other joint tortfeasors for their share of the wrong.

2. Indemnity:

It has been noted above that the joint tortfeasors are jointly and severally liable to the injured
party and the plaintiff may sometimes recover the whole of the loss from any one of them.

POSITION IN INDIA

In India, there is no statute corresponding to the Law Reform Act, 1935. So in some cases, the
courts in India have applied the rule in Merryweather vs. Nixan, whereas in some other cases, the
courts have expressed their doubt about its applicability in India. The High Courts of Nagpur,

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Calcutta and Allahabad have clearly indicated that the rule in Merryweather vs. Nixan is not
applicable in India.

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 UNIT VI

REMEDIES

Remedies in tort are of two kinds: judicial and extra-judicial. Judicial remedies are thus which
are obtained through courts of law, while extra-judicial remedies are secured by means of self-
help. The main types of judicial remedies are three in numbers. They are

1. Damages
2. Injunction
3. Specific restitution of Property.

1. DAMAGES:

Damages is the most important remedy which the plaintiff can avail of after the tort is
committed. They are of various kinds:

(i) NOMINAL DAMAGES:

Ordinarily, damages are equivalent to the harm suffered by the plaintiff. When there has been
infringement of the plaintiff’s legal right but he has suffered no loss thereby the law awards him
nominal damages in recognition of his right. The sum awarded may be nominal, say, one or two
rupees.

Constantine vs. Imperial London Hotels Ltd.

The defendants wrongfully refused to accommodate the plaintiff, a famous West Indian
cricketer, in one of their hotels, where the plaintiff wished to stay. The defendants provided him
with lodging in another of their hotels. It was held that the plaintiff was entitled to nominal
damages of five guineas.

(ii) CONTEMPTUOUS DAMAGES:

The amount awarded is very trifling because the court forms a very low opinion of the plaintiff’s
claim and thinks that the plaintiff although has suffered greater loss, does not deserve to be fully
compensated.

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(iii) COMPENSATED, AGGRAVATED AND EXEMPLARY DAMAGES:

Generally, the damages are ‘compensatory’ because the idea of civil law is to compensate the
injured party by allowing him, by way of damages, a sum equivalent to the loss caused to him.
When insult or injury to the plaintiff’s feeling has been caused, the court may take into account
the motive for the wrong and award an increased amount of damages. Such damages are known
as ‘aggravated’ damages.

When the damages awarded are in excess of the material loss suffered by the plaintiff with a
view to prevent similar behavior in future, the damages are known as ‘exemplary, punitive or
vindictive’. Such damages are not compensatory in nature, they are rather by way of punishment
to the defendant.

(iv) Prospective Damages:

Prospective or future damages means compensation for damage which is quite likely the result of
the defendant’s wrongful act but which has not actually resulted at the time of the decision of the
case. For example, if a person has been crippled in an accident, the damages to be awarded to
him may not only include the loss suffered by him up to the date of the action but also future
likely damage to him in respect of that disability.

2. INJUNCTIONS:

An injunction is an order of the court directing the doing of some act or restraining the
commission or continuance of some act. The court has the discretion to grant or refuse this
remedy and when remedy by way of damages is a sufficient relief, injunction will not be granted.
The injunctions are of various kinds.

(i) TEMPORARY AND PERPETUAL INJUNCTION:

These have been defined in Sec 37 of Specific Relief Act, 1963 as follows:

i. A temporary injunction is such as is to continue until a specified time, or until further

orders of the court.

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 ii. A perpetual injunction is one by which the defendant is perpetually enjoined from the
assertion of a right, or from the commission of an act, which could be contrary to the
right of the plaintiff.

A temporary or interlocutory injunction is generally granted before the case has been heard on
merits and it is only provisional and, as such, continues until the case is heard on its merits or
until further orders of the court.

(ii) PROHIBITORY AND MANDATORY INJUNCTION:

Prohibitory injunction forbids the defendants from doing some act which will interfere with the
plaintiff’s lawful rights. Mandatory injunction is an order which requires the defendant to do
some positive act.

3. SPECIFIC RESTITUTION OF PROPERTY:

Where the plaintiff has been wrongfully dispossessed of his movable or immovable property, the
court may order that the specific property should be restored back to the plaintiff. Recovery of
land can be made by an action for ejectment and the recovery of chattels by an action for detinue.

EXTRA-JUDICIAL REMEDIES:

Extra-judicial remedies are those legal measures which are adopted by parties themselves for the
redress of their grievances without going to courts of law. They are mainly the following:

1. Rights of re-entry on land.

2. Rights of re-caption of chattels.
3. Abatement of nuisance.
4. Distress damage feasant.

1. RE-ENTRY ON LAND:

A person who has been wrongfully ejected from his land can re-enter his land provided he does it
peaceably and without using force.

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 Hemming vs. Stoke Poges Golf Club

The plaintiff, the tenant of a cottage owned by the defendants, refused to quit it after notice had
been duly given to him. The defendants thereupon entered the cottage and removed the plaintiff
and his furniture with no more force than was necessary. He sued them for assault, battery and
trespass and they were held not liable.

2. RE-CAPTION OF CHATTELS:

If a person takes from my pocket my fountain-pen and runs with it, I can run after him, seize and
forcibly take back my fountain-pen from him. This is my right of re-caption for which neither
civil nor criminal action would lie against me. But I must use a reasonable degree of force that is
necessary for taking my chattel.

3. ABATEMENT OF NUISANCE:

As a general rule, everyone who is damaged by a private nuisance is entitled to abate it or

remove it.

Mills vs. Brooker

The branches of an apple tree belonging to the plaintiff overhung on to the adjoining land of the
defendant. The latter picked up the apples and appropriated them. He was held liable in damages
to the plaintiff for conversion.

4. DISTRESS DAMAGE FEASANT:

If a man finds the cattle or chattel of another unlawfully on his land causing damage, he may
seize and detain it impounded in order to compel the owner of the offending cattle or chattel to
make compensation for the damage done. This right is known as that of distress damage feasant.

The right to distrain, being an extra-judicial remedy, was always severely limited by the law.
Hence it must take place on the distrainor’s land. If the thing escapes, he has no right to follow
and recapture it.

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 UNIT VII

REMOTENESS OF DAMAGE-NOVUS ACTUS INTERVENIENS

The rule of remoteness of damage runs through the whole realm of compensation. A plaintiff is
not be entitles to get damages sustained by him is to remote a consequence of the defendant’s
conduct. The chain of causation between the defendant’s act and the plaintiff’s injury’s not be
too indirect for no man is able in law ad infinitum for the consequence of his acts.

REMOTE AND PROXIMATE DAMAGE:

If damage is too remote, the defendant is not liable. If, on the other hand, the act and the
consequences are so connected that they are not too remote but are proximate, the defendant will
be liable for the consequences. It is not necessary that the event which is immediately connected
with the consequences is proximate and that further from it is too remote.

Haynes v. Harwood

The defendant’s servants negligently left a horse van unattended in a crowded street. The
throwing of stones at the horses by a child, made them bolt and a policeman was injured in an
attempt to stop them with a view to rescuing the woman and children on the road. One of the
defences pleaded by the defendant was novus actus interveniens, or remoteness of consequences,
i.e., the mischief of the child was the proximate cause and the negligence of the defendant’s
servants was the remote cause. It was held that the defendant was liable even though the horses
had bolted when a child threw stones on them, because the horses had bolted when a child threw
stones on them, because such a mischief on the part of the children was anticipated.

Lynch v. Nurdin

The defendant left his horse and cart on a road and some children started playing with the same.
One of them jumped on the cart, and another set the horse in motion. The plaintiff, the child on
the cart, was injured. Even though the misconduct of the boy who started the horse was a novus
actus intervaniens, the defendant’s negligent act was held to be the proximate cause of the
accident, because such mischief by the children could be anticipated and any one providing an

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opportunity to mischievous children to do a dangerous thing could not escape the liability, by
pleading that the wrong had been done by mischievous children.

TEST TO DETERMINE THE REMOTENESS OF DAMAGE:

There are two main tests to determine whether the damage is remote or not:

1. THE TEST OF REASONABLE FORESIGHT:

According to this test, if the consequences of a wrongful act could have been foreseen by a
reasonable man, they are not too remote. If, on the other hand, a reasonable man would not have
foreseen the consequences, they are too remote.

2. THE TEST OF DIRECTNESS:

The test of reasonable foresight was rejected and the test of directness was considered to be more
appropriate by the Court of Appeal in Re Polemins and Furness, Withy & Co. Ltd. According
to the test of directness, a person is liable for all the direct consequences of his wrongful act,
whether he could have foreseen them or not; because consequences which directly follow a
wrongful act are not too remote.

Smith vs. London and South Western Railway Co.

The railway company was negligent in allowing a heap of trimmings of hedges and grass near a
railway line during dry weather. Spark from the railway engine set fire to the material. Due to
high wind, the fire was carried to the plaintiff’s cottage which was burnt. The defendants were
held liable even though they could not have foreseen the loss to the cottage.

Re Polemis and Furness, Withy & Co.

In this case, the defendants chartered a ship. The cargo to be carried by them included a quantity
of Benzene and/or Petrol in tins. Due to leakage in those tins, some of their contents collected in
the hold of the ship. Owing to the negligence of the defendants’ servants, a plank fell into the
hold, a spark was caused and consequently the ship was totally destroyed by file. The owners of
the ship were held entitled to recover the loss nearly Pounds 200,000, being the direct
consequence of the wrongful act although such a loss could not have been reasonably foreseen.

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Later the test of directness has been considered to be incorrect and was rejected by the Judicial
Committee of the Privy Council in Overseas Tankship (U.K.) Ltd. vs. Morts Dock and Engg.
Co. Ltd. (Wagon Mound Case), an appeal from the New South Wales and it was held that the
test of reasonable foresight is the better test.

THE WAGON MOUND CASE

The facts of the case are as follows:

The Wagon Mound, an oil burning vessel, was chartered by the appellants, Overseas Tankship
Ltd., and was taking fuel oil at Sydney port. At a distance of about 600 feet, the respondents,
Morts Dock Company, owned a wharf, where the repairs of a ship including some welding
operation were going on. Due to the negligence of appellants’ servants, a large quantity of oil
was spilt on the water. The oil which was spread over the water was carried to the respondent’s
wharf. About 60 hours thereafter, molten metal form the respondent’s wharf fell on floating
cotton waste, which ignited the fuel oil on the water and the fire caused great damage to the
wharf and equipment. It was also found that the appellants could not foresee that the oil so spilt
would catch fire. The trial court applied the rule of directness and held the O.T. Ltd. Liable.

The Supreme Court of the New South Wales also followed the Polemis rule and mentioning the
unforseeability of damage by fire was no defence, held the O.T. Ltd. Liable. On appeal, the Privy
Council held that Re Polemis was no more good law and reversed the decision of the Supreme
Court. Since a reasonable man could not foresee such injury, the appellants were held not liable
in negligence even though their servant’s negligence was the direct cause of the damage.

Although the Wagon Mound, being a decision of the Privy Council, is not itself applicable in
England and has only a persuasive value but the same appears to have been considered good law
by the House of Lords. The Court of Appeal have expressly stated that it is Wagon Mound and
not the Re Polemis which is the governing authority.

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UNIT VIII

SUCCESSIVE ACTIONS ON THE SAME FACTS-EFFECT OF MERGER AND DEATH

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Usually more than once action will not lie on the same cause of action. Therefore all damages
resulting from the same cause of action must be recovered at one and the same time. Coke’s
reason for this was interest republicae ut sit finis litium (it concerns the State that lawsuits be not
protracted). Best, C.J. had put it most graphically in 1824 in Richardson v. Mellish.

Fetter vs. Beat

The plaintiff recovered damages against the defendant for beating him. Eight years later he
brought a second action because the injuries proved more serious and a portion of his skull had
to be removed by trepanning. His second action was dismissed on the ground that it was a novel
action. But this action cannot be called purely vexatious litigation if he did not know the extent
of his injury when he brought his first action.

CASES OUTSIDE THE RULE:

(a) Where two distinct rights are violated.

Brunsed v. Humphrey

A cab driver by the negligence of the defendant suffered injuries to his cab and to his body. He
recovered damages for the harm to the cab and was held entitled to bring a second action for his
personal injuries, for they were caused by the violation of a different right. Hence it has been
said that the effect of this rule is that if injury is caused to the leg of a person with his trousers
on, separate actions would lie for the trousers and the leg.

(b) Where injury continuing, successive actions for every fresh injury.

Darley Main Colliery v. Mitchell

The lessees of Mitchells’s land originally compensated him in the year 1863 for the subsidence
caused to his land while digging out coal from there. Further subsidence took place in the year
1882 to Mitchell’s land. The immediate cause of this subsidence was the working of the coal-
mine by the adjoining owner. This would not have effected Mitchell’s land if the original lessees
had left enough support for his additionally digging out coal. Mitchells sued the lessees for the
additional subsidence and the House of Lord held that he could recover damages a second time

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for this additional collapse of his land which was a fresh injury that occurred later arising out of
the first.

(c) Tort which is actionable only on proof of special damage.

In the case of wrongs which are actionable only on proof of special damages successive actions
may be brought for special damages caused subsequently. Slander is actionable in England only
when special damage is caused.

Baker v. Willoughby

The defendant, who was driving his car negligently, knocked down the plaintiff, causing severe
injury to his left leg and ankle. This was in 1964. With some difficulty the plaintiff found
employment in sorting scrap metal and one day in 1967, while so engaged, he was shot in the left
leg by two men who demanded money from him. As a result of this shooting, the plaintiff’s left
leg had to be amputated and he had to wear an artificial limb. The plaintiff’s disability was
somewhat greater than it would have been if the second injury had not occurred. The plaintiff’s
action against the defendant came to trial in 1968. The plaintiff claimed that the damages
payable to him in respect of the 1964 accident should in no way be decreased by the fact of the
second injury; the defendant argued that by reason of the 1967 shootings and resulting
amputation the damages should be limited to those relevant to the period between the two
injuries. The House of Lords upheld the plaintiff’s claim and decided that the second injury did
not operate to cut down the damages to which the plaintiff was entitled in respect of the first
injury.

EFFECT OF DEATH ON A SUBSISTING CAUSE OF ACTION

According to English Common Law, a personal cause of action against a person came to an end
when he died. The rule was contained in the maxim “Actio personalis moritur cum persona”,
which means that a personal cause of action dies with the person. It means that if, in any case,
either the plaintiff or the defendant died, the cause of action came to an end.

The following exception have been recognized to the above rule:

(i) ACTION UNDER CONTRACT

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The rule that a cause of action came to an end with the death of either of the parties did not apply
to an action under the law of contract. Contractual obligations could be enforced by or against
the legal representatives of the parties of the contract.

(ii) UNJUST ENRICHMENT OF TORTFEASOR’S ESTATE

If someone, before his death, wrongfully appropriated the property of another person, the law did
not allow the benefit of that wrongfully appropriated property to pass on to the legal
representatives of the deceased. The person entitled to that property was entitled to bring an
action against the legal representatives of the deceased and to recover such property or its value.

HOW FAR IS CAUSING OF DEATH ACTIONABLE IN TORT?

POSITION IN ENGLAND

Although an action for smaller injuries lies in civil law, the Common Law rule was that “in a
civil court, the death of human being could not be complained of as an injury”.

THE RULE IN BAKER VS. BOLTEN

The rule that the causing of death of a person is not a tort was laid down in Baker vs. Bolton,
and is, therefore, also known as the rule in Baker vs. Bolton. In that case, the defendants were
the proprietors of a stage-coach in which the plaintiff and his wife were travelling. The coach
was upset by the negligence of the defendants “whereby the plaintiff himself was much bruised,
and his wife was so severely hurt, that she died about a month later in a hospital”. The plaintiff
could recover compensation for injury to himself and also the loss of wife’s society and distress,
from the date of accident to the date of her death, but he could not recover anything for such loss
after death.

EXCEPTION TO THE RULE IN BAKER V. BOLTON

1. DEATH DUE TO BREACH OF CONTRACT

Causing the death of a person is not actionable as a tort, but if the death is the result of a breach
of a contract, the fact of death may be taken into account in determining the amount of damages
payable on the breach of a contract.

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2. COMPENSATION UNDER VARIOUS STATUTES

There are various statutes making provisions for compensation on the death of a person. The
examples of the same are the Coal-Mining (Subsidence) Act, 1957, and statutes relating to
carriage, viz., the Carriage of Air Act, 1961, the Carriage by Railway Act, 1972, the Carriage of
Passengers by Road Act, 1974 and the Merchant Shipping Act, 1979.

3. THE FATAL ACCIDENTS ACT, 1976

Due to enormous increase in the number of accidents with the advent of railways, a need for
compensating the dependants of the accident victims was felt and that led to the enactment of the
Fatal Accidents Act, 1846, which is also known as Lord Campbell’s Act. The Act enabled
certain dependants of the deceased to claim compensation for the loss arising to the dependants
from such death. The present position is governed by the Fatal Accidents Act, 1976, which
consolidates the earlier legislation.

POSITION IN INDIA

Regarding an action for compensation on the death of a person, the position in India is not much
different from that in England. An action for compensation is permitted only on the basis of
various statutes. Some of these statutes are the Workmen’s Compensation Act, 1923, the Indian
Railways Act, 1890, the Carriage by Air Act, 1972 and the Fatal Accidents Act, 1855.

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UNT IX

SPECIFIC TORTS

(A) WRONG TO PERSONS AND REPUTATION

1. BATTERY

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The wrong of battery consists an intentional application of force to another person without any
lawful justification. Its essential requirements are:

(i) There should be use of force.

(ii) The same should be, without any lawful justification.

(i) USE OF FORCE:

Even though the force used is very trivial and does not cause any harm, the wrong is still
constituted. Physical hurt need not be there. Least touching of another in anger is a battery. The
force may be used without a bodily contact with the aggressor. Mere passive obstruction,
however, cannot be considered as the use of force.

Innes vs. Wylie

A policeman unlawfully prevented the plaintiff from entering the club premises. It was held that
“if the policeman was entirely passive like a door or a wall put to prevent from entering the
room”, there was no assault.

(ii) WITHOUT LAWFUL JUSTIFICATION:

It is essential that the use of force should be intentional and without any lawful justification.
Harm which is unintentional or cause by pure accident is also not actionable.

Stanley v. Powell

Powell, who was the member of a shooting party, fired at a pheasant but the pellet from his gun
glanced off a tree and accidentally wounded Stanley, another member of the party. It was held
that Powell was not liable. If the act is willful or negligent, the defendant would be liable.

2. ASSAULT

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Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the
infliction of a battery on him by the defendant. When the defendant by his act creates an
apprehension in the mind of the plaintiff that he is going to commit battery against the plaintiff,
the wrong of assault is completed. The wrong consists in an attempt to do the harm rather than
the harm being caused thereby.

It is also essential that there, should be prima facie ability to do the harm. Similarly, mere verbal
threat is no assault unless it creates reasonable apprehension in the plaintiff’s mind that
immediate force will also be used.

Generally, assault precedes battery. Showing a clenched fist is assault but actual striking
amounts to battery. Throwing of water upon a person is an assault but as soon as the water falls
on him, it becomes battery. If a person is about to sit on a chair and the chair is pulled, there is
assault so long as he is in the process of falling on the ground, but as soon as his body touches
the floor, it will be battery.

It is, however, not essential that every battery should include assault. A blow from behind,
without the prior knowledge of the person hit, results in a battery without being preceded by any
assault.

3. FALSE IMPPRISONMENT

False imprisonment consists in the imposition of a total restraint for some period, however short,
upon the liberty of another, without sufficient lawful justification.

To constitute this wrong, imprisonment in the ordinary sense is not required. When a person is
deprived of his personal liberty, whether by being confined within the four walls or by being
prevented from leaving the place where he is, it is false imprisonment. If a man is restrained, by
a threat of force from leaving his own house or an open field, there is false imprisonment.

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The essentials required to constitute this wrong are:

(i) There should be total restraint on the liberty of a person.

(ii) It should be without any lawful justification.

(i) TOTAL RESTRAINT:

Under criminal law, whether the restraint is total or partial, the same is actionable. When the
restraint is total and a person is prevented from going out of certain circumscribed limits, the
offence is that of ‘wrongful confinement’. On the other hand, when the restraint is not total but it
is only partial, and a person is prevented merely from going to a particular direction where he has
a right to go, it is ‘wrongful restraint’. Under civil law, the position is different. The tort of false
imprisonment is constituted when there is a total restraint.

Mee vs. Cruikshank

After his acquittal, a prisoner was taken down to the cells and detained there for a few minutes
while some questions were put to him by the warders, there was held to be false imprisonment.

MEANS OF ESCAPE:

If there are means of escape, the restraint cannot be termed as total and that does not constitute
false imprisonment. The means must also provide a reasonable way of getting out of detention. If
the window providing escape is so high that there is likelihood of injury to the escaping person,
or even if an outlet is there but there is a threat of violence to the escaping person, such means of
escape are of no significance, and the detention amounts to false imprisonment.

(ii) UNLAWFUL DETENTION:

In order to constitute the wrong of false imprisonment, it is necessary that the restraint should be
unlawful or without any justification.

Bhim sing v.State of J.& K.

In this case, the petitioner, an M.L.A. of the J.& K. Assembly was wrongfully detained by the
police in order to prevent him from attending the Assembly session. The act of arrest was

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considered to be mischievous and malicious and the Supreme Court considered it to be an
appropriate case for granting exemplary damages amounting to Rs. 50,000/-.

LAWFUL DETENTION

When there is some justification for detaining a person, there is no false imprisonment. Thus, if a
man entered certain premises subject to certain reasonable conditions, it is no wrong to prevent
him from leaving those premises and unless those conditions are fulfilled.

John Lewis & Co. vs. Tims

The plaintiff and her daughter went to a shop, where the daughter committed theft and put four
calendars into her mother’s bag. Both the plaintiff and her daughter were detained in the office
and were told to wait for the managing director’s decision, where they remained for about an
hour. He decided to prosecute them and they were handed over to the police. On trial, the
daughter was found guilty of theft, but the charge against the mother was dropped. The mother
sued for false imprisonment. The defendants were held not liable.

REMEDIES:

(i) ACTING FOR DAMAGES:

Whenever the plaintiff has been wrongfully detained, he can always bring an action to claim
damages. Compensation may be claimed not only for injury to the liberty but also for disgrace
and humiliation which may be caused thereby.

(ii) SELF-HELP:

This is the remedy which is available to a person while he is still under detention. A person is
authorized to use reasonable force in order to escape from detention instead of waiting for a legal
action and procuring his release thereby.

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(iii) HABEAS CORPUS:

It is a speedier remedy for procuring the release of a person wrongfully detained. Such a writ
may be issued either by the Supreme Court under Article 32 or by a High Court under Article
226 of our Constitution. By this writ, the person detaining is required to produce the detained
person before the Court and justify the detention. If the Court finds that the detention is without
any just or reasonable ground, it will order that the person detained should be immediately
released.

4. NERVOUS SHOCK

This branch of law is comparatively of recent origin. It provides relief when a person may get
physical injury not by an impact, e.g. by stick, bullet or sword but merely by a nervous shock
through what he has seen or heard. As far back as 1888, the Judicial Committee of the Privy
Council in Victorian Railway Commissioner vs. Coultas, did not recognize injury caused by a
shock sustained through the medium of eye or ear without direct.

Wilkinson vs. Downton,

In 1897, the defendant was held liable when the plaintiff suffered nervous shock and got
seriously ill on being told falsely, by way of practical joke, by the defendant that her husband
had broken both the legs in an accident.

Dulieu vs. White and Sons

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An action for nervous shock resulting in physical injuries was recognized. There the defendant’s
servant negligently drove a horse van into a public house and the plaintiff, a pregnant woman,
who was standing there behind the bar, although not physically injured, suffered nervous shock,
as a result of which she got seriously ill and gave premature birth to a stillborn child. The
defendants were held liable.

King vs. Phillips

The defendant’s servant was negligently backing in a taxi-cab into a boy on a tricycle. The boy’s
mother, who was in an upstairs window, at a distance of about 70 to 80 yards, could only see the
tricycle under the taxi-cab and heard the boy scream but could not see the boy. The boy and the
tricycle got slightly damaged but the mother suffered nervous shock. The mother was held to be
wholly outside the area of reasonable apprehension and the defendants were held not liable.

Hambrook vs. Stokes Bros.

In this case, the mother was suffering nervous shock because of fear of injury to her children
could recover. For the purpose of an action for nervous shock, a person need not be in the area of
physical injury to himself, it is enough that he is so placed that a shock could be caused to him
by his seeing or hearing something. It appears therefore that the case of King vs. Phillips requires
reconsideration.

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 5. DEFAMATION

Defamation is an injury to the reputation of a person. If a person injures the reputation of

another, he does so at his own risk, as in the case of an interference with the property. A man’s
reputation is his property, and if possible, more valuable, than other property.

DEFINITION:

“Defamation is the publication of a statement which tends to lower a person in the estimation of
right-thinking members of society generally or which tends to make them shun or avoid the
person. It is libel if the statement be in permanent form and slander if it consists in significant
words or gestures.”

LIBEL AND SLANDER:

English Law:

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Mainly because of historical reasons, English law divides actions for defamation into-Libel and
Slander.

Slander is the publication of a defamatory statement in a transient form. Examples of it may be

spoken by words or gestures.

Libel is representation made in some permanent form, e.g.., writing, printing, picture, effigy or
statute.

Under English law, the distinction between libel and slander is material for two reasons:

(1) Under Criminal law, only libel has been recognized as an offence. Slander is no offence.
(2) Under the law of torts, slander is actionable, save in exceptional cases, only on proof of
special damage. Libel is always actionable per se, i.e., without the proof of any damage.

In the following four exceptional cases, slander is also actionable per se:

(i) Imputation of criminal offence to the plaintiff;

(ii) Imputation of a contagious or an infectious disease to the plaintiff, which has the
effect of preventing other from associating with the plaintiff;
(iii) Imputation that a person is incompetent, dishonest or unfit in regard to the office,
profession, calling, trade or business carried on by him;
(iv) Imputation of unchastity or adultery to any woman or girl is also actionable per se.
This exception was created by the Slander of Women Act, 1891.

Indian Law:

It has been noted above that under English criminal law, a distinction is made between libel and
Slander. There, libel is a crime but slander is not. Slander is only a civil wrong in England.
Criminal law in India does not make any such distinction between libel and slander. Both libel
and slander are criminal offences Section 499, I.P.C.

ESSENTIALS OF DEFAMATION:

(1) The statement must be defamatory;

(2) The said statement must refer to the plaintiff;

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 (3) The statement must be published.

(i) THE STATEMENT MUST BE DEFAMATORY:

Defamatory statement is one which tends to injure the reputation of the plaintiff. Defamation is
the publication of a statement which tends to lower a person in the estimation of right thinking
members of society generally, or which tends to make them shun or avoid that person. For
instance, it may be oral, in writing, printed or by the exhibition of a picture, statue or effigy or by
some conduct.

D.P. Choudhary v. Manjulata

There was publication of a statement in a local daily in Jodhpur on 18.12.77 that Manjulate went
out of her house on the earlier night at 11 p.m. on the pretext of attending night classes and ran
away with a boy named Kamlesh. She belonged to a well educated family and was herself also a
student of B.A. class. She was 17 years of age. The news item was untrue and had been
published with utter irresponsibility and without any justification. Such publication had resulted
in her being ridiculed and affected her marriage prospects. The statement being defamatory, the
defendants were held liable

The Innuendo

A statement may be prima facie defamatory and that is so when its natural and obvious meaning
leads to that conclusion. Sometimes, the statement may prima facie be innocent but because of
some latent or secondary meaning, it may be considered to be defamatory. When the natural and
ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he
must prove the latent or the secondary meaning, i.e., the innuendo, which makes the statement
defamatory.

Morrison v. Ritihie & Co.

The defendants in good faith published a mistaken statement that the plaintiff had given birth to
twins. The plaintiff had been married only two months back. Even though the defendants were
ignorant of this fact, they were held liable.

(ii) THE STATEMENT MUST REFER TO THE PLAINTIFF:

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In an action for defamation, the plaintiff has to prove that the statement of which he complains
referred to him. It is immaterial that the defendant did not intend to defame the plaintiff.

Newstead v. London Express Newspapers Ltd.

The defendants published an article stating that “Harold Newstead, a Camberwell man” had been
convicted of bigamy. The story was true of Harold Nwestead, a Camberwell barman. The action
for defamation was brought by another Harold Newstead, a Camberwell barber. As the words
were considered to be understood as referring to the plaintiff, the defendants were held liable.

Defamation of the deceased:

Defaming a deceased person is no tort. Under Criminal Law however, it may amount to
defamation to impute anything to a deceased person, if the imputation would harm the reputation
of the person, if living, and is intended to be hurtful to the feelings of his family or other near
relatives.

(iii) THE STATEMENT MUST BE PUBLISHED:

Publication means making the defamatory matter known to some person other than the person
defamed, and unless that is done, no civil action for defamation lies. Communication to the
plaintiff himself is not enough because defamation is injury to the reputation and reputation
consists in the estimation in which others hold him and not a man’s own opinion of himself.

Arumuga Mudaliar v. Annamalai Mudaliar

It was held by the Madras High Court that when two persons jointly wrote a letter containing
defamatory matter concerning the plaintiff and sent the same by registered post to the plaintiff,
there was no publication by one tortfeasor to the other as there could be no publication between
joint tortfeasors nor can there be said to be publication when the registered letter addressed to
the plaintiff gets into the hands of a third person and he reads it out in the presence of various
other person, if the same could not have been foreseen.

Communication between husband and wife

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In the eyes of law, husband and wife are one person and the communication of a defamatory
matter from the husband to the wife or vice versa is no publication.

T.J. Ponnen v. MC. Verghese

In that case, one T.J. Ponnen wrote a number of letters to his wife, Rathi, containing some
defamatory imputations concerning Rathi’s father, M.C. Verghese. Rathi passed on those letters
to her father. The father-in-law launched a prosecution against his son-in-law complaining the
defamatory matter contained in those letters. Ponnen was held not liable.

DEFENCES:

The defences to the action for defamation are:

1. Justification or Truth;
2. Fair comment;
3. Privilege, which may be either absolute or qualified.

(i) JUSTIFICATION OR TRUTH:

In a civil action for defamation, truth of the defamatory matter is complete defence. If the
defendant is not able to prove the truth of the facts, the defence cannot be availed.

(ii) FAIR COMMENT:

Making fair comment on matters of public interest is defence to an action for defamation. For
this defence to be available, the following essentials are required:

a) It must be a comment, i.e., an expression of opinion rather than assertion of fact;

b) The comment must be fair; and
c) The matter commented upon must be of public interest.

(iii) PRIVILEGE:

There are certain occasions when the law recongnizes that the right of free speech outweighs the
plaintiff’s right to reputation: the law treats such occasions to be “privileged” and a defamatory

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statement made on such occasions is not actionable. Privilege is of two: “Absolute” privilege
and “Qualified” privilege.

Absolute privilege

In matters of absolute privilege, no action lies for the defamatory statement even though the
statement is false or has been made maliciously. In such cases, the public interest demands that
an individual’s right to reputation should give way to the freedom of speech.

Qualified Privilege

In cetain cases, the defence of qualified privilege is also available. Unlike the defence of absolute
privilege, in this case it is necessary that the statement must have been made without malice. For
such a defence to be available, it is further necessary that there must be an occasion for making
the statement.

(B) WRONGS TO PROPERTY TO LAND AND CHATTELS

“Every invasion of property, be it ever so minute, is a trespass”.

Under English common law, trespass was of three kinds:

(1) Trespass quare clausum freight or trespass on land.

(2) Trespass viet armis or trespass on person.
(3) Trespass de bonis asportatis or trespass on goods.

1. TRESPASS TO LAND

Trespass to land means interference with the possession of land without lawful justification. In
trespass, the interference with the possession is direct and through some tangible object. If the
interference is not direct but consequential, the wrong may be nuisance. Planting a tree on
another’s land is a trespass but if a person plants a tree over his land and its roots or branches
escape on the land of the neighbor, that will be a nuisance.

Trespass is a wrong against possession rather than ownership. Therefore, a person in actual
possession can bring an action even though, against the true owner, his possession was wrongful.
Trespass is actionable per se and the plaintiff need not prove any damage for an action of

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trespass. Neither use of force nor showing any unlawful intention on the part of the defendant
required.

Trespass ab initio:

When a person enters certain premises under the authority of some law and after having entered
there, abuses that authority by committing some wrongful act there, he will be considered to be a
trespasser ab initio to that property. Even though he had originally lawfully entered there, the law
considers him to be a trespasser from the very beginning and presumes that he had gone there
with that wrongful purpose in mind. The plaintiff can, therefore, claim damages.

In order that the entry of a person to certain premises is treated as trespass ab intio non-feasance
(i.e., omission to do something) is not enough, it is necessary that the defendant must have been
guilty of positive act of nonfeasance (i.e., doing of a wrongful act).

Six Carpenters’ Case:

Six carpenters entered an inn and ordered some wine and bread. After having taken the same,
they refused to pay for that. They had done no act of misfeasance and mere non-payment being
only nonfeasance, there was held to be no trespass ab initio.

ENTRY WITH A LICENCE:

Entering certain premises with the authority of the person in possession amounts to a licence and
the defendant cannot be made liable for trespass.

Permitting a person to cut a tree on one’s land or permitting a person by the cinema management
to see a film are examples of license. After the license is revoked, the licensee becomes a
trespasser on land and must quit that place within a reasonable time.

Wood vs. Leadbitter

The plaintiff having purchased a ticket went to see a horse race and the defendants were the
occupiers of the racecourse. While the races were still going on, the defendants asked the
plaintiff to leave the premises and on his refusal to comply with that, he was forcibly ejected by
the defendant’s servants. The plaintiff brought an action for assault. It was held that the

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revocation of the license was effectual and after the revocation of the license, the plaintiff has
become a trespasser and ejection of the trespasser out of the premises was not an actionable
wrong.

REMEDIES:

(i) Re-Entry:

If a person’s possession had been disturbed by a trespasser, he has a right to use reasonable force
to get a trespass vacated. A person, who being thus entitled to the immediate possession, uses
reasonable force and regains the possession himself, cannot be sued for a trespass.

Hemmings vs. Stoke Poges Golf Club

The plaintiff had been in the employment of the defendants. On the termination of the service,
the plaintiff was given a proper notice to quit the house. On his refusal to do so, the defendants,
by the use of reasonable force, themselves entered those premises and removed the plaintiff and
his furniture out of it. The defendants were held not liable because their action had only
amounted to an ejectment of a trespasser.

(ii) Action for Ejectment:

Section 6, Specific Relief Act, 1963 gives a speedy remedy to a person who has been
dispossessed of immovable property otherwise than in due course of law.

(iii) Action for Mesne Profits:

Apart from the right of recovery of land by getting the trespasser ejected, a person who was
wrongfully dispossessed of his land may also claim compensation for the loss which he has
suffered during the period of dispossession. An action to recover such compensation is known as
an action for mesne profits. If the plaintiff so likes, he may sue in ejectment and mesne profits in
the same action. His claim is not limited to the benefit received by the defendant from that land
during that period.

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(iv) Distress Damage Feasant:

The right of distress damage feasant authorizes a person in possession of land to seize the
trespassing cattle or other chattels and he can detain them until compensation has been paid to
him for the damage done. The idea is to force the owner of the chattel to pay compensation and
after the compensation has been paid, that chattel is to be returned. Any chattel, animate or
inanimate can be detained.

Moreover, the above stated right can be exercised when the trespassing animals or chattel is still
creating a trespass. There is no right to follow the things after it has gone out of those premises
or to recover them after the owner has taken them away.

2. TRESPASS TO GOODS

Trespass to goods is wrongful interference with the right of possession. It consists in direct
physical interference with the goods which are in the plaintiff’s possession, without any lawful
justification. It is also a trespass to kill a dog by giving it poisoned meat. Trespass to goods is
actionable per se, without the proof of any damage. However, when the plaintiff has suffered no
loss, he will get only nominal damages.

REMEDIES FOR INJURIES TO GOODS:

The main injuries to goods and their remedies are:

a) Detinue,
b) Replevin,
c) Trespass, and
d) Trover.

Of these, trover is the technical name given for the remedy of the wrong of conversion or
converting or wrongfully appropriating another’s goods.

(a) DETINUE:

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When the defendant is wrongfully detaining the goods belonging to the plaintiff and refuses to
deliver the same on lawful demands, the plaintiff can recover the same by bringing an action for
detinue. It is thus an action for the recovery of goods unlawfully detained by the defendant. If the
original possession is lawful but subsequently the goods are wrongfully detained, an action for
detinue can be brought.

In such an action, the defendant has to either return the specific chattel or pay its value to the
plaintiff. This remedy is, however, of no help when the goods are returned to the plaintiff in a
damaged condition.

An action for detinue may be distinguished from trespass. In an action for detinue, the defendant
assumes the possession of the goods whereas there could be a trespass to the goods while the
same continue to be in the possession of the plaintiff.

‘Detinue’ abolished in England:

In England, by the passing of ‘Torts (Interference with Goods) Act, 1977’, Detinue has been
abolished. However, the tort of conversion has been extended to include those situations also
which were termed as ‘detinue’.

Position in India:

In India, although ‘Detinue’ as such has not been mentioned as a wrong but similar action for
recovery of specific movable property has been recognized by the Specific Relief Act, 1963. The
courts sometimes term such an action as that for ‘detinue’.

Banshi vs. Goverdhan

The defendant having taken a cycle on hire from the plaintiff failed to return the same. He was
held liable to pay to the plaintiff the estimated value of the cycle, i.e., Rs. 300, under an action
for detinue.

(b) REPLEVIN:

This is another ancient remedy of English law under which if A unlawfully takes B’s goods by
way of distress or otherwise, B can get back the goods through the court to prosecute an action of

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replevin in the County Court or in the High Court. Thus the plaintiff gets back his article and the
defendant can proceed against the security if he ultimately succeeds in the action.

In India although there is no remedy of this specific name there are other provisions in the Civil
Procedure Code which confer similar rights on parties before court.

(c) CONVERSION:

The tort of conversion (also known as Trover) may be defined as any act in relation to the goods
of a person which constitutes an unjustifiable denial of his title to them. It is dealing with the
goods in a manner which is inconsistent with the right of the owner. The same must have been
done with an intention on the part of the defendant to deal with the goods in such a way that
amounts to denial of plaintiff’s right to it. Refusing to deliver the plaintiff’s goods, putting them
to one’s own use or consuming them, transferring the same to a third party, destroying them or
damaging them in a way that they lose their identity, or dealing with them in any manner which
deprives the plaintiff to its use and possession are some of the examples of the wrong.

Richardson vs. Atkinson

The defendant drew some wine out of the plaintiff’s cask and mixed water with the remainder to
make good the deficiency. He was held liable for the conversion of the whole cask as he had
converted part of the contents by taking them away and the remaining part by destroying their
identity.

Methods of Conversion:

There can be no conversion unless the defendant’s conduct in relation to the goods amounts to an
unjustifiable denial of the plaintiff’s title to them. It is possible for one to commit conversion of
another’s goods by wrongfully:

1) taking possession of them, or

2) by abusing possession of them when he has already got it, or
3) by denying the latter’s title to them. In this case the denial should be absolute. The
wrongdoer need not be in possession of the goods in such cases.

Wrongful Intention not Necessary:

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A person dealing with the goods of another person in a wrongful way does so at his own peril
and it is no defence that he honestly believed that he has a right to deal with the goods or he had
no knowledge of the owner’s right in them.

Roop Lal vs. Union of India

Some military jawans found some firewood lying by the river side. They thought that the wood
being unmarked, probably belonged to the Government and they had every right to take away the
same. They took away the wood in the military vehicle for camp fire and fuel. Ultimately, it
turned out that the wood belonged to the plaintiff. In an action against the Union of India for the
tort of conversion committed by its servant, it was held that the Union of India was liable to
compensate the plaintiff for the loss and the fact that the jawans did not intend to commit the
theft did not absolve the State from its liability.

Hollins vs. Fowler

The defendant, a cotton broker obtained possession of thirteen bales of the plaintiff’s cotton from
one B and sold the same further, receiving only his own commission. B had obtained these goods
from the plaintiff by fraud, but the defendant had absolutely no knowledge of the same. The
defendant was held liable to the plaintiff for the tort of conversion.

If the person selling the goods sell them without any authority from the owner, he may be held
liable for conversion. The owner of the goods may also recover the goods from the purchaser of
them because the general rule protects the interest of the owner of the goods as against the buyer
and the rule is contained in the maxim ‘nemo dat quod non habet’ (no one can give what he has
not got).

Immediate Right of a Possession or Use Necessary:

For an action for conversion, it is also necessary that the plaintiff must have a right to the
immediate possession of the goods at the time of their conversion. If the plaintiff cannot prove
his right of possession, an action for conversion will fail.

Denial of Plaintiff’s Right to Goods Necessary:

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It has been noted that the defendant’s intended act must amount to denial to the plaintiff’s right
to the goods to which he is lawfully entitled. Removing the goods from one place to another may
be trespass but it is not conversion.

Fouldes vs. Willoughby

The plaintiff embarked his horses on the defendant’s ferry boat for crossing the river. Some
dispute having arisen between the plaintiff and the defendant before the boat started, the
defendant asked the plaintiff to remove his horses from the boat. On his refusal, the defendant
put the horses off on the highway. The plaintiff himself declined to get down and he was carried
across the river. The plaintiff brought an action contending that the defendant’s act had
amounted to conversion. It was held that the defendant’s act might have been trespass to the
horses, it did not amount to conversion.

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 (C) NEGLIGENCE

In the modern law of tort, the word negligence has two meaning. Firstly, it indicates the state of
mind of a party in doing an act and secondly, it means a conduct which the law deems wrongful.
The term ‘negligence’ is used for the purpose of fastening the defendant with liability under the
Civil Law and Criminal Law. Generally speaking, it is the amount of damages incurred which is
determinative of the extent of the liability in tort; but in criminal law it is not the amount of
damages but the amount and degree of the negligence that is determinative of the liability.

DEFINITION:

Negligence as a specific tort has been defined by Winfield thus: “Negligence as a tort is the
breach of a legal duty to take care which results in damage, undesired by the defendant, to the
plaintiff.

The definition involves three constituents of negligence:

(1) A legal duty to exercise due care on the part of the party complained of towards the party
complaining the former’s conduct within the scope of the duty;
(2) Breach of the said duty; and
(3) Consequential damage.

ESSENTIALS:

In an action for negligence, the plaintiff has to prove the following essentials:

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 (1) That the defendant owed duty of care to the plaintiff;
(2) The defendant made a breach of that duty;
(3) The plaintiff suffered damage as a consequence thereof.

(i) DUTY OF CARE TO THE PLAINTIFF:

It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to
establish that the defendant owed to him a specific legal duty to take care, of which he has made
a breach. There is no general rule of law defining such duty. It depends in each case whether a
duty exists.

Thus, Lord Atkin propounded the following rule in Donoghue vs. Stevenson and the same has
gained acceptance:

“You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbor.

He then defined “neighbours” as “persons 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 which are called in question”.

Donoghue vs. Stevenson

A purchased a bottle of ginger beer from a retailer for the appellant, a lady friend. Some of the
contents were poured in a tumbler and she consumed the same. When the remaining contents of
the bottle were poured into her tumbler, the decomposed body of a snail floated out with her
ginger-beer. The appellant alleged that she seriously suffered in her health in consequence of
having drunk a part of the contaminated contents. The bottle was of dark opaque glass and closed
with a metal cap, so that the contents could not be ascertained by inspection. She brought an
action against the manufacturer for damage.

One of the defences pleaded by the defendants was that he did not owe any duty of care towards
the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care that the
bottle did not contain any noxious matter, and that he would be liable on the breach of the duty.

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Another defence pleaded by the defendant was that the plaintiff was a stranger to the contract
and her action was, therefore not maintainable. Earlier a fallacy, commonly known as “Privity of
Contract Fallacy”, had crept into the law, the effect of which was understood to be that if A
undertook some contractual obligation towards B and the breach of such obligation by A resulted
in damage to C, then C could not sue A even in tort because there was no contractual relation
between A and C. This fallacy was done away with by Donoghue vs Stevenson by allowing the
consumer of drink an action in tort against the manufacturer, between whom there was no
contract.

Duty depends on Reasonable Foreseeability of Injury:

Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability of
the injury to the plaintiff. If at the time of the act or omission, the defendant could reasonably
foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes
him liable. Duty to take care is the duty to avoid doing or omitting to do anything, the doing or
omitting to do which may have as its reasonable and probable consequence injury to others, and
the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty
is not observed.

Krishnappa Naidu vs. Union of India

The plaintiff’s taxi, passing through a level crossing, was hit by the defendant railways train. It
was found that the taxi driver entered into the level crossing in spite of the warnings given by the
gateman. The taxi driver was, therefore, a trespasser on the railway track, whose presence could
not be anticipated by the railway driver. The accident could not be averted in spite of the best
efforts of the railway administration. Since there was no negligence on the part of the railway
administration or its staff, the defendants were held not liable.

Reasonable Foreseeability does not mean Remote Possibility:

To establish negligence it is not enough to prove that the injury was foreseeable, but a reasonable
likelihood of the injury has to be shown because “foreseeability does not include any idea of
likelihood at all”.

(ii) BREACH OF DUTY:

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Breach of duty means non-observance of due care which is required in a particular situation. The
standard of care required is that of a reasonable man or of an ordinary prudent man. If the
defendant has acted like a reasonably prudent man, there is no negligence.

Standard of Care Required:

The law requires taking of two points into consideration to determine the standard of care
required:

(a) the importance of the object to be attained,

(b) the magnitude of the risk, and
(c) the amount of consideration for which services, etc are offered.

(a) The Importance of the Object to be Attained:

The law does not require greatest possible care but the care required is that of a reasonable man
under certain circumstances. The law permits taking chance of some measure of risks so that in
public interest various kinds of activities should go on.

(b) The Magnitude of Risk:

The degree of care required varies according to each situation. What may be a careful act in one
situation may be a negligent act in another. The law does not demand the same amount of care
under all situations. The kind of risk involved determines the precautions which the defendant is
expected to take.

Sagar Chand vs. State of J & K

Two children, aged about 7 and 11 years were passing through a paddy field in the village as
they were going for taking bath. The electric line in that area was under repairs. Due to the
negligence of the lineman, the children came in contact with live electric wires, got electrocuted
and died. The State Department was held vicariously liable for the negligence of the lineman and
was required to pay compensation.

Pandian Roadways Corp. vs. Karunanithi

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In this case, three immature boys were riding a cycle. On seeing some dogs fighting ahead, they
lost the balance and fell down. The driver of a bus saw the boys falling, but did not immediately
apply the brakes, as a result of which the bus ran over the right arm of one of those boys. The
failure of the driver to stop the bus was held to be a clear case of negligence on his part.

Glasgow Corp. vs. Taylor

In this case, poisonous berries were grown in a public garden under the control of the
Corporation. The berries looked like cherries and thus had tempting appearance for the children.
A child, aged seven, ate those berries and died. It was found that the shrub bearing the berries
was neither fenced nor a notice regarding the deadly character of the berries was displayed. It
was, therefore, held that the defendants were liable for negligence.

The Amount of Consideration for which Services, etc. are offered:

The degree of care depends also on the kind of services offered by the defendant and the
consideration charged therefor from the plaintiff.

Klaus Mittelbachert vs. East India Hotels Ltd.

In this case, the plaintiff got paralysed while he dived in the swimming pool and after suffering
considerable pain and suffering and spending a lot on medicines, special diet and rehabilitation,
he died after 13 years after the accident. It was observed that “a five star hotel charging a high or
fancy price from its guests owes a high degree of care as regards quality and safety of its
structure and services it offers and makes available. Any latent defect in its structure or service,
which is hazardous to guests, would attract strict liability to compensate for consequences
flowing from the breach of duty to take care”. For the damage caused to guests of such a hotel,
exemplary damages become payable.

(iii) DAMAGE:

It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The
plaintiff has also to show that the damage thus caused is not too remote a consequence of the
defendant’s negligence.

PROOF OF NEGLIGENCE: RES IPSA LOQUITUR

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The maxim means “accident talks or thing speaks for itself”. There are many cases in which the
accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing
more. This principle was explained thus by the Court of Exchequer in Scott vs. London and St.
Katherine Docks Co.

Scott vs. London and St. Katherine Docks Co.

In this case, six bags of sugar from a crane fell upon the plaintiff, a customs officer, while he was
passing in front of the defendants’ warehouse on the docks of the course of his duties. It was held
that this constituted reasonable evidence of negligence to place the case before the jury.

Byrne vs. Boadle

A barrel of flour had rolled out of an open doorway of the defendant’s warehouse and fallen on
the plaintiff, a passer-by in the street below. It was held that this was sufficient evidence of
negligence to go to a jury, without any evidence as to the manner in which the accident had
happened.

Essential requisites for the application of the doctrine are the following:

(a) the thing which causes the harm must be under the control of the defendant;
(b) while under his control an accident happens which would not in the ordinary course of
things happen without negligence; and
(c) the defendant gives no explanation.

The principle of res ipsa loquitur only shifts the onus of proof, in that a prima facie case is
assumed to be made out, throwing on the defendant the task of proving that he was not negligent.

Maxim not applicable if different inferences possible:

The maxim res ipsa loquitur applies when the only inference from the facts is that the accident
could not have occurred but for the defendant’s negligence.

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 Sk. Allah Bakhas and others vs. Dhirendra Nath Panda and another

An auto rickshaw tried to cross the unmanned level crossing when the railway train was at a
short distance from the crossing. The auto-rickshaw was hit and dragged to some distance by the
train injuring the occupants. It was held that an attempt on the part of the rickshaw driver to cross
the railway track when the train was fast approaching could lead to the only inference that the
rickshaw driver was negligent.

Rebuttal of the Presumption of Negligence:

The rule of res ipsa loquitur only shifts the burden of proof and instead of the plaintiff proving
negligence on the part of the defendant, the defendant is required to disprove it. If the defendant
is able to prove that what apparently seems to be negligence was due to some factors beyond his
control, he can escape liability.

CONTRIBUTORY NEGLIGENCE:

In certain circumstances a person who has suffered an injury will not be able to get damages
from another for the reason that his own negligence has contributed to his injury. Every person is
expected to take reasonable care of him. If anyone fails to take that reasonable care of himself,
i.e. is negligent as regards himself, and in consequence of that suffers an injury, he will not be
permitted to recover damages from another, even though the latter was also negligent in certain
aspects to some extent.

This principle came to be recognized in English law through a number of leading decisions.

Butterfield vs. Forrester

A wrongfully obstructed a road by placing a pole across it. B came along that road towards
evening riding his horse at such an excessive speed that he was overthrown due to the pole and
injured. There was sufficient daylight to see the obstruction at the distance of 100 yards. In an
action that was brought by B, the injured, claiming damages against A, it was held that the latter
was not liable; for despite A’s negligence B could have avoided the accident by taking due care
of himself.

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At Common Law, contributory negligence on the part of the plaintiff was considered to be a
good defence and the plaintiff lost his action. Here plaintiff’s negligence does not mean breach
of duty towards the other party but it means absence of due care on his part about his own safety.

This rule worked a great hardship particularly for the plaintiff because for a slight negligence on
his part, he may lose his action against a defendant whose negligence may have been the main
cause of damage to the plaintiff. The courts modified the law relating to contributory negligence
by introducing the so-called rule of ‘Last Opportunity’ or ‘Last Chance’.

The Last Opportunity Rule:

According to this rule, when two persons are negligent, that one of them, who had the later
opportunity of avoiding the accident by taking ordinary care, should be liable for the loss. It
means that if the defendant is negligent and the plaintiff having a later opportunity to avoid the
consequences of the negligence of the defendant does not observe ordinary care, he cannot make
the defendant liable for that. Similarly, if the last opportunity to avoid the accident is with the
defendant, he will be liable for the whole of the loss to the plaintiff.

British Columbia Electric Co. vs. Loach

In this case, the driver of a wagon, in which the deceased was seated, negligently brought the
wagon on the level crossing of the defendant’s tramline without trying to see whether any tram
was coming on the line. A tram, which was being driven too fast, caused the collision. It was
found that the tram which caused the accident was allowed to go on the line with defective
brakes and if the brakes were in order then, in spite of the negligence on the part of the wagon’s
driver, the tram could have been stopped and the accident averted. The personal representatives
of the deceased brought an action against the tramway company. The defendants pleaded the
defence of contributory negligence. It was held that they could not take the defence of
contributory negligence because they had the last opportunity to avoid the accident which they
had incapacitated themselves from availing because of their own negligence. The defendants
were, therefore, held liable.

Law Reform (Contributory Negligence) Act, 1945:

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Section 1(1) of the Act provides as follows:

“Where any person suffers damage as the result partly of his own fault and partly of the
fault of any other person or persons, a claim in respect of that damage shall not be
defeated by reason of the fault of the person suffering the damage, but the damages
recoverable in respect thereof shall be reduced to such extent as the court thinks just and
equitable having regard to the claimant’s share in the responsibility for the damage”.

Thus, if in an accident, the plaintiff is as much at fault as the defendant, the compensation to
which he would otherwise be entitled will be reduced by 50 per cent.

Doctrine Of Apportionment Of Damages In India:

In India, there is no Central Legislation corresponding to the Law Reform (Contributory

Negligence) Act, 1945 of England. The position brought about by the Law Reform Act in
England is very just and equitable. The Kerala Legislature has taken a lead by passing the Kerala
Torts (Miscellaneous Provisions) Act, 1976. Sec 8 of the Act makes provision for apportionment
of liability in case of contributory negligence. The provision is similar to the one contained in the
English Law Reform Act of 1945.

Rural Transport Service vs. Bezlum Bibi

The conductor of an overloaded bus invited passengers to travel on the roof of the bus. The
driver swerved the bus to the right to overtake a cart. As the driver turned on the kutcha portion
of the road, Taher Sheikh, who was travelling on the roof, was hit by the branch of a tree. He fell
down and got serious injuries and later he died due to that. In an action by the mother of the
deceased to claim compensation, it was held that there was also contributory negligence on the
part of the conductor and the driver of the bus and there was also contributory negligence on the
part of the deceased because he took the risk of travelling on the roof of the bus.

Rules To Determine Contributory Negligence:

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The Contributory Negligence Act prescribes the rule when there is contributory negligence on
the part of the plaintiff.

1. The plaintiff need not necessarily owe a duty of care to the other party. What has to be
proved is that the plaintiff did not take care of his own safety and thus contributed to his
own damage.
2. It is not enough to show that the plaintiff did not take due care of his own safety. It has
also to be proved that it is his lack of care which contributed to the resulting damage.

Agya Kaur vs. Pepsu Road Transport Corporation

An overloaded rickshaw with three adults and a child on it, while being driven on the correct side
of the road, was hit by a bus being driven at a high speed and also coming on the wrong side. It
was held that there was negligence on the part of the bus driver only, and in spite of the fact that
the rickshaw was overloaded, there was no contributory negligence on the part of the rickshaw
diver.

The Doctrine Of Alternative Danger:

Although the plaintiff is supposed to be careful in spite of the defendant’s negligence, there may
be certain circumstances when the plaintiff is justified in taking some risk where some dangerous
situation has been created by the defendant. The plaintiff might become nervous by a dangerous
situation created by the defendant and to save his person or property, or sometimes to save a
third party from such danger, he may take an alternative risk. The law, therefore, permits the
plaintiff to encounter an alternative danger to save himself from the danger created by the
defendant. If the course adopted by him results in some harm to himself, his action against the
defendant will not fail.

Brandon vs. Osborne, Gerret and Co.

The plaintiff and her husband were in the defendant’s shop. A broken piece of glass came from
the skylight and the plaintiff tried to pull her husband away from that. While doing so, she
strained and injured her leg. It was held that she was entitled to recover from the defendants for
their negligence even though she herself was not in danger. Her act was instinctive and
reasonable.

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 Morgan vs. Aylen

The plaintiff was injured while trying to save a child of three and half years of age from being
run over by a lorry. She was entitled to recover compensation. Taking a risk when nobody is in
danger cannot, however, be justified.

Contributory Negligence Of Children:

What amounts to contributory negligence in the case of a mature person may not be so in the
case of a child because a child cannot be expected to be as careful as a grown-up person. Age of
a person, therefore, has to be taken into account to ascertain whether a person is guilty of
contributory negligence or not.

Yachuk vs. Oliver Blais Co. Ltd.

The defendant’s servant sold some gasoline (a highly inflammable liquid) to two boys aged 7
and 9 years. The boys had falsely stated that they needed the same for their mother’s car. They
actually used the gasoline for their play with the result that one of these children was badly burnt.
In an action on behalf of the injured child, the plea of contributory negligence on the part of the
child was pleaded. The Privy Council found that there was no evidence to show that the infant
plaintiff appreciated the dangerous nature of gasoline and the defendant was held liable in full
for the loss. If, however, a child is capable of appreciating the danger, he may be held guilty of
contributory negligence.

The Doctrine Of Identification:

The defence of contributory negligence can be taken not only when the plaintiff himself has been
negligent but also when there is negligence on the part of the plaintiff’s servant or agent:
provided that the master himself would have been liable for such a negligence if some harm had
ensued out of that.

(D) NUISANCE – NUISANCE AND INJURY OF SERVITUDE’S HIGHWAYS ETC

1. NUISANCE

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Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land, or
some right over, or in connection with it. Acts interfering with comfort, health or safety are the
examples of it. The interference may be anyway, e.g., noise, vibrations, heat, smoke, smell,
fumes, water, gas, electricity, excavation or disease producing germs.

KINDS OF NUISANCE:

Nuisance is of two kinds:

(i) Public or Common Nuisance.

(ii) Private Nuisance or Tort of Nuisance.

(i) PUBLIC NUISANCE:

Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is
interference with the right of public in general and is punishable as an offence. Obstructing a
public way by digging a trench, or constructing structures on it are examples of public nuisance.
To avoid multiplicity of suits, the law makes public nuisance only an offence punishable under
criminal law.

In certain cases, when any person suffers some special or particular damage, different from what
is inflicted upon public as a whole, a civil right of action is available to the person injured. The
proof of special damage entitles the plaintiff to bring a civil action for what may be otherwise a
public nuisance.

Dr. Ram Raj Singh v. Babulal

The defendant created a brick grinding machine adjoining the premises of the plaintiff, who was
a medical practitioner the brick grinding machine generated dust, which polluted the atmosphere.
The dust entered the consulting chamber of the plaintiff and caused physical inconvenience to
him and patients, and their red coating on clothes, caused by the dust, could be apparently
visible. It was held that special damages to the plaintiff had been proved and a permanent
injunction was issued against the defendant restraining him from running his brick grinding
machine there.

(ii) PRIVATE NUISANCE OR TORT OF NUISANCE:

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To constitute the tort of nuisance, the following essentials are required to be proved:

a) Unreasonable interference;
b) Interference with the use or enjoyment of land;
c) Damage.

(a) Unreasonable interference

Interference may cause damage to the plaintiff’s property or may cause personal discomfort to
the plaintiff in the enjoyment of property. Every interference is not a nuisance. To constitute
nuisance, the interference should be unreasonable.

Radhey Shyam v. Gur Prasad

Gur Prasad and another filed a suit against Radhey Shyam and others for a permanent injunction
to restrain them from installing and running a flour mill in their premises, it was alleged that the
said mill would cause nuisance to the plaintiffs, who were occupying the first floor portion of the
same premises inasmuch as the plaintiffs would lose their peace on account of rattling noise of
the flour mill and thereby their health would also be adversely affected. It was held that
substantial addition to the noise in a noisy locality, by the running of the impugned machines,
seriously interfered with the physical comfort of the plaintiffs and as such, it amounted to
nuisance, and the plaintiffs were entitled to an injunction against the defendants.

(b) Interference with the use or enjoyment of land

Interference may cause either:

(i) injury to the property itself, or

(b) injury to comfort or health of occupants of certain property.

(a) INJURY IN PROPERTY:

An unauthorized interference with the use of the property of another person through some object,
tangible or intangible, which causes damage to the property, is actionable as nuisance. It may be
by allowing the branches of a tree to overhang on the land of another, or to escape of the roots of
a tree, water, gas, smoke or fumes, etc. on to the neighbour’s land or even by vibrations.

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 St. Helen’s Smelting Co. v. Tipping

Fumes from the defendant company’s work damaged plaintiff’s trees and shrubs. Such damage
being an injury to property, it was held that the defendants were liable. The plea that locality
was devoted to works of that kind was unsuccessful.

(b) INJURY TO COMFORT OR HEALTH:

Substantial interference with the comfort and convenience in using the premises is actionable as
a nuisance. A mere trifling or fanciful inconvenience is not enough. The rule is De minimis non
curat lex means that “the law does not take account of very trifling matters”. There should be “a
serious inconvenience and interference with the comfort of the occupiers of the dwelling house
according to notions prevalent among reasonable Englishmen and women…”

(iii) Damage

Unlike trespass, which is actionable per se, actual damage is required to be proved in an action
for nuisance. In the case of public nuisance, the plaintiff can bring an action in tort only when he
proves a special damage to him. In private nuisance, although damage is one of the essentials,
the law will often presume it.

Fay v. Prentice

A cornice of the defendant’s house projected over the plaintiff’s garden. It was held that the mere
fact that the cornice projected over the plaintiff’s garden raises a presumption of fall of rain
water into and damage to the garden and the same need not be proved. It was a nuisance.

DEFENCES

A number of defences have been pleaded in an action for nuisance. Some of the defences have
been recognized by the courts as valid defences and some others have been rejected. Both the
valid or effectual defences as well as ineffectual defences have been discussed below:

(i) EFFECTUAL DEFENCES:

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(a) Prescriptive right to commit nuisance

A right to do an act, which would otherwise be a nuisance, may be acquired by prescription.

Sturges v. Bridgman

The defendant, a confectioner had a kitchen in the rear of his house. For over twenty years,
confectionary materials were pounded in his kitchen by the use of large pestles and mortars, and
the noise and vibrations of these were not felt to be a nuisance, and the noise and vibrations of
these were not felt to be a nuisance during that period by the plaintiff, a physician, living in the
adjacent house. The physician made consulting room in the garden in the rear in his use and then
for the first time, he felt that the noise and vibrations caused in the confectioner’s kitchen were a
nuisance and they materially interfered with this practice. The court granted an injunction against
the confectioner and his claim of prescriptive right to use mortars and pestles there, failed
because the interference had not been an actionable nuisance for the preceding period of 20
years. Nuisance began only when the consulting room was built by the physician at the end of
the house.

(b) Statutory Authority

An act done under the authority of a statute is a complete defence. If nuisance is necessarily
incident to what has been authorized by a statute, there is no liability for that under the law of
torts. Thus, a railway company authorized to run railway trains on a track is not liable if, in spite
of due care, the sparks from the engine set fire to the adjoining property or the value of the
adjoining property is depreciated by the noise, vibrations and smoke by the running of trains.

(ii) INEFFECTUAL DEFENCES:

(a)Nuisance due to acts of others

Sometimes, the act of two or more persons, acting independently of each other, may cause
nuisance although the act of any one of them alone would not be so. An action can be brought
against any one of them and it is no defence that the act of the defendant alone would not be a
nuisance, and the nuisance was caused when other had also acted in the same way.

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(b) Public Good

It is no defence to say that what is nuisance to a particular plaintiff is beneficial to the public in
general, otherwise no public utility undertaking could be held liable for the unlawful interference
with the rights of individuals.

(c) Reasonable care

Use of reasonable care to prevent nuisance is generally no defence.

(d) Plaintiff coming to nuisance

It is no defence that the plaintiff himself came to the place of nuisances.

2. INJURY TO SERVITUDE

A servitude or easement is a right enjoyed by the owner of a land over the land of another. The
land which entitled to the right of way, right of support, etc is called the dominant land and the
land which is subject or over which there is a prevailing right is called the servient land.
Servitudes are either natural or acquired. Natural servitudes are those which are naturally
appurtenant to land and therefore require no special mode of acquisition. But the right of a
building for support of the adjoining land or buildings is an acquired easement. The chief types
of easements are the following:

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 (a) Rights of way.
(b) Rights of entry for any purpose relating to the dominant land.
(c) Rights in respect of the support of the land and buildings.
(d) Rights to land and air.
(e) Rights in respect of water.
(f) Rights to do some act which would otherwise amount to a nuisance to the servient land.
(g) Rights of placing or keeping things on the servient land.

(i) RIGHT TO SUPPORT:

The owner of land has a right to the support of his land in its natural state from the adjacent land
and also from subjacent land when the surface and substratum belong to different persons. There
is no natural right of support for buildings. But such rights can be acquired for buildings by grant
or subscription.

There is no right to have land supported by underground water and such a right cannot be
acquired by prescription. Therefore one who, by draining his land or by pumping, withdraws
from an adjoining owner the support of water thereto lying beneath the land of the owner and
thereby causes the surface of that land to subside, is not liable for the damage inflicted.

(ii) RIGHT TO ANCIENT LIGHTS:

The right of light to a building across another’s land may be acquired either by grant, express or
implied, or by prescription over twenty years. The easement so acquired is commonly termed as
right to ancient lights. Such right can be acquired only in respect of a building and even that
through a window. No right can be acquired to light coming through a doorway and used by the
occupier to enable him to carry on his business.

Circumstances affecting liability are:

1. The amount of light formerly received.

2. The use to which the dominant buildings are put or are capable of being put.
3. The size and number of the obstructed windows and the extent of the space to be lighted
by them.
4. The existence of other windows not obstructed.

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 5. The height and proximity of the obstructing building or structure, i.e., the angle of
obstruction.

(iii) RIGHT TO WATER:

There is a natural easement vested in every owner of land on the banks of a natural stream,
entitling him to the continued flow of that stream in its natural condition. An actionable
interference with this easement may take place in at least three different ways:

1. Abstraction that is, taking water out of the stream so as to reduce the amount or level of
the water as it flows past the plaintiff’s land.
2. Pollution, that is, some harmful alteration of the natural quality of the water.
3. Obstruction, that is, the erection of some barrier.

Acton vs. Blundell

The mining operations of the defendant had the effect of drying up the plaintiff’s well, this was
held to be merely damnum sine injuria.

-------------------------------------------------------

(E) STRICT & ABSOLUTE LIABILITY – LIABILITY FOR DANGEROUS CHATTELS,

ANIMALS AND STRUCTURES OR PREMISES
1. STRICT AND ABSOLUTE LIABILITY

There are situations when a person may be liable for some harm even though he is not negligent
in causing the same, or there is no intention to cause the harm, or sometimes he may even have
made some positive efforts to avert the same.

The rule laid down in Rylands vs. Fletcher is generally known as the ‘Rule in Rylands vs.
Fletcher’ or ‘Rule of Strict Liability’. Because of the various exceptions to the applicability of
this rule, it would be preferable to call it the rule of Strict Liability rather than the rule of
Absolute Liability.

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While formulating the rule in M.C. Mehta vs. Union of India, the Supreme Court itself termed
the liability recognized in this case as Absolute Liability, and expressly stated that liability will
not be subject to such exceptions as have been recognized under Rylands vs. Fletcher.

The two rules are being discussed below:

THE RULE OF STRICT LIABILITY (THE RULE IN RYLANDS VS. FLETCHER):

It has been noted above that in Rylands vs. Fletcher, in 1868, the House of Lords laid down the
rule recognizing ‘No fault’ liability. The liability recognized was ‘Strict Liability’, i.e., even if
the defendant was not negligent or rather, even if the defendant did not intentionally cause the
harm or he was careful, he could still be made liable under the rule.

Rylands vs. Fletcher

The defendant got a reservoir constructed, through independent contractors, over his land for
providing water to his mill. There were old disused shafts under the site of the reservoir, which
the contractors failed to observe and so did not block them. When the water was filled in the
reservoir, it burst through the shafts and flooded the plaintiff’s coal mines on the adjoining land.
The defendant did not know of the shafts and had not been negligent although the independent
contractors had been. Even though the defendant had not been negligent, he was held liable.

According to this rule, if a person brings on his land and keeps there any dangerous thing, i.e., a
thing which is likely to do mischief if it escapes, he will be prima facie answerable for the
damage caused by its escape even though he had not been negligent in keeping it there. The
liability arises not because there was any fault or negligence on the part of a person, but because
he kept some dangerous thing on his land and the same has escaped from there and caused
damage. Since in such a case the liability arises even without any negligence on the part of the
defendant, it is known as the rule of Strict Liability.

ESSENTIALS

For the application of the rule, therefore, the following three essentials are required:

(a) Some dangerous thing must have been brought by a person on his land.
(b) The thing must brought or kept by a person on his land must escape.

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 (c) It must be non-natural use of land.

(a) DANGEROUS THING:

According to this rule, the liability for the escape of a thing from one’s land arises provided the
thing collected was a dangerous thing, i.e. a thing likely to do mischief if it escapes.

(b) ESCAPE:

For the rule in Rylands vs. Fletcher to apply, it is also essential that the thing causing must
escape to the area outside the occupation and control of the defendant. Thus, if there is projection
of the branches of a poisonous tree on the neighbour’s land, this amounts to an escape and if the
cattle lawfully there on the neighbour’s land are poisoned by eating the leaves of the same, the
defendant will be liable under the rule.

(c) NON-NATURAL USE OF LAND

Water collected in the reservoir in such a huge quantity in Rylands v. Fletvher was held to be
non-natural use of land. Keeping water for ordinary domestic purposes is ‘natural use’’. For the
use to be non-natural, it “must be some special use bringing with it increased danger to others,
and must not merely by the ordinary use of land or such a use as is proper for the general benefit
of community.”

EXCEPTIONS TO THE RULE:

The following exceptions to the rule have been recognized by Rylands v. Fletcher and some later
cases:

(i) Plaintiff’s own default;

(ii) Act of God;
(iii) Consent of the plaintiff;
(iv) Act of third party;
(v) Statutory authority.

(i) PLAINTIFF’S OWN DEFAULT:

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Damage caused by escape due to the plaintiff’s own default was considered to be a good defence
in Rylands v. Fletcher itself. If the plaintiff suffers damage by his own intrusion into the
defendant’s property, he cannot complain for the damage so caused.

Ponting v. Noakes

The plaintiff’s horse intruded into the defendant’s land and died after having nibbled the leaves
of a poisonous tree there. The defendant was held no liable because damage would not have
occurred but for the horse’s own intrusion to the defendant’s land.

(ii) ACT OF GOD:

Act of God or vis major was also considered to be a defence to an action under the rule in
Rylands v. Fletcher.

If the escape has been unforeseen and because of supernatural forces without any human
intervention, the defence of act of God can be pleaded.

Nichols v. Marsland

In this case, the defendant created artificial lakes on his land by damming up a natural stream.
That year there was an extraordinary rainfall, heaviest in the human memory, by which the
stream and the lakes swelled so much that the embankments constructed for the artificial lakes,
which were sufficiently strong for an ordinary rainfall, gave way and the rush of water down the
stream washed away the plaintiff’s four bridges. The plaintiff brought an action to recover
damages for the same. There was found to be no negligence on the part of the defendants. It was
held that the defendants were not liable under the rule in Rylands v. Fletcher because the
accident in this case had been caused by an act of God.

(iii) CONSENT OF THE PLAINTIFF:

In case of volenti non fit injuria, i.e., where the plaintiff has consented to the accumulation of the
dangerous thing on the defendant’s land, the liability under the rule Rylands v. Fletcher does

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not arise. Such a consent is implied where the source of danger is for the ‘common benefit’ of
both the plaintiff and the defendant.

(iv) ACT OF THIRD PARTY:

If the harm has been caused due to the act of a stranger, who is neither the defendant’s servant
nor the defendant has any control over him, the defendant will not be liable under this rule.

Richards v. Lothian

Some strangers blocked the waste pipes of a wash basin, which was otherwise in the control of
the defendants, and opened the tap. The overflowing water damaged the plaintiff’s goods. The
defendants were held not liable.

(v) STATURORY AUTHORITY:

It has already been noted above that an act done under the authority of a statute is a defence to an
action for tort. The defence is also available when the action is under the rule in Rylands v.
Fletcher. Statutory authority, however, cannot be pleaded as a defence when there is negligence.

Green v. Chelsea Waterworks Co.

The defendant Co. had a statutory duty to maintain continuous supply of water. A man belonging
to the company burst without any negligence on its part, as a consequence of which the
plaintiff’s premises were flooded with water. It was held that the company was not liable as the
company was engaged in performing a statutory duty.

POSITION IN INDIA:

The rule of strict liability is applicable as much in India as in England. There has, however, been
recognition of some deviation both ways, i.e., in the extension of the scope of the rule of strict
liability as well as the limitation of its scope.

Varghese v. Kerala State Electricity Board

In the instant case, the deceased died due to electrocution, by coming in contact with electricity
tower having no proper earthing or fencing. There was sufficient proof of negligence by

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Electricity Board. Even in case of lack of evidence to prove negligence by the Board, the Kerala
High Court held that the board was liable for damages based on principles of strict liability.

The liability without fault has been recognized in case of motor vehicle acciedents. Earlier the
Supreme Court had held in Minu B. Mehta v. Balakrishna, (1977) that the liability of the
owner or the insurer of the vehicle could not arise unless there was negligence on the part of the
owner or the driver of the vehicle. The Motor Vehicles Act, 1938 recognizes ‘liability without
fault’ to a limited extent. According to Section 140 of the 1988 Act, in case of the death of the
victim, a fixed sum of RS. 50,000, and in case of his permanent disability a fixed sum of Rs.
22,000 can be claimed as compensation without pleading or establishing any fault on the part of
the owner or the driver of the vehicle. The claim for compensation for the above mentioned fixed
sum shall not be defeated by reason of any wrongful act, neglect or default of the accident
victim, nor shall the compensation payable be reduced on account of any responsibility in the
accident of the accident victim. It implies that the defence of contributory negligence cannot be
pleaded in case of an action for no fault liability.

Recognition of ‘liability without fault’ in case of motor vehicle accidents is a welcome measure.
It will be in consonance with the present day needs, when the emphasis is on finding ways and
means of compensating the tort victim, that no fault liability to compensate the victim to the full
extent of the loss suffered by him is recognized in case of motor vehicle accidents. It is submitted
that the recognition of such a liability will in fact be the application of the rule in Rylands vs.
Fletcher in its true spirit because the activity of running the motor vehicles today is no way less
hazardous than the escape of water in that case, more than a century ago

THE RULE OF ABSOLUTE LIABILITY (THE RULE IN M.C. MEHTA vs. UNION OF
INDIA):

In M.C. Mehta vs. Union of India, the Supreme Court took a bold decision holding that it was
not bound to follow the 19th century rule of English Law, and it could evolve a rule suitable to
the social and economic conditions prevailing in India at the present day. It evolved the rule of
‘Absolute Liability’ as part of Indian Law in preference to the Strict Liability laid down in
Rylands vs. Fletcher. It expressly declared that the new rule was not subject to any of the
exceptions under the rule in Rylands vs. Fletcher.

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 The Bhopal Gas Leak Disaster Case

On the night of December 2/3, 1984, a mass disaster, the worst in the recent times, was caused
by the leakage of Methyl Isocyanate (MIC) and other toxic gases from a plant set up by the
Union Carbide India Ltd. (UCIL) for the manufacture of pesticides, etc. in Bhopal. UCIL is
subsidiary of Union Carbide Corporation (UCC), a multinational company, registered in U.S.A.

The disaster resulted in the death of at least 3,000 persons and serious injuries to a very large
number of others, permanently affecting their eyes, respiratory system, and causing scores of
other complications, including damage to the foetuses of the pregnant women.

The peculiar problem regarding the claim of compensation was involved because of such a large
number of victims, most of those belonging to the lower economic strata. On behalf of the
victims, a large number of cases were filed in Bhopal, and also in U.S.A. against the UCC. There
was an effort for an out of court settlement between the Government of India and the UCC but
that failed. The Government of India then proclaimed an Ordinance, and thereafter passed “The
Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985. Empowered by Section 9 of the
Act, the Government of India also framed “The Bhopal Gas Leak Disaster (Registration and
Processing of Claims) Scheme, 1985”. The Union of India filed a suit on behalf of all the
claimants, against the UCC in the United States District Court of New York. All the suits earlier
filed in U.S.A. by some American lawyers were superseded and consolidated in this action.

The UCC pleaded for the dismissal of the suit on the grounds of forum non conveniens, i.e., the
suit can be more conveniently sued in India which was the place of the catastrophe, and the plant
personnel, victims, witnesses, documentary and all related evidence were located there. The
Union of India, however, maintained that the Indian judiciary has yet to reach maturity and the
Indian Courts are not up to the task of conducting the said litigation. American court dismissed
the Indian action on that ground. After the dismissal of the suit in U.S.A., the Union of India
filed a suit in the District Court of Bhopal. The District and Sessions Judge, M.W. Deo ordered
the UCC to pay an interim relief of Rs. 350 crores to the gas victims. On a civil revision petition
filed by the UCC in the Madhya Pradesh High Court against the order of the Bhopal District
Court, reduced the quantum of “interim compensation” payable from Rs 350 crore to Rs. 250
crore. On the one hand, the UCC reported to have decided to go in appeal against the decision

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requiring it to pay interim compensation, it had simultaneously devised a new strategy of
outmaneuvering the Indian Government by a direct settlement with the gas victims, through their
lawyers in India and USA. Against this, the High Court passed an interim order directing the
UCC not to make any settlement or compromise with any individual until further orders.

So far as the legal position of the case is concerned in M.C. Mehta vs. Union of India, the
Supreme Court laid down the rule of ‘Absolute Liability’ in preference to the rule of Strict
Liability laid down in Rylands vs. Fletcher. The UCC, therefore, could not escape the liability on
the ground of sabotage, which it was trying to plead as a defence, which is permitted under the
rule in Rylands vs. Fletcher. The principle laid down by the Supreme Court in M.C. Mehta is as
follows:

“Where an enterprise is engaged in hazardous or inherently dangerous activity and harm

results to any one on account of an accident in the operation of such hazardous or
inherently dangerous activity resulting, for example, in the escape of toxic gas, the
enterprise is strictly and absolutely liable to compensate all those who are affected by the
accident and such liability is not subject to any of the exceptions which operate vis-à-vis
the tortious principle of strict liability under the rule in Rylands vs. Fletcher”.

The recognition of the principle of ‘Absolute Liability’ in M.C. Mehta and the grant of “interim
relief in the Bhopal case proves that Indian judiciary is mature and capable enough to mete out
fair and equal justice.

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 2. LIABILITY FOR DANGEROUS CHATTELS

It may be said that the liability of the possessor of dangerous articles can be laid down under the
ordinary law of negligence, viz., that he should take reasonable care of the article under the
circumstances of the cases.

WHAT THINGS ARE DANGEROUS?

Most things are sources of danger if they are used negligently, such as a stick or loose tile on the
roof of a house or an unlighted heap of stones on a public road at night. A motor car, for
example, is not a dangerous thing by itself especially when it is left stationary in its shed. Only
when it is negligently driven along the road that it becomes a source of danger. Liability for
injury arising from it will depend upon the ordinary law of negligence. Hence the term dangerous
chattels will not include things like motor vehicles, railway trains and machinery of all kinds.
Even a knife is dangerous in that sense. This dangerous character is derived from the quality of
the thing itself and not from any external circumstances.

Dixon vs. Bell

The defendant sent his servant, a girl of about thirteen or fourteen, to a friend’s house to fetch his
gun, giving her a note asking the friend to remove priming. The friend did so as the defendant
thought and the servant on her way home pointed the gun as a joke at a child and fired. The gun
went off and the child was injured. The defendant was held liable.

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LIABILITY OF OWNERS OF DANGEROUS CHATTELS:

The liability of owners of dangerous chattels can be analysed and examined as:

(a) Liability to immediate transferees, and

(b) Liability towards ultimate transferees.

(a) LIABILITY TO IMMEDIATE TRANSFEREES:

The chattels may be transferred from one person to another either under a contract or by way of
gift or loan.

When the chattel is transferred under a contract, the liability of the parties is regulated by the
term of the contract. The terms or stipulations in a contract may be express or implied. While
making a contract the parties are free to negative liability which could otherwise arise.

Ward vs. Hobbs

In this case, the defendant sold a herd of pigs to the plaintiff. The pigs had been suffering from
typhoid fever. The defendant knew this fact but he did not disclose the same and sold those pigs
“with all faults”. Those pigs and also some of the plaintiff’s other pigs, which got infected with
the disease, died. The House of Lords held that the defendants were not liable for that.

Hyman vs. Nye

In this case, B hired a horse and carriage from A and suffered an injury in consequence of a
defect in the carriage, A was held liable because the carriage was not in a reasonably fit and
proper condition.

When a person transfers goods to another person under a contract, his liability arises not only
under the law of contract but there can also be concurrent liability in tort for negligence.

Clarke vs. Army and Navy Co-operative Society Ltd

The plaintiff purchased a tin of chlorinated lime from the defendant’s store. When the plaintiff
tried to open it in the usual way by prising the lid off with a spoon, the content flew on to her

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face and injured her eyes. The defendants knew of this danger but negligently omitted to warn
the plaintiff about that. The defendants were held liable in tort towards her.

In the case of gifts, or gratuitous lending, the donor or lender is not liable, except for willful or
gross negligence.

Coughlin vs. Gillison

The defendants lent a donkey engine gratuitously to the plaintiff who suffered injuries in
consequence of the bursting of the engine. The defendants were held not liable, for there was no
evidence of any negligence or knowledge of the defect on their part.

(b) LIABILITY TOWARDS THE ULTIMATE TRANSFEREE:

Supposing X transfers a dangerous chattel to Y and Y transfers the same to Z. If Z is injured by

it, the question is how far Z can make liable for that. Such liability may be considered in the
following two situations:

(i) Liability for Fraud:

Fraud is a tort against a person who has been misled by a false statement and suffers thereby. It is
not necessary that the person making the false statement, makes it directly to the person
deceived.

Langridge vs. Levy

In this case, the defendant sold a gun to the plaintiff’s father for the use of the plaintiff and stated
that the same has been manufactured by a celebrated manufacturer and was quite safe. The gun
burst when the plaintiff was using it and he was injured. It was held that even though the
fraudulent statement was made by the defendant to the plaintiff’s father, yet the plaintiff was
entitled to sue in fraud because the statement made by the defendant was, intended to be, and
was, communicated to the plaintiff on which he had acted.

(ii) Liability for Negligence:

For the purpose of liability of the transferor towards the ultimate transferee for negligence, the
chattels may be considered to be of the following three kinds:

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 (a) Things dangerous per se;
(b) Things not dangerous per se, but actually dangerous and known to be so by the transferor;
and
(c) Things neither dangerous per se, nor known to be dangerous by the transferor but
dangerous in fact.

(a) Things dangerous per se:

Things have been considered to be either dangerous per se, i.e. dangerous in themselves or
dangerous suo modo, i.e. dangerous according to the circumstances of a particular case. This is a
peculiar duty to save others who are likely to come in contact with things which are dangerous
per se.

Thomas vs. Winchester

A wholesale druggist supplied to a retail chemist what was supposed to be extract of dandelion, a
safe medicine and the bottle contained this label. The assistant of the druggist had negligently put
the wrong label and actually the bottle contained Belladona, a poisonous medicine. The retail
chemist sold the bottles as such to a country doctor, who in turn, gave it to the plaintiff, who,
after taking the same, became seriously ill. It was held that the druggist was liable towards the
plaintiff.

(b) Things not Dangerous per se but known to be so by the Transferor:

If the seller knows that the thing which he selling is dangerous, he has a duty to warn the buyer
about that danger so that the buyer can take requisite precaution against that. Failure to give such
a warning makes the transferor liable for that. Every transferor owes a similar duty to a
transferee. Such a duty to warn about the known dangers is owed by the transferor, not only to
his immediate transferee but also to all the persons who are likely to be endangered by that thing.

Farrant vs. Barnes

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The defendant delivered a carboy containing nitric acid to a carrier but neither informed the
carrier about the contents of the carboy nor warned him of the dangerous nature of the contents.
When the plaintiff, a servant of the carrier, carried the same on his shoulders, it burst causing
severe burn injuries to the plaintiff. The defendant was held liable.

The transferor’s responsibility comes to an end when he transfers the goods to his immediate
transferee with due warning.

Holmes vs. Ashford

The plaintiff brought an action against the manufacturer of hair dye after the use of the hair dye
by a hair dresser caused dermatitis to the plaintiff. It was found that a warning regarding the
potential danger to certain skins by the use of the dye had been given in the brochure of
instructions supplied by the manufacturer along with the bottle of the dye and a test had been
recommended before the use of the dye. The hair dresser had ignored those instructions. It was
held that since the manufacturers had given sufficient warning regarding the potential danger
from the dye, they were not liable to the plaintiff.

(c) Things either Dangerous per se nor known to be Dangerous to the Transferor but
Dangerous in fact:

Before 1932, it was thought that when X transferred a chattel to Y and Y transferred the same to
Z and Z was injured thereby and the chattel belonged to the category of goods neither dangerous
per se nor known to be dangerous to X, X could not be liable to Z except when a contract could
be shown between X and Z. This privity of contract fallacy was exploded in 1932 in the case of
Donoghue vs. Stevenson, and after this decision, X can be liable even towards Z for his
negligence, even though there is no contract between X and Z.

Donoghue vs. Stevenson

The plaintiff accompanied by her friend went to a restaurant. The friend, apart from some other
refreshment, ordered for a bottle of ginger-beer manufactured by the defendants. The bottle of
ginger-beer was sealed and of opaque glass. A part of the contents of the bottle were served to

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the plaintiff. After she had taken that, when the remaining ginger-beer was poured into her glass,
the decomposed remains of a snail floated out. The plaintiff contended that as a result of having
consumed the injurious drink, she had suffered in her health. The House of Lords held that in
these circumstances, the manufacturer owed a duty of care towards the consumer.

3. LIABILITY FOR ANIMALS

One may cause harm to another by making use of an animal instead of any inanimate object. The
liability for the damage done by animals can be studied under the following three heads:

(a) The Scienter Rule

(b) Cattle-Trespass
(c) Ordinary Liability in Tort.

(a) LIABILITY UNDER SCIENTER RULE:

A person who keeps an animal which he knows has a propensity to do a particular kind of
mischief is liable for any damage due to that propensity without proof of negligence. In the case
of animals of the dangerous class (ferae naturae) the law presumes that the controller of the
animal knows of its ferocious disposition. Knowledge of a propensity to do a particular kind of
mischief is termed Scienter. Scienter will either be presumed or must be proved with regard to
the individual animal. The plaintiff who brings an action against another for damage caused by
an animal under his control must prove two things:

(1) Mischievous disposition or ferocity of the animal, and

(2) Knowledge of the defendant of the mischievous nature of the animal.

For the purpose of this rule, the animals have been divided into two categories namely,

(i) Animals ferae naturae, i.e. animals dangerous by nature; and

(ii) Animals mansuetae naturae, i.e. animals harmless by nature.

(i) LIABILITY FOR KEEPING ANIMALS ‘FERAE NATURAE’:

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As stated above, there is conclusive and irrebuttable presumption that the keeper of animals ferae
naturae knows of their dangerous nature and if such an animal gets out of control and causes
damage, he will be held liable. The keeper keeps such an animal at his peril and his liability is
strict. The liability arises even without the proof of negligence.

Behrens vs. Bertram Mills Circus Ltd.

There the defendants operated a circus. Their Burmese elephant, which was circus trained, was
frightened by the barking of a small dog. The elephant ran after the dog towards a booth, the
booth was knocked down and the plaintiff, who was inside the booth, although not injured
physically, received a considerable shock and had to be confined to bed for a week. The
defendants, were, therefore, held liable in this case.

(ii) LIABILITY FOR KEEPING ANIMALS ‘MANSUETAE NATURAE’

For making the defendant liable in respect of the damage done by an animal belonging to the
class of harmless or domestic animals, two things have to be proved:

(i) that the animals in question had a vicious propensity which is not common to
animals of that species; and
(ii) that the defendant had the actual knowledge of the viciousness.

Buckle vs. Holmes

The defendant’s cat entered the plaintiff’s land and there killed thirteen of the plaintiff’s pigeons
and two bantams. Since the cat in doing so had followed the ordinary instincts of its kinds and
there was no vicious propensity to this cat, its owner was held not liable

If the plaintiff proves that an animal has previously shown a dangerous propensity and the
defendant was aware of the same, the defendant will be liable for the harm caused by such an
animal.

Hudson vs. Roberts

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The defendant’s bull was irritated by the red handkerchief which the plaintiff was wearing and it
attacked the plaintiff while he was walking along the highway. This bull had shown this
tendency earlier also and the defendant had the knowledge of the same. The defendant was held
liable.

Red vs. Edwards

The owner of a dog was held liable for his dog’s act of chasing and killing certain pheasants
which belonged to the plaintiff in a scienter action on the ground that the defendant had
knowledge of the particular proposition of his dog.

The Dogs Act, 1906 makes the liability of the owner of the dog strict in certain cases. He is
liable for injury done to cattle or poultry by the dog without the proof of the dog’s mischievous
propensity, or the owner’s knowledge of the same or even without the proof of negligence on his
part.

(b) CATTLE TRESPASS

In early times, if cattle trespassed on another man’s land, the latter could bring an action for it
under the writ of trespass. At first such actions were confined to intentional trespass by the
keeper of the cattle by means of his beasts but later on they were applied to damage caused by
the escape of them as well. The basis of the action was said to be the rule sic utere tuo ut alienum
non laedum (so use your own property as not to injure your neighbor). It is distinct from
negligence and scienter kind of liability.

Lee vs. Riley

The defendant’s mare strayed through a gap in his fence to the plaintiff’s land and kicked the
plaintiff’s horse. The defendant was held liable for cattle trespass.

Theyer vs. Purnell

The defendant’s sheep trespassed on the plaintiff’s land. They developed scab there and
conveyed the same to the plaintiff’s sheep. All these sheep were interned by the government.

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Even though the defendant did not know about the infection of his sheep with the disease, he was
held liable for the loss to the plaintiff which was considered to be a natural consequence of the
trespass.

Cox vs. Burbidge

The plaintiff, a young child was kicked and injured by the defendant’s horse, who trespassed on
the highway. This was a trespass only against the owner of the land over which the highway ran.
The child was a mere user of the highway and it was held that towards him, the defendant could
not be made liable unless scienter or negligence could be proved.

(b) ORDINARY LIABILITY IN TORT:

It may also be possible to commit various torts through the instrumentality of animals. Keeping
dogs in some premises which cause unreasonable interference with the neighbour’s enjoyment of
his property is a nuisance.

Stern vs. Prentice Bros.

In this case, the defendants were manure manufacturers. A heap of bones on their land attracted a
very large number of rats. The rats escaped from there to the adjoining land of the plaintiff and
ate his corn, causing substantial loss to him. It was not proved that the defendants had kept
excessive or unusual quantity of bones on their land. They were held not liable.

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 4. LIABILITY FOR DANGEROUS PREMISES

An occupier of premises or of other structures like cars, ships, aeroplanes or lifts owes an
obligation to the persons who enter those premises, or structures, in respect of their personal
safety and the safety of their property there. The nature of an occupier’s obligation varies
according to the kinds of persons who frequent those premises and, therefore, the occupier’s
obligation will be considered under the following three heads:

(a) Obligation towards lawful visitors;

(b) Obligation towards trespassers;
(c) Obligation towards children.

PREMISES AND STRUCTURES:

The liability of occupiers of dangerous land and structures is also a species of strict liability. The
word premises is more convenient but it may not include movables like taxi-cabs and omnibuses.
The principle has been applied not only to landed property but also to conveyances such as ships,
railway trains, aeroplanes and other means of transport including lifts and ladders. Denning, L.J.
defined the word ‘structure’ as “A structure is something of substantial size which is built up of
component parts and intended to remain permanently on a permanent foundation, but it is still a
structure even though some of its parts may be movable, as for instance, about a pivot. Thus a
windmill or a turntable is a structure”.

(a) OBLIGATION TOWARDS LAWFUL VISITORS:

Prior to the passing of the Occupiers Liability Act, 1957 the position was governed by the
Common Law rules. Common Law classified the lawful visitors into two categories - invitees
and licensees, and laid down separate rules for obligations towards each of them.

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When the occupier of the premises and the visitors had a common interest or the occupier had an
interest in the visit of the visitor, the visitor was known as an ‘invitee’. When the occupier had no
interest, the visitor was known as ‘licensee’. A customer who entered a shop was an invitee even
though he actually did not purchase anything, but a guest who had been invited for a dinner was
a licensee.

(i) DUTY TOWARDS AN INVITEE:

The occupier was supposed to take reasonable care to prevent any damage to the invitee from
any unusual danger on his premises, which he knew or ought to have known. Thus, towards an
invitee, the occupier’s liability was for loss caused by an unusual danger not only in respect of
which was the occupier actually aware, but also of such danger which he ought to have known.

Indermaur vs. Dames

In this case, the plaintiff, who was a gas fitter, entered the defendant’s premises for testing
certain gas fittings there. While doing so, he fell from an unfenced opening on the upper floor
and was injured. The plaintiff, being an invitee on those premises, the defendants was held liable
for the injury caused to him.

Cates vs. Mongini Bros.

The plaintiff went to the defendant’s restaurant to take lunch and took a seat under a ceiling fan.
The fan fell on her whereby she was injured. In an action for negligence against the defendant, it
was found that the fan had fallen due to a latent defect in the metal of the suspension rod and the
same could not have been discovered by reasonable care on the part of the defendants. There
being no negligence on the part of the defendants, they were held not liable.

(ii) DUTY TOWARDS A LICENSEE:

It has been noted that a licensee is a person who enters the premises, with the express or implied
permission of the occupier, for his own purpose rather than for the occupier’s interest. The
occupier had a duty to give due warning of any latent defect or concealed danger in the premises
of which he was aware. He had no liability for the loss caused by dangers not known to him. He

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was also not liable for any danger which was obvious and the licensee must have appreciated the
same.

Fairman vs. Perpetual Investment Building Society

The plaintiff went to stay with her sister in a building owned by the defendant and let out to the
sister’s husband. The defendants were in possession of the common staircase. Owing to wearing
away of the cement, there was a depression, in one of the stairs, the plaintiff’s heel was caught in
the depression, she fell from there and got injured. In this case, the injury to the plaintiff was due
to the danger which was obvious and could have been observed by her, the defendants could not
be made liable for the same.

(b) OBLIGATION TOWARDS TRESPASSERS

The Occupiers’ Liability Act regulates the liability of an occupier towards lawful visitors only.
The occupiers’ liability towards a trespasser, therefore, continues to be the same as before, under
the Common Law.

WHO IS A TRESPASSER?

A trespasser has been defined as “one who goes upon land without invitation of any sort and
whose presence is either unknown to the proprietor, or, if known, is particularly objected to.

Where the area where a visitor can lawfully go and the area of prohibition are clearly
demarcated, going to prohibited area amounts to trespass.

Mokshada Sundari vs. Union of India

The plaintiff’s husband, who was trying to cross a railway track, was knocked down by a passing
engine causing his instantaneous death. The deceased had a monthly railway ticket and at the
relevant time, he was going to get the ticket renewed. In an action by the widow of the deceased
to claim compensation, it was held that the deceased was a trespasser on the railway line and,
therefore, the railway was not liable for his death which had occurred when the driver was
driving carefully.

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If the scope of the prohibited area has not been reasonably marked, the visitor there may not
become a trespasser.

Pearson vs. Coleman Brothers

The defendants, the proprietors of a circus, were giving a circus performance in a tent in a field.
The animals were kept nearby in cages in the area known as ‘zoo lager’. The plaintiff, a girl of
seven, who had gone to witness the circus show went out of the tent to find out a convenient
place where she could relieve herself. She came near a cage through the bars of which a lion put
his paw out and mauled her. The Court of Appeal held that since the defendants had not
sufficiently marked off the ‘zoo lager’ area from the rest of the field indicating that to be a
prohibited area, the child was an invitee, not only to the circus show but also the place where
show was when injured. She was, therefore, entitled to recover.

(c) OBLIGATION TOWARDS CHILDREN:

According to the Occupiers’ Liability Act, 1957 an occupier must be prepared for the children to
be less careful than adults. What is an obvious danger for an adult may be a trap for the children.
Moreover, the children may be allured by certain dangerous objects which the adults may like to
avoid. The occupier must guard the child visitors even against such dangers from which the
adults do not need any protection.

Glasgow Corporation vs. Taylor

The defendants controlled a public park. A child of 7 years picked up and ate some attractive
looking berries on a shrub in the park and died because the berries were poisonous. The berries
were obviously an allurement for the children but the defendants had not given sufficient
warning intelligible to the children of the deadly character of the berries. In an action by the
father of the deceased child, the defendants were held liable.

OCCUPIERS’ LIABILITY ACT, 1957:

Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of
care owed by those who occupy real property, through ownership or lease, to people who visit or
trespass. It deals with liability that may arise from accidents caused by the defective or

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dangerous condition of the premises. In English law, occupiers' liability towards visitors is
regulated in the Occupiers' Liability Act 1957. In addition, occupiers' liability to trespassers is
provided under the Occupiers' Liability Act 1984.

DEFECTIVE PREMISES ACT, 1972 (U.K.):

In England, an Act known as the Defective Premises Act, 1972 was passed by the Parliament
which came into force from the first of January, 1974. It was passed as the result of the
recommendations of the Law Commission for achieving the following objects:

1. Creation of a statutory duty to build dwellings properly which is to be owed to any person
who acquires an interest in the dwelling.
2. The rule of caveat emptor laid down in Cavalier vs. Pope, under which a vendor or a
landlord of a house is not liable to the purchaser or lessee of a house for negligence, has
been abolished.
3. A wider statutory duty of care is imposed on a landlord by virtue of his obligation or right
to repair the premises let.
4. Further, the exclusion or restriction of any of the duties imposed by the Act is expressly
prohibited.

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 (F) CONSPIRACY, INTERFERENCE WITH FREEDOM OF CONTRACTUAL AND
BUSINESS RELATIONSHIP, INJURIOUS FALSEHOOD SLANDER OF TITLE OR
GOODS, PASSING OFF, ABUSE OF LEGAL PROCEDURE
1. CONSPIRACY

When two or more persons without lawful justification, combine for the purpose of willfully
causing damage to the plaintiff, and actual damage results therefrom, they commit the tort of
conspiracy. Conspiracy is both a tort and a crime. Criminal conspiracy is different from
conspiracy as tort. Under criminal law, merely an agreement between the parties to do an illegal
act or a legal act by illegal means is actionable. The tort of conspiracy is, however, not
committed by a mere agreement between the parties, the tort is completed only when actual
damages results to the plaintiff.

Mogul Steamship Co. v. Mcgregor, Gow and Co

The defendants certain firms of shipowners, who had been engaged in tea carrying trade between
China and Europe, combined together and offered reduced freight with a view to monopolize the
trade and the result was that the plaintiff, a rival trader, was driven out of the trade. The plaintiff
brought an action for conspiracy. The house of Lords held that the defendants were not liable for
that because their object was a lawful one, i.e., to protect and promote their own business
interests and they had used no unlawful means for achieving same.

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 2. INTERFERENCE WITH FREEDOM OF CONTRACT AND BUSINESS –
INTIMIDATION

It is now well recognized that one should not interfere with a contract that exists among others.
Knowingly to induce a third party to break his contract to the damage of the other contracting
party without reasonable justification or excuse is a tort. The origin of this rule can be traced to
the old idea by which masters were deemed to have property rights over their slaves and
servants. As civilization and law advanced, the slaves became free and servant acquired more
freedom of contract. In early English decisions it was laid down that if person entices the
servants of another, the enticer will be liable. But no action would lie if the servant has been
induced to leave after the expiry of the period of service with his former master or, if he is a job
worker, as soon as the job is ended.

Lumley v. Gye

In this case, one Johanna Wagner, a famous operatic singer, had entered into a contract with the
plaintiff to perform at his theatre for a certain period and not to give a performance elsewhere
during this period. Knowing this prior agreement the defendant induced Miss Wagner not to
perform that contract with the plaintiff and consequently the latter suffered loss. In the action
that was brought by the plaintiff against the defendant alleging special damages, the defendant
was held liable.

The rule is now held applicable to all kinds of contracts whether personal of otherwise provided
they are not void.

The rule that inducement of breach of contract is a tort is subject to the following qualifications:

(i) Although including the breach of subsisting contract is a tort, there is no wrong to
persuade a person refrain from entering into a contract. It is also no tort to persuade a
person to refrain from entering into a contract. It is also no tort to persuade a person to
terminate an existing contract lawfully.

Allen v. Flood.

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There the plaintiffs, who were shipwrights, were employed by the ship owners to make repairs of
woodwork on the ship. Their services were terminable at will. Due to some past grievances,
some ironworkers objected to the plaintiff’s employment there and through their representative,
the defendant, they conveyed to the ship owners a warning that unless the plaintiff’s were
discharged, they would go on strike. The plaintiffs were dismissed the very day. Since the
services of the plaintiffs were terminable lawfully, the House of Lords held that howsoever
malicious motive the defendant may be having the plaintiffs had no cause of action.

(ii) Inducing breach of such agreements which are null and void is not actionable.
(iii)An action lies when the inducement to make a breach of contract is without any
justification. Inducing the breach with a justification is good defence.
(iv) A statutory exception to the rule has been created by the (English) Trade Disputes Act,
1906.

INTIMIDATION

Intimidation is now an established tort. The person threatened may either be compelled to act to
his own detriment or to the detriment of some third person. Threatening a person with violence if
he passes a particular way, continues his business, or performs a particular contract, are the
examples where a person may be compelled to act to his detriment.

To constitute the wrong of intimidation, there must be a threat to do an unlawful act to compel a
person to do something to his own detriment or to the detriment of somebody else. If the threat
is to do something which is not unlawful or the threat does not cause any detriment, there is not
cause any detriment, there is no intimidation.

4. SLANDER OF TITLE OR INJURIOUS FALSEHOOD

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DEFINITION

Slander of title has been thus defined by Winfield “This is a false and malicious statement about
a person, his property or business which damages not necessarily his personal reputation but his
title to property, or his business or generally his material interests.” Slamond calls this tort by
the name of injurious falsehood.

ESSENTIAL INGREDIENTS:

(i) FALSITY:

The defendant must have made the statement falsely.

Green v. Button

The plaintiff had contracted for the purchase of certain wood, but he was unable to obtain
delivery owing to the defendant falsely alleging an agreement under which he had a lien on the
goods for money advanced to the plaintiff and it was held that there was a good cause of action.

(ii) MALICE:

Secondly, the defendant must have made the statement maliciously. Malice here means actual
malice in the sense of an indirect, improper bad motive and a wrongful intention to injure the
plaintiff must be proved. False statements carelessly made but not with a view to injure the
plaintiff are not sufficient to support the action.

(iii) ACTUAL DAMAGE:

The action will not lie where actual damage has not been caused.

5. PASSING OFF

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When one passes off his goods as that of another, he commits the tort of “passing off”. This is a
branch of injurious falsehood but is different from the earlier branches of slander of title and
goods. The goods exhibited themselves give out to the world a false impression of their
character. It is a well-established rule of English common law “that no man has a right to put off
his goods for sale as the goods of a rival trader and he cannot therefore be allowed to use names,
marks, letters or other indicia by which he may induce purchasers to believe that the goods
which he is selling are the manufacturers of another person”.

It is also not necessary to prove that the plaintiff has suffered any damage thereby because
damage is presumed. “All that need to be proved is that the defendant’s goods are so marked,
made up, or so described by them as to be calculated to mislead ordinary purchasers and to lead
them to mistake the defendant’s goods of the plaintiff”.

The purpose of the tort of passing off is to protect the goodwill which a commercial concern may
have earned, so that no other person can make use of the same. It is complimentary to the trade
mark law.

PASSING OFF DISTINGUISHED FROM DECEIT:

1. In an action for fraud or deceit, there is deception of the plaintiff, who alleges that he
himself has been misled by the statement, whereas in passing off, the deception is not that
of the plaintiff, but of somebody else.
2. In an action for deceit, the plaintiff claims compensation for the loss caused to him as a
consequence of his being deceived, but in an action for passing off, the plaintiff seeks to
protect his proprietary right in his goodwill or business, which is threatened by the
deception or confusion, or the likelihood of deception or confusion of others.
3. The wrong of deceit is constituted when the plaintiff has been actually deceived, whereas
in an action for passing off, the likelihood of the deception of, or confusion amongst
others is enough. Thus, in passing off, actual deception need not be proved.
4. Since in deceit, the action can be brought only when the wrong is completed, an action
for damages is the only and the proper remedy, whereas an action for passing off can be
brought even though there is likelihood of others being deceived or confused, the remedy
of injunction is also available for the same.

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An action for the tort of passing off involves a combination of two elements, viz.,

(i) That certain name had become distinctive of the plaintiff’s goods, and
(ii) That the defendant’s use of that name was likely to deceive and thus cause confusion and
injury to the business reputation of the plaintiff.

Scotch Whisky Association vs. Pravara Sahakar

The plaintiffs distill scotch whisky and market it all over the world. They use various well-
known brand names or devices showing well-known Scottish figures or Scottish soldiers or
Scottish Headgears or Scottish emblems. The defendants, manufacturing whiskey in India, use
similar figures, with label, carton, devise suggesting Scottish origin of the whisky, and they also
use the word “Scotch” coupled with the description “Blended with Scotch”. The plaintiffs were
held entitled to temporary injunction against the defendants, as the act of the defendants
amounted to passing their whisky as that of the plaintiffs.

6. ABUSE OF LEGAL PROCEDURE

MALICIOUS PROSECUTION:

A malicious prosecution is defined as “a judicial proceeding instituted by one person against

another, from wrongful or improper motive and without probable cause to sustain it”. Malicious

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prosecution consists in instituting unsuccessful criminal proceedings maliciously and without
reasonable and probable cause. When such prosecution causes actual damage to the party
prosecuted, it is a tort for which he can bring an action.

The Apex Court in West Bengal State Electricity Board vs. Dilip Kumar Ray explained that
there were two essential elements for constituting a malicious prosecution, namely:-

a. That no probable cause existed for instituting the prosecution or suit complained of;
and
b. That such prosecution or suit terminated in some way favourably to the defendant
therein.

Once a wrongful criminal or civil proceeding instituted for an improper purpose and without
probable cause, has ended in the defendant’s favour, he or she may sue for tort damages termed
as malicious use of process. To prevent false accusations against innocent persons, an action for
malicious prosecution is permitted.

The following essentials are required to prove in a suit for damages for malicious prosecution:

(a) That he was prosecuted by the defendant;

(b) The prosecution was instituted without any reasonable and probable cause;
(c) The defendant acted maliciously and not with a mere intention of carrying the law into
effect;
(d) The proceedings complained of terminated in favour of the present plaintiff;
(e) The plaintiff suffered damage as a result of the prosecution.

(a) PROSECUTION BY THE DEFENDANT:

This essential ingredient requires the proof of two elements,

i. That there was “prosecution”, and

ii. The same was instituted by the defendant.

i. Prosecution:

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It should be a criminal prosecution rather than a civil action. Prosecution means criminal
proceedings against a person in a court of law.

Nagendra Nath Ray vs. Basanta Das Bairagya

After a theft had been committed in the defendant’s house, he informed the police that he
suspended the plaintiff for the same. Thereupon, the plaintiff was arrested by the police but was
subsequently discharges by the magistrate as the final police report showed that there was no
evidence connecting the plaintiff with the theft. In a suit for malicious prosecution, it was held
that it was not maintainable because there was no prosecution at all as mere police proceedings
are not the same thing as prosecution.

Kapoor Chand vs. Jagdish Chand

The appellant made a false complaint with the Board of Ayurvedic and Unani System of
Medicines, Punjab, alleging that the respondent, who was practicing as a Hakim, was illiterate
and had obtained fictitious certificate of Hikmat by underhand means. The Board held that the
respondent was admittedly a qualified Hakim and authorized him to practice as such. In an action
for malicious prosecution, it was held that the respondent was entitled to claim compensation.

ii. Prosecution should be Instituted by the Defendant:

A prosecutor is a man who is actively instrumental in putting the law in force for prosecuting
another. Although criminal proceedings are conducted in the name of the State but for the
purpose of malicious prosecution, a prosecutor is the person who instigates the proceedings.

(b) ABSENCE OF REASONABLE AND PROBABLE CAUSE:

The plaintiff has also able to prove that the defendant prosecuted him without reasonable and
probable cause.

Abrath vs. North Eastern Railway Co.

One M recovered a large sum by way of compensation from the defendant company for personal
injuries in a railway collision. Subsequently, the railway company got the information that
injuries of M were not due to the collision but the symptoms of those injuries had been

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artificially created by Dr. Abrath, who was M’s surgeon. The directors of the railway company
made enquiries and obtained legal advice which suggested that Dr. Abrath should be prosecuted
for conspiring with M to defraud the railway company. Dr. Abrath was accordingly sued, but
was acquitted. He brought an action for malicious prosecution against the railway company. The
court found that the railway company had taken reasonable care to inform itself of the true facts
and they honestly believed in their allegations and, therefore, they were held not liable.

Thus, if there is reasonable and probable cause for prosecution, malice is immaterial because
existence of reasonable cause in the plaintiff’s mind is sufficient defence.

(c) MALICE:

It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting him, i.e.,
there was malice of some indirect and illegitimate motive in the prosecutor, i.e., the primary
purpose was something other than to bring the law into effect. It means that the defendant is
actuated not with the wrongful in point of fact. ‘Malice’ means the presence of some improper
and wrongful motive. Apart from showing that there was absence of reasonable and probable
cause, it is also to be proved that the proceedings were initiated with a malicious spirit, that is,
from an indirect and improper motive, and not in furtherance of justice.

(d) TERMINATION OF PROCEEDINGS IN FAVOUR OF THE PLAINTIFF:

It is also essential that the prosecution terminated in favour of the plaintiff. If the plaintiff had
been convicted by a court, he cannot bring an action for malicious prosecution even though he
can prove his innocence and also that the accusation was malicious and unfounded.

(e) DAMAGE:

It has also to be proved that the plaintiff has suffered damage as a consequence of the
prosecution complained of. Even though the proceedings terminate in favour of the plaintiff, he
may have suffered damage as a result of the prosecution.

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In a claim for malicious prosecution, the plaintiff can thus claim damages on the following three
counts:

(a) Damage to the plaintiff’s reputation;

(b) Damage to plaintiff’s person;
(c) Damage to plaintiff’s property.

A false charge of a criminal offence obviously injures the reputation. Apart from that, damage to
the person may result when a person is arrested and deprived of his liberty and also when there is
mental stress on account of prosecution. Injury to the property may also be there as a person who
is prosecuted has to spend money for his defence.

The court will also consider:

1) The nature of the offence which the plaintiff was charged of,
2) The inconvenience to which the plaintiff was subjected to,
3) Monetary loss, and
4) The status and position of the person prosecuted.

Wiffen vs. Bailey Romfort U.D.C.

The plaintiff having failed to comply with its notice requiring him to clean the walls of some
rooms in his house was prosecuted by the defendants, and on acquittal, he sued for malicious
prosecution. It was held that there was no ground for action, since the failure of the prosecution
did not damage his reputation.

FOREIGN TORTS

Difficult questions of jurisdiction very often arise before the civil courts of one country as to the
maintainability or otherwise of actions for torts committed outside the territorial limits of that
country, i.e., in foreign countries. A foreign country for this purpose means any country which is
beyond the borders of the State where the action is brought. A court in the island of Sri Lanka or

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a court in Pakistan is foreign to an Indian court. The defendant must be in the State. If he be
outside Great Britain a writ may be issued against him by the English High Court on certain
condition.

Machado v. Fontes

The plaintiff sued the defendant for libel alleged to have been published against him in Brazil
and it was held to be no defence to the action that in Brazil libel is a crime but not a civil injury.
Winfield has deduced three rules. They are the following:

(1) Even though the defendant’s conduct is not justifiable by foreign law, if it is justifiable by
the State law were the action is brought no action would lie.
(2) If the defendant’s conduct is justifiable by foreign law, but is tortious according to
English law, no action for tort would lie against him in an English court.
(3) If the defendant’s act is not justifiable by foreign law and is tortious according to English
law, then action in tort would lie.

In short, the modern rule with regard to foreign torts deduced from leading cases can be stated
thus:

As a general rule, an act done in a foreign county is a tort and actionable as such in the
mother State only if it is both:
(a) actionable as a tort according to the law of the mother State or, in other words, is an
act which if done in the mother State would be a tort, and
(b) actionable according to the law of the foreign country where it was done.

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 UNIT X

DISCHARGE OF TORTS

When a right of action is vested in a party for tort committed by another, it may be discharged by
any one of the following methods:

(1) By waiver.
(2) By accord and satisfaction.
(3) By release.
(4) By judgment recovered and res judicate.
(5) By statute of limitations.
(6) By death.

1. BY WAIVER:

An injured person may waive his remedy in tort and may elect to sue the wrongdoer under some
other remedy in tort will be extinguished. He will not be permitted to have both ways.

2. BY ACCORD AND SATISFACTION:

Any man who has a cause for action against another may agree with him to accept in substitution
for his legal remedy any valuable consideration. The agreement is called an accord and the
consideration is called the satisfaction.

3. BY RELEASE:

Any surrender of a right of action may be called release. A release under English laws, if
without consideration, is not valid unless it is embodied in a formal document and signed, sealed
and delivered. In Indian law, however, according to Section 63 of the Indian Contract Act,
consideration is not essential to a release and hence a valid release can be made even without
consideration. In English law a release without consideration will be valid only if it is effected
by a deed and not otherwise.

4. BY JUDGMENT RECOVERED AND RES JUDICATA:

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When an action is brought before a tribunal of competent jurisdiction and it proceeds to final
judgment, the original right of action is in any case destroyed. If the plaintiff fails, he is stopped
from asserting his alleged tight in any other legal proceedings against the same party or his
successors-in-interest. If he succeeds, the original right in respect of which he sued is merged in
the higher and better right which he obtained by his judgment, even though it be unsatisfied. The
principle of res judlicata is based on the rules embodied in the maxims interest republicae ut sit
finis litium (it is in the interest of the State the there should be an end to the litigations) and nemo
denet bis vexari pro una et eadem cause (it is a rule of lwaw that a man shall not be twice vexed
for one and the same cause). In our Civil Procedure Code there are separate sections relating to
res judicata and barring repeated trials for the same cause of action. Judges have always
discouraged vixatious litigation even if the same set of facts were capable of giving rise to
separate actions.

5. BY STATUTE OF LIMITATIONS:

If a person sleeps over his rights he will lose his remedy after the expiry of the period of
limitation prescribed by the statutes of the land. The laws assist those who are vigilant and not
those who sleep over their rights (vigilantibus et non dormientibus jura subveniunt).
Consolidated by the Act 1939 which came into effect in July 1940. Section 2(a) of the Act
provides that actions founded on simple contact or tort shall not be brought after the expiration of
six years from the date on which the cause of action accrued. By the Amendment Act, 1945 the
limitation period for actions for damages in respect of personal injuries has been reduced to 3
years. In India, the Limitation Act, 1963 prescribes the periods within which injured persons
must institute suits or prefer appeals or applications claiming relief for injuries suffered. Act suit
instituted or appeal preferred after the prescribed period is dismissed by the court. An injured
person must, therefore, bring an action within the prescribed period of limitation.

6. BY DEATH:

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The death of a person who has either suffered or caused an injury may have a twofold effect it
may extinguish liability on the one hand or it may create liability on the other. Suppose A had
brought an action claiming damages against B for personal defamation, the death of either A or
B while pending action will extinguish the liability of B towards A, for it is a well-established
principle of law that a personal action ends with the death of person (action personalis moritur
cum persona). There were exceptions to the rule, both at common law and statutes.

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 I YEAR OF 3 YEAR LL.B
SEMESTER - I
ODD SEMESTER

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SUBJECT : FAMILY LAW - I
SUBJECT CODE : TA1E

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 SYLLABUS
TA1E - FAMILY LAW - I
Unit - I Source:
Traditional and modern sources of personal Laws. Evolution of the Hindu Joint
Family - The Classical schools
Unit - II Law of Marriage:
Hindu, Muslim and Christian Laws of marriage and divorce. The nature of the
institution of marriage and its development, the capacity and nuptial rights and the effect
of void and voidable marriage under the aforesaid systems of law. Hindu law of marriage
and divorce with reference to the changes brought about by modern legislation. Muslim
law of marriage and divorce will include Law of Dower.
Unit - III Law of Adoption:
Hindu law of Adoption with special reference to the juristic concept and development
of case laws and changes brought about by the Hindu Adoption and Maintenance Act,
1956. The Muslim Laws of Legitimacy. Parentage and the Doctrine of Acknowledgement
of paternity.
Unit - IV The Law of Guardianship:
The Hindu Law of Minority and Guardianship and Maintenance and changes brought
about by modern legislation. Muslim Law of
minority and Guardianship and Maintenance.
Unit - V Maintenance:
The Hindu, Muslim and Christian law relating to Maintenance.
Statutory Materials with Amendments
1. Hindu Widows Re Marriage Act, 1956.
2. Child Marriage Restraint Act, 1929.
3. Special Marriage Act, 1954.
4. Hindu Marriage Act, 1955.
5. Hindu Adoptions and Maintenance Act, 1956.
6. Hindu Minority and Guardianship Act, 1956.
7. Hindu Women's Right to separate Residence & Maintenance Act, 1956.
8. Prohibition of Child Marriages
9. Guardianship and Wards Act, 1890.
10. Guardianship Act.
11. Indian Majority Act, 1875.
12. Personal Laws (amendment Act) 2010.
13. The Dissolution of Muslim Marriage Act, 1939.
14. The Christian Marriage Act, 1872.
15. Indian Divorce Act, 1896.

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Books for Reference:
1. Mulla - Hindu Law
2. Thakir Mohammed - Hindu Law
3. N.R. Raghavachari - Hindu Law
4. Mulla - Mohammedan Law
5. Thakir Mohammed - Muslim Law
6. A.A. Fyzee - Outlines of Mohammedan Law
7. S.N. Gupta - Maintenance and Guardianship Act.
*******************

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 UNIT-1
INTRODUCTION TO HINDU LAW.
In India, the Hindus are not fully governed by Hindu law. Limited matters, the Hindu
are governed by Hindu law. But for the remaining matters, the Hindus are governed by
Indian territorial laws. The origin of Hindu society and Hinduism is prior to 4000BC.
Originally, the Hindu law was comprehensive system of law. So, therefore, the Hindu
law dealt all kinds of law that is, criminal law, civil law, law of evidence, law of
contract, law of transfer etc. in India, 85% of the people are Hindu and are governed by
Hindu law. Originally the Hindu law consists of body of principles or rules which are
contained in various Sanskrit books. The Hindu law is neither pure customary law nor
pure state made law. These Hindu laws were recognized and enforced by ancient Hindu
rulers without any modification though they had power to modify it. After
establishment of British power in India, the British Government adopted and applied the
English policy to Hindus in India.

In the beginning stage of British rule, the rights and obligations of a Hindu were
determined by Hindu law unless otherwise any part of such laws may be altered or
abrogated or modified by legislation. As per Warren hasting plan of 1772, the Hindus
were governed by Hindu law in respect of Inheritance, marriage, caste and other
religious usages or institutions. In independent India, the Hindus are governed by Hindu
law in the following matters, namely,
1. Succession (inheritance)
2. Marriage and dissolution of marriage
3. Guardianship
4. Maintenance
5. Joint family and partition
6. Adoption
7. Religious Institutions

This Hindu law applicable to Hindu, who may be,

1. Hindu by Birth
2. Hindu by conversion
3. Hindu by reconversion
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 1. Hindu by Birth:
If both the parents are Hindu, the children are Hindu from the date of birth.
After birth, if any one or both of the parents is or are converted from Hindu to other
religion, such conversion does not itself affect the children’s religion unless the children
themselves converted to parent’s converted religion.

If one of the parents is Hindu and the other is non Hindu, the children are
called Hindu provided that they are brought as Hindu.

Offshoots of Hinduism:
1. Buddhism, Jainism and Sikhism are offshoots of Hinduism; they are governed by
Hindu law.
2. The followers of Brahma Samaj, Prathana Samaj and Arya Samaj and the followers
of Lingayats and Virashaivas are sect of Hindus and they are, now, governed by Hindu
law.

Person domiciled in India:

Hindu law applicable to all people domiciled in India, who are not Muslims,
Christians, Parsi or Jew by religion, unless it is shown that they would not have been
governed by Hindu law.
In “Rajkumar vs Barbara”, a child was born to a Hindu father and Christian
mother and it was neither shown that child was brought as Hindu nor to show the child
was a Christian, Parsi , Muslim or Jew. The Calcutta High Court held that the child was
a Hindu.
In “Myna Baee vs Ootram”, a Hindu wife deserted her husband and illegally
cohabited with a christian and she had two illegitimate sons, B and C and they were
brought as Hindu. On the death of B, two questions are raised, that are:
1. By what laws are B and C governed?
2. Can C succeed to B as collateral?
Held: The Privy Council held that since they were governed by Hindu law, C
would not succeed his brother’s property as collateral.

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 2. Hindu by conversion:
The concept of Hindu law is that “A Hindu is born, but is not made”. It
means that “No one could claim to be governed by Hindu law by simply professing
Hinduism if he was not a Hindu by birth”. Now this concept is not sound and the
Hindu law recognised not only Hindu by birth but also Hindu by. Conversion

In “Ratansi Morarji vs Administrator-General of Madras”, an Australian

Christian lady was converted to Hinduism by the Hindu Missionary Society of Bombay.
She married a Hindu and died leaving a will which was executed in Adyar in Madras
provinces. The will was not attested. It would be valid, if she was a Hindu and it would
not be valid, if she was a Christian. It was held that she was a Hindu and was governed
by Hindu law and the will was upheld by the court.

Other related cases:

1. Perumal vs Ponnuswamy
2. Mohandas vs Devaswom Board
3. Hindu by reconversion:
The following two questions are raised when a Hindu converted to some other
religion and then reconverted to Hinduism.
1. Whether he would be treated as Hindu?
2. Whether he would be admitted to his original sub caste?

Answer to this questions are considered by Supreme Court in “Rajagopal vs

Arumugham. Rajagopal, an Adi-Dravida community, had converted to Christian in
1949. Thereafter he began to professing Hinduism and married a Hindu Adi-Dravida
woman and brought up his children in Hinduism and showing them as Hindu in ‘school
records’. The question is whether he could stand for election as Adi-Dravida
community for a seat reserved for Scheduled Caste.

The Supreme Court held that though there was no formal process for reconversion, he
could be treated as a person belonging to Hindu faith. But he could be treated as having
reverted to his previous sub caste only if the said caste re-admitted him into its fold
unequivocally. In this case, there was no such evidence for re admission of Rajagopal

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 by the said Adi-Dravida community. So the Supreme Court held that Rajagopal could
not be entitled to stand for election for seat reserved for Adi-Dravida community.

Effects of conversion from Hindu to other religion:

The following are some of the legal effects of conversion from Hindu to other
religion.
1. Application of law:
From the date of conversion, he would not be treated as Hindu and he is not
governed by Hindu law. The application of law by converted person was considered by
the Privy Council in “Abraham vs Abraham”. M. Abraham and F. Abraham were
brothers. Their ancestors were Hindus who were converted to Christianity. On the death
of M. Abraham, his widow brought the suit for recovery of her husband’s property. This
suit was resisted by his brother F. Abraham who contended that his ancestors continued
to be governed by the Hindu law in spite of conversion. So, he claimed the entire
property according to the Mitakshara law of survivorship.

The Privy Council held:-

1) The effect of conversion of a Hindu to Christianity is to sever his connection with
the Hindu family.

2) Such converted person may elect either to abide by the old Hindu law
notwithstanding that he has renounced the old religion or to abide by Christian
law.

3) The converted party’s course would show what law he had elected to be governed.
Under the 3rd principle it was found that M. Abraham had married a Christian
woman and adopted English dress code and manner. Therefore, the court held that he
had elected against the Hindu law and rejected the contentions of the F. Abraham.

2. Right of inheritance:
From the date of conversion, he would not be governed by Hindu law for
inherit property.

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3. Effect of conversion on marital status
The other party to the marriage is entitled to obtained decree for divorce
according to Hindu Marriage Act, 1955.

4. Effect of conversion on right to guardianship:

For welfare of the minor, if the guardian converted from Hinduism, it is a factor to
be taken into account in considering the fitness of the guardian for continues as a
guardian.

5. Effect of conversion on right to maintenance:

Under section 24 of the Hindu Adoption and Maintenance Act, 1956, if the
claimer converted from Hinduism, he cannot claim maintenance from other Hindu.

*****
SOURCES OF HINDU LAW.
The sources of Hindu law may be either literary or material sources of Hindu law.
In literary sense, it is a source from which we seek our knowledge of the law. In
material sense, it is a method by which law is evolved. The legislation, judicial
decisions and custom are material sources of law. The sources of Hindu law may be
either Traditional or Modern sources of law.

The Traditional sources are,

1. Srutis
2. Smritis
3. Digest and Commentaries
4. Custom.

The Modern sources are,

1. Legislation
2. Judicial decision
3. Justice, equity and good conscience

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 Traditional sources of Hindu law:
SRUTIS:
The “Srutis” means that which has been heard. It is the voice of the God. It is
fundamental sources of law for other sources. The Srutis consists of,
1. Vedas
2. Upanishads

1. VEDAS:
It consists of revelation made by Supreme Being and experiences received by
the Rishis. It is voice of the God. So it cannot be altered by anyone. It is a primary
source of Hindu law. It is said to be sources for all other sources of Hindu law. Vedas
do not contains any direct statement of law, but it contains disconnected statement on
different aspects of dharma from which the law has been gathered.

Types of Vedas:
They are four Vedas, that Is,
1. RIG VEDA
2. YAJUR VEDA
3. SAMA VEDA
4. ADHARVANA VEDA
Rig Veda:
It is the oldest among the four Vedas. It consists of hymns and songs in the praise
of the God. It consists of 1028 slogams and arranged in ten mandalams.
Yajur Vedas:
It deals with rituals and sacrifices and mandaras pertaining there to.
Sama Vedas:
It consists of prayers composed to metre and set to music.
Adharvana Vedas:
It is devoted to magic, spell and incantation.
Upanishads: It is nothing but philosophical treaties in Sanskrit language and forming
pare of Vedas.

SMRITIS:
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 In literary sense, Smritis means that which has been remembered. It is
recollection of Rules of Dharma handed down by authorised Sages or Rishi of antiquity
of the precept of God. Rishi had no temporal authority. They did not have any rule
making powers, but on the other hand, they were only exponents of rules of Dharma.

Types of Smritis:
The Smritis are classified into,
1. Sutras
2. Dharma Sastras

SUTRAS:
Sutra is anterior in point of time. The time of Sutras is 800BC to 200BC.
1. It is mainly prose in nature, but some time it partly prose and partly verses in nature.
2. It is very sort one.
3. It is very concise in its meaning.
4. It is comprehensive in nature.
5. It is easy memorable one.
6. It deals with the duties of man in various ways.

Types of Sutras:
They are three types of Sutras,
1. Srauta Sutra: It deals with rituals, sacrifice and mandaras.
2. Grahaya Sutra: It deals with domestic ceremonies.
3. Dharma Sutra: It deals with secular law, that is civil and criminal law. It plays a
very important roles of human being.
Examples of Dharma Sutras:
They are so many examples of Dharma Sutra, the followings are important one:
1. Gouthama Dharma Sutra
2. Bauthayana Dharma Sutra
3. Apastamba Dharma Sutra
4. Vishnu Dharma Sutra

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 1. Gouthama Dharma Sutra:
It was written Gouthama. He belonged to Sama vedin. It deals with both
religious and legal matters. In legal matters, it deals with Srithana property, inheritance
and partition. In his works, he recognized the practice, tradition, usage and custom of
Hindu law.
2. Baudhayana Dharma Sutra:
It was written by Baudhayana. He belonged to Yajur vedin. He lived in Andhra-
Pradesh. It deals with both religious and legal matters. In legal matters, it deals with
Sonship, Adoption, Partition and inheritance. In his work, he mentioned several
customs, in which three are important, namely,
a) South-Indian Custom: It permitted a male Hindu to marry his maternal uncle’s
daughter or his sister’s daughter.
b) North-Indian Custom: It permitted a man for trading into arms and going to sea
c) Another custom permitting the king to impose excise duties

3. Apastamba Dharma Sutra:

It was written by Apastamba. He also belonged to Yajur vedin. It also deals
with both legal and religious matters. In his work, he did not recognize the practice of
Niyoga, Prajapatya marriage, paisasa marriage, secondary and adopted son.

4. Vishnu Dharma Sutra:

It is partly prose and partly verses in nature. It deals with both legal and
religious matters. His work is based on Manusmritis. In respect of legal matters, it deals
with civil law, criminal law, adoption, partition, marriage, sonship, inheritance, debt
and interest.

DHARMASASTRAS:
It is posterior in point of time to compare with Sutras. The period of Dharma
Sastras is above 200BC. It is verses in nature. It deals with the subject of Hindu law
very systematically and a logically. Every Dharma Sastra consists of three parts,
namely,
1. Acharya- deals with rituals and sacrifices
2. Vyavahara- deals with Secular law

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 3. Prayaschitta- Deals with Penance and Expiation

Examples of Dharma Sastras:

1. Manusmriti
2. Yajnavalkaya’s Smriti
3. Naradha’s Smriti

Manusmriti:
The period of Manusmriti is 200 BC. It is complete work and deals both legal and
religious matters. It consists of 2694 slokas, arranged in 12 chapters. Out of 12 chapters,
4 chapters deals with religious matters and remaining 8 chapters deals secular law, that
is civil, criminal and domestic law and pointed out all these laws into 18 titles of law,
these are,

1. Recovery of debt
2. Pledge and deposit
3. Sale without ownership
4. Concerns among partners
5. Resumption of gift
6. Disputes regarding boundaries
7. Dispute between master and servants
8. Sale and purchase
9. Non-payment of wages
10. Unfulfilled agreement
11. Assault
12. Defamation
13. Theft
14. Robbery and violence
15. Adultery
16. Duties between husband and wife
17. Partition
18. Gambling and betting

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 If the right of man comes under any one of the above titles and if it is violated,
he can seeks relief before the court of law. But on the other hand, if there is violation of
any other right apart from it, he cannot claim remedy before the court.
2. Yajnavalkaya’s Smriti:
The period of this Smriti is 100AD. Yajnavulkaya belongs to Yajur vedin and
Mithila School. It is verses in nature. It is mainly based upon Manusmriti. However, his
work is more logical, scientific and constructive. This work consists of three parts, these
are
1. Acharya
2. Vyavahara
3. Prayaschitta
This work deals both civil and criminal law which consists of,
1. Law of Mortgage and Hypothecation
2. Marriage and divorce
3. Adoption
4. Inheritance
5. Sale
6. Partnership
7. Assault
8. Defamation
9. Theft and robbery
10. Adultery
As per Yajnavalkaya's Smriti, the rights of human being are not restricted within
the above titles of law, but if any right of human being is violated by anyone, he can
seek relief before the court of law.
In his work, he also pointed out and recognized 12 kinds of sons, these are,
1. Legitimate son
2. Son of appointed daughter
3. Son of wife
4. Son of hidden origin
5. Damsel’s son
6. Widow’s son
7. Adopted son given by parents

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 8. Son made
9. Son bought
10. Son self given
11. Adopting a forsaken son
12. Son of wife pregnant at the time of marriage
Naradha’s Smriti:
The period of this Smriti is 200AD. It is a social code, dealing with secular law.
This work is divided into two parts,
First part dealt with judicature and administration of justice.
Second part dealt with 18 titles of law specified by Manu in his work.
This Smriti pointed out 4 fold stages for deciding every dispute, these are,
1. By means of Dharma
2. By means of Vyavahara (evidence of witnesses, in the absence of Dharma)
3. By means of Charitra (evidence of documents, in the absence of above two)
4. By means of Raja Sasana (Edicts or knowledge of the king)

DIGEST AND COMMENTARIES:

During the course of time, the Hindu society underwent some changes. In
changed society, the old concepts and rules which were found in Sruti and Smriti were
not appropriately applicable. So a need arose to make some change in the Smritis. It
was done by commentators and digest writers. Since Sruti is voice of the god, no
commentaries on Srutis.
Since all the Smritis did not agree with one another in all aspects, several
interpretations put upon the Smritis. This gave rise to commentaries, which are called as
“Nibandhas”. These commentaries did merely not only interpret the Smriti, but also
recited the customs and usages which are found among them. So the commentators
introduced modifications in order to bring the Smriti into harmony with the current
customs and usages.
Since the original texts were modified by the commentators in order to bring
them in line with the local customs and usages and conditions, it is more authoritative
than original texts.
Commentaries were written on,
1. Manusmriti

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 2. Yajnavalkaya's Smriti
3. Naradha's Smriti

Commentaries on Manusmriti:
1. Manutika written by Govindha Raja
2. Manubhashyam written by Medhatithi
3. Manu Vartha Mutha Valli written by Kulluka Bhatta

Commentaries on Yajnavalkaya’s Smriti:

1. Aparaditya written by Apararka
2. Bala Kritia written by written by Visva Ruba
3. Vira Mitrodaya written by Mithra Misra
4. Mitakshara written by Vijnaneswara

Digest:
Alongside the commentaries, digest literature grew with a minimum of
comment. Digest is not complete interpretation of other sources, but is a codification of
law that are prevalent in particular area. The followings are some examples of digests,
1. Daya Bhaga written by Jumootavahana
2. Smriti Chandrika written by Devanna Bhatta
3. Vivadha Chinthamani written by Vaschaspathi Misra
4. Vivadha Rathanakara written by Chandeswara

Modern sources of Hindu law:

1. Custom
2. Legislation
3. Judicial decisions
4. Justice, equity and good conscience

1. CUSTOM:
The custom is one of the sources of Hindu law not only in traditional period but
also in modern period.

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 Custom is one of the fruitful sources of Hindu law. In ancient time, custom is
recognised as secondary source of law, but now it is recognised as primary source of
Hindu law. Hindu law originated from customs and conventions. During the course of
time, the customs was defined and reshaped by great Rishi and Sages and the Smritis
took the place of unrecorded customs.

Definition:
Custom signifies a rule in which a particular family or class or district has from long
usage obtained the force of law.

Where there is a conflict between a custom and the text of the Smritis, the custom will
prevail and overrule the text. That is “ under Hindu system of law, clear proof of
usage will outweigh the written text of law”

According to Goudhama, regarding country or family custom which was not opposed to
Smriti and Sruti, is one of the sources of Hindu law. The Privy Council also has
recognized the supreme authority of custom in Hindu law. In the famous case of
“Collector of Madura vs Mootoo Ramalinga Sethupathy”, the question arose
whether in the Dravida country, a widow could make an adoption even in the absence
of express authority from her husband. In this case, the Zamindar of Ramnad died
without sons. The Zamindar of Ramnad did not give authority to his widow Rani
Parvathavardhani to adopt a son. But she adopted a son with the permission of the
nearest sapindas of her husband and then died. If the adoption would be valid, the
Zamindari would be vested in adopted son. If the adoption would not be valid, the
Zamindari would have escheated to Government. The collector of Ramnad notified on
the death of Rani Parvathavardhani, the Zamindari would escheat to the state.

So, the adopted son, Mooto Ramalinga Sethupathy filed a suit for declaration of the
validity of the adoption. The question rose before the court was whether under Dravida
school of Hindu law, an adoption made by a widow without the consent of the husband
was valid when there was consent of her husband’s sapindas.

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 In this time, the Privy Council elaborately and carefully noticed the various authorities
for sources of Hindu law. The Privy Council found that in the Dravida School, the
Smriti Chandrika and Parasara Madhaviya are authorities of law. The above authorities
authorize the widow to adopt a son for her husband with the consent of her father in law
and other husband’s Sapindas. This is a received authority of the Dravida School.

Therefore, the Privy Council concluded that in Dravida School, in the absence of
authority from her husband, the widow may adopt a son with the assent of her
husband’s Sapindas. So, therefore, the Privy Council held that the adoption made by
widow with consent of her husband’s Sapinda was valid.

Essentials of valid custom:

1. It should be antiquity or ancient one.
It should be a long standing that is by common consent, it has been accepted as
the law governing a particular locality, class or family. Unlike that of English law, it is
not immemorial one, but a long usage is absolutely necessary.

2. It must be in certain
It should be in certain in respect of nature, locality and person who claim custom.

3. It must be reasonable:
It means, it should not be unreasonable that is it should be in accordance with justice,
equity and good conscience.

4. It must be continuous: If there is any discontinuous, it is invalid one.

5. It should not be immoral: So it should be moral and morality is nothing but a social
value.

6. It should not be opposed to public -policy:

For example, if a custom permitting a dancing girl to adopt a girl for prostitution, it is
invalid on the ground that it is opposed to public-policy.

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 7. It should not be oppose to law:
The custom should not be opposed to any law for the time being in force.

Kinds of customs:
Hindu law recognized three kinds of customs, these are,
1. Local customs
2. Family customs
3. Caste customs

1. Local customs: This is a custom prevailing in particular locality. The Ramnad case
deals this type of custom.

2. Family customs: This is a custom governing a particular family only.

3. Caste customs: This is a custom prevailing among a particular castes or community

or tribes.

Onus and proof of customs:

The burden of proof of a custom of Hindu law which is derogatory to that law, is upon
the person who asserts it. But on the other hand, when a custom has been proved, the
custom of proving its discontinuous lies on the party who alleges such discontinuance

2. LEGISLATION:
Legislation is one of the modern sources of Hindu law. Before and after British
period, it plays a vital role for deciding disputes among Hindu. Some of the legislations
are,
1. The Cast Disabilities Removal Act, 1850
2. The Hindu Widows Remarriage Act, 1856
3. The Native Converts Marriage Dissolution Act, 1866
4. Indian Majority Act, 1875
5. The Guardian and Wards Act, 1890
6. The Indian succession Act, 1925
7. The Hindu Inheritance Disabilities Removal Act, 1928
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 8. The Child Marriage Restraint Act, 1929
9. The Hindu Gains of Learning Act, 1930
10. The Hindu Women’s Right to Property Act, 1937
11. The Hindu Women’s Right to Separate Residence and Maintenance Act, 1946
12. The Hindu Marriage Act, 1955
13. The Hindu Succession Act, 1956
14. The Hindu Minority and Guardianship Act, 1956
15. The Hindu Adoption and Maintenance Act. 1956
16. The Marriage Laws Amendment Act, 1976

3. JUDICIAL DECISIONS:
Binding nature of previous judicial decisions on a subsequent similar case is one of the
modern sources of Hindu law. The principle of Stare decisis is applied by the Indian
courts. It may be noted that the judicial decisions on Hindu law have superseded the
commentaries.

The view of law enunciated and expressed by the Privy Council and the Supreme court
in particular cases serve as a guide in similar cases arising subsequently.

Now, the judicial decisions of the Supreme Court are binding upon all courts except
upon itself and the Judicial Decisions of the High Court are binding upon all of its
subordinate courts.

4. JUSTICE, EQUITY AND GOOD CONSCIENCE:

The principles of justice, equity and good conscience can also be regarded as one of the
sources of Hindu law. In the event of conflict between the Smritis or in the absence of
any specific law on particular subject matter, the principles of justice, equity and good
conscience would be applied

It is observed by Supreme Court in “Gurunath vs Kamalabal, that in the absence of

any clear Shastric text, the court have the authority to decide cases on the principles of
justice, equity and good conscience.
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 SCHOOLS OF HINDU LAW
Before the establishment of Commentaries and digest, there is no school among Hindus.
Commentaries are differed in their authority in different parts of the country. This gave
rise to what is called “Schools of Hindu Law”.

Since the customs are not uniform throughout the countries and customs plays an
important role for commentaries, different schools of Hindu law arose as a result of the
emergence various commentaries on Smritis.

There are two main schools among Hindu.

1. Mitakshara
2. Dayabhaga

In Bengal, the Hindus followed the Dayabhaga digest which is written by

Jumootavahana, in the matter of inheritance, they are called Dayabhaga. In rest of the
country, Hindus followed the Mitakshara commentary written by Vijnaneswara, in all
the matters and they are called Mitakshara.

Difference between Mitakshara and Dayabhaga School:

1. Right by birth:-
During the life time of the father, the son, grandson and great grandson acquire
an interest in the coparcenary property by birth in Mitakshara law. But in Dayabhaga
law, during the life time of the father, the son, grandson and great grandson does not
acquire an interest in the coparcenary property by birth.

2. Right of survivorship:
Mitakshara law recognized the doctrine of survivorship for acquiring brother’s
coparcenary’s property before 1956. But the Dayabhaga law does not recognized the
doctrine of survivorship for acquiring brother’s property.

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 3. Widow’s Right:
Dayabhaga law recognized the right of widow to inherit property from her
deceased husband. But Mitakshara law does not recognized the right of widow to
inherit property from her deceased husband

4. Sapinda Heirship:
In Mitakshara law, the Sapinda relationship arises by propinquinity or
community of blood. But in Dayabhaga law, Sapinda relationship arises by offering
Pinda to deceased ancestors. So, Spiritual benefit is the main criteria for heirship under
Dayabhaga law, whereas consanguinity is guiding principle under Mitakshara law.

Sub-schools under Mitakshara law:

Since the customs prevalent in different parts of the country are not uniform and
the sub commentaries are also not uniformly followed by through the country, there are
four sub schools under Mitakshara law, these are,
1. Dravida school
2. Maharashtra
3. Benaras school
4. Mithila school

All the above sub schools are followed Mitakshara commentary as their main
commentary, but they followed their own sub commentary which recites the customs
and usages prevalent in that places.

1.Dravida school:
i. Parasara Madhaviya– Written by Madhavacharya, commentary on Parasara
Smriti.
ii. Smritichandrika– Written by Devanna Bhatta
iii. Saraswativilas– Written by Prataparudra Deva
iv. Vyavakhara Nirnaya – written by Varadharaja

2. Maharashtra:
i. Vyavahara Mayukha– Written by Nilakantha Bhatta.

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 ii. Nirnaya Sindhu– Written by Kamalakara

3. Benaras school:
i. Viramitodaya – written by Mitra Misra
ii. Nirnasindhu– written by Kamalakara

4. Mithila school:
i. Vivid Chinthamani– written by Vaschaspati Misra.
ii. Vivada Ratnakara—written by Chandeshwara
iii. Madhanaparijatha– written by Visweswarabhatta.

*****
SOURCES OF MUSLIM LAW.
By sources of any law, we mean the original materials where the contents of that law are
to be found and are made available to us. Study of these sources is necessary because
without having any knowledge of the origin of a particular law, its proper explanation and
interpretation is not possible. Sources of Muslim law may be classified into two
categories:

(a) Primary sources, and

(b) Secondary sources.

Primary sources are those which the Prophet himself directed to be the sources of Muslim
law. There is an old tradition according to which once the Prophet asked Muadh, one of
his companions, as to what law he would apply in deciding a case?

The companion replied that first he would judge a case according to the words of God;
failing that, according to the traditions (precepts) of the Prophet and failing that too he
would interpret with his own reason. The Prophet approved these sources in the same
order.

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These sources are, therefore, of highest quality and importance in their respective order of
merit. The whole of Muslim personal law is based on the primary sources. They are also
called the formal sources of Muslim law.

Secondary sources explain or modify the primary sources of Muslim Personal Law
according to the changing needs of the Islamic society. To meet the requirements of the
society, Muslim law has been developed or modified also by local customs, judicial
decisions and the State.

Therefore, the rules of Muslim law are found also in the customs, legislations and the
judicial decisions. Local customs, legislation and judicial decisions are, therefore, the
secondary sources of Muslim law. Secondary sources are also called as extraneous
sources.

A. The Primary Sources:

(1) Quran:
The word Quran is derived from the Arabic word “Qurra” and properly signifies, “the
reading” or “that which ought to be read”. It is believed that Quran is of divine origin and
was revealed to Prophet Mohammad for the benefit of mankind. Quran is the first source
of Muslim law in point of time as well as in importance. It is the first source in point of
time because, before Quran there was no Islamic society as it exists today.

As pointed out earlier, the first revelation (Wahi) came to the Prophet in 609 A.D. Since
then the revelations continued to come to the Prophet in fragments during a period of 23
years, till 632 A.D. when the Prophet expired.

The revelations were the communications of God and were made by angel Gabriel to the
Prophet. These communications or messages from God were conveyed to the society by
the Prophet through his preachings.

The Prophet from time to time used to deliver preachings to his followers saying that
these were the messages to them from God. The communications were in the form of
verses and were remembered by the followers of the Prophet. Some of them were also

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reduced to writing on palm-leaves, camel hide or even on mud so that they may not be
forgotten.

The communications were in scattered form and were not systematically revealed. After
the Prophet’s death, the revealed verses were collected, consolidated and systematically
written under the authority of Osman who was the third Caliph.

A peculiar feature of the verses of Quran is that they are believed to be the very words of
God; Prophet Muhammad was simply the messenger of God to the society. Quran is of
divine origin, therefore, in importance it is the first source of Muslim law.

Salient Features of Quran as Source of Law:

Salient features of Quran as a source of Muslim law, may be summarised as under

(i) Divine Origin:

Quran is of divine origin. It is believed in Islam that the words and the verses of this holy
book are made by Almighty God and not by any human being. The Prophet simply
uttered these words on behalf of God. Since Quran is compilation of the very words of
God, its words are unchangeable and its authority is unchallengeable.

(ii) First Source:

Quran is the first and fundamental source of Islam in point of time. The present Muslim
religion was bom with the words of Qurar. Any study of Islamic principles or the Muslim
law must therefore, begin with it.

(iii) Structure:
Quran is in the form of verses. Each verse is called ‘Ayat’. There are 6237 verses in
Quran which are contained in 114 Chapters. Each Chapter of Quran is called ‘Sura’. The
various chapters are arranged subject-wise and have their specific titles. The first ‘Sura’
of Quran is Surat-ul-Fatiha which is an introduction to the holy book and consists of
verses in the praise of Almighty God.

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Similarly, other chapters contain generally the verses on the subject which justify their
titles. Some of the important chapters of Quran are, Surat-un-Nisa (rales relating to
women), Surat-ul-Talaq (rules relating to divorce), Surat-ul-Baqr (rules relating to
religion and morality), Surat-ul- Ikhlas (principle of absolute surrender to God) and,
Surat-ul-Noor (rules relating to home-life).

(iv) Admixture of Religion, Law and Morality:

Quran is mixture of religion, law and morality. Religion, law and morality are, at some
places, mixed in such a manner that it is difficult to separate them. In holy books of other
religions too, we find the same peculiarity.

For example, in Vedas and Smritis (the fundamental sources of Hindu Law), the legal
rales are mixed with the moral code of conduct.

It is believed that the verses of Quran pertaining to religion and morality were revealed at
Mecca and those pertaining to ‘law’ were revealed at Medina. The whole of Quran,
therefore, may not be treated as a source of law. Only the law-making Ayats, which are
about 200 scattered in different chapters, may be regarded as the fundamental source of
Muslim law.

(v) Different Forms of Legal Rules:

The verses of Quran deal with law in different forms. Some of the verses have removed
objectionable and evil customs like child infanticide, unlimited polygamy, gambling,
usuary (charging very high interest in loans) etc.

Some of them have laid down specific law-making ‘rules’ to settle the question that
actually arose in day-to- day life. Quran contains also the general injunctions which have
formed the basis of important juristic inferences.

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(vi) Unchangeable:
The words of Quran are the words of God; therefore, it is the most authoritative source of
Muslim law. If any specific meaning has been attributed to a particular verse of Quran,
either by Shia or by Sunni authorities then, the courts have no power to give any other
meaning to that verse.

(vii) Incompleteness:
Quran is not a complete code of Muslim personal law. It generally contains verses
relating to the philosophy of life and religion. Only about 200 verses deal with legal
matters. Out of these, only about 80 verses deal with personal law. Thus, only basic
principles of Muslim personal law are given in Quran.

(viii) Silence of Quran:

On many legal issues the Quran is found to be silent. For new problems of the society no
legal solutions were available in the apparent words of Quran.
We have seen that Quran is such a source of Muslim law which has came directly from
God. It was revealed to the Prophet for the socio-religious reform of the Arabian society
of that time and therefore we may find solutions to almost all the problems of that society.
But the religion of Islam spread so rapidly that within a short period the Islamic society
became a big Islamic Commonwealth. It was obvious that in such a progressive society
new problems arose day by day.
It was, therefore, necessary to explain and supplement the verses of Quran so that solution
to new problems could be found. Accordingly, as a source of law, Quran was
supplemented by another source called Sunna.

(2) Sunna or Ahadis (Traditions of the Prophet):

Sunna or Ahadis means the traditions of the Prophet. Whatever the Prophet said or did
without reference to God, is treated as his traditions and is the second source of Muslim
law. Traditions are the injunctions of God in the words of the Prophet.
Where the words of God could not supply an authority for a given rule of law, ‘Prophet’s
own words’ were treated as an authority because it is believed that even his own sayings
derived inspiration from God.

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In Islam it is believed that the revelations were of two kinds, manifest (Zahir) and internal
(Batin). Manifest or express revelations were the very words of God and came to the
Prophet through angel Gabriel; such revelations, as pointed out earlier, formed part of
Quran.

Internal or implied revelations on the other hand, were those which had been ‘Prophet’s
own words’ but the ideas contained in the slayings were inspired by God. Such internal
revelations formed part of Sunna. Tradition therefore differs from Quran in the sense that
Quran contains the very words of God whereas a Tradition is in the language of the
Prophet.

What Constituted Sunna?

All the preachings and the practices of the Prophet (except when direct revelations from
God used to come) formed part of Sunna. What the Prophet said what he did and also his
silence in a question put before him, was all taken to be authoritative and become a
precedent. Traditions as a source of Muslim law consist of:
(i) Sunnat-ul-Qaul (words spoken) which means the utterances or the sayings of Prophet
Mohammad;
(ii) Sunnat-ul-Fail (conduct) which includes the doings of the Prophet i.e. his behaviour;
and
(iii) Sunnat-ul-Taqrir (silence) which is the ‘silence of the Prophet’ in answer to a
question which was put before him for his decision. Silence amounted implied consent or
approval of a rule of law. Sunnat-ul-Taqrir also includes such pre-Islamic customs which
were not disapproved by the Prophet. He allowed the continuance of some customs in the
society by his silent approval.

Narrators of the Traditions:

The preachings and precepts could become an authoritative source of law when some
competent and qualified person called Narrator, had narrated it. In other words, the
Narrator used to testify that he heard the Prophet Saying it, or seen him doing it or has
seen his silence over that matter. If this narration was found to be reliable, it became
Sunna.

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As the narration of a tradition amounted to the creation of a new rule of law, the Narrator
was required to be a qualified person. According to Abdur Rahim a person must possess
following qualifications for being a competent Narrator: (i) he must have understanding
(sane and adult), (ii) he must possess the power of retention, (iii) he must be a Muslim,
and (iv) he must be of righteous conduct. Having these qualifications, following class of
persons was recognised as Narrators:

(a) Companions of the Prophet:

They were such Muslims who lived during the life-time of the Prophet and had the
privilege of being in his close contact. This narration was treated as most reliable.

(b) Successors of the Companions:

Those Muslims who did not live during the life of the Prophet but had the occasion of
being in contact with the Companions of the Prophet were called the Successors.
Authority of the narrations of the successors was second in priority.
(c) Successors of the Successors:
Such Muslims who neither lived during the life of the Prophet nor during the life of any
of the Prophet’s Companions, but were in contact with the Successors, were called the
Successor of the Successor of a Companion. Their narration was last to be relied upon.
Thus we see that the nearer was a Narrator to the Prophet, greater was the force of his
narration.

Kinds of Traditions:
Recognition and acceptance of a tradition as a source of law depends upon its authority
and, its authority depends upon its proof given by the Narrators. From the point of view
of their authority and acceptance in the society, traditions may be classified as under:

(i) Ahadis-i-Mutwatir (Universally Accepted Traditions):

They are the traditions which have continuously been narrated by indefinite number of
persons. They are most authoritative because there is no doubt in their genuineness and
certainty. These traditions have universal acceptance and are followed by all the sects of
Islam. Abdur Rahim rightly observes that traditions of this class, like verse of the Quran,
ensure absolute certainty as to their authenticity and demand implicit belief.

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(ii) Ahadis-i-Mashhoor (Popular Traditions):
Traditions, which have been narrated by some Companion of the Prophet but
subsequently accepted by majority of the people, are called Ahadis-i-Mashhoor or the
well known traditions. These traditions are not accepted unanimously by all Muslims but
a great majority has always recognised them as a source of law.

(iii) Ahadis-i-Ahad (Isolated Traditions):

Isolated traditions have neither been continuously followed nor followed by majority of
the people. Only a certain section of the society has accepted them as source of law.
Where the authenticity of any narration was doubtful, it was followed for some time only
by few persons. Such traditions are called isolated traditions because their acceptance and
recognition is localised one. Majority of the jurists do not recognise these traditions as a
source of Muslim law.

Traditions are narrations of law and religion which were communicated from one
generation to another and thus became the practices in the society. They were for a long
time neither written nor systematically arranged.
For the first time, Abu-Ibn-Zuhri attempted to collect and write down the scattered
traditions. But Muvatta of Malik Ibn- Anas is regarded to be the first systematic
collection of traditions, arranged and classified according to subjects. Traditions are in a
very large number. Ibn Hanbal has collected about 80,000 traditions in his book Masnad.

Drawbacks of Traditions:
The importance of traditions as a source of Muslim law is unquestionable. But as source
of law it suffers from following drawbacks:
(1) There are many traditions of doubtful origin. On several occasions, the prevalent
customs were treated as a rule of law in the name of the practices of the Prophet.
Narrators of such traditions are unknown persons.

(2) There are several traditions which are contradictory to each other. There is, therefore,
no uniform and certain law on many issues.

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(3) Traditions have laid down religious, moral and also the legal codes of conduct for the
society. Sometimes it is difficult to separate a religious or moral principle from a legal
rule.

(4) Traditions got their authority from the narrators. After sometimes when successor of
the successor also died, the formation of this source of law was stopped. For any new
situation, therefore, traditions, as a source of law were not available.
Because of the above-mentioned reasons, some other source of law was necessitated for
the rapidly increasing Islamic society. The next source of Muslim law is Ijma, which is
discussed below.

(3) Ijma (Unanimous Decisions of Jurists):

When Quran and traditions could not supply any rule of law for a new problem, the ‘law-
knowing persons’ (jurists) used to agree unanimously and gave their common opinion
over that point. Persons having knowledge of law were called Mujtahids (Jurists).

Such consensus opinion or unanimous decision of the jurists was termed Ijma, and is the
third primary source of Muslim law. According to Abdur Rahim, Ijma may be defined as
the agreement of the jurists among the followers of the Prophet Mohammad in a
particular age on a particular question.

This source of Muslim law has played a very important role in the subsequent
development of Muslim law because; through Ijma it was possible to lay down new
principles in accordance with the changing needs of the Islamic society. Validity of Ijma
as a source of Muslim law is based on a tradition of the Prophet. In this ‘tradition’ he has
said that, ‘God will not allow His people to agree on an error.

Formation of Ijma:
When a new principle of law was required, the jurists (Mujtahids) used to give their
concurrent opinion and a new law was laid down. Every Muslim was not competent to
participate in the formation of Ijma. Only Mujtahids could take part in it.
Qualification for being a Mujtahid was that he must be a Muslim having adequate
knowledge of law and was also competent to give independent judgments. This process of

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formulating a law through the consensus of the jurists was termed as Ijtihad which
technically means exercise of one’s own reasoning to deduce a new rule of law. But, the
jurists were not free to give the decisions without any basis. They had to justify their
opinions in the light of some well settled principles already given in Quran or the
traditions. Public policy, ‘interest of the community’ and equity were also taken into
account as the basis for a new explanation of law.

Kinds of Ijma.
Authority of Ijma depended upon the merit of the participator in its formation. There were
different categories of the jurists. Better was the category of jurists, greater is the value of
their opinions. From the point of view of authority and importance, there are three kinds
of Ijma:

(1) Ijma of the Companions:

The concurrent opinions of the Companions of the Prophet were taken to be most
valuable and reliable. It was presumed that the Companions were the best persons to act
as jurists. Such Ijma, being most authoritative, could not be overruled or modified by any
subsequent Ijma. Hanbalis recognise only this kind of Ijma.

(2) Ijma of the Jurists:

This was the unanimous decision of the jurists (other than Companions) over a point of
law in a particular age. In the absence of the opinions of the Companions of the Prophet,
it was natural that the opinion of other learned scholars of any age was taken to be the
law. A great mass of Hanafi rules of law have been formulated through this kind of Ijma.

(3) Ijma of the People:

The third category of Ijma is the opinions of the majority of the Muslims. Sometimes the
general agreement of the great majority of Muslims was also accepted as law. As a source
of law, this kind of Ijma has little value because of two reasons.
Firstly, it was not possible to have the concurrent opinion or even the absolute majority of
the community at large. Secondly, every Muslim cannot be supposed to be a learned
scholar. Ijma of this kind generally relates to religious practices such as the observance of
fasts, Zakat, prayers, etc.

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Importance of Ijma:
New facts and new situations required new laws. Quran and traditions were adequate only
for the past and not for the future society. Fyzee rightly observes that, “Quran and Sunna
look to the past; consensus and qias deal with the future of Islamic jurisprudence”. In fact
a major portion of the positive Muslim law (fiqh) came through Ijma. As a source of law
importance of Ijma is twofold:

First, further explanation and clarification of Quran and traditions was possible through
consensus opinions of the jurists.
Secondly, new principles of law, not found in the words of Quran or the traditions were
also formulated according to the changing needs of the society.

Quran and Traditions being rigid, no change was possible in their words. But Ijma had
opened the doors for new interpretations of Islamic legal rules. Ijma has rightly been
termed as a ‘movable element in law. It is movable element in law because it is flexible
and not rigid like Quran or Traditions.

According to J. Schacht, it is ‘living tradition’. Through Ijtihad (process of Ijma) rule of

law may be obtained for any society in any age. In this manner, it is a living source of
legislation. Reform in Muslim personal law is possible even to-day in the same manner as
Ijma was being formed in the past.

Defects of Ijma:
As a source of Mulsim law, Ijma had following defects:
(i) The consensus of opinion of the jurists was based on several grounds, such as Quran,
traditions, custom, public policy, equity etc. This led to differences in the approach of
scholars in arriving at a decision. The result was that different schools and sub-schools
were formed and law became complicated.
(ii) After sometime, it was doubted whether the consensus or unanimity in the opinions,
was at all necessary. Different views were expressed regarding the nature of consensus.
According to some, a unanimous decision was necessary but according to others, opinions
of the majority were sufficient to constitute the Ijma.

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(iii) Except the Ijma of the Companions, other two kinds of Ijma could be modified or
overruled by a subsequent Ijma. There was, therefore, no certainty in law.
(iv) In a very short period, Islam spread to distant places. It became practically difficult to
consult all the jurists and obtain their opinions.
(v) Only learned scholars could take part in the formation of Ijma. By and by these
scholars died and it was felt that no jurists are available for its formation. The result was
that about the 10th century, Ijma had to be abandoned.

(4) Qiyas (Analogical Deduction):

In the Arabic language Qiyas means ‘measurement’. In other words, it means measuring
or comparing a thing in relation to a standard, or ‘to establish an analogy’. If there was
any problem before the society on which the texts (Quran, Sunna and Ijma) were silent
then Qiyas was applied to get the law.

It was a method of comparing the problem of society with a similar problem for which
solution was given in the texts. Wilson defines Qiyas as an analogical deduction from the
reason of a text to a case not actually covered by its language.

In obtaining a law through Qiyas, following method was applied by the jurists
(Mujtahids):
(a) A similarity was established between the new problem (for which the law was
required) and an identical problem given in the text. For establishing similarity, ‘reason’
or the sense behind a text was taken into account rather than the meaning of its apparent
words. In this manner, the ‘common cause’ (Illat) of the two problems was found and
analogy was established between the given problem and a similar problem available in
the text.

(b) After establishing the analogy, the solution of the problem given in the text was
applied to the new problem. Thus, the required law was directly deduced from the texts of
Quran or Sunna or the Ijma. It is significant to note that in this method new principles
were not formulated. The law was simply discovered from the spirit or the implied
meaning of the text.

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In drawing conclusion through Qiyas, unanimity among the jurists who used to establish
the analogy, was not necessary. Only following conditions were required:
(1) The person who established analogy was a Mujtahid (jurist) and that,
(2) He deduced the law from a definite text of Quran or Sunna or the Ijma.
Qiyas may be distinguished from other similar concepts namely, Istihsan and Istidlal.

Qiyas and Istihsan.

Istihsan means juristic equity. It is a principle of interpretation recognised only under
Hanafi School. Istihsan is a conclusion of law based upon the jurist’s own sense of justice
without reference to any text. Qiyas on the other hand, is a conclusion of law based on a
definite text of Quran, tradition or Ijma.

Qiyas and Istidlal.

Istidlal means infering a ‘thing’ from another ‘thing’. For example, if the statement is that
a particular thing is permitted then, the inference will be that the thing cannot be
forbidden. The basis of such reference is generally the welfare of the public.

This too is a rule of interpretation and, is recognised by Maliki and Shafei Schools only.
Thus, under the principle of Istidlal only an inference is drawn and analogy is not
established whereas, in Qiyas the rule of law is deduced by establishing analogy.

Primary Sources under Shia Law.

The primary sources under Shia law may be summarised as under:
(1) Quran.

(2) Traditions (only those which have come from the Prophet’s family).

(3) Ijma (only those which were confirmed by Imams).

(4) Reason (Aql).

It may be noted that Shia sect does not recognise Qiyas as a source of law. Traditions too
are recognised as source of law only if they have come from the Prophet’s family. But,

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besides such Traditions of the Prophet, Shia law recognises also the ‘sayings and doings’
(conduct) of Imams as source of law.

It is significant to note that in addition to Quran, other sources are recognised under Shia
law only where such sources have come through Imams. Generally, it is believed that
whatever has been laid down by Imams shall be accepted as law. Fyzee observes thus:
“The Imam is the law-giver himself, the speaking Quran; he may in a proper case even
legislate, make new laws and abrogate old ones; but as he is hidden…, the Mujtahids who
are present at all times are his agents, the recognised interpreters of the law.”

B. Secondary Sources:
(1) Custom (Urf or Taamul).
Before Islam, the Arabs were governed by customary laws. When Islam came into
existence, most of the customs were found by the Prophet to be evil and bad. Such bad
customs were totally abolished by him and he declared them to be un-Islamic. But there
were certain pre-Islamic customs (e.g. dower, talaq etc.) which were good and tolerable.
The Prophet did not abolish them, and they continued in the society because the Prophet
sanctioned them by his silent approval. In this manner some of the good customs became
a part of the traditions of the Prophet i.e. Sunnat-ul-taqrir.
Moreover, there were customs on the basis of which the jurists gave their unanimous
decisions on a given point of law and they formed part of Ijma. Thus, we see that custom
is not any independent source of Muslim law. A customary law exists in Islam either
because it has got the approval of the Prophet or, has been incorporated in Ijma.

Importance of Customs.
Although custom is not any formal source yet, its importance in Muslim law cannot be
under-estimated. In the absence of a rule of law in the texts of any of the four primary
sources, the customary practices have been regarded as law.

The four formal sources namely, Quran, Sunna, Ijma and Qiyas being fundamental
sources, could not include minute details in respect of certain matters. In such specific
cases the customs and usages became a rule in order to complete the law.

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Therefore, the customary law has been used to supplement the four primary sources of
Muslim law. British courts in India had on several occasions recognised the legal force of
customs and usages. Those courts have made the maximum use of customary practices in
respect of Muslim law and recognised a custom even if it was opposed to a clear text of a
primary source. For example, in Abdul Hussein v. Sona Dero, the Privy Council observed
that if proved, a custom would prevail over a written text of law provided the custom was
ancient and invariable.

The orthodox Muslims felt that by giving general application to this rule, the courts have
attempted to violate the original Muslim law (Shariat). They demanded that there should
not be any place for customs in the Muslim personal law as it was un-Islamic.
Accordingly, the Muslim Personal Law (Shariat) Application Act, 1937 was enacted and
is still in force. Now, under this Act, custom is not any independent source of Muslim
personal law.

Present Position of Custom under Muslim Law.

The Shariat Act, 1937, which applies to Muslims all over India (except Jammu and
Kashmir) abolishes most of the customs from Muslim law. Section 2 of this Act provides
that if the parties are Muslim, only Muslim personal law (Shariat) will be applied to them
in matters of inheritance, special property of females, marriage, dower, divorce,
maintenance, guardianship, gift, waqf and trust. In respect of these ten matters, therefore,
customs or usages cannot be applied now.

But customs are still applicable to Muslims in the matters, relating to their (a) agricultural
lands, (b) charities, and (c) religious and charitable endowments, because these matters
have not been included in Section 2 of this Act.

Moreover, Section 3 of the Shariat Act provides that adoption, wills and legacies would
be regulated by customary law unless a Muslim had expressly declared that in these three
additional matters too his rule of law should be Muslim personal law (Shariat).

The result is that at present Muslims in India may still be governed by the customary law
except in the ten matters enumerated in Section 2 of the Shariat Act. In Jammu and

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Kashmir, where the Shariat Act, 1937 is not applicable, the rules of Muslim law have
always been subjected to custom and usage. The custom of adoption by Muslims of this
State is valid although under Muslim personal law adoption is not possible.

(2) Judicial Decisions.

Judgment of a superior court becomes an authority for the courts subordinate to it. The
subordinate courts are bound to follow the law laid down in that decision. This is called
the principle of precedents and is followed in India on the pattern of the British courts.
Thus, a judicial decision of the Supreme Court of India is binding on all the High Courts
in so far as the law decided in that case is concerned. Similarly decision of a High Court
is binding on the subordinate courts. Muslim law is no exception to this judicial practice
and therefore, a point of law decided by the Supreme Court or a High Court of India
becomes a ‘source of law’ for the courts subordinate to them.

There is not much scope for the judicial decisions as source of Muslim law. But, in the
absence of any clear text of Muslim law, the courts may interpret a rule of law according
to their own concepts of justice. In such cases, the Muslim law becomes what the courts
say.
For example, generally the taking of interest in a loan is prohibited in Islam, but the Privy
Council allowed simple interest on die amount of unpaid dower. Accordingly, the
realisation of interest on unpaid dower has now become a rule of Muslim law through
precedent.

Similarly, in Katheessa Umma v. Narayanath Kunhamu the Supreme Court has held that
a gift by a husband to his minor wife above the age of fifteen years but under eighteen
years is valid even if the gift was accepted by any incompetent guardian under Muslim
law. Although such a gift is invalid under pure Muslim law but after this decision the law
in India is that under the given circumstances a gift is valid.

Judicial decisions have played an important role in laying down rules of Muslim law in
accordance with the socio-economic conditions of the Indian Muslims. The courts have
given some very important judicial decisions. In Begum Subanu v. Abdul Gafoor the
Supreme Court has held that despite the fact that a Muslim husband has legal right to

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contract second marriage, if the first wife lives separately only on the ground of
husband’s second marriage, she would be entitled to get maintenance from husband.
Section 2 of the Dissolution of Muslim Marriages Act, 1939 provides eight grounds on
the basis of any one of which a wife may seek dissolution of her marriage.

Clause (ix) of this Act provides ‘any other ground recognised under Muslim law’. Under
this clause the Indian courts used to pass decree of dissolution on ground of ‘false charge
of adultery by husband against wife’ (Lian) because this ground is not included
specifically.

But, in Muhammad Usman v. Sainba Umma the Kerala High Court has held that Section
2(ix) is a ‘residuary clause’ under which the court at its discretion may dissolve the
marriage on any ground if it is satisfied that the dissolution is necessary in the case. It
may be noted that in this case the ground on which wife wanted dissolution of marriage
was her ‘hate towards her husband’.

This was found a reasonable ground and the court dissolved the marriage under clause
(ix) of the Act. Law of pre-emption is a glaring example where judicial decisions have
modified the rules of pure Muslim law according to the changing needs of the Indian
Muslims.

It may be concluded therefore, that to some extent, the courts in India have attempted to
modify the rules of Muslim personal law as applied in India. Unless overruled or negative
by some legislative enactment, these rules through the decisions, continue to be a source
of Muslim law.

(3) Legislation:
In Islam it is generally believed that God alone is the Supreme Legislator and no other
agency or body on earth has authority to make laws. This belief is so deep-rooted that
even today; any legislative modification may be treated as an encroachment upon the
traditional Islamic law. The result is that as independent source of Muslim law, the
legislative enactments are almost insignificant.

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However, there are certain Acts which modify or otherwise lay down principles of
Muslim law, and for the modern courts in India these enactments are the only source of
law on the points covered by them. Some important enactments on Muslim personal law
are given below:

(i) The Mussalman Waqf Validating Act, 1913:

This Act re-establishes the validity of Waqf-al-al-aulad (family waqf). This enactment has
not changed the rule of pure Muslim law. It has simply re-established the law relating to
family-waqfs which was modified by the judicial decision.

(ii) The Child Marriage Restraint Act, 1929:

To some extent this Act modifies the Muslim law regarding the age of marriage. The Act,
(as amended by the Act of 1978) provides that the marriage of a boy under the age of 21
years and of a girl less than 18 years is a ‘child marriage’ and is punishable. Under
Muslim personal law the age for the marriage is fifteen years. However a marriage
against the provisions of this Act is perfectly valid.

(iii) The Muslim Personal Law (Shariat) Application Act, 1937:

We have already seen that this enactment confirms the general principle of Muslim
jurisprudence that customs have no place in Muslim law. Thus, this enactment too has not
made any significant change in the pure Muslim law. It has simply established the rule of
pure Muslim law that custom is not to be taken as an independent source of Muslim
personal law.

(iv) Dissolution of Muslim Marriages Act, 1939:

This is an enactment which may be said to have modified the pure Muslim law. Under
this Act, a Muslim wife is given a right of judicial divorce on any of the grounds
mentioned in it. Under pure Muslim law a wife had no independent right to seek divorce.

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(v) Muslim Women (Protection of Rights on Divorce) Act, 1986:
Besides other provisions, this Act gives statutory recognition to the established rule of
pure Muslim law that a former husband is liable to pay maintenance to his divorced
woman only up to her period of Iddat.

In the controversial Shah Bano’s case the Supreme Court held that under Section 125 Cr.
P.C., 1973 a divorced Muslim woman is entitled to get maintenance from her former
husband even beyond the period of Iddat. Under pure Muslim law, a divorced Muslim
woman is entitled to get maintenance only upto the period of her Iddat which is normally
three months.

It was argued that Section 125 of the Cr. P.C. was un-Islamic and was inapplicable to
Muslim women. But the Supreme Court held that Section 125 is not un-Islamic and is
equally applicable to Muslims as well. However, on demand of a section of the Muslim
community, the Parliament negatived the effect of Shah Bano’s case and passed this
enactment. Besides other things, The Muslim Women Act, 1986 now enacts the rule of
pure Muslim law in respect of maintenance of a divorced Muslim woman.

Besides these Acts, there are also enatcments which regulate the law of pre-emption and
the law of waqfs. For example, the Punjab Pre-emption Act, 1913, the Rewa State Pre-
emption Act, 1946 etc. and the Mussalman Waqf Act, 1923 or the Waqfs Act of 1954.
The Pre-emption Acts do not lay down any new provision regarding the well-known right
of pre-emption under Muslim personal law; they simply provide that the right is available
to all persons within the jurisdiction of respective Act.

Similarly, the various Waqfs Acts provide generally the rules for the supervision and
administrative control of a waqf and waqf-properties. The Family Court Act, 1984 is
applicable also to Muslims. This Act too does not modify the substantive rules of Muslim
personal law. It generally deals with the procedure

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 UNIT-2
HINDU LAW OF MARRIAGE.
Historical development of marriage:
Now we have seen well established marriage. This type of marriage did not exist
among the primitive men. At the time man lived more or less like any other animals. He
was so much engaged in the satisfaction of his primary needs, hunger and shelter. There
was no time or occasions to think of refinement. Sex promiscuity was absolutely free.
Sex promiscuity was rule. During the course of time, primitive society underwent
several changes. In the changed society, two discoveries are made,
1. Discover of Milch cattle
2. Discovery of fire

In the initial stages of discovery of fire, man used fire to ward or escape of his
enemies, wild animals and other group of man who attacked him. The use of fire for
cooking purpose was made latter. With the emergence of herds of cattle, the idea of
possession and ownership also emerged. Men started leading some civilized life.

So long as the sex relationship remained unregulated, the maternity alone could be
known, but paternity could not be determined. Whenever the idea of property came into
exist, the idea of marriage also emerged. That is the man was seized with the idea of
knowing of his own children. If sex promiscuity was rule, it is not possible to identify
his children. If sex relationship could be made an exclusive union of man and woman, it
is possible to identify his own children.

The idea of marriage would not sudden origin. But it was slow and prolonged
process. In development of marriage, there are five important stages, these are,

1. In the primitive society, woman belonged equally to every man. The sexual relation
prevailed throughout entire society without any restriction.

2. During the course of development,( at the beginning) the promiscuous sexual

intercourse prevailed with in a tribe. The woman in the tribe belonged equally to every
man. But sexual intercourse outside the tribe was prohibited.
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 3. During the further course of development, the sexual relationship within the closer
relationship was prohibited. That like between son and mother, father and daughter and
brother and sister.

4. During the further course of development, the process of prohibition of sexual

intercourse continued. In this stage, the sexual intercourse with remoter relations was
excluded.

5. In the time of final stage, the idea of property came into existence. For giving his
property to his own children, the man was seized with the idea of knowing his children.
So they ruled an exclusive union of man and woman.

Hindu law of marriage has been classified into two heads:

I. Law of marriage prior to the Hindu Marriage Act, 1955:-
II. Law of marriage after the passing of the Hindu Marriage Act, 1955:-

I. LAW OF MARRIAGE PRIOR TO THE HINDU MARRIAGE ACT,

1955:-
1. Concept of Marriage:
a). Marriage is the basis of Hindu social organization.

b). Marriage is one of the found of legal rights and obligation

c). Marriage means a “Holly union between male and female” for the performance of
religious duties and for the begetting of male progeny.

d). Marriage is treated as a Samskaras or Purificatory Ceremonies.

There are 10 Samskaras in Hindu law. The last one is marriage Samskaras and is
enjoined by every Hindu for “regeneration of man” and “purifying the body from
inherited taint”. Since the marriage is not a civil contract, there are three essentials:

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 1. As the marriage is sacramental, it cannot take place without the performance of
sacred rites and ceremonies.

2. Sacramental union implies that it is a permanent union. Marriage is a tie which once
tied cannot untie. This implies that marriage cannot be dissolve

3. Thirdly, the sacramental union means that it is an eternal union. It is valid not merely
in this life but in lives to come.

2. Marriage: compulsory?
Every Hindu, male and female, could marry whatever be his or her age. In the case of
female, it was compulsory without any exception. If there was no competent guardian
or where such had neglected to arrange her marriage, such girl might choose herself a
husband and marry him.

But in the case of male, the marriage was also compulsory subjected two exceptions,
that are,
1. If he could remain perpetual student
2. If he desire to become sanyasi

3. Marriage: monogamy?
1. In the case of female, monogamy was compulsory. A second marriage of female
during subsists of 1st marriage would be void. But after the death of the husband, she
could be allowed for second marriage if custom allowed.

2. But in the case of male, monogamy was also compulsory, but they are some
exception for second marriage on the basis of legal justification. Therefore monogamy
was recommended, but not compulsory for male. As a result of this, a male could be
allowed to have more than one wife.

4. Forms of marriage:
Hindu marriages are 3 kinds:
1. Sastra Marriage; 2. Customary Marriage; and 3. Statutory Marriage.
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Sastra Marriage: If a marriage has been solemnized by the performance of sacred rites
and ceremonious, it is called as Sastra Marriage.
There are 8 forms of Sastra Marriage among Hindus.
(i) Brahma Marriage:
A marriage is said to be Brahma marriage, if there was a gift of a daughter by her
father or in the absence of father by the next guardian to a man learned Veda whom he
voluntarily invited. It is to be considered as best form of marriage.
Originally this type of marriage is available only to persons belongs to three
superior castes.
The main requirement is that the girl was decked with jewels and costly garments
and bridegroom should be learned in the Vedas.

(ii) Daiva Marriage:

In Daiva form of marriage, the girl was given in marriage to the priest officiating
at sacrifice performed by her father in lieu of Dakshina or the fee due to the priest. The
gift of the daughter to priest is in the nature of a fee for performing the sacrifice.

(iii) Arsha Marriage:

When the father gave his daughter in marriage after having received from the
bridegroom a pair of kine or pairs for uses prescribed by the law, the marriage was said
to be in the Arsha form.

(iv) Prajapatya Marriage:

In this marriage was a nuptial rite in which the father gave his daughter to
bridegroom and saying “may both of you perform together your civil and religious
duties”.

(v) Asura Marriage:

In this form of marriage, the bridegroom took the bride voluntarily after giving
wealth to her parents and kinsman and also to the damsel herself.

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 (vi) Gandharva Marriage:
With her own consent, if the bride gives herself away to the bridegroom, the
marriage is called Gandharva Marriage. Therefore it is voluntary union of maiden and
her lover. If the bride and bridegroom mutually bind themselves and bride says that you
are my husband and bridegroom says that you are my wife, the marriage is called
Gandharva marriage.

(vii) Rakshasa Marriage:

If a girl was seized by force or fraud and then married, it is called as Rakshasa
Marriage.

(viii) Paisacha Marriage:

If a girl was ravished when she was sleeping or drunken or when she was mental
disorder and afterwards married, such marriage is called Paisacha Marriage.

(ix) Customary form of Marriage:

If a Marriage is solemnised according to customs and usages followed by the
parties to the marriage, such marriage is called customary marriage.

(x) Statutory Marriage:

If a marriage is performed as the norms of the Act passed by parliament or state
Legislature, it is Statutory Marriage.

5. Ceremonies of Marriage:
Whatever the form of marriage, the marriage was marked by the performance of
certain religious ceremonious. Usually there were 3 stages in ceremonious.

1. Betrothal: Formal promise to give the girl in marriage.

2. Kannikadhana: The actual gift of the girl in marriage.
3. Saptapathi:
The taking of seven steps by the bride and bridegroom before sacred fire or
holly fire is Saptapathi. Consummation of marriage was not essential to make a

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 marriage complete. But on the other hand, on the performance of Saptapathi, the
marriage became complete and irrevocable.

6. Who may give the girl in marriage?

Under the Mitakshara law, the following persons are entitled to give the girl in
marriage successively,
1. Father
2. Paternal grand father
3. Brother
4. Paternal kinsmen
5. Mother

Under the Dayabhaga law, the following persons are entitled to give the girl in
marriage successively,
1. Paternal grand father
2. Brother
3. Father
4. Paternal kinsmen
5. Maternal grand father
6. Maternal uncle
7. Mother

7. Conditions for valid Marriage:

a).Both bride and bridegroom belong to same caste. (Rule of Endogamy)
b).They should not have the same Gotra. (Rule of Exogamy)
c). They should not be within the degree of prohibited relationship to each
other (Rule of Avoidness of Sapindas)
d. Minority and Impotency was no bar for Marriage.

8. Intercaste and inter religious marriages

They are two types of inter caste marriage, these are:
1. Anuloma Marriage: Marriage of Brahmin male with Ksatriya female.
2. Pratiloma Marriage: Marriage of Brahmin female with Ksatriya male.
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 There is no inter-religious marriage under Hindu law. But inter religious
marriage may be allowed only under “The Special Marriage Act 1872.”

9. Divorce:
According to Sastra, marriage was irrevocable. Divorce was not known to the
general Hindu law. Unless the custom allowed, there is no divorce. In the three upper
caste, there is no custom for divorce. But only under certain caste in Sutra, there is a
divorce as per custom.
The Native Convert’s Marriage Dissolution Act, 1866.
This Act enables a convert from Hinduism to Christianity to obtain dissolution of
marriage with a Hindu spouse contracted to prior to conversion.

10. Re-Marriage of Widow:

A widow could not allow for re marriage. If custom allowed, she will re
married. In certain caste in sutra, custom allowed remarriage of widow. But the
remarriage of widow is expressly legalized by “The Hindu Remarriage Act, 1856.”

11. Legal effects of valid marriages:

1. From the movement of marriage, the wife was passed into the protection of her
husband and she was bound to live with him.
2. The wife was entitled to get maintenance from her husband.
3. Both the parties become entitled to get conjugal society to each other.

II. MARRIAGE UNDER THE HINDU MARRIAGE ACT, 1955

This Act has been passed for the purpose of amend and codify the law relating to
marriage among Hindus.
Salient feature of this Act:-
1. The Hindu marriage Act 1955 has provided uniform and comprehensive rules of
marriage applicable to all Hindus.

2. A Hindu marriage under this Act is more or less secular than sacramental.

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 3. The conditions and requirements of a valid marriage have been very much simplified.

4. Monogamy has been made compulsory for both male and female.

5. Under this Act, caste considerations are irrelevant and all restrictions on inter caste
marriages have been eliminated.

6. The restrictions based on Gotra and Sapinda relationship are either abolished or with
held.

7. The different form of marriage are no longer material since the only form of marriage
will be that which are adopted by the parties to the marriage as prevailing in his or her
community.

8. Provisions relating to Divorce, Divorce by Mutual consent, judicial separation and

annulment of marriage by decree of nullity have been introduced.

9. The children of void and voidable marriages shall be treated as legitimate children
irrespective of passing of a decree of nullity.

10. Provisions have been made for award alimony pendente lite, permanent alimony
and maintenance.

11. Courts are vested with wide discretion to pass suitable orders relating to the
custody, maintenance and education of the minor children of the parties, in any
proceeding under the Act.

12. Provision has been made for registration of marriage under this Act for facilitating
proof of such marriage.

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Definition of Hindu marriage:
A Hindu marriage is a marriage solemnised between two Hindus in accordance
with the customary rites and ceremonious of at least one of the parties to the marriage
after satisfying the prescribed requirements.

Interpretation clauses: Section 3 of the Act interprets the following terms,

1.Custom and usage 3(a)
2.Full blood 3(c)
3.Half blood 3(c)
4.Uterine blood 3(d)
5.Sapinda relationship 3(f)(i)
6.Sapinda 3(f)(i)
7.Degree of prohibited relationship 3(g)

1. Custom and Usage:

The expression “custom” and “usage” signify any rule which, having been
continuously and uniformly observed for long time, has obtained the force of law
among Hindus in any local area, tribe community, group or family.

2. Full blood :
Two persons are said to be related to each other by full blood when they are
descended from common ancestor by the same wife

3. Half blood:
Two persons are said to be related to each other by half blood when they are
descended from common ancestor but by different wife.

4. Uterine blood:
Two persons are said to be related to each other by uterine blood when they are
descended from common ancestress but by different husband.

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 5. Sapinda relationship:
“Sapinda relationship” with reference to any person extended as far as third
generation (inclusive) in the line of ascend through the mother, and the fifth generation
(inclusive) in the line of ascend through the father, the line being traced upwards in
each case from the person concerned, who is to be counted as the first generation.

6. Sapinda:
(a) Two persons are said to be “Sapinda” of each other if one is a lineal of the
other within the limits of Sapinda relationship
(b) Two persons are said to be “Sapinda” of each other if they have a common
lineal descendant who is within the limit of Sapinda relationship with reference to each
of them.

7. Degree of prohibited relationship:

Two persons are said to be within the “degree of prohibited relationship”—
1. If one is the lineal ascendant of the other
2. If one was the wife or husband of a lineal ascendant or descendant of the other
3. If one was the wife of the brother of the other
4. If one was the wife of the father’s brother of the other
5. If one was the wife of the mother’s brother of the other
6. If one was the wife of the grandfather’s brother of the other
7. If one was the wife of the grandmother’s brother of the other
8. If two are brother and sister
9. If two are uncle and niece
10. If two are aunt and nephew
11 .If two are children brother and sister
12. If two are children of two brothers
13. If two are children of two sisters

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Kinds of Marriage:
Under the Hindu Marriage Act,1955, there are 3 types of marriage, these are:-
1. Valid Marriage– Section 5
2. Void Marriage –Section 11
3. Voidable Marriage –Section 12

VALID MARRIAGE:
Under section 5 of this Act, there are 5 conditions for valid marriage, these are:-
1. First condition relating to monogamy
2. Second condition relating to sound mind
3. Third condition relating to age limits
4. Fourth condition relating to degree of prohibited relationship
5. Fifth condition relating to Sapinda relationship

1. Monogamy:
Neither party has a spouse living at the time of marriage. So the bride must be a
spinster or widow or divorced wife and bridegroom must be a bachelor or widower or
divorced husband at the time of marriage. During subsists of 1st marriage, if any one of
the party to marriage enters into another marriage, is void marriage. Such party is liable
for punishment for bigamy under section 494 & 495 0f IPC. Section 17 of this Act also
gives punishment for violation of this condition.
In “Surjeet Singh vs Mahendra Paul Singh”, the husband entered into 2nd
marriage during the subsist of 1st marriage. The court held that it is not only a ground
for divorce, but also the wife is entitled to get degree of Nullity of her husband’s second
marriage under section 9 of the CPC and section 34 of the Specific Relief Act.

2. Sound Mind ( Section 5(ii):

This clause was amended in 1976 by Marriage Laws amendment Act, 1976.
Before 1976, this clause says:
“Neither party is an idiot or lunatic at the time of marriage”
The idiot refers congenital permanent disability, but lunacy permits lucid
intervals. The term unsound mind covers both idiot and lunacy.
After amendment, this clause read as follows:

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 at the time of marriage, neither party,--
(a) is incapable of giving valid consent to it in consequence of unsoundness
of mind; or
(b) though capable of giving valid consent, has been suffering from
mental disorder of such kind or to such extent as to be un fit for marriage and
procreation of children; or
(c) has been subject to recurrent attacks on insanity;

3. Age Limit: section5 (iii):

This clause says,-
The bridegroom has completed the age of twenty one and the bride has completed
the age of eighteen years at the time of marriage.
This clause was amended in the year 1978 by way of the Child Marriage
Restraint Amendment Laws 1976. Before this amendment, the age for male was 18 and
female was 15 years.
If this condition is violates, such violation does not vitiates the marriage, but the
marriage is always valid, only punishment alone given under section 18 of this Act.
The leading case in this subject is “Venkataramana vs State”. A male Hindu
aged about 13 married a female aged about 9 in year 1959. Treating this as void,
husband entered into another marriage in the year 1975. The question is whether the
child marriage of 1959 was void or not. The court held that it was valid.

STATUS OF CHILD MARRIAGE AFTER 2006

After 2006, if the condition relating to age limit is violated, such marriage is
comes under the purview of the “Prohibition of Child Marriage Act, 2006”. It
repealed the Child marriage Restraint Act, 1929.
Under section 3 of this Act, all child marriages are declared to be voidable at the
option of the contracting party who was a child at the time of marriage.
Child means a boy who has not completed twenty one years of age and girl who has not
completed eighteen years of age. However, a child marriage is null and void in cases,
i. If the child is taken or enticed out of the keeping of its lawful guardian
ii. If the child is, by force, compelled to go from any place
iii. If the child is, by any deceitful means, induced to go from any place

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 iv. If the child is sold for the purpose of marriage and is made to go through a form of
marriage
v. If the child is sold or trafficked or used for immoral purposes after marriage.
4. Degree of prohibited relationship:
According to clause iv of section 5,
“The parties are not related with the degree of prohibited relationship unless custom
governing each of them permit of marriage between the two”
What is Degree of Prohibited Relationship?
3(g) deals with degree of prohibited relationship.
Two persons are said to be within the “degree of prohibited relationship”—
1. one is the lineal ascendant of the other
2. one was the wife or husband of a lineal ascendant or descendant of the other
3. one was the wife of the brother of the other
4. one was the wife of the father’s brother of the other
5. one was the wife of the mother’s brother of the other
6. If one was the wife of the grandfather’s brother of the other
7. If one was the wife of the grandmother’s brother of the other
8. If two are brother and sister
9. If two are uncle and niece
10. If two are aunt and nephew
11. If two are children brother and sister
12. If two are children of two brothers
13. If two are children of two sisters

If this condition is violated, the marriage is void under section 12 and punishable under
section 18

In “Jaganathan vs Sadhu Ram”, the bride was widow of the lineal ascendant
of the bridegroom. The court held that the marriage was void on the ground of
prohibited relationship. Even though the party contented that custom permits, the court
otherwise decided.

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 5. SAPINDA RELATIONSHIP
According to section 5 (v), “the parties are not Sapinda of each other unless
custom governing each of them permit the marriage between the two”
(a) Two persons are said to be “Sapinda” of each other if one is a lineal of the
other within the limits of Sapinda relationship

(b) Two persons are said to be “Sapinda” of each other if they have a common
lineal descendant who is within the limit of Sapinda relationship with reference to each
of them.

“Sapinda relationship” with reference to any person extended as far as third

generation (inclusive) in the line of ascend through the mother, and the fifth generation
(inclusive) in the line of ascend through the father, the line being traced upwards in
each case from the person concerned, who is to be counted as the first generation.

Ceremonies for a marriage before 1955:

Whatever the form of marriage, the marriage was marked by the performance of certain
religious ceremonious. Usually there were 3 stages in ceremonious.

1. Betrothal: Formal promise to give the girl in marriage.

2. Kannikadhana: The actual gift of the girl in marriage.

3. Saptapathi: The taking of seven steps by the bride and bridegroom before sacred fire
or holly fire. Consummation of marriage was not essential to make a marriage complete.
But on the other hand, on the performance of saptapathi, the marriage became complete
and irrevocable.
If the parties do not observe any ceremonies, it is void marriage.

In “Deivanai Achi vs Chidambara Chettiar”, the parties of marriage belonged

to an Anti- Purohit Association of Self Respectors. Since they opposed to having priests
officiating at marriage, they exchange garlands for marriage in the presence of their

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 friends. The court held that since the customary ceremonial for marriage cannot be
altered by society or association, the marriage was void.

Ceremonies for a marriage after 1955:

Section 7 of the Act,
(1) A Hindu may be solemnized in accordance with the customary rites and
ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapathi ( that is the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage
becomes complete and binding when the seventh step is taken.

Special provision regarding Suyamariyathai and Seerthiruththa Marriage:

The Tamil Nadu government inserted section 7A to this Act, which deals with
Suyamariyathai and Seerthiruththa Marriage. Tamil Nadu Act 21 of 1967 inserts this
Section 7A. (w.e.f.20.1.1968)

Section 7A allowed Suyamariyathai and Seerthiruththa Marriage, which is

solemnized in the presence of relatives, friends or other persons,-
(a) by each party to the marriage declaring that each takes the other to be his wife
or as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any
finger of the other; or

(c) by the tying of the thali.

Matrimonial Remedies:
The Hindu Marriage Act, 1955 provides five kinds of matrimonial reliefs.
1. Restitution of Conjugal Rights
2. Judicial Separation
3. Annulment of Marriage by Decree of nullity
4. Divorce
5. Divorce by Mutual consent

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 1. RESTITUTION OF CONJUGAL RIGHTS
Section 9 of the Act deals the Restitution of Conjugal Rights. The aim of this section is
to preserve the marriage and bringing the parties together. After marriage, each party to
the marriage is bound to live together for conjugal society and entitled to conjugal
society of other.

If the wife or husband has withdrawn the conjugal society without any reasonable
cause, the aggrieved party may apply by petition to the District Court for Restitution of
Conjugal Rights.

There are certain conditions for granting decree for Restitution of Conjugal Rights.
These are:
1.The court satisfied that the respondent has withdrawn the conjugal society without
reasonable excuses.

2.The court satisfied that the statement made in the petition is true.

3.The court satisfied that there is no legal ground why the application should not be
granted.

If all these conditions are fulfilled, the court may decree restitution of conjugal
rights accordingly.

Defence for Restitution of Conjugal Rights

When there is any reasonable cause for withdraw, the decree is not granted by the
court. For reasonable excuse, there is no hard and fast rule about it and it may be
decided by the court by means of justice, equity and good conscience. The followings
are some of the examples of reasonable excuses,
1. The petitioner has treated the other party with cruelty.
2. The petitioner has converted to other religion
3. The petitioner has been suffering incurable form of leprosy.
4. The petitioner has been of unsound mind.
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 5. The petitioner has been suffering venereal disease
6. The petitioner has entered religious order.

Who may prove the reasonable excuse:

Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving the reasonable excuse shall be on
the person who has withdrawn from the society.

Whether section 9 of the Act is unconstitutional ?

This question is raised before High Court of Andhra Pradesh on the ground that
the remedy of restitution of conjugal rights violates the right to privacy guaranteed by
the Article 21 and right to equality guaranteed by Article 14 of the Constitution of
India.

In “ Sareetha vs Venkata Subbaiah”, the Andhra Pradesh High Court held

that section 9 is unconstitutional as it offends against the Article 21 of the Constitution
(Right to liberty which includes right to privacy) and Article 14 of the Constitution
(Right to equality).

On the behalf of Sareetha, it was argued that the right to privacy confers on a
woman “a right to free choice as to whether, where and how her body is to be used for
the procreation of children and also the choice of when and by whom the various parts
of her body are to be sensed”.

This freedom of choice is part of her right to privacy. By recognising under

section 9 of the Act, the State violates this fundamental liberty guaranteed by Article
21. Further section 9 of the Act violates Article 14 by making this remedy available to
both married men and married women, thereby treating as equals those who are
inherently unequal and this is forbidden by Article 14. So it was argued that section 9 is
unconstitutional.

The Andhra Pradesh High Court accepted this argument and struck down
section 9 holding that it violates the wife’s right to privacy by compelling her to have
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 sexual intercourse against her will. The husband’s petition for conjugal rights was
accordingly dismissed.

However a different view was taken by Delhi High Court in “Harvinder Kaur
vs Harmander Singh Chouhry”. Though the decision of Andhra Pradesh High Court
was cited in support of the argument that section 9 is invalid, but the Delhi High Court
held that section 9 of the Act does not violate of Articles 14 and 21.

The above controversy was set at rest by Supreme Court in “Saroj Rani vs
sudharsan Kumar Chadha”, where the court expressly overruled the judgment of the
Andhra Pradesh High Court and held that section 9 of the Act is not violative of
Articles 14 and 21 of the Constitution.

The Court pointed out that a decree for restitution of conjugal rights serves a social
purpose as an aid to the prevention of break up in a marriage. Even if such an order of
the Court is willfully disobeyed, the Court cannot enforce sexual intercourse between
the spouses. The only remedy of the other party would be to apply for attachment of the
property of the defaulting spouse, presuming that he or she has any property.

2. JUDICIAL SEPARATION
A Decree of judicial separation permits the parties to the marriage to live apart.
Judicial Separation suspends active marital life between the parties. The decree does not
dissolve the marriage tie, but the marriage tie continues to subsist. The Judicial
separation gives an opportunity for reconciliation and adjustment. The parties are
allowed to reconciled to join together and in that case the marital rights of the parties
are restored.

Even though a decree for judicial separation has been passed, it shall not be
obligatory for either party to conjugal society with each other.

After passing decree of judicial separation, the parties are not allowed to
another marriage. If any one of the party commits adultery, it will be a good
ground for divorce.

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 If there is no cohabitation for a period of one year or upwards after passing
decree, it is one of the ground for divorce.

Grounds for Judicial Separation:

Either party to the marriage may present a petition praying for a judicial
separation on any of the grounds specified in sub-section(1) of section 13, and in the
case of wife also on any of the grounds specified in sub-section(2) thereof, as grounds
on which a petition for divorce might have been presented.

3. ANNULMENT OF MARRIAGE BY DECREE OF NULLITY

This matrimonial relief is available only to void and voidable marriage.
Section 11 deals with void marriage.
Section 12 deals with voidable marriage.

The Hindu marriage Act distinguishes between void and voidable marriage.
1. The void marriage is totally nullity. It does not affect or alter the status of the parties.
It does not create any rights and obligations between them.

But voidable marriage is not a totally nullity. It remains valid and binding the parties
and continue unless the decree of nullity is passed under section 12.

2. In the case of void marriage, the parties are criminally liable, but in the case of
voidable marriage, the parties are not criminally liable.

3. In the case of voidable marriage, annulment of marriage by decree of nullity is

essential to put to an to the marriage, but in the case of void marriage, there is no such
obligation.

4. In the case of void marriage, the parties are allowed for subsequent marriage before
the decree of nullity is granted.

But in the case of voidable marriage, the parties are not allowed for subsequent
marriage before the decree of nullity is granted.

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 5. The only remedy available for void marriage is Annulment of Marriage by Decree of
Nullity But in voidable marriage, all remedies which are granted for valid marriage, are
available to party.

The children of void and voidable marriage are called legitimate children.

Void marriage:
As per section 11 of the Act, A marriage is said to be void marriage if it
contravenes any of the grounds specified in clauses I, iv and v of section 5.
In regards to void marriage, either party to the marriage may present a petition
against the other party for declaration of nullity of his or her marriage.

There are three circumstances, under which a marriage is void.

1. If the party has a spouse living at the time of marriage.
2. If the parties to the marriage are with in the degree of prohibited relationship.
3. If the parties to the marriage are Sapinda of each other.

Voidable marriage:
Section 12 deals with voidable marriage. A voidable marriage is valid until set
aside by the parties by a decree of nullity It is not void abinitio. But initially it is valid,
but it is annulled by decree of nullity. Any marriage shall be voidable and may be
annulled by Decree of Nullity on any of the following grounds, namely:
1. The marriage has not been consummated owing to the impotence of the
respondent.

2. The marriage is in contravention of the condition specified in clause (ii) section 5.

3. The consent of the petitioner was obtained by force or fraud as to the ceremony or
as to any material fact or circumstances concerning the respondent.

4. The respondent was at the time of marriage pregnant by some other person other
than the petitioner.

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 1. Impotency (sub section 1 of clause (a) of section 12 )
If the marriage has not been consummated owing to the impotency of any one of
the party to the marriage, it is voidable and annulled by decree of nullity. This clause
was amended in 1976. before 1976, it runs as follows:
“that the respondent was impotent at the time of marriage and continues to be so
until the institution of the proceeding”

Therefore for decree of nullity on the ground of impotency, it had been shown that
the disability existed from the time of marriage onwards. Now this stringent condition is
removed.

Two types of impotency, namely,

1. Impotency of the husband.
2. Impotency of the wife

Impotency of the husband:

If the marriage has not been consummated owing to the impotency of the husband, the
marriage is voidable and the wife is entitled to file a petition for annulment of marriage by
decree of nullity.
In “Nijhavwan va Nijhawan”, the court held that after marriage when the wife
admittedly became pregnant once during the marriage, the above mentioned ground is not
satisfied and so she cannot be granted a decree of nullity.

In “Kanti vs Harry”, the marriage could not be consummated in the ordinary and normal
way on the account of abnormal size of husband’s male organ, so a decree was passed in
favor of the wife.

Impotency of the wife:

If the marriage has not been consummated owing to the impotency of the wife, the marriage
is voidable and the husband is entitled to file a petition for annulment of marriage by decree
of nullity.

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In “Lakshmi Devi vs Babulal”, since the wife had no vagina at all, though by surgical
treatment an artificial vagina was formed, the court held that the husband is entitled to a
decree for nullity.

In “Samar son vs Sadhana”, the wife’s uterus was removed before marriage. It does not
furnish a cause for annulment of marriage on the ground of wife’s impotency. Though, in
the absence of procreation or conceptive power, the wife is capable of complete sexual
intercourse in the absence of uterus. So no decree for annulment of marriage was granted.

2. Unsound Mind (sub section 1 of clause (b) of section 12):

If the marriage is in contravention of condition specified in clause (ii) of section 5, the
marriage is voidable.
This clause was amended in 1976 by Marriage Laws amendment Act, 1976. Before 1976,
this clause says:
“Neither party is an idiot or lunatic at the time of marriage”
The idiot term refer congenital permanent disability, but lunacy permits lucid
intervals. The term unsound mind covers both idiot and lunacy.

After amendment, this clause read as follows:

at the time of marriage, neither party,--
(a) is incapable of giving valid consent to it in consequence of unsoundness of mind;
or
(b) though capable of giving valid consent, has been suffering from mental disorder
of such kind or to such extent as to be un fit for marriage and procreation of children
or
(c) has been subject to recurrent attacks on insanity;

3. Consent of the petitioner (clause (c) of sub section 1 of section 12 ) :

This clause was amended in the year 1976. Before amendment, it runs,
“that the consent of the petitioner or the consent of guardian as the case may be, was
obtained by force or fraud”

1. Fraud means deception as to identify of the other party to the marriage.

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 2. Fraud means deception as to the nature of ceremonies being performance

Therefore it does not includes as to any material fact or circumstances concerning

the respondent.

In “Raja ram vs Deepa bai”, the respondent had concealed the fact that he had been
already married once before. It was held that the fraud did not relate to the identity of
other party or the nature of ceremonies. So it was held not to be a fraud for which relief
under section 12 (1) (c) could not be obtained.
After amendment, this clause runs,

If the consent of the petitioner or the consent of guardian as the case may be, was
obtained by force or fraud as to the nature of ceremony or as to any material fact or
circumstance concerning the respondent, is voidable marriage.

In “Aunjona Dasi vs Prahlad Chandra”, when a minor girl was staying with
her sister, she was abducted forcibly and her marriage was solemnised without the
knowledge of guardian. Her mother sued set aside the marriage. It was held that there was
a fraud upon the policy underlying the religious ceremony and so it was held that there
was no valid ceremony at all and granted the declaration sought by mother for a decree of
nullity.

Conditions to be fulfilled --Section 12 (2) (a)

There are two conditions for decree,
1.The petition is presented within one year after the force had ceased to operate or
as the case may be, the fraud has been discovered.
2. With his or her full consent, the petitioner has not lived with the other party to
the marriage as husband or wife after the force had ceased to operate or as the case may
be, the fraud has been discovered.

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 4. Respondent being pregnant by someone else
(clause (d) of sub section 1 of section 12 )
The marriage shall be voidable and may be annulled by decree of nullity on the
ground that the respondent was pregnant by some other person other than the petitioner
at the time of marriage.

Conditions to be fulfilled --Section 12 (2) (b):

No decree can be passed under this ground unless the court is satisfied--
1. that the petitioner was at the time of marriage ignorant of the facts alleged

2. that the proceedings have been instituted in the case of marriage

solemnized before the commencement of this Act within one year of
such commencement and in the case of marriage solemnized after the
commencement of this Act within one year from the date of the marriage

3. that the marital intercourse with the consent of the petitioner has not
taken place since the discovery by the petitioner of the existence of wife’s
pregnant.

4. DIVORCE (Section 13)

This is new remedy introduced by The Hindu Marriage Act, 1955.
A decree of divorce puts to an end to the marriage. Before this Act, this remedy was
available only to certain castes in sudhara if custom permitted. Now it is available to all
Hindus.
The divorce is available only to valid marriage, but not for void marriage.
Therefore a valid marriage may be dissolved by decree of divorce on the grounds
specified in section 13.

Sub section 1 of section 13 provides the following grounds for divorce for both the
parties to the marriage-
1.Adultery
2.Cruelty
3. Desertion

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 4. Conversion to another religion
5. Unsound mind
6. Leprosy
7. Venereal disease
8. Renouncing the world by Entering religious order
9. Unheard of seven years or more by the respondent

Sub section 1A of section 13 which is inserted in the year 1964, which provides the
following grounds for divorce for both the parties to the marriage-
1. Non resumption of cohabitation for one year or more after passing decree for judicial
separation.
2. No restitution of conjugal rights for one year or more after the passing the decree for
restitution conjugal rights.
Sub section 2 of section 13 provides the following four grounds for divorce for wife only,
1. Subsequent marriage of husband during the subsists of 1st marriage.
2. Guilty of husband for rape, sodomy or bestiality
3. After passing decree or order for maintenance for wife against husband, no
resumption of cohabitation between the parties for one year or more.
4. Repudiation of marriage by wife after she attain the age of 15 but before 18 years.

1. Adultery-(clause (i)Sub section 1 of section 13)

The other party has, after solemnization of marriage, had voluntarily sexual intercourse
with any other person other than his or her spouse.

This clause was amended in the year 1976. Before amendment, living in adultery was a
ground for divorce, while even an isolated act of adultery is not ground for divorce.

But after amendment, an isolated act of adultery is sufficient to claim divorce. Adultery
is consensual sexual intercourse between a married person and a person of opposite sex
during the subsists of marriage. A mere attempt to commit adultery is not enough for
divorce. If sexual intercourse has taken place under coercion, fraud or mistake, it cannot
adultery and it is not ground for divorce.

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 Who may prove the adultery?
The petitioner is bound to prove the adultery. It may be proved either direct or
circumstantial evidence.
The circumstantial evidence are,

1. Adultery can be inferred from non access and long period of gestation of a
child born to the wife.

2. Adultery can be inferred from contracting venereal disease.

3. Adultery can be inferred from the presence of a unrelated young man with the wife in
her bed room in mid night

4. Adultery can be inferred from confession and admission of the party and other
person.

The evidence should be established not only opportunity to that commit adultery but
also opportunity could be used.

In “Chinuthakutti vs Subramanian”, the husband sought divorce on the ground

of wife’s adultery. He submitted a doctor’s report of his vasectomy operation on
8.1.1976. A child was born on 30.8 1978. He has to establish his infertility in November
1977, when the child was conceived. Taking in to the account of fact that vasectomy
operation is not 100% successful, the court held that the adultery was not proved and
dismissed the petition.

2. Cruelty- (clause (Ia) Sub section 1 of section 13

The respondent has, after the solemnization of marriage, treated the petitioner with
cruelty.
Cruelty must be of such character as to be cause danger to life, limp or health or to
give rise to a reasonable apprehension of such a danger. The cruelty may be
1. Physical cruelty
2. Mental cruelty

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 Examples of cruelty:
By husband:
1. False charge of immorality and adultery against the wife
2. Beat his wife
3. Taking her salary entirely
4. Returning to home late at midnight to the house in drunken condition frequently.
5. Husband leads immoral life
6. Demand dowry

By wife:
1. Threat by wife to commit suicide
2. Threat by wife to set house on fire
3. Threat by wife to make the husband loss his work
4. The wife undergone abortion willfully against wishes of the husband
5. Leaving the husband’s house without informing the husband or his family member
6. Making police complaint against husband about matrimonial different.
7. Writing a letter to her husband’s office address about their matrimonial differences
8. Calling the husband an impotent person in the presence of public, friends and
relations.
9. Refusal for sexual intercourse with the spouse without reasonable causes.

In “Sree Padachan vs Vasantha Bai”, the wife abusing the husband in public place
and insulting him and threatening the husband to burn herself and bring her husband to
police trouble. The court held that it was amount to mental cruelty to husband.

In “ Kasinath Sahu vs Devi”, the insulting the behavior of husband’s relative. The
court held that it amounted to mental cruelty to husband.

In “Rooplal vs Rooplal”. The wife was suffering from atrophic rhinitis. As a result a
bad smell coming from her nose always. The court held that it was amount to mental
cruelty to husband.

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3. Desertion- (clause (I b) Sub section 1 of section 13
This clause was inserted in the year 1976, by way of amendment laws. It runs,
The respondent has deserted the petitioner for a continuous period of not less than
two years immediately preceding the presentation of the petition.
Desertion means the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent of such other party and include the
willful neglect of the petitioner by the other party to the marriage.
For the offence of desertion, two conditions must be present. These are,
1. Factum of separation: That means the respondent living apart and away from the
petitioner.

2. Animus Descerendi: Intention to withdraw the conjugal society permanently.

Further it should be proved that on the part of the petitioner there was,
(i) Absence of consent to the separation
(ii) Absence of conduct giving reasonable cause to the petitioner to leave the
matrimonial home.

4. Conversion to another religion- (clause (ii) Sub section 1 of section 13

The respondent has ceased to be Hindu by conversion to another religion

5. Unsound mind- (clause (iii) Sub section 1 of section 13

The respondent has been incurably of unsound mind, or has suffering
continuously or intermittently from mental disorder of such a kind and to such an extent
that the petitioner cannot reasonably be expected to live with the respondent.
Explanation- In this clause-
(a) the expression "mental disorder" means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of mind
and include schizophrenia.

(b) the expression "psychopathic disorder" means a persistent disorder or disability of

mind (whether or not including sub-normality of intelligence) which results in abnormally
aggressive or seriously irresponsible conduct on the part of the other party and whether or
not it requires or is susceptible to medical treatment.

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6. Leprosy - (clause (iv) Sub section 1 of section 13
This clause was amended in the year 1976. Before amendment, it runs,
The respondent has, for a period of not less than three years immediately
preceding the presentation of the petition, been suffering from a virulent and incurable
form of leprosy.
The Marriage laws Amendment Act, 1976 removed the time period. Now it runs
as follows,
The respondent has been suffering from a virulent and incurable form of leprosy.

7. Venereal disease- (clause (v) Sub section 1 of section 13

This clause was amended in the year 1976. Before amendment, it runs,
The respondent has, for a period of not less than three years immediately
preceding the presentation of the petition, been suffering from venereal disease in
communicable form.
The Marriage laws Amendment Act, 1976 removed the time period. Now it runs
as follows,
The respondent has been suffering from venereal disease in communicable form.

8. Renouncing the world by Entering religious order- (clause (vi) Sub section 1 of
section 13
The respondent has renounced the world by entering any religious order.

9. Unheard of seven years or more by the respondent- (clause (vii) Sub section 1 of
section 13
The respondent has not been heard of as being alive for a period of seven years or
more by those person who would naturally have heard of it, had that party been alive.

Grounds for divorce under sub section 1A of section 13

Sub section 1A of section 13 which is inserted in the year 1964, which provides
the following grounds for divorce for both the parties to the marriage-
1.Non resumption of cohabitation for one year or more after passing decree for judicial
separation.

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 2.No restitution of conjugal rights for one year or more after the passing the decree for
restitution conjugal rights.

1. Non resumption of cohabitation- clause (i) of sub section 1A of section13

There has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after passing of a decree for judicial
separation in a proceeding to which they were parties.

2. No restitution of conjugal rights- clause (ii) of sub section 1A of section13

There has been no restitution of conjugal rights coh as between the parties to the
marriage for a period of one year or upwards after passing of a decree for restitution of
conjugal rights in a proceeding to which they were parties.
Special grounds for divorce for wife under sub section (2) of section 13
As per subsection 2 of section 13, the wife may also present a petition for the
dissolution of marriage by a decree of divorce on any one of the following grounds,
namely:
1. Subsequent marriage of husband during the subsists of 1st marriage.
2. Guilty of husband for rape, sodomy or bestiality
3.After passing decree or order for maintenance for wife against husband, no
resumption of cohabitation between the parties for one year or more.
4. Repudiation of marriage by wife after she attain the age of 15 but before 18 years.

1. Subsequent marriage of husband during the subsistence of 1st marriage

As per clause (i), in the case of any marriage solemnized before the
commencement of this Act, that the husband had married again before such
commencement or that any other wife of the husband married before such
commencement was alive at the time of the solemnization of the marriage of the
petitioner.

Condition for getting divorce under this ground

Provided that in either of the case, the other wife is alive at the time of
presentation of the petition.

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 2. Guilty of rape, sodomy and bestiality-
As per clause (ii), The husband has, since the solemnization of the marriage, been
guilty of rape, sodomy and bestiality
3. No resumption of cohabitation after passing decree or order for maintenance for
wife
As per clause (iii), in a suit under section 18 of the Hindu Adoption and
Maintenance Act, 1956, an decree has been passed or in a proceeding under section 125
of the Code of Criminal Procedure, 1973, a order has been passed against the husband
awarding maintenance to the wife notwithstanding that she was living apart and that
since the passing of such decree or order, cohabitation between the parties has not been
resumed for one year or upwards.
4. Repudiation of marriage by wife after she attain the age of 15 but before 18
years.
As per clause (iv), her marriage (whether consummated or not) was solemnized
before she attained the age of fifteen years and she has repudiated the marriage after
attained that age but before attaining the age of eighteen years.

5. DIVORCE BY MUTUAL CONSENT: SECTION 13-B

The section 13 B was inserted in the Hindu Marriage Act, 1955 in the year 1976
by Marriage Laws (Amendment) Act. Prior to this amendment, such a type of divorce
was possible only under the Special Marriage Act, 1954.

As per section 13B, a petition for dissolution of marriage by decree of divorce

may be presented to the district court by both the parties to the marriage together on the
grounds.
1. That they have been living separately for a period of one year or more,
2. That have not been able to live together
3. That they have mutually agreed that the marriage should be dissolved.

On the motion of both the parties made not earlier than six months after the date
of presentation of the petition and not later than eighteen months after the said date, if
the petition is not withdrawn in the mean time, the court shall pass a decree of divorce

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 declaring the marriage to be dissolved provided that the following two conditions are
fulfilled,
1. The court is satisfied, after hearing the parties and making such enquiry as it
think fit, that marriage has been solemnized.
2. The court is satisfied that the averments in the petition are true.

When a divorce petition can be presented (Section 14)

No petition for dissolution of marriage by decree of divorce can be presented unless at
the date of presentation of the petition one year has elapsed since the date of the
marriage.

But in fit cases, by special leave, the may allow a petition to be presented even before
one year after the marriage on the ground that the case is one of the exceptional
hardship to the petitioner or of exceptional depravity on the part of the respondent.

When divorced person can Re-Marry ( section-15)

When a marriage has been dissolved by decree of divorce, it shall be lawful for
either party to the marriage to marry again provided that
1. there is no right of appeal against the decree,
or
2.if there is such a right of appeal, the time for appealing has expired without an
appeal having presented, or an appeal has been presented but has been dismissed

Legitimacy of children of void and voidable marriage ( section 16)

When a marriage is said to be void under section 11, the child born in such
marriage shall be legitimate child.
Where a decree of nullity is granted in respect of voidable marriage under section
12, any child begotten or conceived before the decree is made, shall be deemed to their
legitimate child notwithstanding the decree of nullity.

Punishment for contravention of conditions specified in section 5

1. Contravention of section 5 (i)- Liable for punishment under section 494 and 495 of
Indian Penal Code (section 17)

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 2. Contravention of section 5 (ii)- Liable for punishment under the Prohibition of Child
Marriage Act, 2006
3. Contravention of section 5 (iii)- Liable for punishment of simple imprisonment up to
15 days or fine up to Rs1000 or both- s.18
4. Contravention of section 5 (iv) & (v)- Liable for punishment of simple imprisonment
up to one month or fine up to Rs1000 or both – section-18

Court to which petition shall be presented- Section 19

Every petition under the Hindu Marriage Act shall be presented to the district
court within the local limits of whose ordinary original civil jurisdiction,-
(i) the marriage was solemnized, or
(ii) the respondent, at the time of presentation of petition, resides, or
(iii) the parties to the marriage last resided together, or
(iii-a) in case the wife is the petitioner, where she is residing on the date of
presentation of the petition, or
(iv) the petitioner is residing at the time of presentation of the petition, in a case
where the respondent,-
(a) is at that time residing outside the territories to which the Act extends, or
(b) has not been heard of as being alive for a period of 7 years or more by those
person who would have naturally heard of him if he were alive

*****

MUSLIM LAW OF MARRIAGE AND DIVORCE.

Marriage is the ‘nucleus’ of the family. The very foundation of the family and society is
the marriage. It confers on parties, the status of husband and wife and gives rise to certain
rights and obligations and of legitimacy of their children. Meaning and Definition:- In
Mohammedan Law, marriage is regarded as ‘Civil Contract’. ‘Nikah’ is an Arabic term,
which literally means “the union of two sexes”.

In Baillie’s Digest, marriage has been defined to be ‘a contract for the purpose of
legalizing sexual intercourse, and procreation of children.’

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Ashabah says :- ‘Marriage is a contract underlying a permanent relationship based on
mutual consent on the part of man and woman’.

Abdur Rahim says:- ‘The Mohemmadan jurist regard the institution of marriage as
partaking both of the nature of ibbadat or devotional acts and muamalat or dealings
among men.

According to Ameer Ali:- ‘Marriage is an institution ordained for the protection of the
society, and in order that human beings may guard themselves from foulness and
unchastity.

Mulla defined Nikah as “a contract which has for its object, the procreation and
legalizing of children.” As per Section 2 of Law of Marriage (Compendium of Islamic
Laws compiled by All India Muslim Personal Law Board), ‘Marriage is an agreement
between a man and a woman, based on the Shariat principles as a result of which mutual
sexual relation becomes legitimate, paternity of obligation becomes enforceable.’

Section 4 of the Law of Marriage (Compendium of Islamic Laws compiled by All India
Muslim Personal Law Board), says, ‘Marriage is compliance with injunctions of God’s
Book and His Prophet’s Sunnat. In the eyes of Shariat, therefore, marriage is not just a
civil contract; it is also a worship.’

Justice Mahmood in Abdul Khadir v. Salima defines a Muslim Marriage as “a civil

contract” , upon the completion of which by proposal and acceptance, all the rights and
obligations, which it creates arise immediately and simultaneously.

Justice Mitter in Saburannissa v. Sabdu Sheikh(AIR 1934) observed, “ The Marriage

under Muslim Law is a civil contract and is like a contract of sale. In the contract of
marriage the wife is the property and dower is the price.

A glossary on Tarmizi sets out five objectives of marriage : i) The restraint of sexual
passion ii) The ordering of domestic life iii) The increase of the family iv) The discipline
of the same in the care and responsibility of wife and children, and v) The upbringing of

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virtuous children. The Prophet said – ‘Men marry women for their piety, or their
property or their beauty, but man should marry for piety. The purpose of marriage are
perpetuation of human race and attainment of chastity,continence, mutual love, affection
and peace.

There has been a conflict of opinion as to the nature of Muslim Marriage. Some opine
that, Muslim Marriage is a mere civil contract and not a sacrament, while some other
opine that it is a religious sacrament in nature. Muslim Marriage, by some text writers
and jurists, is treated as a mere civil contract and not a sacrament. This observation seems
to be based on the fact that marriage, under Muslim Law, has similar characteristics as a
contract.

For instance: 1. As marriage requires proposal (Ijab) from one party and acceptance
(Qubul/ Qabool) from the other so is the contract. Moreover, there can be no marriage
without free consent and such consent should not be obtained by means of coercion, fraud
or undue influence.
2. Just as in case of contract, entered into by a guardian, on attaining majority, so can a
marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.

3. The parties to a Muslim Marriage may enter into any post-nuptial agreement which is
enforceable by law provided it is reasonable and not opposed to policy of Islam. Same is
the case with contract.

4. The term of marriage contract may also be altered within legal limits to suit individuals
cases. The analogy of marriage contract with contract of sale as pointed out by Justice
Mahmood in the leading case of Abdul Khadir v. Salima, and Justice Mitter in
Saburannissa v. Sabdu Sheikh(AIR 1934) also emphasizes the contractual aspect of
Muslim Marriage. Another view is that marriage is not purely a civil contract but a
religious sacrament too. Anis Begum v/s. Mohammad Istafa (1993) is a leading case on
the point where C.J. Sir Shah Sulaiman has tried to put a more balanced view of this

While reviewing the Abdul Kadir’s case, Justice Sulaiman in Anis Begum’s case
observed : ‘ It may not be out of place to mention that Maulvi Samiullah collected some

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authorities showing that marriage is not regarded as a mere civil contract but as a
religious sacrament. Though the learned C.J. does not himself say that marriage is a
sacrament, but from the context in which he said, it is clear that he supported the view of
Maulvi Samiullah.

Justice Mahmood’s observation i.e., marriage is a civil contract cannot be appreciated

only because upto some extent marriage resembles with civil contract. After observing
minutely it will be found that besides some similarities there are so many basic
differences between the two. For instance. Muslim marriage is not merely a civil
contract, because:
i) Unlike civil contract, it cannot be made contingent on future event, and
ii) Unlike civil contract, it cannot be for a limited time (muta marriage is an exception).
One may conclude the nature of Muslim Marriage by the observation of M.C. Jung –
‘Marriage is an institution of Ibadat clothed in the legal form of contract regulating sexual
intercourse, but its continuance is dependent upon the maintenance of conjugal affection.’
In the ultimate analysis it can be said that the marriage in Islam is neither purely a civil
contract nor as a sacrament. It is devoid of none but the blending of the two.

Muslim or Mohammedan Law, marriage have been categorized under th following

heads:- i) Sahih or Valid Marriage – According to Law of Marriage (compendium of
Islamic Law compiled by All India Muslim Personal Law Board), ‘A valid marriage is
one in which all essential conditions of marriages are found.’(Section 20)

Essentials of a Valid (Sahih) Marriage – A Muslim marriage (Nikah) to be

valid, the following conditions are to be satisfied:

A) Civil Contract : A Muslim marriage is purely a civil contract. As in the case of a

contract, there are two parties. One party makes a proposal(Ijab) and the same is accepted
by the other at one meeting:

a) Proposal (Ijab) and Acceptance (Qabool) – The proposal is made by the bridegroom.
The proposal is called ‘Ijab’. The proposal consists the amount of dower. The bride sits
behind the curtain (pardah) with the relatives accumulated for this purpose.

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b) At one meeting: The Ijab and Qabool must be done at one meeting. The Ijab at one
time, and Qabool at another time, make the marriage void.

c) Consent : The consent of both the parties must be with free will, not under undue
influence, misrepresentation or coercion. Marriage under compulsion is not valid under
Sunni and Shia Schools. But it is valid under Hanafi Sub School. According to the Shias,
witnesses are not necessary. But, according to the Sunnis, two male witnesses, who are
sane and adults should be present. Absence of witness renders the marriage irregular, but
not void.

B) Capacity of Parties : The parties to the marriage must be competent to marry. In

Muslim Law, a person, who is sane (sound mind) and has attained puberty is competent
to marry. The person, who has not attained puberty is a minor. The age of puberty for
both a boy and girl is 15years.Under Shia Law, in the case of males, puberty is presumed
to be attained at the age of 15 years but in case of females it is 9years. Those persons,
who are not of sound mind, i.e., are lunatics or who have not attained puberty i.e., are
minors, can be contracted in marriage by their respective guardians. But after the children
become Baligh or the insane become sane, they can endorse or abrogate the marriage.
Minority is of two kinds – (i) age of discretion (Saghir) and (ii) Puberty (Bulugh).

Doctrine of Puberty or Option of Puberty (Khyar-ul-bulugh) : In Muslim Law, a

person, who is sane and has attained the age of puberty is competent to marry. The age of
puberty is the age at which a person becomes capable of performing sexual intercourse
and procreation of children. In Muslim Law, a person, who has not attained the age of
puberty is a minor. The age of puberty for both a boy and girl is 15years. If a boy or girl,
without attaining puberty is given in marriage, the boy or girl can repudiate the marriage
after attaining the age of puberty/majority. This right is know as “the Option of Puberty”
or “Khayr-ul-bulugh”. This right shall be exercised within a reasonable time. In case of a
boy(i.e., minor husband) it should be exercised before the ratification of the marriage by
payment of the Dower or Mahr. (Mahr is an amount of cash or property paid by the
bridegroom (husband) to the parents of the bride (wife) at the time of marriage or later, in
consideration for the marriage) or by cohabitation. When a minor has been contracted in

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marriage by the father or paternal grandfather, such marriage cannot be repudiated unless
such father or grandfather acted fraudulently or negligently. All the restrictions with
regard to the option of puberty have been abolished by the Dissolution of Muslim
Marriage Act, 1939. According to Sec. 2 of the Act, a Muslim wife is entitled to the
dissolution of her marriage if she proves that the marriage has not been consummated or
the marriage took place before she attained the age of 15years or she has repudiated the
marriage before attaining the age of 18years. Mere repudiation does not render
dissolution of the marriage. The dissolution must be confirmed by a competent court.

C) Free Consent : The marriage to be valid, the parties must be freely consented to. If
the consent is obtained by force or fraud, it is no consent and the marriage is not valid. It
is a general law among all sects that in case of an adult woman consent must come from
her. Without her consent, consent of her father, grandfather etc., only is not sufficient,
though in some cases permission to marry may be obtained from father or grandfather,
wherever it was possible. In order to validate the marriage of a boy or girl who has not
attained the age of puberty, the consent of the legal guardian is necessary. The marriage
of a minor girl without the consent of her guardian is void. Under Hanafi law if the
consent is obtained by fraud or compulsion, the marriage would be valid but only
irregular and not void. Suppression of certain facts by any of the contracting parties have
been held to amount to fraud.

Under Shia and Shafi law, such marriages where consent was obtained through fraud or
compulsion are void. A Shia adult (attained majority) woman should obtain permission of
her father or grandfather to marry, although she may be looking after her own affairs.

D) Prohibited Degrees of Relationship: The parties to the marriage should not be

within prohibited degrees of relationship. The prohibition may be: 1. Absolute
Prohibition; and 2. Relative Prohibition. The absolute prohibition renders the marriage
void. While the relative prohibition renders the marriage irregular.

1. Absolute Prohibition: It is sub-divided into:

(A) Prohibited Degrees of Relationship:

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(i) Consanguinity; (ii) Affinity; (iii) Fosterage

(A) (i) Consanguinity : It means ‘blood relationship” . A marriage between the following
relations is prohibited and void – a) Mother and Son b) Grandmother (how high so ever) ;
and c) Brother and Sister; (d) Uncle and Niece (e) Nephew and Aunt

(ii) Affinity : It means “relationship by marriage”. A man should not marry his (a) Wife’s
mother or grandmother how high so ever; (b) Wife’s daughter or grand daughter how low
so ever; (c) Wife of father or paternal ancestor; (d) Wife of son or son’s son or daughter’s
son how low so ever.

(iii) Fosterage : It means foster relationship. If a woman suckles the child of another,
foster relationship is created. Thus, a marriage between two persons having foster
relationship is prohibited.

(B) Polyandry
Polyandry: If a woman has two husbands, it is called “bigamy”. If she has several(more
than one) husbands, it is called “Polyandry”.
A Muslim man can have four wives at a time. But a Muslim woman cannot have more
than one husband. If so, the marriage is void. 2. Relative Prohibition : Relative
Prohibition viz. absence of witnesses, polygamy(having several wives) i.e., more than
four wives, marriage during “Iddat Period” etc. renders the marriage irregular and not
void.

Batil or Void Marriage : - Section 50 of the Law of Marriage (compiled by All India
Muslim Personal Law Board), ‘A void marriage is one which according to the Shariat
does not come into existence at all.’ Mulla defines Void Marriage as – ‘A void marriage
is one which is unlawful in itself the prohibition against the marriage being perpetual and
absolute. A marriage which has no legal results is termed batil or void. It is the
semblance of marriage without the reality. A marriage contracted by parties suffering
from absolute capacity i.e., prohibited on the grounds of consanguinity, affinity,
fosterage, etc. is void.

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Fasid or Irregular Marriage:- In Islamic law, Sunni school considers three kinds of
marriages namely valid, void and irregular marriage. According to Shia school there is no
irregular or invalid marriage and there are only two marriages : Valid and Void
Marriages. The irregular marriages stand in between the void and valid marriages. Fyzee
has classified irregular marriages into five classes, namely : i) A marriage without
witness, ii) A marriage with a woman undergoing iddat, iii) A marriage prohibited by
reason of difference of religion, iv) A marriage with two sisters, or contrary to the rules of
unlawful conjunction, and v) A marriage with a fifth wife.

Under Hanafi Law a marriage contract entered into:

a) without the presence of witness, or
b) between persons prohibited from inter-marrying by unlawful conjunction in iddat or
divorce or religion or supervening illegality is irregular and not void.

According to Section 51 of the Law of Marriage (compiled by All India Muslim Personal
Law Board) “An irregular marriage is one which is neither valid nor void. Before
consummation such marriage is governed by the rules of marriage, and after
consummation it gives rise to the effect and rules of marriage. In both these situations
separation is necessary either by mutual renunciation or by the order of the qazi”.
According to Mulla, ‘An irregular marriage is one which is not unlawful in itself, but
unlawful ‘for something else’, as where the prohibition is temporary or relative, or when
the irregularity arises from an accident circumstances such as absence of witnesses.’

The Shia law recognizes two kinds of marriage, namely, permanent and muta or
temporary.

Muta Marriage:
Muta is a kind of temporary marriage recognized only in the Shia School of Muslim Law.
A Shia male may contract a muta marriage with a woman professing the Mohammedan,
Christian or Jewish religion or even with a woman who is a fire-worshipper (e.g.. –
Zoroastrian) , but not with a woman following any other religion and is into Idol worship.
The term ‘muta’ implies ‘enjoyment’ or ‘use’. Muta Marriage is a marriage for
temporary but a fixed period after specifying dower(amount to be paid). Muta Marriage

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is a kind of temporary marriage for a fixed period i.e., for a day, few days, few weeks,
few months or years. A Shia woman cannot contract Muta Marriage. The period of
marriage is fixed by entering into an agreement between the parties on payment of some
consideration.

Essentials of Muta Marriage: A muta marriage to be valid, the following conditions are
to be satisfied: i) The period of cohabitation should be fixed. ii) The amount of dower
should be fixed. Half of the amount would be paid if the marriage is not consummated.
The Muta marriage comes to an end on the expiry of the stipulated period. There is no
divorce in respect of a muta marriage. Even before the expiry of the term the Husband
may put an end to the marriage by making a gift of remaining term to her and paying the
full amount of dower. Children born during muta marriage are legitimate and are entitled
to inherit property from both the parents.

Iddat period:
When a Muslim marriage is dissolved by death or divorce, the woman is required to
remain in seclusion for a specified period. During this period, she is prohibited to
remarry. This period is called “Idda” or “Iddat”. Iddat is the period during which it is
incumbent upon a woman whose marriage has been dissolved by divorce or death, to
remain in seclusion and to abstain from marrying another man. In the words of Justice
Mahmood, ‘Iddat is the term by the completion of which a new marriage is rendered
lawful.’ Iddat is a period during which a woman is prohibited from marrying again after
the dissolution of her first marriage i.e., the period of waiting or the period during which
the previous existing marriage is considered to be undissolved for certain purpose
notwithstanding that the husband had died or if alive had pronounced a divorce. Muslim
Law lays down that one should not marry a woman, who is undergoing

During the period of Idda, her husband also cannot remarry. After the completion of
idda, the women can lawfully remarry. This prohibition is imposed with a view to
ascertain the pregnancy of the woman so as to avoid confusion of paternity. Ameer Ali
defines, “Idda” is an interval, which the woman is bound to observe between the
termination, by death or divorce of one matrimonial alliance and commencement of
another.” Duration or Period of Idda :- Different periods of ‘idda’ are provided

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depending upon the manner in which the marriage is dissolved as detailed below: i) Iddat
of widowhood : When a person dies living a widow, she is prohibited from marrying
before the expiration of 4 months and 10 days. ii) Iddat of pregnant woman: If the widow
is pregnant at the death of her husband, the Iddat will not terminate until delivery of
miscarriage. If delivery or its

Iddat of Talaq : The period of Iddat in case of Talaq is three courses, if the woman is
subject to menstruation, otherwise three lunar months. If the woman is pregnant at the
time of divorce, the Iddat will not terminate till delivery. iv) Iddat when marriage is
irregular : If the marriage is irregular and parties have separated before actual
consummation, there is no Iddat. If the consummation has taken place the wife is bound
to observe Iddat. v) If the marriage is not consummated, iddat has to be observed in the
case of death, but not in the case of divorce. vi) The period of iddat begins from the date
of the divorce or death of the husband and not from the date on which the woman gets the
information of the divorce or of the death of the husband.

The iddat due to the death of husband commences from the date of death. If the
information of death does not reach the wife until after the expiration of the period of
iddat she is not bound to observe iddat. When a husband divorces his wife, the iddat
period starts from the date of divorce. When the husband dies in the period of iddat for a
revocable divorce, the wife must observe fresh iddat for death. Effects of Iddat Period :
i) During the period of iddat, Muslim woman is not entitled to marry any other person. ii)
During the Iddat period, the wife is entitled to maintenance. iii) The wife is entitled to
Deferred Dower iv) During the Iddat period, if any one of the parties to the marriage,
dies, the other is entitled to inherit from him or her in his or her capacity of wife or
husband respectively as the case may be. v) If the husband has four wives including the
divorced one, he cannot marry a fifth one, until the completion of iddat of the divorced
wife. vi) Where the Husband pronounces talaq three times during death – illness and dies
before the completion of wife’s iddat, the wife is entitled to inherit from him even if the
divorce has become irrevocable prior to his death. A marriage performed during the
period of Idda is not void, but irregular. But, under the Shia Law, it is void. During Idda,
the woman is entitled to maintenance.

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Dower:
Dower is of four kinds. It may be (i) “specified’ or (ii) “proper”, according to the mode of
determination of its amount. It may also be (iii) “prompt’ or (iv) “deferred’, according to
the time when it is payable.

1. Specified Dower:
Specified dower is fixed by agreement between the parties, either before or at the time of
marriage or even after marriage.
Under Sunni law, specified dower must not be less than the value of 10 dirhams, the
money value of 1 dirham (today) being equivalent to about twelve or thirteen rupees. The
wife is entitled to this minimum amount even if the specified dower is less. (Under the
Shia law, there is no fixed minimum for dower.)
But there is no upper limit, and a dower is never invalid on the ground of its being
excessive. It is not uncommon to fix a figure which is beyond the means of the husband,
e.g., a dower of Rs. 51,000 in the case of a poor man. The Court must decree the whole
amount of the specified dower, though the husband had no means of paying it when it
was stipulated or though its payment would leave nothing to the heirs of the husband.
Thus, in an old Peshawar case, it was held that if a husband transfers a field to his wife as
dower, she is entitled, as against him, to a decree for possession. The Court further held
that if there are other sharers in the field, they need not be made parties to the wife’s suit,
and the Court’s decree does not affect their rights.
If, however, there is any specific legislative enactment on the point, the Court need not
decree the entire amount of the specified dower. Thus, the Oudh Laws Act, 1876,
contained a provision that the Court could not award the amount of dower stipulated in
the agreement, but only such sum as was reasonable, regard being had to the means of the
husband and the status of the wife.

2. Proper Dower (Mahr-I-Misl or Mahr-Ul-Misl):

If nothing is said about dower at the time of marriage, the wife may claim to have a
reasonable amount of dower settled for her, even if the marriage was contracted on the
express condition that she should not claim any dower. In fixing the proper dower, the
Court is guided by the amount of dower settled upon the other female members of the
family of the wife’s father, as for instance, the father’s sisters.

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In such cases, the social position of the husband and his means are not of much
importance. As the Hedaya lays down, the wife’s “age, beauty, fortune, understanding
and virtue” must be kept in mind when fixing proper dower. Thus, the Prophet once
allowed the marriage of a poor Muslim for a silver ring, and on another occasion, merely
on condition that the husband would teach the Koran to his wife!
Under Shia law, the proper dower should not exceed 500 dirhams. (Baille, II, 71)
In one case, a Muslim married a Christian woman in England. The Court observed that
the marriage was governed by Muslim law, and therefore, the husband could divorce his
wife by talak. The Court also held that the wife, in turn could also claim dower, although
no dower was initially fixed at the time of the marriage. In such cases, proper dower
could be claimed, i.e. dower which would be payable to a woman of similar status and
circumstances. (Marina Jatoi v. Nuruddin Jatoi, P.L.D. 1967 S.C. 580)

3. Prompt Dower (Marjjal):

The amount of dower is usually split into two parts prompt and deferred. Prompt dower is
that which is payable on demand and deferred dower is one payable on dissolution of
marriage by death or divorce.
Prompt dower is dower which is payable immediately on the marriage taking place, and it
must be paid on demand, unless delay is stipulated for and agreed. Prompt dower may be
realised at any time before or after consummation. Proof of intercourse between the
parties is not necessary for its payment.

It is only on payment of the prompt dower that the husband becomes entitled to enforce
his conjugal rights, unless the marriage is already consummated. The right of restitution,
so far from being a condition precedent to the payment of prompt dower, arises only after
the dower has been paid.

In Rabia Khatoon v. Mukhtar Ahmed (1966 A.A. 548), it was observed that the wife may
refuse to live with her husband and to admit him to sexual intercourse, so long as the
prompt dower is not paid. If the husband sues her for restitution of conjugal rights before
sexual intercourse takes place, non-payment of dower is a complete defence to the suit,
and the suit will be dismissed.

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If the suit is brought after sexual intercourse has taken place with her free consent, the
proper decree to pass is not a decree of dismissal, but a decree for restitution, conditional
on payment of prompt dower.
[This principle was first laid down in Abdul Kadir v. Salima, (1886) 8 All. 148.]

4. Deferred Dower (Muwajjal):

Deferred dower is payable on the dissolution of the marriage either (i) by the death of
either of the parties, or (ii) by divorce.

In a case in which no specific proportion of prompt and deferred dower has been fixed by
agreement at the time of the marriage, or by custom —
(i) The whole is regarded as prompt according to Shia law;
(ii) Part is regarded as prompt, and part as deferred according to Sunni law; the proportion
is regulated by the status of the parties and the amount of the dower settled. The Court
has, however, the power to award the whole as prompt. (Huseinkhan v. Gulab Khatun,
(1911) I.L.R. 35 Bom. 386)

On the Dissolution of the Marriage:

(a) If the marriage was consummated, the wife is entitled to the immediate payment of the
whole of the unpaid dower, both prompt and deferred;
(b) If the marriage was not consummated, she is entitled to only half the specified dower.

Wife’s Interest in Deferred Dower:

The interest of the wife in the deferred dower is a vested interest, and not a contingent
one. It is not liable to be displaced by the happening of any event, not even her own
death, because her heirs can claim the dower, if she dies.

Wife’s Rights and Remedies if Dower is not Paid:

Prompt Dower:
So long as the prompt dower remains unpaid, the wife may refuse (i) to live with the
husband, and (ii) to admit him to sexual intercourse. Non-payment of prompt dower is a
complete defence in a suit for restitution of conjugal rights filed before consummation; if

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the suit is filed after consummation, the decree will be for restitution, conditional on
payment of the prompt dower.
There is another remedy also to recover the unpaid prompt dower. The wife, (and after
her death, her heirs) may sue for such dower within three years from the date when — (i)
it is demanded and refused; or (ii) the marriage is dissolved by death or divorce.
Deferred Dower:
Deferred dower becomes payable only on dissolution of marriage either by death or
divorce. If it is not so paid, the wife (and after her death, her heirs) may sue for it within
three years from the dissolution of the marriage.

Muslim Law on Divorce:

Firm union of the husband and wife is a necessary condition for a happy family life. Islam
therefore, insists upon the subsistence of a marriage and prescribes that breach of
marriage contract should be avoided. Initially no marriage is contracted to be dissolved
but in unfortunate circumstances the matrimonial contract is broken. One of the ways of
such dissolution is by way of divorce . Under Muslim law the divorce may take place by
the act of the parties themselves or by a decree of the court of law. However in whatever
manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce
is considered as an exception to the status of marriage.

The Prophet declared that among the things which have been permitted by law, divorce is
the worst. Divorce being an evil, it must be avoided as far as possible. But in some
occasions this evil becomes a necessity, because when it is impossible for the parties to
the marriage to carry on their union with mutual affection and love then it is better to
allow them to get separated than compel them to live together in an atmosphere of hatred
and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live
together rather than any specific cause (or guilt of a party) on account of which the parties
cannot live together. A divorce may be either by the act of the husband or by the act of
the wife. There are several modes of divorce under the Muslim law, which will be
discussed hereafter.

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Modes of Divorce:
A husband may divorce his wife by repudiating the marriage without giving any reason.
Pronouncement of such words which signify his intention to disown the wife is sufficient.
Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ
from talaaq only in form, not in substance. A wife cannot divorce her husband of her own
accord. She can divorce the husband only when the husband has delegated such a right to
her or under an agreement. Under an agreement the wife may divorce her husband either
by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on
the ground of false charges of adultery, insanity or impotency of the husband. But the
Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis
of which a Muslim wife may get her divorce decree passed by the order of the court.

There are two categories of divorce under the Muslim law:

1) Extra judicial divorce, and
2) Judicial divorce

The category of extra judicial divorce can be further subdivided into three types,
namely:

# By husband- talaaq, ila, and zihar.

# By wife- talaaq-i-tafweez, lian.
# By mutual agreement- khula and mubarat.

The second category is the right of the wife to give divorce under the Dissolution of
Muslim Marriages Act 1939.

Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means
"setting free", "letting loose", or taking off any "ties or restraint". In Muslim Law it means
freedom from the bondage of marriage and not from any other bondage. In legal sense it
means dissolution of marriage by husband using appropriate words. In other words talaaq
is repudiation of marriage by the husband in accordance with the procedure laid down by
the law.

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The following verse is in support of the husband's authority to pronounce unilateral
divorce is often cited:

Men are maintainers of women, because Allah has made some of them to excel others and
because they spend out of their property (on their maintenance and dower) . When the
husband exercises his right to pronounce divorce, technically this is known as talaaq. The
most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and
the Shias recognize it differing only in some details. In Muslim world, so widespread has
been the talaaq that even the Imams practiced it. The absolute power of a Muslim
husband of divorcing his wife unilaterally, without assigning any reason, literally at his
whim, even in a jest or in a state of intoxication, and without recourse to the court, and
even in the absence of the wife, is recognized in modern India. All that is necessary is that
the husband should pronounce talaaq; how he does it, when he does it, or in what he does
it is not very essential.

In Hannefa v. Pathummal, Khalid, J., termed this as "monstrosity" . Among the Sunnis,
talaaq may be express, implied, contingent constructive or even delegated. The Shias
recognize only the express and the delegated forms of talaaq.

Conditions for a valid talaaq:

1) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty,
is competent to pronounce talaaq. It is not necessary for him to give any reason for his
pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq
by a minor or of a person of unsound mind is void and ineffective. However, if a husband
is lunatic then talaaq pronounced by him during "lucid interval" is valid. The guardian
cannot pronounce talaaq on behalf of a minor husband. When insane husband has no
guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such
a husband.

2) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing
talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion,
coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the

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marriage.

Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is

void even under the Hanafi law.

Shia law:
Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under
compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and
ineffective.

3) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be

simply uttered by the husband or he may write a Talaaqnama. No specific formula or use
of any particular word is required to constitute a valid talaaq. Any expression which
clearly indicates the husband's desire to break the marriage is sufficient. It need not be
made in the presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband is
unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under
Shia law. Here talaaq must be pronounced in the presence of two witnesses.

4) Express words: The words of talaaq must clearly indicate the husband's intention to
dissolve the marriage. If the pronouncement is not express and is ambiguous then it is
absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

Express Talaaq (by husband):

When clear and unequivocal words, such as "I have divorced thee" are uttered, the
divorce is express. The express talaaq, falls into two categories:
# Talaaq-i-sunnat,
# Talaaq-i-biddat.

Talaaq-i-sunnat has two forms:

# Talaaq-i-ahasan (Most approved)
# Talaaq-i-hasan (Less approved).

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Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.

The Ahasan talaaq:

This consists of a single pronouncement of divorce made in the period of tuhr (purity,
between two menstruations), or at any time, if the wife is free from menstruation,
followed by abstinence from sexual intercourse during the period if iddat. The
requirement that the pronouncement be made during a period of tuhr applies only to oral
divorce and does not apply to talaaq in writing. Similarly, this requirement is not
applicable when the wife has passed the age of menstruation or the parties have been
away from each other for a long time, or when the marriage has not been consummated.
The advantage of this form is that divorce can revoked at any time before the completion
of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation
may effected expressly or impliedly.

Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or
says I have retained thee" the divorce is revoked. Resumption of sexual intercourse before
the completion of period of iddat also results in the revocation of divorce.

The Raad-ul-Muhtar puts it thus: "It is proper and right to observe this form, for
human nature is apt to be mislead and to lead astray the mind far to perceive faults
which may not exist and to commit mistakes of which one is certain to feel ashamed
afterwards”.

The Hasan talaaq:

In this the husband is required to pronounce the formula of talaaq three time during three
successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it
may be made after the interval of a month or thirty days between the successive
pronouncements. When the last pronouncement is made, the talaaq, becomes final and
irrevocable. It is necessary that each of the three pronouncements should be made at a
time when no intercourse has taken place during the period of tuhr. Example: W, a wife,
is having her period of purity and no sexual intercourse has taken place. At this time, her

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husband, H, pronounces talaaq, on her. This is the first pronouncement by express words.
Then again, when she enters the next period of purity, and before he indulges in sexual
intercourse, he makes the second pronouncement. He again revokes it. Again when the
wife enters her third period of purity and before any intercourse takes place H pronounces
the third pronouncement. The moment H makes this third pronouncement, the marriage
stands dissolved irrevocably, irrespective of iddat.

Talaaq-i-Biddat:
It came into vogue during the second century of Islam. It has two forms: (i) the triple
declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the
other form constitutes a single irrevocable pronouncement of divorce made in a period of
tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of
divorce is condemned. It is considered heretical, because of its irrevocability.

TRIPLE TALAQ IS CRIMINALISED.

Recently, the Parliament has passed the Muslim Women (Protection of Rights on
Marriage) Bill, 2019, thereby criminalizing the practice of instant Triple Talaq.

The Supreme Court in Shayara Bano case (2017) had declared the practise of Triple
Talaq (talaq-e-biddat) as unconstitutional.

However, the penal provision of the Act i.e. a Muslim husband declaring instant Triple
Talaq can be imprisoned for up to three years is alleged to be disproportionate for a civil
offence.

What is Talaq-e-biddat?
 If a man belonging to the religion of Islam pronounces talaq thrice either orally
or in written form to his wife, then the divorce is considered immediate and
irrevocable.
 The only way to reconcile the marriage is through the practice of nikah halala,
which requires the woman to get remarried, consummate the second marriage, get
divorced, observe the three-month iddat period and return to her husband.

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Some key features of the Muslim Women (Protection of Rights on Marriage) Act, 2019:
 It is applicable in whole of India but it is not extended to the State of Jammu &
Kashmir.
 Any pronouncement of “talaq” by a Muslim husband to his wife in any manner,
spoken or written, will be void and illegal.
 Any Muslim husband who communicates the “talaq” orally or in writing may face
punishment up to three years in jail. The punishment may be also extended.
 If a Muslim man pronounces “talaq” to his wife, then the woman and her children
are entitled to receive an allowance for subsistence. Such an amount can be
determined by a Judicial Magistrate of the First Class.
 A Muslim woman is entitled to the custody of her minor children even if her
husband has pronounced “talaq” to her.
 The offence is also compoundable (i.e. the parties may arrive at a compromise),
if the Muslim woman insists for the same and the Magistrates allows certain terms
and conditions which he may determine.
 A person accused of this offence cannot be granted bail unless an application is
filed by the accused after a hearing in the presence of the Muslim woman (on
whom talaq is pronounced) is conducted and the Magistrate is satisfied with the
reasonable grounds for granting bail.

What are the issues ?

 Divorce is a civil matter and making Triple Talaq a criminal offence is
disproportionate to criminal jurisprudence.
 The Supreme Court declared Triple Talaq as invalid and did not ask the
government to make it a penal offence.
o The Supreme Court by holding that Triple Talaq is unconstitutional
implied that mere utterance of Talaq thrice does not result in the
dissolution of marriage, rather it remains intact.
o However, by criminalising Triple Talaq the law presumes marriage
has ended and for that Muslim man shall be punished.
o Thereby criminalizing the Triple Talaq goes against the spirit of the
Supreme Court judgement.

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  Further, if the husband is imprisoned, how he can pay maintenance allowance to
wives and children.
 Also similar to misuse of Indian Penal Code section 498A (Dowry Harassment)
which led to harassment of the affected men, the penal provision in Triple Talaq
can be subject to such harassment.

Why the government criminalized the Triple Talaq?

 The Triple Talaq was held to be violative of Article 14 (the right to equality),
which is held by the Supreme Court from Shah Bano case 1986 to Shayara Bano
case in 2017.
 The Government held that 473 cases of Triple Talaq have taken place even after
two years of judgement pronounced by the Supreme Court.
 The law has been placed as a deterrent to eradicate social evils. For example:
o Untouchability was abolished by the Constitution, but the continued
practise of untouchability forced Parliament to enact the Untouchability
(Offences) Act in 1955 and later renaming it as Protection of Civil Rights
Act in 1976.
o To eliminate atrocities faced by women in domestic space, parliament
enacted:
 The Dowry Prohibition Act in 1961
 Prevention of domestic violence Act 2005
 Triple Talaq is banned in more than 20 Islamic countries including Pakistan.

Terming Triple Talaq as unconstitutional as a step towards establishing uniform civil

code (Enshrined in Article 44 of directive principle of state policy), but criminalising
it goes against the ethos of Fundamental rights i.e. article 25 and 26 the freedom of
religion.

Triple Talaq has led to the subjugation of Muslim women even after 72 years of
independence but its solution must come through coexistence rather than coercion.

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Ila:
Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that
are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath
not to have sexual intercourse with his wife. Followed by this oath, there is no
consummation for a period of four months. After the expiry of the fourth month, the
marriage dissolves irrevocably. But if the husband resumes cohabitation within four
months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia)
School, Ila, does not operate as divorce without order of the court of law. After the expiry
of the fourth month, the wife is simply entitled for a judicial divorce. If there is no
cohabitation, even after expiry of four months, the wife may file a suit for restitution of
conjugal rights against the husband.

Zihar:
In this mode the husband compares his wife with a woman within his prohibited
relationship e.g., mother or sister etc. The husband would say that from today the wife is
like his mother or sister. After such a comparison the husband does not cohabit with his
wife for a period of four months. Upon the expiry of the said period, Zihar is complete.

After the expiry of fourth month the wife has following rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said
period, the wife cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.

According to Shia law Zihar must be performed in the presence of two witnesses.

Divorce by mutual agreement:

Khula and Mubarat: They are two forms of divorce by mutual consent but in either of
them, the wife has to part with her dower or a part of some other property. A verse in the

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Holy Quran runs as: "And it not lawful for you that ye take from women out of that which
ye have given them: except (in the case) when both fear that they may not be able to keep
within the limits (imposed by Allah), in that case it is no sin for either of them if the
woman ransom herself." The word khula, in its original sense means "to draw" or "dig
up" or "to take off" such as taking off one's clothes or garments. It is said that the spouses
are like clothes to each other and when they take khula each takes off his or her clothes,
i.e., they get rid of each other.

In law it is said is said to signify an agreement between the spouses for dissolving a
connubial union in lieu of compensation paid by the wife to her husband out of her
property. Although consideration for Khula is essential, the actual release of the dower or
delivery of property constituting the consideration is not a condition precedent for the
validity of the khula. Once the husband gives his consent, it results in an irrevocable
divorce. The husband has no power of cancelling the 'khul' on the ground that the
consideration has not been paid. The consideration can be anything, usually it is mahr, the
whole or part of it. But it may be any property though not illusory. In mubarat, the
outstanding feature is that both the parties desire divorce. Thus, the proposal may
emanate from either side. In mubarat both, the husband and the wife, are happy to get rid
of each other . Among the Sunnis when the parties to marriage enter into a mubarat all
mutual rights and obligations come to an end.

The Shia law is stringent though. It requires that both the parties must bona fide find the
marital relationship to be irksome and cumbersome. Among the Sunnis no specific form
is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat
should be followed by the word talaaq, otherwise no divorce would result. They also
insist that the pronouncement must be in Arabic unless the parties are incapable of
pronouncing the Arabic words. Intention to dissolve the marriage should be clearly
expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are
the same as in khula and the wife must undergo the period of iddat and in both the divorce
is essentially an act of the parties, and no intervention by the court is required.

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Divorce by wife:
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.

Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the
Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his
wife or any other person. He may delegate the power absolutely or conditionally,
temporarily or permanently . A permanent delegation of power is revocable but a
temporary delegation of power is not. This delegation must be made distinctly in favour
of the person to whom the power is delegated, and the purpose of delegation must be
clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes,
"this form of delegated divorce is perhaps the most potent weapon in the hands of a
Muslim wife to obtain freedom without the intervention of any court and is now
beginning to be fairly common in India".

This form of delegated divorce is usually stipulated in prenuptial agreements. In Md.

Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad,
undertook to pay certain amount of marriage expenses incurred by the father-in-law in the
event of his leaving the house and conferred a power to pronounce divorce on his wife.
The husband left his father-in-law's house without paying the amount. The wife exercised
the right and divorced herself. It was held that it was a valid divorce in the exercise of the
power delegated to her. Delegation of power may be made even in the post marriage
agreements. Thus where under an agreement it is stipulated that in the event of the
husband failing to pay her maintenance or taking a second wife, the will have a right of
pronouncing divorce on herself, such an agreement is valid, and such conditions are
reasonable and not against public policy . It should be noted that even in the event of
contingency, whether or not the power is to be exercised, depend upon the wife she may
choose to exercise it or she may not. The happening of the event of contingency does not
result in automatic divorce.

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Lian:
If the husband levels false charges of unchastity or adultery against his wife then this
amounts to character assassination and the wife has got the right to ask for divorce on
these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and
aggressive charge of adultery made by the husband which, if false, would entitle the wife
to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the
feelings of her husband with her behaviour and the husband hits back an allegation of
infidelity against her, then what the husband says in response to the bad behaviour of the
wife, cannot be used by the wife as a false charge of adultery and no divorce is to be
granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta
High Court.

Dissolution of Muslim Marriages Act 1939:

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the
issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the
Dissolution of Muslim Marriages Act 1939.

Section 2 of the Act runs there under:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for
the dissolution of her marriage on any one or more of the following grounds, namely:-
# That the whereabouts of the husband have not been known for a period of four
years: if the husband is missing for a period of four years the wife may file a petition for
the dissolution of her marriage. The husband is deemed to be missing if the wife or any
such person, who is expected to have knowledge of the husband, is unable to locate the
husband. Section 3 provides that where a wife files petition for divorce under this ground,
she is required to give the names and addresses of all such persons who would have been
the legal heirs of the husband upon his death. The court issues notices to all such persons
appear before it and to state if they have any knowledge about the missing husband. If
nobody knows then the court passes a decree to this effect which becomes effective only
after the expiry of six months. If before the expiry, the husband reappears, the court shall
set aside the decree and the marriage is not dissolved.

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# That the husband has neglected or has failed to provide for her maintenance for a
period of two years: it is a legal obligation of every husband to maintain his wife, and if
he fails to do so, the wife may seek divorce on this ground. A husband may not maintain
his wife either because he neglects her or because he has no means to provide her
maintenance. In both the cases the result would be the same. The husband's obligation to
maintain his wife is subject to wife's own performance of matrimonial obligations.
Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to
get a judicial divorce on the ground of husband's failure to maintain her because her own
conduct disentitles her from maintenance under Muslim law.

# That the husband has been sentenced to imprisonment for a period of seven years
or upwards: the wife's right of judicial divorce on this ground begins from the date on
which the sentence becomes final. Therefore, the decree can be passed in her favour only
after the expiry of the date for appeal by the husband or after the appeal by the husband
has been dismissed by the final court.

# That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years: the Act does define 'marital obligations of the
husband'. There are several marital obligations of the husband under Muslim law. But for
the purpose of this clause husband's failure to perform only those conjugal obligations
may be taken into account which are not included in any of the clauses of Section 2 of
this Act.

# That the husband was impotent at the time of the marriage and continues to be so:
for getting a decree of divorce on this ground, the wife has to prove that the husband was
impotent at the time of the marriage and continues to be impotent till the filing of the suit.
Before passing a decree of divorce of divorce on this ground, the court is bound to give to
the husband one year to improve his potency provided he makes an application for it. If
the husband does not give such application, the court shall pass the decree without delay.
In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the
ground of impotency. The husband made an application before the court seeking an order
for proving his potency. The court allowed him to prove his potency.

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# If the husband has been insane for a period of two years or is suffering from
leprosy or a virulent veneral disease: the husband's insanity must be for two or more
years immediately preceding the presentation of the suit. But this act does not specify that
the unsoundness of mind must be curable or incurable. Leprosy may be white or black or
cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease
of the sex organs. The Act provides that this disease must be of incurable nature. It may
be of any duration. Moreover even if this disease has been infected to the husband by the
wife herself, she is entitled to get divorce on this ground.

# That she, having been given in marriage by her father or other guardian before
she attained the age of fifteen years, repudiated the marriage before attaining the
age of eighteen years, provided that the marriage has not been consummated;

# That the husband treats her with cruelty, that is to say-

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical ill treatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the
injunctions of the Holy Quran.

In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she
wanted to take admission in a college for medical studies. She needed money for her
studies. Syed Ziaudddin promised to give her money provided she married him. She did.
Later she filed for divorce for non-fulfillment of promise on the part of the husband. The
court granted her divorce on the ground of cruelty. Thus we see the court's attitude of
attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar
Shah, a case from Lahore High Court, the husband sold the ornaments of the wife with
her consent. It was submitted that the husband's conduct does not amount to cruelty.

In Aboobacker v. Mamu koya, the husband used to compel his wife to put on a sari and

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see pictures in cinema. The wife refused to do so because according to her beliefs this
was against the Islamic way of life. She sought divorce on the ground of mental cruelty.
The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty
because mere departure from the standards of suffocating orthodoxy does not constitute
un-Islamic behaviour.

In Itwari v. Asghari, the Allahabad High Court observed that Indian Law does not
recognize various types of cruelty such as 'Muslim cruelty', 'Hindu cruelty' and so on, and
that the test of cruelty is based on universal and humanitarian standards; that is to say,
conduct of the husband which would cause such bodily or mental pain as to endanger the
wife's safety or health.

Irretrievable Breakdown:
Divorce on the basis of irretrievable breakdown of marriage has come into existence in
Muslim Law through the judicial interpretation of certain provisions of Muslim law. In
1945 in Umar Bibi v. Md. Din , it was argued that the wife hated her husband so much
that she could not possibly live with him and there was total incompatibility of
temperaments. On these grounds the court refused to grant a decree of divorce. But
twenty five years later in Neorbibi v. Pir Bux, again an attempt was made to grant
divorce on the ground of irretrievable breakdown of marriage. This time the court granted
the divorce. Thus in Muslim law of modern India, there are two breakdown grounds for
divorce: (a) non-payment of maintenance by the husband even if the failure has resulted
due to the conduct of the wife, (b) where there is total irreconcilability between the
spouses.

Conclusion:
In contrast to the Western world where divorce was relatively uncommon until modern
times, and in contrast to the low rates of divorce in the modern Middle East, divorce was
a common occurrence in the pre-modern Muslim world. In the medieval Islamic world
and the Ottoman Empire, the rate of divorce was higher than it is today in the modern
Middle East. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500
women, the largest sample on marriage in the Middle Ages, and found that at least a third
of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with

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many marrying three or more times. According to Al-Sakhawi, as many as three out of
ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some
villages in western Java and the Malay peninsula had divorce rates as high as 70%.In
practice in most of the Muslim world today divorce can be quite involved as there may be
separate secular procedures to follow as well.

Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr,
both the original gift and any supplementary property specified in the marriage contract.
She is also given child support until the age of weaning, at which point the child's custody
will be settled by the couple or by the courts. Women's right to divorce is often extremely
limited compared with that of men in the Middle East. While men can divorce their
spouses easily, women face a lot of legal and financial obstacles. For example, in Yemen,
women usually can ask for divorce only when husband's inability to support her life is
admitted while men can divorce at will. However, this contentious area of religious
practice and tradition is being increasingly challenged by those promoting more liberal
interpretations of Islam.

*****
CHRISTIAN LAW OF MARRIAGE AND DIVORCE.
The Christian Marriage Act, 1872 deals with Christian marriage and the Divorce Act,
1869 deals with matrimonial remedies for parties to the marriage.

CHRISTIAN LAW OF MARRIAGE.

A Christian is one who professes the religion of Jesus Christ. Indian Christian
includes native converts to Christianity and their Christian descendants.

Persons competent to solemnise Marriage.

Under section 5 of the Indian Christian Act, 1872, the following persons are entitled to
solemnize the Christian marriage.
1. Any person who has received Episcopal ordination, provided that the marriage be
solemnized according to the rules, rites, ceremonies and customs of the Church of which
he is a Minister

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2. Any Clergyman of the Church of Scotland provided that such marriage be solemnized
according to the rules, rites, ceremonies and customs of the Church of Scotland;
(3) Any Minister of Religion licensed under this Act to solemnize marriages;
(4) A Marriage Registrar appointed under this Act;
(5) Any person licensed under this Act to grant certificates of marriage between Indian
Christians.

Conditions for Christian marriage.

1. Both or one of the parties to the marriage may be Christian.
2. Both the parties should be a major.
3. Bothe the parties should be sound mind.
4. Both the parties should not be within the degree of prohibited relationship.
5. Neither party has a spouse living at the time of marriage.
6. If the party is minor, the consent of father or guardian or mother is necessary.

Time and Place at which Marriages may be solemnized.

Under section 10 of this Act,
Every marriage under this Act shall be solemnized between the hours of six in the
morning and seven in the evening.
The Christian marriage may be solemnized at particular church or any other
dwelling place which is prepared by the parties to the intended marriage.

1. MARRIAGES SOLEMNIZED BY MINISTERS OF RELIGION LICENSED

UNDER THIS ACT.
Notice of intended marriage.—
Whenever a marriage is intended to the solemnized by a Minister of Religion
licensed to solemnize marriages under this Act—
One of the persons of intending marriage shall give notice in writing to the
Minister of Religion whom he or she desires to solemnize the marriage, and shall state
therein—
(a) the name and surname, and the profession or condition, of each of the persons
intending marriage
(b) the dwelling-place of each of them

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 (c) the time during which each has dwelt there
(d) the church or private dwelling in which the marriage is to be solemnized
Provided that, if either of such persons has dwelt in the place mentioned in the notice
during more than one month, it may be stated therein that he or she has dwelt there one
month and upwards.

Publication of such notice.

If the persons intending marriage desire it to be solemnized in a particular church,
and if the Minister of Religion to whom such notice has been delivered be entitled to
officiate therein, he shall cause the notice to be affixed in some conspicuous part of such
church.
Return or transfer of notice.
But if he is not entitled to officiate as a Minister in such church, he shall, at his
option, either return the notice to the person who delivered it to him, or deliver it to some
other Minister entitled to officiate therein, who shall thereupon cause the notice to be
affixed as aforesaid.

Notice of intended marriage in private dwelling.

If it be intended that the marriage shall be solemnized in a private dwelling, the
Minister of Religion, on receiving the notice prescribed in section 12, shall forward it to
the Marriage Registrar of the district, who shall affix the same to some conspicuous place
in his own office.

Sending copy of notice to Marriage Registrar when one party is a minor.—

When one of the persons intending marriage is a minor, every Minister receiving
such notice shall send a copy of such notice to the Marriage Registrar of the district, or, if
there be more than one Registrar of such district, to the Senior Marriage Registrar.
The Marriage Registrar or Senior Marriage Registrar, as the case may be, on receiving
any such notice, shall affix it to some conspicuous place in his own office.

Issue of certificate of notice given and declaration made.

One of the persons intending marriage has appeared personally before the Minister
and made a solemn declaration—

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(a) that he or she believes that there is not any impediment of kindred or affinity, or other
lawful hindrance, to the said marriage and
(b) when either or both of the parties is or are a minor or minors that the consent or
consents required by law has or have been obtained thereto

After declaration, the Minister of Religion issue under his hand a certificate of such
notice for intended marriage.

Provided that no such certificates shall be issued until the expiration of four days after the
date of the receipt of the notice by such Minister.

In the case of minor marriage, no such certificates shall be issued until the expiration of
four days after the date of the receipt of the notice by such Minister.

Solemnization of marriage
After the issue of the certificate by the Minister, marriage may be solemnized
between the persons according to such form or ceremony as the Minister thinks fit to
adopt.
Provided that the marriage be solemnized in the presence of at least two
witnesses besides the Minister.

If the marriage is not solemnised within two months from the date of the
issue of the certificate, it becomes void and fresh notice is to be served.

2. MARRIAGES SOLEMNIZED BY MARRIAGE REGISTRAR

Notice of intended marriage to Marriage Registrar:
When a marriage is intended to be solemnized by a Marriage Registrar, one of
the parties to such marriage shall give notice in writing to any Marriage Registrar of the
district within which the parties have dwelt, or is the parties dwell in different districts,
shall give the like notice to a Marriage Registrar of each district.

The notice shall state the name and surname, and the profession or condition
of each of the parties intending marriage, the dwelling-place of each of them, the time

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during which each has dwelt therein, and the place at which the marriage is to be
solemnized.
Provided that, if either party has dwelt in the place stated in the notice for more
than one month, it may be stated therein that he or she has dwelt there one month and
upwards.

Publication of notice.—
Every Marriage Registrar shall affix a copy of the notice in some
conspicuous place in his office.
When one of the parties intending marriage is a minor, every Marriage
registrar shall, within twenty-four hours after the receipt by him of the notice of such
marriage, send a copy of such notice to each of the other Marriage Registrars(if any) in
the same district, who shall likewise affix the copy in some conspicuous place in his own
office.

Notice to be filed and copy entered in Marriage Notice Book.—

The Marriage Registrar shall enter true copy of all such notices in a book, which
is called the" Marriage-Notice Book.
The Marriage Registrar shall issue under his hand a certificate of such notice
having been given.
Provided that the certificate has been issued four days after the receipt of the
notice have expired.
Provided that one of the parties intending marriage is a minor, the certificate
have been issued fourteen days after the receipt of the notice have expired.

Oath before issue of certificate.— The certificate shall not be issued by any Marriage
Registrar, until one of the parties intending marriage appears personally before such
Marriage Registrar, and makes oath—
(a) that he or she believes that there is no any impediment of kindred or affinity, or
other lawful hindrance, to the said marriage,
and
(b) that the party making such oath has usual place of abode within the
district of such Marriage Registrar,

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 and,
(c) where either or each of the parties is a minor, that the consent or consents
to such marriage required by law has or have been obtained thereto.

Solemnization of marriage after issue of certificate.—

After the issue of the certificate of the Marriage Registrar, marriage may be
solemnized between them, according to such form and ceremony as they think fit to
adopt. But every such marriage shall be solemnized in the presence of Marriage Registrar
and of two or more credible witnesses and each of the parties shall say to the other as
follows or to the like effect:-

“ I call upon these persons here present to witness that I, A.B., do take thee, C.D., to
be may lawful wedded wife (or husband)".

When marriage not had within two months after notice, new notice required:
Whenever a marriage is not solemnized within two months after the copy of
the notice has been entered by the Marriage Registrar, the notice and the certificate shall
be void and fresh notice is to be served.

Registration of marriages
After the solemnization of any marriage, the Marriage Registrar shall register the
marriage in duplicate; that is to say, in a marriage register-book, according to the form of
the Fourth Schedule and also in a certificate attached to the marriage-register-book as a
counterfoil.

The entry of such marriage in both the certificate and the marriage-register-book
shall be signed by the person by or before whom the marriage has been solemnized, if
there be any such person, and by the Marriage Registrar present at such marriage, whether
or not it is solemnized by him, and also by the parties married and attested by two
credible witnesses other than the Marriage Registrar and person solemnizing the
marriage..

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MARRIAGE OF INDIAN CHRISTIANS.
Conditions for marriages of Indian Christians —
Every marriage between Indian Christians applying for a certificate, shall, without the
preliminary notice required, be certified, if the following conditions be fulfilled, and to
otherwise: —
(1) the age of the man intending to be married shall not be under twenty-one years, and
the age of the woman intending to be married shall not be under eighteen years;
(2) neither of the persons intending to be married shall have a wife or husband still
living;
(3) in the presence of a person licensed under this Act, and of at least two credible
witnesses other than such person, each of the parties shall say to the other—
I call upon these persons here present to witness that, I, A.B., in the presence of
Almighty God, and in the name of our Lord Jesus Christ, do take thee, C.D., to be any
lawful wedded wife or husband" or words to the like effect:
The Marriage Officer, before whom the declaration has been made, shall grant a
certificate of marriage and entries shall be made in the Register-Book maintained for this
purpose.

MATRIMONIAL REMEDIES UNDER “DIVORCE ACT, 1869”

A. Grounds for dissolution of marriage.
Any marriage solemnized, whether before or after the commencement* of the
Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District
Court either by the husband or the wife, be dissolved on the ground that since the
solemnization of the marriage, the respondent
(i) has committed adultery; or
(ii) has ceased to be Christian by conversion to another religion; or
(iii)has been incurably of unsound mind for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(iv) has, for a period of not less than two years immediately preceding the presentation of
the petition, been suffering from a virulent and incurable form of leprosy; or
(V) has, for a period of not less than two years immediately preceding the presentation of
the petition, been suffering from venereal disease in a communicable form; or

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(vi) has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had been
alive; or
(vii) has willfully refused to consummate the marriage and the marriage has not therefore
been consummated; or
has failed to comply with a decree for restitution of conjugal rights for a period of two
years or upwards after the passing of the decree against the respondent; or
(ix) has deserted the petitioner for at least two years immediately preceding the
presentation of the petition; or
(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in
the mind of the petitioner that it would be harmful or injurious for the petitioner to live
with the respondent.

Special grounds for wife:

A wife may also present a petition for the dissolution of her marriage on the ground
that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy
or bestiality.]

Dissolution of marriage by mutual consent

— Subject to the provisions of this Act, a petition for dissolution of marriage may be
presented to the District Court by both the parties to a marriage together, whether such
marriage was solemnized before or after the commencement* of the Indian Divorce
(Amendment) Act, 2001, on the ground that they have been living separately for a period
of two years or more, that they have not been able to live together and they have mutually
agreed that the marriage should be dissolved.
On the motion of both the parties made not earlier than six months after the date
of presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn by both the parties in the
meantime, the Court shall, on being satisfied, after hearing the parties and making such
inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the
petition are true, pass a decree declaring the marriage to be dissolved with effect from the
date of decree.]

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Decrees for dissolution to be nisi:
—Every decree for dissolution of marriage made by a High Court shall in the first
instance, be a decree nisi, not to be made absolute till after the expiration of such time,
not less than six months from the pronouncing thereof, as the High Court, by general or
special order from time to time, directs.

Petition for decree of nullity:

—Any husband or wife may present a petition to the District Court praying that his or
her marriage may be declared null and void.

Grounds of decree:
—Such decree may be made on any of the following grounds:
—(1) that the respondent was impotent at the time of the marriage and at the time of the
institution of the suit;
(2) that the parties are within the prohibited degree of consanguinity (whether natural or
legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage,
and the marriage with such former husband or wife was then in force. Nothing in this
section shall affect the 27 [jurisdiction of the District Court] to make decrees of nullity of
marriage on the ground that the consent of either party was obtained by force or fraud.

*****

THE SPECIAL MARRIAGE ACT, 1954.

Any two persons, who domiciled in India, can permit to marry under the
provisions of the Special Marriage Act, 1954. So therefore, this Act permits inter caste
marriage and inter religious marriage.

CONDITIONS AND FORMALITIES FOR VALID MARRIAGE:

1. Conditions for marriage
2. Notice for intended marriage
3. Objection to marriage
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 4. Declaration by Parties and Witnesses
5. Place and form of Marriage
6. Certificate of Marriage
7. New notice after lapse of three months

1. Conditions for Valid Marriage.

A marriage between the two persons may be solemnised under the Special
Marriage Act, 1954, if all the conditions specified in section 4 of this Act are fulfilled at
the time of marriage.
1. Neither party has a spouse living at the time of marriage. (monogamy)
2. Neither party is incapable of giving a valid consent to the marriage in
consequence of unsound mind (or) though capable of giving valid consent, has been
suffering from mental disorder of such kind or to such an extend as to be unfit for
marriage and the procreation of children (or) has been subject to recurrent attacks of
insanity
3. The male has completed the age of twenty one and the female has completed the
age of eighteen years at the time of marriage.
4. The parties are not within the degree of prohibited relationship unless the custom of
any one of the parties permits of a marriage between the two.

2. Notice for intended Marriage.

If a marriage is intended to be solemnised under this Act, the parties to the
marriage shall give notice of such marriage in writing in the form specified in second
scheduled of this Act to the Marriage Officer of the district in which atleast one of the
parties to the marriage has resided for a period of not less than thirty days immediately
preceding the date on which such notice is given. (Section 5)

As per section 6 of this Act:

Then the Marriage Officer shall keep such Notice with the records of his
office and shall also forth enter a true copy of such notice in a book prescribed for that
purpose, called “The Marriage Notice Book”. Such book shall be open for inspection at
all reasonable times, without fee by any person desires of inspecting the same.

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 Then the Marriage Officer shall affix a copy of such notice to some
conspicuous place in his office.
If any one of the parties to the intended marriage is not permanently residing
within the local limits of the district of the Marriage Officer to whom the notice has been
given under section 5, the Marriage Officer shall send a copy such notice to the Marriage
Officer of the district with in whose limits such party is permanently residing and that
Marriage Officer there upon affix such copy of notice to some conspicuous place in his
office.

3. Objection to Marriage (section 7)

Before the expiration of thirty days from the date of publication of such notice, any
person may object to the marriage on the ground that it would contravene one or more of
the conditions, which are necessary for valid marriage.

If there is no objection within 30 days from the date of publication of the notice, the
parties to the marriage may be allowed for marriage.
If there is any objection within 30 days from the date of publication of notice, it shall
record in writing by the Marriage Officer in the Marriage Note book and shall be signed
by the person who raised the objection.

If an objection is made to an intended marriage, the Marriage Officer shall not solemnise
the marriage until he has enquired into the matter of the objection and is satisfied that it
ought not to prevent the solemnisation of the marriage or the objection is withdrawn by
the person making.

Within 30 days from the date of objection, the Marriage Officer shall have take enquiry
into the objection and arriving at a conclusion or decision.

If the Marriage Officer uphold the objection and refused to solemnise the marriage, the
party to the intended marriage may prefer an appeal to the District Court within whose
jurisdiction the Marriage Officer has his office within 3o days from the of refusal of
marriage. Then the decision of District Court on such appeal shall be final and then the
Marriage Officer shall act in conformity with the decision of the Court.

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4. Declaration by Parties and Witnesses
Before the marriage is solemnised, the parties and three witnesses shall, in the presence of
a Marriage Officer, sign a declaration in the form specified in 3rd scheduled to this Act,
and the declaration shall be countersigned by the Marriage Officer.
Ex : (Marriage for Raghavan and Rohini)
Declaration to be made by the Bride groom:
I, Raghavan, hereby declared as follows:
1. I am at present unmarried.
2. I have completed 25 years.
3. I am not related to Rohini (bride) within the degree of prohibited relationship.
4. I am aware that if any statement in this declaration is false, I am liable to
imprisonment and also fine.
Signature of the Bridegroom
xxxxxx
Declaration to be made by the Bride :
I, Rohini, here by declared as follows:
1. I am at present unmarried.
2. I have completed 22 years.
3. I am not related to Raghavan (bride)within the degree of prohibited relationship.
4. I am aware that if any statement in this declaration is false, I am liable to
imprisonment and also fine.
Signature of the witnesses Signature of the Bride
1 Xxxxxxx xxxxxxx
2 Xxxxxxx
3 xxxxxxx
Signature of the Marriage Officer with seal

5. Place and form of Marriage

The marriage may be solemnised at the office of the Marriage Officer or
at such other place as the parties may desire.
The marriage may be solemnised in any form which the parties may
choose to adopt.

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 But marriage shall not be complete and binding on the parties unless each party says
to other in the presence of the Marriage Officer and three witnesses: ---
I take ----( Roghini) to be my lawful wife.
I take ----(Raghavan) to be my lawful husband.

6. Certificate of marriage.—
(1) When the marriage has been solemnized, the Marriage Officer shall enter a
certificate thereof in the form specified in the Fourth Schedule in a book to be kept by
him for that purpose and to be called the Marriage Certificate Book and such certificate
shall be signed by the parties to the marriage and the three witnesses.
(2) On a certificate being entered in the Marriage Certificate Book by the Marriage
Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a
marriage under this Act has been solemnized and that all formalities respecting the
signatures of witnesses have been complied with.

7. New notice after lapse of three months

Whenever a marriage is not solemnised within three months from the date of
notice of marriage, or
Whenever a marriage is not solemnised within three months from the date of
the decision of the district court in the case of an appeal filled under section 8 (2), the
notice and all other proceedings arising from the Marriage Notice shall be deemed to have
lapsed and no Marriage Officer shall solemnised the marriage until a new notice has been
given in the manner laid down in the Act.

MATRIMONIAL REMEDIES.
The main function of matrimonial remedies is to give protection to innocent
party. This Act provides five kinds of Matrimonial remedies. These are:
1. Restitution of conjugal Rights.
2. Judicial Separation
3. Divorce
4. Divorce by Mutual consent
5. Annulment of marriage by decree of nullity.

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1. Restitution of conjugal Rights.
If any one of the party to the marriage has withdrawn the conjugal society
without any reasonable causes, the other party to the marriage is entitled to file petition to
the District Court for conjugal society.
If the court is satisfied that the statements in the petition is true and there is no
legal ground for not granting the decree for conjugal right, the court granted decree for
conjugal rights for petitioner.

2. Judicial Separation.
A petition for judicial separation may be presented to the district court either by
the husband or the wife,—
(a) on any of the grounds for divorce might have been presented; or
(b) on the ground of failure to comply with a decree for restitution of conjugal rights.
The court, on being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be granted, may decree
judicial separation accordingly.
Where the court grants a decree for judicial separation, it shall be no longer
obligatory for the petitioner to cohabit with the respondent, but the court may, on the
application by petition of either party and on being satisfied of the truth of the statements
made in such petition, rescind the decree if it considers it just and reasonable to do so.

3. Divorce.
A petition for divorce may be presented to the district court either by the
husband or the wife on the ground that the respondent—
(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse;
or
(b) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition;

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as
defined in the Indian Penal Code

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 (d) has since the solemnization of the marriage treated the petitioner with cruelty;
or
(e) has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.
or
(f) has been suffering from venereal disease in a communicable form];
or
(g) has been suffering from leprosy, the disease not having been contacted from the
petitioner;
or
(h)has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had been
alive;

Special grounds for wife.

A wife may also present a petition for divorce to the district court on the ground,—
(i) that her husband has, since the solemnization of the marriage, been guilty of
rape, sodomy or bestiality;
(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act,
1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 , a
decree or order, as the case may be, has been passed against the husband awarding
maintenance to the wife and that since the passing of such decree or order, cohabitation
between the parties has not been resumed for one year or upwards.

Further grounds for divorce:

Either party to a marriage, whether solemnized before or after the
commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may
present a petition for divorce to the district court on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for judicial
separation in a proceeding to which they were parties; or

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 (ii) that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for restitution
of conjugal rights in a proceeding to which they were parties.

4. Divorce by Mutual consent

Subject to the provisions of this Act and to the rules made there under, a
petition for divorce may be presented to the district court by both the parties together on
the ground that they have been living separately for a period of one year or more, that
they have not been able to live together and that they have mutually agreed that the
marriage should be dissolved.
On the motion of both the parties made not earlier than six months after the
date of the presentation of the petition and not later than eighteen months] after the said
date, if the petition is not withdrawn in the meantime, the district court shall, on being
satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized under this Act, and that the averments in the petition are
true, pass a decree declaring the marriage to be dissolved with effect from the date of the
decree.

5. Annulment of marriage by decree of nullity.

This relief is available only to void and voidable marriage.
Void marriages.—
Any marriage solemnized under this Act shall be null and void and may, be so
declared by a decree of nullity if—
(i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been
fulfilled;
or
(ii) the respondent was impotent at the time of the marriage and at the time of
the institution of the suit.

Voidable Marriage
Any marriage solemnized under this Act shall be voidable and may be annulled by a
decree of nullity if,—

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 (i) the marriage has not been consummated owing to the willful refusal of the
respondent to consummate the marriage;
or
(ii) the respondent was at the time of the marriage pregnant by some person other than
the petitioner Provided that, the court shall not grant a decree unless it is satisfied,—
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(b) that proceedings were instituted within a year from the date of the marriage;
(c) that marital intercourse with the consent of the petitioner has not taken place
since the discovery by the petitioner of the existence of the grounds for a decree
(iii). the consent of either party to the marriage was obtained by coercion or fraud, as
defined in the Indian Contract Act, 1872. Provided further that the court shall not grant a
decree if,—
(a) proceedings have not been instituted within one year after the coercion had
(b) ceased or, as the case may be, the fraud had been discovered; or
(b)the petitioner has with his or her free consent lived with the other party to the
marriage as husband and wife after the coercion had ceased or, as the case may be, the
fraud had been discovered.

*****

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 UNIT – 3
LAW OF ADOPTION.
Introduction to Law of Adoption:
Adoption is not recognized by the Mohammedan law and Parsi law. But it is recognized
by Hindu law unless it is prohibited by custom or usage of particular caste or family.

Hindu law of adoption have been study in two different categories, these are,
1. Hindu law of adoption prior to the passing of “The adoption and
Maintenance Act, 1956”
2. Hindu law of adoption after the passing of “The adoption and
Maintenance Act, 1956

1. HINDU LAW OF ADOPTION PRIOR TO THE PASSING OF “THE

ADOPTION AND MAINTENANCE ACT, 1956
Different form of Adoption: The ancient Hindu law recognized five kinds of adoption.
1. Dattaka

2. Kritrima

3. Dwyamushyayana

4. Illatom adoption

5. Customary form of adoption

1.Dattaka Adoption
This type of adoption was prevalent in all over the India. In this kind of
adoption, the son was given in adoption by parents to a sonless person by the
performance of religious ceremonies (Datta homam).

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 2.Kritrima Adoption:
This type of adoption was prevalent in Mithila and the adjourning districts and it is
recognized by law. In this type of adoption, the son was given to male or female
without performance of any ceremonies. The main elements of this adoption are:

1. The consent of the adopted son was necessary for validity. But if the son was
minor, he could be given in adoption with the consent of parent.

2. The adopted son must belong to the same caste as the adoptive father.

3. Neither ceremonies nor documents were necessary for its validity.

4. A female could adopt a kritrima son for herself. The wife could adopt a son without
consent of her husband. The widow could adopt a son without the consent of husband’s
Sapinda. But the wife or widow could not adopt a kritrima son for her husband, even
though she has been expressly authorized to do so.

5. A kritrima son did not lose his rights of inheritance in his natural family. In the
adoptive family, he could inherit from his adoptive father only, but not from others.

3. Dwyamushyayana: (Dwyamushyayana means son of two persons)

If a person gives his son to another under an agreement that the son so given
should be considered to be the son of both the natural and adoptive father, the son so
given in adoption is called “Dwyamushyayana”

Incidents of Dwyamushyayana:
i.There must be an agreement.
ii.There must be ceremonies for giving and taking a son in adoption.
iii.The adopted son inherited property from both the natural and adoptive family.
iv.If the adopted son dies, his property is taken jointly and equally by the natural
v.and adoptive mother

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 4. Illatom adoption.
It is a customary form of adoption of a son in law. The motivation of this adoption
was purely secular to assist in agricultural operation and cultivation. This kind of
adoption was prevailed in state of Tamil Nadu and Andhra Pradesh.
Two essential conditions of this adoption are.
1. The adoptee must marry the daughter of the adopter.
2. There must be an agreement to give the adoptive a share in the property.

Incidents of Illatom adoption.

i.1.The adoption had no religious significance.
ii.The rights of the adopted son are purely depended up on the custom of the family.
iii.The adopted son could not prevent the adopter from disposing of his property at his
pleasure.
iv.At a partition of property, the adopted son acquired the same share as a son of the
adopter.
v.He did not loss his connection with his natural family.
vi.He did not loss his rights with his natural family.
vii.He and brother or sister was members of the natural family.

5. Customary Adoption.
This type of adoption was prevalent in Punjab. It is nothing but a mere
appointment of heir. It creates a personal relationship between the adoptive father and
adopted son only. It does not create any relationship between adopted son and the
collaterals of the adoptive father. Now this type of adoption is abolished by “The
Hindu Adoption And Maintenance Act, 1956”

Objects of Adoption.
The objects of adoption are two fold:
1. Religious object:
It secures the spiritual benefit of the adopter and his family by having a son for
the purpose of offering funereal cakes and libations of water to the names of the adopter
and his family.

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 2. Secular object:
It secures the heirship of the adopter and perpetuates the adopter’s name. The
religious object is primary important, where as the secular object is secondary
important.
When a son is given in adoption, it is called “Pudaradanam”, where as a daughter
is given in marriage, it is called “Kanyadanam”

Requirements of a valid adoption.

An adoption was said to be valid, if it fulfill the following four conditions,
1. The person adopting was lawfully capable of taking a son in adoption.
2. The person giving in adoption was lawfully capable of giving a son in
adoption.
3. The person adopted was lawfully capable of being taken in adoption.
4. The adoption was completed by an actual giving and taking through the performance
of “Datta Homam”

Person who may be lawfully take a son in adoption (who can adopt?)
1. If a male Hindu had no son, son’s son or son’s son’s son, he could alone adopt
a son.
2. A wife also could adopt a son only to her husband with his permission.
3. Any other female could not adopt a son for any other male relation.
4. Widow, in certain circumstances, could adopt a son for her deceased husband.
An unmarried Hindu woman could not adopt a son or daughter for herself.

A. Conditions for male Hindu to adopt:

1. He must be a sound mind.
2. He must have attained the age of discretion. Therefore, he attained the age of
15 years, even though he was minor.
3. He must have no son or son’s son or son’s son’s son living at the time of
adoption
4.Even though his wife didn’t give consent or the wife was pregnant at the time of
adoption, it didn’t prevent him to take a son in adoption.

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 B. Conditions for Hindu wife to adopt
A Hindu wife could adopt a son during the life time of her husband with the
consent of her husband only for her husband. She could not adopt a son for herself,
even though her husband had given authority to adopt a son for herself.

C. Conditions for Hindu widow to adopt

The law as to adoption by a widow was different in different States.
1. In Mithila, a widow could not adopt a son for her self or for her husband,
though she got permission from her husband.
2. In Bengal, Benaras and Madras, a widow could adopt a son for her husband if she
got an authority from her husband.
3. In Bombay, a widow can adopt a son for her husband without any authority
from her husband.

The adoption made by widow may be:

1. Adoption by widow by express authority from her husband
2. Adoption by widow by without authority from her husband

1. Adoption by widow by express authority from her husband

1. If the husband is sound mind and attained the age discretion, he can give
authority to his wife only to adopt a son after his death.
2. If such authority is given to wife jointly with others, it is void one.
3. If the husband direct the wife to adopt a son only with the consent of
specified person, she cannot adopt without his consent.

Authority to co-widows:
1. If there are more widows, the authority to adopt a son is given to any one of them or
some of them jointly or severely or all of them jointly or severely.
2. If such authority is given to one widow, she may adopt a son for her husband
without the consent of other widows.
3. If such authority is given to all the widows jointly, all of them take a son jointly. If
any one of the widows died before the adoption, the others cannot adopt a son.

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 4. If such authority is given to the widows severely, the senior widow has the prior
right to exercise the power of adoption. The junior widow has no authority to adopt unless
the senior widow refuses to do so.

Form of authority:
1. The authority may be given either orally or in writing.
2. If the authority is in writing, it must be registered unless it is made by will.
3. The authority may be with or without condition. If there is any conditional
authority, it must be legal and it must be strictly followed.
4. The authority so given may be revoked.

2. Adoption by widow without authority from her husband

In Madras and Bombay, the widow can adopt a son without authority from her husband.

1. Adoption by widow in Madras:

In Madras, the widow can adopt a son without authority from her husband subject to the
following conditions.
1. If there is any prohibition from her husband, she cannot adopt a son.
2. If the husband was separated at the time of his death, she must obtain the consent from
her father in law. If father in law is dead, she must obtain the consent from her husband’s
Sapinda.
3. If the husband was joining at the time of from his death, she must obtain the consent
her father in law. If father in law is dead, she must obtain the consent from her husband’s
brother or other co-parceners.
4. No fraud or force or misrepresentation is involved for that consent
5. The consent must be given without any consideration.
6. If there are two or more widows, the senior widow may adopt without the consent of
other widows.

Adoption by widow in Bombay:

1.If there is any prohibition from her husband, she cannot adopt a son.

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 2.If the husband was separated at the time of his death and the widow is entitled his
estate, she may adopt a son without the consent of her husband’s Sapinda.
3.If the husband was joint at the time of his death, she must obtain the consent her
husband’s undivided co-parceners.
4.If there are two or more widows, the senior widow may adopt without the consent of
other widows.

II). Persons lawfully capable of giving a son adoption:

The father and mother alone authorized to give his or her son in adoption provided that
they are sound and attain the age of discretion that is fifteen years. The parents are not
allowed to delegate their authority to any one.
A woman cannot give her illegitimate son in adoption.

Right of the Father:

The primary right to give in adoption was that of the father.

Right of the Mother:

The mother could not give her son adoption, while father was alive and capable of
consenting without his permission.
But if the husband was unsound or entered into religious order, she could give her son
in adoption provided that there was no prohibition by her husband.
Renunciation:
If a Hindu converted into another religion, it doesn’t loss his power of giving his
son in adoption.

III. Who may be taken in Adoption:

Any Hindu could be taken in adoption, provided that there are certain rules,
1. The person to be adopted must be male.
2. He must be belongs to the same caste.
3. He must be belongs to different Gotra.
4. He must be a sound person
5. A deaf and dumb could not but adopted.

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 6. He must not be boy a boy whose mother could not have legally married by adoptive
father.
7. In respect of Age, there was different view,
a) In Bengal, Benaras, Bihar and Orisa, the adoption must be made before
upanayana.
b) In Madras, the adoption is made after upanayana but before marriage.
.
Adoption of Daughter:
In Bombay and Calcutta, the adoption of daughter by a dancing girl is invalid,
even though the custom of such family allowed. Such custom is regarded as immoral.
In Madras, it is valid provided that the adoption is not for the purpose of prostitution.

IV. Act of Adoption and performance of Datta Homam

The ceremonies relating to an adoption are giving and taking.
1. The father gives his son to another with intention of giving in adoption.
2. The other person taking a son in adoption with intention of taking in adoption.
The performance of Datta Homam, that is oblation of butter to sacred fire, was not
necessary, if both the parties are same Gotra.

Cancellation of Adoption: It could not be cancelled.

Results of Adoption:
1. Adoption has the effect of transferring the adopted son from natural family to
adoptive family.
2. The adoptee gets the same right in the adopted family as like that of legitimate son of
the family.
3. Even though adopted son loss all rights in the natural family, it doesn’t severe the tie
of blood connection between him and the member of his natural family.
4. If a son is born after adoption, the adopted son is not entitled to get equal
share like that of natural son.
a). In Bengal, he gets 1/3 of adoptive father’s estate.
b). In Benaras, he gets 1/4 of adoptive father’s estate.
c). In Madras and Bombay, he gets 1/5 of adoptive father’s estate.

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 d). If the estate is impartiable estate, the aurasa son alone succeed to it.
e). But in sudras in Madras and Bengal, adopted son and after born son shared
equally.

LAW OF ADOPTION AFTER THE PASSING OF “THE HINDU ADOPTION

AND MAINTENANCE ACT, 1956”
This Act has made radical changes in the entire structure of the law of adoption. These
are,
1. This Act provides comprehensive and uniform law on the subject of adoption
applicable to Hindu throughout the country.
2. The adoption is mainly secular, but if a person wanted to adopt on religious way, he
will be allowed to do so.
3. This Act provide to adopt a son or a daughter.
4. Like that of male, under this Act, a female may adopt a child for herself.
5. Under this Act, a married male adopt a child only with the consent of his wife unless
exemption provided under this Act.
6. under this Act, apart from parents, but the guardian may be permitted to give a child
in adoption with previous permission of the court.
7. Under this Act, it is not necessary that the adopter and the adoptee should belongs to
same caste.
8. Unlike that of the old law, but under this Act, if a male Hindu adopts a daughter, he
must be atleast 21 years older than the adoptive daughter. If a female Hindu adopts a
son, she must be atleast 21 years older than the adoptive son.
9. Unlike that of the old law, but under this Act, the “Doctrine of Relation back” is
unknown.
10. Unlike that of the old law, but under this Act, whatever the form of adoption, it was
marked by formalities prescribed by this Act.

Requisites for Valid Adoption (section 6)

As per section 6 of this Act, there are four requisites for valid adoption, these are,
1. The person taking a child in adoption is lawfully capable of take a child in adoption.
2. The person giving a child in adoption is lawfully capable of give a child in adoption.
3. The person adopted is lawfully capable of being taken in adoption.

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 4. The adoption is made in compliance with other conditions specified in this Act which
includes actual giving and taking a child in adoption.

Condition No:1- Who can adopt a child?

Under this Act, both male and female adopt a son or daughter for himself or herself.

Adoption by male Hindu:

Under section 7 of this Act, a male Hindu adopt a child if he is lawfully capable of
take a son or daughter in adoption provided that some conditions are fulfilled.
1. He must be sound person.
2. He is not minor.
3. If he has a wife living, he shall not adopt except with the consent of his wife unless
the wife has completely and finally renounced the world or has ceased to be a Hindu or
has been declared by a court of competent jurisdiction to be of unsound mind.
Note: If he has more than one wife the consent of all the wives is necessary unless they
comes in the above exemptions.
4. If he desires to adopt a son, he must have no son or son’s son or son’s son’s son at the
time of adoption. (Section-11)
5. If he desires to adopt a daughter, he must have no daughter or son’s daughter at the
time of adoption. (Section-11)
6. If he desire to adopt a daughter, he must be atleast twenty one years older than
adoptive daughter at the time of adoption.(section11)

Adoption by female Hindu

As section 8 of this Act, a female Hindu adopt a child if he is lawfully capable of take a
son or daughter in adoption provided that some conditions are fulfilled.
1. She is sound person.
2. She is not minor.
3. She is not married or if married whose marriage has been dissolved or whose
husband is dead or has completely and finally renounced the world or has ceased to be a
Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
4. If she desires to adopt a son, she must have no son or son’s son or son’s son’s son at
the time of adoption. (Section-11)

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 5. If she desires to adopt a daughter, she must have no daughter or son’s daughter at the
time of adoption. (Section-11)
6. If he desire to adopt a son, she must be atleast twenty one years older than adoptive
son at the time of adoption.(section11)

Condition No:2- Who can give adoption? (Section 9)

As per section 9 of this Act, the following persons are entitled to give a child in
adoption.
1. Father
2. Mother
3. Guardian

Father’s right to give a child in adoption

The parents are alive, the right of the father is dominant, but it is not absolute,
but qualified.
As per section 9, the father can give his son or daughter in adoption provided that
some conditions are fulfilled.
1. He is sound person.
2. He is not minor.
3. He must get the consent of the mother if she is living at the time of adoption unless
the mother has completely and finally renounced the world or has ceased to be a Hindu
or has been declared by a court of competent jurisdiction to be of unsound mind.

Mother’s right to give a child in adoptions

So long as father is alive and capable of consenting, the mother has no right to
give her child in adoption, though her husband give her a consent to give a child in
adoption.
As per section 9 of this Act, the mother can give her son or daughter in adoption
provided that some conditions are fulfilled.
1. She is not unsound mind
2. She is not minor

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 3. The father of the child is dead or has completely and finally renounced the world or
has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be
of unsound mind.
4. The step mother and adoptive mother cannot give a child in adoption.

Guardian’s right to give a child in adoptions

As per section 9 of the Act, the guardian has right to give the child in adoption
provided that some conditions must be fulfilled. These are,
Both the father and mother are dead or both the parents has completely and finally
renounced the world or both the has ceased to be a Hind or both the parents has been
declared by a court of competent jurisdiction to be of unsound mind or Where the
parentage of the child is unknown.
The term guardian includes testamentary guardian or the guardian appointed or
declared by a court. If the adoption is welfare of the child, the court grants permission
to give the child in adoption.

Condition No 3- Who may be taken in adoption ( Section 10)

The person adopted is lawfully capable of taken in adoption. As per section 10, no
person shall be capable being taken in adoption unless the following four conditions are
fulfilled.
1. He or she is a Hindu.
2. He or she has not been already adopted.
3. He or she has not been married unless the custom or usage of the parties permits
such adoption.
4. He or she has not completed the age of fifteen unless the custom or usage of the
parties permits such adoption.
Condition No: 4- other conditions including actual giving and taking
As per section 11 of this Act,
1. The same child may not be adopted simultaneously by two or more persons.
2. The child to be adopted must be actually given and taken in adoption by the parents
or guardian with intent to transfer the child from the family of its birth to family of its
adoption.

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 3. The performance of datta homam shall not be essential to the validity of an
adoption.

Effects of adoption:
As per section 12 of the Act,
1. From the date of adoption, the adopted child shall be deemed to the child of the
adoptive father and mother for all purposes.
2. From the date of the adoption, all the ties of the adopted child in the family of his or
her birth shall be deemed to be severed and replaced by those created by the adoption in
the adoptive family.
3. The child cannot marry any person whom he or she could not have married if he or
she had continued in the family of his or her birth.
4. Any property which vested in the adopted child before the adoption shall continue to
vest in such person.
5. The adopted child shall not divest any person of any estate which vested in him or
her before the adoption.

Rights of adopted father or mother to dispose of their property (sec.13)

In the absence of any agreement to the contrary, after adoption, the adopted child has no
right to deprive the adoptive father or mother to dispose of his or her property by
transfer inter vivos or by will.

Determination of adoptive mother in certain cases: (section 14)

1. If a male has a wife living at the time of adoption, she shall be deemed to be the
adoptive mother.
2. If a male Hindu has number of wives and adoptive a child with the consent of all the
wives, the senior most in marriage among them shall be deemed to be the adoptive
mother and others to be step-mother.
3. If a widower or bachelor adopts a child and married subsequently, such wife shall be
deemed to be the step-mother of the adopted child.
4. If a widow or unmarried girl adopts a child and married subsequently, such husband
shall be deemed to be the step-father of the adopted child.

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Valid Adoption not to be cancelled (section 15)
No adoption can be cancelled by adoptive father or mother or other person nor the
adopted child can renounce his or her status as such and return to the family of his or
her birth.
*****
MUSLIM LAW OF LEGITIMACY.
Legitimacy is a status which directly results from the fact of paternity of a child. When
the paternity of a child is established, its legitimacy is also established. Basis of
legitimacy is paternity which depends upon the existence of a marriage. Therefore, under
Muslim law the legitimacy of a child is established by a direct or indirect proof of
marriage between the father and mother of the child. In cases where no direct proof of
marriage is available, the existence of a lawful marriage may be presumed by:
(i) A prolonged cohabitation of a man and a woman (not prostitute), or
(ii) By the fact that a man acknowledges a woman as his wife, or
(iii) By the fact that man acknowledges himself as father of a child.

Thus, we find that the basis of legitimacy under Muslim law is the existence of marriage
and the marriage itself may be presumed when a man acknowledges paternity to a child
bom to a woman (wife). It may be said that the marriage between a man and woman and
the legitimacy of their off-springs are corelated.

The object of a Muslim marriage is to legalise intercourse and to legitimatise the issues.
In Habibur Rahman v. Altaf Ali, the Privy Council while explaining the Muslim law of
legitimacy observed:

“A son to be legitimate must be the off-spring of a man and his wife….; any other off-
spring is the off-spring of Zina that is illicit connection, and cannot be legitimate. The
term ‘wife’ necessarily connotes marriage; but as marriage may be constituted without
any ceremonial, the existence of a marriage in any particular case may be an open
question. Direct proof may be available but if there be no such (direct proof), indirect
proof may suffice. Now, one of the ways of indirect proof is by an acknowledgement of
legitimacy in favour of a son.”

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It is to be noted that acknowledgement here means a declaration ascertaining the paternity
where, although the marriage exists but the child’s paternity is doubtful because there is
no direct proof of the marriage under Muslim law. An acknowledgement cannot
legitimatise a child who is proved to be illegitimate.

‘Acknowledgement of Paternity’ under Muslim Law:

Where the paternity of a child, i.e., its legitimate descent from its father, cannot be proved
by establishing a marriage between its parents at the time of its conception or birth, such
marriage and legitimate descent may be established by “acknowledgement”.
An acknowledgement of paternity need not be express. Such an acknowledgement may
be presumed from the fact that one person has habitually and openly treated another as his
legitimate child. As observed by the Privy Council, “It has been decided in several cases
that there need not be proof of an express acknowledgement, but that an
acknowledgement of children by a Muhammadan as his sons may be inferred from his
having openly treated them as such.” (Muhammad Azmat v. Lalli Begum 1881 9 I.A. 8)

Paternity of a child is established if the child is born during continuance of a valid

marriage or within 280 days of its dissolution, the mother remaining unmarried.
Maternity of a child is established in the woman who gives birth to the child; it is
immaterial whether the child is an offspring of a valid or irregular marriage, or even of a
fornication or adultery.

Principle of the Doctrine of Legitimacy by Acknowledgement:

This is a special mode prescribed by Muhammadan law for establishing the legitimacy of
a child and the marriage of its mother. Since a marriage among Muslims may be
constituted without any ceremony, the existence of a marriage in a particular case may be
an open question. If no direct proof of such marriage is available, indirect proof may be
relied upon. Acknowledgment of legitimacy of a child is one of the kinds of indirect
proof.

Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate

child, the paternity of that child is established in him. But the doctrine applies only to
cases where the fact of an alleged marriage is an uncertainty.
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It cannot be availed of to legitimise a child who is known to be illegitimate. The doctrine
of legitimacy by acknowledgement proceeds entirely upon an assumption of legitimacy
and establishment of legitimacy by the force of such acknowledgement.

Conditions of a Valid Acknowledgement of Legitimacy:

Muhammadan law prescribes a special mode of establishing the legitimacy of a child.
When a man either expressly acknowledges, or treats in a manner tantamount to
acknowledgement of, another as his lawful child, the paternity of that child will be
established in the man, provided that the following seven conditions are fulfilled:
1. The acknowledger must possess the legal capacity for entering into a valid contract.
2. The acknowledgement must not be merely of sonship, but of legitimate sonship.
3. The ages of the acknowledger and the acknowledged must be such as to admit of the
relation of parentage, i.e., the acknowledger must be at least twelve-and-a-half years older
than the person acknowledged.
4. The person to be acknowledged must not be the offspring of intercourse which would
be punishable under Muhammadan law, e.g., adultery, incest or fornication.
5. The parentage of the person to be acknowledged must not be unknown, i.e., the child to
be acknowledged must be known to be the child of some other person.
6. The acknowledged person must believe himself (or herself) to be the acknowledger’s
child, and the child must verify (or at least must not repudiate) the acknowledgement.
7. The acknowledger should be one who could have lawfully been the husband of the
mother of the child, when it was begotten. Thus, where there is direct proof that there was
no marriage between the man and the mother of the child, or that if there was such a
marriage between them, it would have been void, and then the presumption of legitimacy
cannot be raised by acknowledgement, however strong such presumption may be. (Rashid
Ahmed v. Anisa Khatun, (1932) 34 Bom L.R. 475 PC. 59 I.A. 21)
In Rashid Ahmed’s case, A, a Muslim, divorced his wife B, by three pronouncements of
talak, but afterwards, continued to cohabit with her, and to treat her as his wife for fifteen
years. During this period, five children were born to them, all of whom he treated as his
legitimate children.
However, the Privy Council held that the children were illegitimate. In this case of
divorce by three pronouncements, before A and В could remarry, В should have been
married to another man in the interval and divorced by that man.

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As there was no proof of such marriage with another man and a divorce by him, a
presumption of remarriage between A and В could not be raised, and hence, the children
were held to be illegitimate, and could not inherit from their father.
The observations of the Allahabad High Court on acknowledgement of paternity in
Muhammad Allahabad v. Muhammad Ismail (1888-10- All. 289) are relevant. In that
case, the Court observed:
“The Muhammadan law of acknowledgement of parentage, with its legitimating effect,
has no reference whatsoever to cases in which the illegitimacy of the child is proved and
established, either by reason of a lawful union between the parents of the child being
impossible (as in the case of an incestuous intercourse or an adulterous connection), or by
reason of a marriage, necessary to render the child legitimate, being disproved.
The doctrine relates only to cases where either the fact of the marriage itself or the exact
time of its occurrence with reference to the legitimacy of the acknowledged child is not
proved in the sense of law, as distinguished from disproved. In other words, the doctrine
applies only to cases of uncertainty as to legitimacy, and in such cases, acknowledgement
has its effect, but that effect always proceeds upon the assumption of a lawful union
between the parents of the acknowledged child.”

*****

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 UNIT-4
THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956.
The law relating to minority and guardianship among Hindu have been studies in
two different categories, these are,
A. Minority and Guardianship prior to the Hindu Minority and Guardianship Act,
1956
B. Minority and Guardianship according to the Hindu Minority and Guardianship
Act, 1956

A. MINORITY AND GUARDIANSHIP PRIOR TO THE PASSING OF THE

HINDU MINORITY AND GUARDIANSHIP ACT, 1956
Before the passing of the Indian Majority Act, 1875, there is a difference of
opinion among the Hindu writers as to the age of majority under Hindu law. In Bengal,
minor means a person who has not attain the age of fifteen years and so the minority
terminates on the completion of fifteen years. In other states, minor means a person who
has not attain the age of sixteen years and so the minority terminates on the completion of
sixteen years.

After the passing of the Indian Majority Act, 1875, there is no difference of opinion
as to the age of majority. According to this Act, minor means a person who has not
attain the age of eighteen years. But if a court appoint a guardian for the person of the
minor or property of the minor or both custody and property, minor means a person
who has not attain the age of twenty one years. This definition is applicable to all
persons domiciled in India and to all maters except marriage, Mahr and divorce in
Muslim and adoption in Hindu.

KINDS OF GUARDIANS.
There are four types guardian in ancient time. These are,
a). Natural Guardian
b). Testamentary Guardian
c). Court Guardian
d). Defacto Guardian

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 a) Natural Guardian:
A natural guardian is one who doesn't require the support of any authority or
order of the court to function as a natural guardian. Under Hindu law, the father and
mother are natural guardian of minor person for custody and separate property of the
minor person.
As between the father and mother, the father had priority. During the life time of
the father, the mother could not act as a guardian. After the death of the father, the
mother could act as a natural guardian unless the father appointed another person as a
guardian for his minor child under will. Even if the father refused to act as a guardian or
had disabled himself for his conduct to act as a guardian, the mother may not be entitled
to regarded as a natural guardian for that reasons unless the court appoint the mother as
a guardian during the life time of the father.
After the death of the father, the mother acts as a natural guardian for her minor
children. Her remarriage did not prevent the mother to act as a natural guardian. Even
though, the natural guardian converted to another religion, he or she continued to act as
natural guardian.
The mother was natural guardian of her illegitimate children except the father of
the children was ascertained. In regard to an adopted son, the adoptive father and
mother was natural guardian. The husband was natural guardian for his minor wife.

Guardianship in regards to joint family property:

If the minor was a member of Hindu joint family and he had any interest in the
joint family property, the Karta of the joint family was the guardian of that interest. If
the father was the Karta, he was the guardian for minor’s interest in joint family
property. If the father died, the eldest son acted as a guardian. If all the sons were
minor, the court appoint guardian till any one of the sons attained the age of majority.
The Karta or father was not entitled to appoint testamentary guardian for his minor son.
The mother was not entitled to act as guardian in respect of minor’s interest in joint
family property.

b) Testamentary guardian:
The father could appoint any person as a guardian for person or property or both of
his minor children by his will. The appointment made by father superseding the mother.

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 The mother had no power to appoint testamentary guardian. The husband also was not
competent to appoint a testamentary guardian for his minor wife.

c) Court guardian:
A court guardian is one who is appointed by the court under the Guardian and
Wards Act, 1890. In the absence of natural guardian and testamentary guardian, the
court appoint guardian for the person of the minor or his property or both.

d) Defacto guardian:
A Defacto guardian is one who, not being a natural guardian or testamentary
guardian or court guardian, voluntarily takes himself the care of the person of the minor
or his property or both as a guardian. An isolated act of a person in regards to person of
the minor or his property would not make him as a Defacto guardian. So there must be a
continuous course of conduct on his part to act as a guardian.

Powers of Natural guardian:

1. A natural guardian can perform all the acts which are reasonable and legal necessity
or the benefit of the minor or minor’s estate.
2. A natural guardian can sell or mortgage the minor’s estate for legal necessity or the
benefit of the minor or minor’s estate.
3. A natural guardian can enter into a compromise on the behalf of minor for legal
necessity or the benefit of the minor or minor’s estate.
4. A natural guardian can refer arbitration on the behalf of minor for legal necessity or
the benefit of the minor or minor’s estate.
5. A natural guardian can enter into a contract on the behalf of minor for legal
necessity or the benefit of the minor or minor’s estate.
6. A natural guardian can enter into any agreement on the behalf of minor for sale or
purchase of immovable property for legal necessity or the benefit of the minor or
minor’s estate.
The transactions made by guardian may be avoided by minor on attaining the age of
majority.

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 Powers of Testamentary guardian:
A testamentary guardian would have the same powers as a natural guardian unless
he would have such powers as are conferred upon him by the will from which he was
appointed as a testamentary guardian.

Powers of Court guardian:

A court guardian has no power tom alienate the minor’s property without previous
permission of the court. Alienation without such previous permission is voidable at the
instance of minor on attaint the age of majority.

Powers of Defacto guardian:

A Defacto guardian could alienate the minor’s property in case of need or legal
necessity or the benefit of the minor minor’s estate. An unauthorized alienation made
by a Defacto guardian was voidable at the instance of minor on attaint the age of
majority.

B. MINORITY AND GUARDIANSHIP AFTER THE PASSING OF THE HINDU

MINORITY AND GUARDIANSHIP ACT, 1956
Main changes made by the Hindu minority and guardianship Act, 1956:
After 1956, this Act has made several changes in the law of minority and
guardianship. Even though this Act has made several changes in the law of minority and
guardianship, the present law similar with earlier law in number of respects. These are:
1. Like that of earlier law, under the new law also, father and mother is natural
guardian.
2. Like that of earlier law, under the new law also, the husband acts as a natural
guardian for his minor wife.
3. Like that of earlier law, under the new law also, as between father and mother, the
father has priority to act as a natural guardian.
4. Like that of earlier law, under the new law also, the mother acts as a natural guardian
of her illegitimate children. But under the old law, if the father was ascertained, the
father acts as a guardian for his minor illegitimate children.
5. Like that of earlier law, under the new law also, the head of the joint family act as a
natural guardian of the minor’s interest in the joint family property.

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 However, this Act has made a number of material changes in the law of minority
and guardianship. These are,
1. Under the old law, from the date of birth of the child, the father was a natural
guardian for his minor child for custody and property. But under this Act, from the date
of birth, the father acts as a natural guardian in respect of minor’s property only. But in
respect of custody, the mother is entitled for custody of her minor child who has not
attained the age of five. If the child attains the age of five, the custody of the child
belongs to father.
2. Before the passing of the Act, if the father or mother converted from Hindu to another
religion or entered into sanyasam, it was not a bar to act as a guardian. But under this
Act, if the father or mother converted from Hindu to another religion or entered into
sanyasam, it is a bar to act as a guardian.
3. Unlike that of the earlier law, under the new Act, the natural guardian has not power
to alienate the property of the minor for legal necessity or for the benefit of the minor
4. Deviating from the earlier law, under the new Act, like that of father, the mother is
entitled to appoint a testamentary guardian for her minor children. Likewise, the new
Act enables the mother to appoint a testamentary guardian for her minor illegitimate
children.
5. Unlike that of the earlier law, under the new Act, no minor including husband can be
a guardian.
6. Unlike that of the earlier law, under the new Act does not recognize Defacto guardian
and their competency to deal with the minor’s property for legal necessity.

Definitions :
In this Act, –
(a) “Minor” means a person who has not completed the age of eighteen
years;
(b) “Major” means a person having the care of the person of a minor or of
his property or of both his person and property, and includes –
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to act as such by or under any enactment

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 relating to any court of wards;
(c) “natural guardian” means any of the guardians mentioned in section 6.

KINDS OF GUARDIAN UNER THE ACT:

There are three types of guardian under this Act. These are.
1. Natural Guardian
2. Testamentary Guardian
3. Court Guardian

1. Natural guardians of a Hindu minor (Section 6):

The natural guardians of a Hindu, minor, in respect of the minor’s person as well
as in respect of the minor’s property (excluding his or her undivided interest in joint
family property), are –
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and
after her, the father;
(c) in the case of a married girl – the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under
the provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi)
Explanation.—In this section, the expressions ‘father’ and ‘mother’ do not include a
step-father and a step-mother.

Mother as a natural guardian

In the phrase “the father and after him, the mother” the word ‘after’ need not
necessarily mean after the lifetime of father. In the context in which it appears in
section 6(a) it means “in the absence of”, the word ‘absence’ therein referring to the
father’s absence from the care of minor’s property or person for any reason whatsoever.
If the father is wholly indifferent to the matters of the minor or if by virtue of mutual

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 understanding between the parents, the mother is put exclusively in charge of the minor
or if the father is physically unable to take care of minor for any reason whatsoever, the
father can be considered to be absent and mother being a recognized natural guardian
can act validly on behalf of the minor as the guardian. Such an interpretation will keep
the statute within the constitutional limits otherwise the word ‘after’ if read to mean a
disqualification of a mother to act as guardian during lifetime of father the same would
violate one of basic principles of our constitution i.e. gender equality : Githa
Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.

Natural guardianship of adopted son (Section 7):

The natural guardianship of an adopted son who is a minor passes, on adoption,
to the adoptive father and after him to the adoptive mother.

Powers of natural guardian (Section 8):

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this
section, to do all acts which are necessary or reasonable and proper for the benefit of the
minor or for the realization, protection or benefit of the minor’s estate; but the guardian
can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the court,—
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the
immovable property of the minor or
(b) lease any part of such property for a term exceeding five years or for a term
extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-

section (1) or sub-section (2), is voidable at the instance of the minor or any person
claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts
mentioned in sub-section (2) except in case of necessity or for an evident advantage to
the minor.

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 Alienation of minor’s property
Alienation of minor’s property by natural guardian (Mother) of the minor,
without obtaining permission of court for such alienation, is void abinitio; Subhashappa
P. Meti v. Maroti L. Sawarkar, AIR 2006 (NOC) 608 (Bom).
Limitation on power of natural guardian
(I) Alienation made by the mother of the minor in contravention of section 8(2) are
voidable at the option of minor and such alienation were required to set aside if minor
wanted to avoid the transfers and regain the properties from the purchasers. If in plaint
the prayer for setting aside the sale deeds was not there and such a prayer has been
introduced after period of limitation which is three years from the date when minor
attains majority, has elapsed, the claim for recovery of possession of property is not
maintainable: Vishwambhar v. Laxminarayana, AIR 2001 SC 2607.
(ii) Sale transaction by a natural guardian even if beneficial for the minor is voidable
and not void abinitio, if it is done without the previous permission of the court. Held
that the minor can challenge only after attaining majority and not during his minority:
Naryan Laxman Gilankar v. Uday Kumar Kashinath Kaushik, AIR 1994 Bom
152.

2. Testamentary guardians and their powers (Section 9)

(1) A Hindu father entitled to act as the natural guardian of his minor legitimate
children may, by will appoint a guardian for any of them in respect of the minor’s
person or in respect of the minor’s property (other than the undivided interest referred
to in section 12) or in respect of both.
(2) An appointment made under sub-section (1) shall have not effect if the father
predeceases the mother, but shall revive if the mother dies without appointing, by will,
any person as guardian.
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate
children, and a Hindu mother entitled to act as the natural guardian of her minor
legitimate children by reason of the fact that the father has become disentitled to act as
such, may, by will, appoint a guardian for any of them in respect of the minor’s person
or in respect of the minor’s property (other than the undivided interest referred to in
section 12) or in respect of both.

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 (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate
children may; by will appoint a guardian for any of them in respect of the minor’s
person or in respect of the minor’s property or in respect of both.
(5) The right of the guardian so appointed by will shall, where the minor is a girl, cease
on her marriage.

Powers of Testamentary Guardian:

The guardian so appointed by will has the right to act as the minor’s guardian after
the death of the minor’s father or mother, as the case may be, and to exercise all the
rights of a natural guardian under this Act to such extent and subject to such
restrictions, if any, as are specified in this Act and in the will.

Incapacity of minor to act as guardian of property (Section 10)

A minor shall be incompetent to act as guardian of the property of any minor.

3. Court Guardian:
There is no provision under the Act for appointment of guardian by the court. But
a court can appoint or declare any person as guardian for the person of the minor or
property of the minor (other than undivided interest in the joint family property) or both
under the Guardians and Wards Act, 1890.

Powers of Court Guardian:

A court guardian has no power tom alienate the minor’s property without previous
permission of the court. Alienation without such previous permission is voidable at the
instance of minor on attaint the age of majority.

De facto guardian not to deal with minors property (Section 11)

After the commencement of this Act, no person shall be entitled to dispose of, or
deal with, the property of a Hindu minor merely on the ground of his or her being the de
facto guardian of the minor.

Right of De facto guardian

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 Alienation done by a de facto guardian is void and the alienee is in the position
of a trespasser who has no right in the property. Held that the aunty of the plaintiff had
no authority to sell the property and the alienation done was invalid and not binding on
the minors, i.e., the plaintiffs: Essakkyal Nadar v.
Sreedharan Babu, AIR 1992 Ker 200.

Guardian not to be appointed for minor’s undivided interest in joint family

property (Section 12):
Where a minor has an undivided interest in joint family property and the
property is under the management of an adult member of the family, no guardian shall
be appointed for the minor in respect of such undivided interest:
Provided that nothing in this section shall be deemed to affect the jurisdiction of
a High Court the welfare of the minor shall be the paramount consideration.

Welfare of minor to be paramount consideration (section13)

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a
court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act
or of any law relating to guardianship in marriage among Hindus, if the court is of
opinion that his or her guardianship will not be for the welfare of the minor.
Legal Aspects:
Custody of father
(i) The welfare of the child is determined neither by the economic affluence nor a deep
mental or emotional concern for the well being of the child. The answer depends on the
balancing of all these factors and determining what is best for the child’s total well
being. Held that the father being a Sergeant in the Indian Army who had a record of
disciplined life with a regular income, was willing to get posted to Kozhikode for the
education of the minor and the parents of the father were affluent enough to look after
the minor unlike the parents of the mother (who was dead) were old, had no proper
source of income and also had a mentally retarded son to look after, was in a better
position to look after the welfare of the minor; Munnodiyil Peravakutty v. Kuniyedath
Chalil Velayudhan, AIR 1992 Ker 290.

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 (ii) Recognition of father’s absolute right to the custody of the child would render the
child an inanimate property or chattel, which could be possessed and used as the owner
pleases. Held that though the father was not found unfit as a guardian of his minor
children keeping them in the custody of maternal grandmother subject to certain
conditions; Baby Sarojam v. S. Vijaykrishnan Nair, AIR 1992 Ker 277.

Mother attending night clubs

Money alone is not sufficient to record finding regarding the welfare of the child.
In case mother of minor is in the habit of attending night clubs and coming late at home
during which period the minor has to be left in some care house, there is likelihood of
his coming into contact with undesirable elements due to the negligence of mother.
Therefore in the interest of child it will be proper that he is not left with his mother;
Amit Beri v. Sheetal Beri, wife of Amit Beri, AIR 2003 All 18.

Minor left with relatives

The minor child had been left in the custody of his mother’s sister and maternal
grandparents due to the mother’s illness. It was held that as the father is the natural
guardian and was employed as a Lecturer a noble profession, the welfare of the minor is
with his father and mother and not other relatives; Ankur Tripathi v. Radhey Shyam
Pandey, AIR 1994 All 250.
Welfare: Paramount consideration
Though the natural guardians are enumerated in section 6 the right is not absolute
and the court has to give paramount considertion to the welfare of the minor; Mohini v.
Virendra, AIR 1977 SC 1359: 1977(3) SCC 513.

MINORITY AND GUARDIANSHIP UNDER MUSLIM LAW:

The source of law of guardianship and custody are certain verses in the Koran and a few
ahadis. The Koran, the alladis and other authorities on Muslim law emphatically speak of
the guardianship of the property of the minor, the guardianship of the person is a mere
inference. We would discuss the law of guardianship of custody as under:
(a) Guardianship,
(b) Custody, and
(c) De facto guardian.

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Classification of Guardianship
In Muslim law guardians fall under the following three categories :
(i) Natural guardians,
(ii) Testamentary guardians, and
(iii) Guardians appointed by the court.

Natural Guardians
In all schools of both the Sunnis and the Shias, the father is recognized as guardian which
term in the context is equivalent to natural guardian and the mother in all schools of
Muslim law is not recognized as a guardian, natural or otherwise, even after the death of
the father. The father's right of guardianship exists even when the mother, or any other
female, is entitled to the custody of the minor. The father has the right to control the
education and religion of minor children, and their upbringing and their movement. So
long as the father is alive, he is the sole and supreme guardian of his minor children.

The father's right of guardianship extends only over his minor legitimate children. He is
not entitled to guardianship or to custody of his minor illegitimate children.
In Muslim law, the mother is not a natural guardian even of her minor illegitimate
children, but she is entitled to their custody.

Among the Sunnis, the father is the only natural guardian of the minor children. After the
death of the father, the guardianship passes on to the executor. Among the Shias, after the
father, the guardianship belongs to the grandfather, even if the father has appointed an
executor, the executor of the father becomes the guardian only in the absence of the
grandfather. No other person can be natural guardian, not even the brother. In the absence
of the grandfather, the guardianship belongs to the grandfather's executor, if any.'

Testamentary Guardian
Among the Sunnis, the father has full power of making a testamentary appointment of
guardian. In the absence of the father and his executor, the grandfather has the power of
appointing a testamentary guardian. Among the Shias, the father's appointment of
testamentary guardian is valid only if the grandfather is not alive. The grandfather, too,

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has the power of appointing a -testamentary guardian. No other person has any such
power. Among both the Shias and the Sunnis, the mother has no power of appointing a
testamentary guardian of her children. It is only in two cases in which the mother can
appoint a testamentary guardian of her property of her minor children :.first, when she has
been appointed a general executrix by the will of the child's father, she can appoint an
executor by her will; and secondly, she can appoint an executor in respect of her own
property. which will devolve after her death on her children.

The mother can be appointed a testamentary., guardian or executrix by the father, or by

the grandfather, whenever he can exercise this power. Among the Sunnis, the
appointment of a non-Muslim mother as testamentary guardian is valid, but among the
Shias such an appointment is not valid, as they hold the view that a non-Muslim cannot
be a guardian of the person as well as of. the property of a minor. It seems that the
appointment of non'-Muslim fellow-subject (iiinmi) is valid, though it may be set aside by
the kazi. According to the Malikis and the Shafii law, a zimmi can be a validly appointed
testamentary guardian of the property of the minor, but not of the person of -the minor.
The Shias also take the same view. It appears that when two persons are appointed as
guardians, and one of them is disqualified, the other can act as guardian. A profligate, i.e.,
a person who bears in public walk of life a notoriously bad,character, cannot be appointed
as guardian:

Acceptance of the appointment of testamentary guardianship is necessary, though

acceptance may be express or implied. But once the guardianship . is accepted, it cannot
be renounced save with the permission of the court.

Muslim law does not lay down any specific formalities for the appointment of
testamentary guardians. Appointment may be made in writing or orally. In every case the
intention to appoint a testamentary guardian must be clear and unequivocal. A
testamentary deposition made by a testator may be invalid, but appointment of the
executor may be general or particular. The testator must have the capacity to make the
will at the time when it was executed. This means that the feslat8r ghould be major and of
sound -mind, i.e., at the time of execution of the will, he should be in full possession of
his senses.

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 The executor of the testamentary guardian is designated variously by Muslim lawgivers,
indicating his position and powers. He is commonly called, wali or guardian. He is also
called amin, i.e., a trustee. He is also termed as kaim-mukam, i.e., personal
representative of the testator.

Guardian appointed by the Court.-On the failure of the natural . guardians and
testamentary guardians, the kazi was entrusted with the power of appointment of
guardian of a Muslim minor. Now the matter is governed by the Guardians and Wards
Act, 1890. This Act applies to the appointment of guardians of all minors belonging to
any community. The High Courts also have inherent powers of appointment of
guardians, though the power is exercised very sparingly.

Under the Guardians and Wards Act, 1890, the power of appointing, or declaring any
person as guardian is conferred on the District Court. The District Court may appoint or
declare any person as guardian of a minor child's person as well as property whenever it
considers it necessary- for the welfare of the minor, taking into consideration the age,
sex, wishes of the child as well 'as the wishes of the parents and the personal law of the
minor.

*****

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 UNIT-5
LAW OF MAINTENANCE.
HINDU LAW OF MAINTENANCE.
The Hindu law of maintenance has been studies in two different categories, these are:
1. Hindu law of maintenance prior to passing of the Hindu Adoption and
Maintenance Act, 1956.
2. Hindu law of maintenance after the passing of the Hindu Adoption and
Maintenance Act, 1956.

1. HINDU LAW OF MAINTENANCE PRIOR TO PASSING OF THE HINDU

ADOPTION AND MAINTENANCE ACT, 1956.
The law of maintenance is the outcome of the theory of undivided Hindu joint
family. It is not based on any contract. Originally, the member of Hindu joint family
has no separate right in the joint family property. But they have only the right of
maintenance out of Hindu joint family property.

During the course of time, the idea of separate property and partition of joint
family property and the law of maintenance for some persons comes into existence.

What is maintenance?
Maintenance includes not only food, clothes and residence but includes all the
things necessary for the comfort and status of the parties in which the party is entitled to
live reasonably.

In Hindu law, there is an obligation to one person to maintenance others. This

obligation arises in four ways:
1. By reason of relationship between the parties
2. By reason of possession of inherited property
3. By reason of possession of Mitakshara co-parcenary property
4. By way of custom

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 1. By reason of relationship between the parties
Every Hindu, whether he possessed any property or not, was bound personally to
maintain his old parents, his wife, his minor sons and unmarried daughters. This
obligation to maintain these persons is personal in character.

2. By reason of possession of inherited property

If a male Hindu had any inherited property, he was legally bound to maintain,
out of inherited property, to all those person to whom the deceased was legally or
morally bound to maintain.
The reason is that the property is inherited subject to the obligation to provide
for maintenance.
1. Sister:-
If a male hind inherits any property from his father, he was legally bound to
maintain his sister, because the father was bound to maintain his daughter.

2. Step-Mother:-
If a step son had any property inherited from his father, he was legally bound to
maintain his step-mother out of his father’s estate.

3. Mother in law:-
If widow inherits any property from her husband after death, she is legally bound
to maintain her mother in law out of her husband’s estate.

4. Daughter in law:-
A male Hindu has moral obligation to maintain his daughter in law. If he refuses to
maintain his daughter in law, she cannot take any action against her father in law.

3. By reason of possession of Mitakshara co-parcenary property

In ordinary Mitakshara joint family, the head of the family is bound to maintain
all the members of that family out of joint family property. Hence the manager of a
Mitakshara joint family is bound to maintain all its members both male and female and
also the wives and children of the male members.

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 If any male member died leaving his widow and children, the manager of the
family is bound to maintain his widows and children. This type of obligation is always
commensurate with the possession of joint family property.
Even though a grandfather has no obligation to maintain his grandchildren, but if
he is manager of the joint family, he is liable to maintain his grandchildren out of joint
family property. If any one of the co-parcener lives separate from Hindu joint family
with reasonable cause, the manager is bound to give separate maintenance if the income
of the family permits such allowance.

Disqualified persons and their family:

If a person is impotent or has enters into another religion or an idiot or lunatic or
blind or suffering from incurable diseases, he is not entitled to share in the joint family
property. But the manager of the joint family is bound to maintain such persons and
their families out of the joint family property.
But in general, according to Hindu text, the liability of one person to maintain the
others arises two ways, these are,
1. Personal liability
2. Legal liability, that is depend upon the possession of the property.

1. Personal liability:
This liability of a Hindu to maintain others arises from the relationship between parties.
Therefore a male Hindu is under legal obligation to maintain his wife, his minor son, his
unmarried daughter and aged parents.

2. Legal liability, that is depend upon the possession of the property.

a) If a male Hindu had any inherited property, he was legally bound to maintain, out of
inherited property, to all those person to whom the deceased was legally or morally
bound to maintain.
b) In ordinary Mitakshara joint family, the head of the family is bound to maintain all
the members of that family out of joint family property. Hence the manager of a
Mitakshara joint family is bound to maintain all its members both male and female and
also the wives and children of the male members.

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 PERSONS ENTITLED TO MAINTENANCE:
1) Aged Parents
2) Legitimate Son
3) Adopted Son
4) Illegitimate Son
5) Legitimate Daughter
6) Illegitimate Daughter
7) Wife
8) Widow

1) Aged Parents:
A son was personally liable to maintain his aged parents whether or not he had any
inherited property or separate property or joint family property. But a Hindu was not
liable to maintain his grandparents unless he had any ancestral property in his
possession.

2) Legitimate Son:
A father was under a personal obligation to maintain his minor sons. There fore,
he is bound to maintain his minor sons out of his separate property. But the father is not
bound to maintain his adult sons out of his own separate property. If the father and sons
are members of Hindu joint family and the joint family property is in hands of the
father, he is bound to maintain his minor and adult son out of the joint family property.
Since the son takes a vested interest in the joint family property by birth, till partition of
family property, the adult son is entitled to maintenance out of joint family property.
In Dayabhaga law, since the son does not acquire any interest in the joint family
property by birth, the father has no obligation to maintain his adult son either out of his
separate property or out of ancestral property.

3) Adopted Son:
The law of maintenance for adopted son is the same as legitimate son.

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 4) Illegitimate son:
Hindu law recognized four types of illegitimate son, who could claim maintenance
from a Hindu putative father.
(i) Illegitimate sons of a Hindu belonging to one of the higher classes
(ii) by a dasi
(iii)Illegitimate sons of a Sudra Hindu by a dasi
(iv) Illegitimate sons of a Hindu by a Hindu women who is not dasi
(v) Illegitimate sons of a Hindu by a non Hindu woman

(i) Illegitimate sons of a Hindu belonging to one of the higher classes by a dasi
The Illegitimate sons of a Hindu belonging to one of the higher classes
(Brahmin or Kshatriya or Vaisya) by a dasi is entitled only maintenance out of the
putative father’s property. But he is not entitled any share of the inheritance.
In first instance, the right of maintenance attaches to the separate property of
the father. If the father has no separate property, the right of maintenance attaches to the
property of the joint family of which he was a member. But if the father was the holder
of an impartiable estate, the illegitimate son has no right of maintenance out of that
estate unless the custom of the party allowed such maintenance.
In Mitakshara law, the illegitimate son is entitled to get maintenance as long as he
lives. He does not claim maintenance merely as a compassionate allowance.

(ii) Illegitimate sons of a Sudra Hindu by a dasi

The Illegitimate sons of a Sudra Hindu by a dasi are entitled to a share in the
separate property of his father after father’s death. If the father has no separate property
but he has an interest in the joint family property, the illegitimate sons of a Sudra Hindu
by a dasi is not entitled to demand partition of joint family property. But he has a right
of maintenance out of joint family property. Such maintenance is payable to illegitimate
sons of a Sudra Hindu by a dasi for life.

(iii) Illegitimate sons of Hindu by Hindu women who is not dasi

Such illegitimate son is entitled to get maintenance against father. During the life
time of his father, such illegitimate son is entitled to maintenance against father. After

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 father’s death, he is entitled to get maintenance out of father’s separate property, if any.
Bur he has no right a share in the separate property of the father. But if the father has no
separate property, he is entitled maintenance out of estate of the joint family of which
the father was a member.
Even though the father has personal obligation to maintenance his illegitimate
sons, but he has no personal obligation to maintenance the children of such illegitimate
sons.
In Dayabhaga law, the father is under an obligation to maintain his illegitimate
sons during the minority. If illegitimate sons attains majority, such obligation comes to
an end. But in Mitakshara law, the father is under an obligation to maintain his
illegitimate sons for life.

(iv) Illegitimate sons of a Hindu by a non Hindu woman

Even though illegitimate sons of a Hindu by a non Hindu woman are not entitled to
maintenance against his putative father under Hindu law, but he is entitled to
maintenance under section 488 of the Criminal Procedure Code, 1898. Under this
section, the illegitimate son can enforce his right against his father during the life time
of the father. But he can not enforce his right against father’s property after his death.

5) Legitimate Daughter
A father was under a personal obligation to maintain his unmarried daughter,
whether or not he had any property. After father’s death, she could claim maintenance
out of father’s estate if any. If son inherited any property from his father after father’s
death, he was liable to maintenance his unmarried sister. If son did not inherit property
from his father after father’s death, he was not liable to maintenance his unmarried
sister.
After marriage, she was entitled to get maintenance from her husband. After
husband’s death, she was entitled to get maintenance from her husband’s estate. If her
husband had no property, she was entitled to get maintenance from her father in law
morally. If her father in law refuses to maintain the daughter in law or she is unable to
obtain maintain from her husband’s estate, her father was liable to maintain his
widowed daughter.

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 6) Illegitimate Daughter
In Hindu law, there was no provision for the maintenance of illegitimate
daughters. But she could be entitled to get maintenance from her putative father under
section 488 of Criminal Procedure Code, 1898.

7) Wife
The husband had a personal obligation to maintain his wife from the date of
marriage. If the wife lived with her husband and perform her conjugal duties, she could
claim maintenance from her husband. If the wife lived away from her husband without
reasonable causes, she could not claim maintenance from her husband. But under
section 2 of “The Hindu Married Women’s Right to Separate Maintenance and
Residence Act, 1946, the Hindu married woman shall be entitled to separate
maintenance and residence from her husband on one or more of the following grounds,
i. If the husband is suffering from any loathsome diseases,
ii. If the husband is guilty of cruelty,
iii. If the husband has been deserted the wife without her consent or against her will,
iv. If the husband marries again,
v. If the husband has been converted into any other religion,
vi. If the husband keeps concubine in the same house,
vii. Any other justifiable causes,
If the wife was unchaste or ceased to be Hindu or refused to conjugal society, she
could not claim separate maintenance and residence from her husband. If the wife
becomes chaste or reconverted to Hindu, she could claim only starvation maintenance
from her husband.
If the husband forsakes his wife without any reasonable cause, she was entitled to
get 1/3 of the husband’s property for her maintenance during her life time.

8) Widow
Before the passing of “The Hindu Women’s Right to Property Act, 1937,” the
widow was entitled to maintain out of her husband’s property. If her husband was a co-
parcener, she was entitled to maintain out of the estate of joint family in which her
husband was a member. If her husband had no property either separate or ancestral
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 property, she was not entitled to maintenance. But the only person to maintain the
widow in these circumstances was her son.
The widow had no obligation to live with her husband’s family. The widow had
discretionary power. If she lives with her husband’s family, the head of the joint family
is bound to maintain the widow. If she lives separately from her husband’s family, the
widow will be entitled to separate residence and maintenance out of her husband’s
estate or from husband’s joint family property. If the widow lived immoral life or
converted to another religion or married another person, she could not claim any
maintenance.

Amount of maintenance payable to widow:

If the widow lived separately from her husband’s family, the head of the family is
liable to give her a separate maintenance. In order to determining the amount of
maintenance, the court should consider the following matters.
1. The value of the family estate
2. The status of the husband
3. The status of the wife
4. The reasonable wants of the wife
5. The past relations between husband and wife
6. In calculating the amount of maintenance, the widow’s Stridhana property must be
taken into consideration, if it yields any income.
The voluntary payment to widow may not be taken into account. If the widow
has received a sufficient allotment for her maintenance, but she has wasted it, she is not
entitled to further maintenance.

*****
2. HINDU LAW OF MAINTENANCE AFTER THE PASSING OF THE HINDU
ADOPTION AND MAINTENANCE ACT, 1956.
The law of maintenance applicable to Hindu is now statutory. Prior to this Act,
there are three kinds of obligation for maintenance, these are,
1. Legal obligation
2. Personal obligation
3. Moral obligation

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 But after the passing of the Act of 1956, the obligation is legal or statutory
obligation. This Act has passed to amend and codify the law relating to maintenance
among Hindu. This Act is not exhaustive. It deals with certain kinds of maintenance. This
Act does not cover all the law relating maintenance. But it covers only specific topics.

This Act does not deal with interim maintenance and permanent alimony and
maintenance in matrimonial proceedings. Section 24 and 25 of “The Marriage Act,
1955” deals with type of maintenance.

Under section 125 of Criminal Procedure Code, 1973, certain kinds of persons
are empowered to get maintenance. This section lays down general rule of law, which is
applicable to all persons in India including Hindu.

Main changes in law of maintenance made by the Act, 1956:

1. Before the Act, only the male Hindu had under an obligation to maintain some
other Hindu person. Female Hindu had no obligation to maintain others. But under this
Act, both male and female is under an obligation to maintain others. There fore, the
female Hindu has obligation to her aged parents and her children.
2. Under the earlier law, the obligations to maintain others were either personal or
legal or moral obligation. But, now under this Act, the obligation to maintain others is
always statutory obligation.
3. Under the earlier law, some person could enforce the right of maintenance against
a person only. Some person could enforce the right of maintenance against property
only. Some person could enforce the right of maintenance against both person and
property. But under this Act, the right of maintenance does not depend upon the
possession of the property, but the right is affected by the extent of the property.
4. Under the old law, there was a difference of legitimate and illegitimate. But under
this Act, there is no such difference.
5. Under the old law, the illegitimate daughter had no right of maintenance. But
under this Act, she gets maintenance from her putative father.
6. Under the earlier law, the concubine had a right of maintenance in certain
circumstances. But under this Act, the concubine has no right of maintenance.

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 Application of Act-
(1) This Act applies- (a) to any person, who is a Hindu by religion in any of its forms
or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo,
Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless
it is proved that any such person would not have been governed by the Hindu law or by
any custom or usage as part of that law in respect of any of the matters dealt with herein
if this Act had not been passed.
Explanation- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion,
as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion;
(b) any child, legitimate for illegitimate, one of whose parents is a Hindu, Buddhist,
Jaina or Sikh by religion and who is brought up as a member of the tribe, community,
group or family to which such parent belongs or belonged,
(bb) any child, legitimate or illegitimate, who has been abandoned both by his father
and mother or whose parentage is not known and who is either case is brought up as a
Hindu, Buddhist, Jaina or Sikh, and
(c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh,
religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act
shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of
Article 366 of the Constitution unless the Central Government, by notification in the
Official Gazette, otherwise directs.

The Hindu Adoption and Maintenance Act, 1956 and Section 125 of Criminal
Procedure Code 1973:
Section 125 of CrPC of 1973 is not inconsistent with this Act. Both the Acts can
stand together. Section 4 of the Adoption and Maintenance Act, 1956 does not repeal
the provision of section 125 of CrPC.

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 These two provisions are differing from each other in their application. Section
125 of CrPC is summary procedure and it is not based on personal law. Whereas the
Act of 1956 is regular procedure and it is based on personal law.

Definitions-
"maintenance" includes-
(i).in all cases, provision for food, clothing, residence, education and medical
attendance and treatment;
(ii). in the case of an unmarried daughter also the reasonable expenses of and incident to
her marriage;
"minor" means a person who has not completed his or her age of eighteen years.
Person claiming maintenance under this Act of 1956
1. Wife (section18)
2. Widowed daughter in law (section19)
3. Children and aged parents(section20)
4. Dependants (section 21 and 22)

1. Maintenance of wife (section 18):

(1) A Hindu wife, whether married before or after the commencement of this Act, shall
be entitled to be maintained by her husband during her lifetime. But the husband’s
personal obligation comes to an end in two circumstances, these are,
a) Death of the wife
b) wife live separately without any reasonable causes
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting
her claim to maintenance,-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable
cause and without her consent or against her wish, or of willfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere;

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 (f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Maintenance of widowed daughter-in-law-

a. A Hindu wife, whether married before or after the commencement of this Act, shall
be entitled to be maintained after the death of her husband by her father-in-law.
b. Provided and to the extent that she is unable to maintain herself out of her own
earnings or other property or, where she has no property of her own, is unable to
obtain maintenance-
(i) from the estate of her husband or her father or mother, or
(ii) from her son or daughter, if any, or his or her estate.
c. This obligation shall not be enforceable if the father-in-law has not the means to do
so from any coparcenary property in his possession out of which the daughter-in-law
has not obtained any share, and any such obligation shall cease on the remarriage of the
daughter-in-law.

Maintenance of children and aged parents (section 20)-

(1) As per section 20, a Hindu is bound, during his or her lifetime, to maintain his
or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father
or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or
daughter who is unmarried extends in so far as the parent or the unmarried
daughter, as the case may be, is unable to maintain himself or herself out of his or
her own earnings or other property Explanation- In this section "parent" includes a
childless stepmother.

Maintenance of dependents (section 21 and 22)-

(1) As per section 22 of this Act, the heirs of a deceased Hindu are bound to maintain
the dependents of the deceased out of the estate inherited by them from the deceased.

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 (2) Where a dependent has not obtained, by testamentary or intestate succession, any
share in the estate of a Hindu dying after the commencement of this Act, the dependent
shall be entitled, subject to the provisions of this Act, to maintenance from those who
take the estate.
(3) The liability of each of the persons who take the estate shall be in proportion to the
value of the share or part of the estate taken by him or her.
(4) Notwithstanding anything contained, no person who is himself or herself a
dependent shall be liable to contribute to the maintenance of others, if he or she has
obtained a share or part, the value of which is, or would, if the liability to contribute
were enforced, become less than what would be awarded to him or her by way of
maintenance under this Act.
21. Dependents defined-
"dependents" mean the following relatives of the deceased-
(i) his or her father;
(ii) his or her mother;
(iii)his widow, so long as she does not remarry;
(iv) his or her son
(v) the son of his predeceased son
(vi) the son of a predeceased son of his predeceased son,
(vii) his or her unmarried daughter
(viii) the unmarried daughter of his predeceased son
(ix)the unmarried daughter of a predeceased son of his predeceased
(x) his widowed daughter;
(xi) any widow of his son or of a son of his predeceased son so long as she remains
unmarried;
(xii) his or her minor illegitimate son, so long as he remains a minor;
(xiii) his or her illegitimate daughter, so long as she remains unmarried.

Amount of maintenance (section 23)-

(1) It shall be in the discretion of the court to determine the amount of maintenance.
(2) In determining the amount of maintenance, if any, to be awarded to a wife,
children or aged or infirm parents under this Act, regard shall be had to-
(a) the position and status of the parties;

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 (b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant's property and any income derived from such property,
or from the claimant's own earning or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a dependent
under this Act, regard shall be had to-
(a) the net value of the estate of the deceased after providing for the payment of his
debts;
(b) the provision, if any, made under a will of the deceased in respect, of the dependent;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependent;
(e) the past relations between the dependent and the deceased;
(f) the value of the property of the dependent and any income derived from such
property, or from his or her earnings or from any other course;
Claimant to maintenance should be a Hindu (section 24)-
No person shall be entitled to claim maintenance under this Chapter if he or she
has ceased to be a Hindu by conversion to another religion.
Amount of maintenance may be altered (section 25)-
The amount of maintenance, whether fixed by a decree of court or by
agreement either before or after the commencement of this Act, may be altered
subsequently if there is a material change in the circumstances justifying such
alteration.
Maintenance pendente lite and expenses of proceeding Section- 24
Section 24 of the Act makes provision for the maintenance of a spouse during the
proceedings of the case, who has no sufficient means for his or her support and also for
the expenses of the proceedings. When there is any application in above matter, the
court may make an enquiry into the needs of the petitioner and fix an amount having
regard to the petitioner’s income and the income of the respondent.

Permanent alimony and maintenance (Section-25)

1. At the time of passing decree or at any time subsequent there to, when there is
any application made by husband or wife for maintenance, the court may order that

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 respondent shall pay to the applicant for his or her maintenance and support such gross
sum or such monthly or periodical sum for a term not exceeding the life of the applicant
as having regards to the respondent’s income and other property, the income and other
property of the applicant, the conduct of the parties and other circumstances.
2. If the court is satisfied that there is a change in the circumstances of either party
at any time after the order, the court may, at the instance of either party, vary, modify or
rescind any such order in such manner as the court may deem fit.
3. If the court is satisfied that the party in whose favour an order has been made
has remarried or if such party is wife, that she has not remain chaste, or if such party is
husband, that he has had sexual intercourse with any woman outside wedlock, the court
may, at the instance of other party, vary, modify or rescind any such order in such
manner as the court may deem fit.

Custody of children- (Section 26)

Section 26 vests the court with a power to make an order about the custody,
maintenance and education of minor children both during the pendency of proceeding
and even after the passing of a decree.

Guiding principles for making order as to the custody, maintenance and education
of minor children, broadly stated, are-
1. Paramount consideration is interest of children and not punishment of the guilty
spouse
2. The children should be brought up in the religion of the father and their future and
world care should be considered.
3. Usually innocent party is entitled to custody, though he or she cannot maintain the
children.
4. Custody of children may be given to third party, if the interest of the children
demands it and both parents are unfit or the innocent party is abroad.
5. Father is always liable for maintenance of the children even if the custody is with
mother
6. The court’s discretion in the matter is unlimited and it cannot be and it cannot be
fettered by any agreement between the parents as the quantum of maintenance or
custody.

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 7. With effect from 2001, the application with respect to the maintenance and education
of the minor children shall be disposed of within sixty days from the date of service of
notice on the respondent.

*****
MUSLIM LAW OF MAINTENANCE.
Introduction.
The concept of Maintenance was introduced to provide support to those people who are
not capable to maintain themselves. It is basically provided to the spouse who is not
independent and is dependent on the other spouse. The principle of maintenance includes
financial support, means of livelihood and educational facilities.

In marriage, it is the obligation of the husband to maintain the wife and to provide her all
necessities. The whole concept of maintenance is to protect the rights of the wife and to
provide her a dignified life and even after the dissolution of marriage, the husband is in
the liability to provide maintenance to his wife if she is not able to maintain herself. The
concept of maintenance has broader aspect. It is not only provided to the wife but also to
children, parents, grandparents, grandchildren and other relations by blood. The amount
of maintenance depends on the financial position of the person who is bound to provide
maintenance.

Various laws and rules have been made on the principle of maintenance. The concept of
maintenance has also been added to personal laws. The Muslim Law also provides for
maintenance. Though Muslim Law does not properly define maintenance, its meaning has
been inferred from Hindu Law which provides that:
“in all cases, provisions for food, clothing, residence, education and medical attendance
and treatment; in the cases of an unmarried daughter, also the reasonable expenses of
and incident to her marriage.”

Under Muslim Law, women are considered weak as compared to men. It is believed that
they are not able to maintain herself on her own so it is the liability of the husband to
provide maintenance to her wife in all conditions even if she is capable of maintaining
herself. Maintenance is known as “Nafqah” which means what a man spends on his
family. Nafqah basically includes food, clothing, and lodging.
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The Muslim Law of maintenance may be discussed from the point of view of the persons
entitled to maintenance. Such persons are:
i. The Wife
ii. The Children
iii. The Parents and Grandparents
iv. The other relations.
But under Muslim Law, maintenance is provided to wife even if she is capable of
maintaining herself which differs it from other laws. But in case of Maintenance to
Children, Parents and other relations, it is given only when they are not able to maintain
themselves. Here, we are going to discuss the maintenance of wife and children under
Muslim Law.

Maintenance of wife
Under Muslim Law, as discussed above men are considered superior to women and
women in all cases is considered to be dependent on men. It is the liability of husband
under Muslim Law to maintain his wife even after divorce.

Obligation of Husband to provide Maintenance

It is the obligation of the husband to provide proper maintenance to his wife in all
circumstances whether he is in good financial condition or not. His obligation to provide
maintenance is even after the dissolution of marriage. However, the obligation of husband
extends only when the wife remains faithful towards him and obeys all his reasonable
orders.
In Baillie’s Digest of Mohammedan Law, it has been stated that:
“If and when called upon to remove his house, she refuses to do so of right, that is to
obtain payment of her dower, she is entitled to maintenance; but if she refuses to do so
without rights, as when her dower is paid, or deferred, or has been given to her husband
she has no claim to maintenance.
If a woman is ‘nashizah’ or rebellious, she has no right to maintenance until she returns to
her husband’s house. By this expression, it is to be understood that a woman who goes
out from her husband’s house and denies herself to him, in contradiction to one who
merely refuses to abide in her husband’s apartment, which is not necessary for the
purpose of restraint. If, however, the house her own property, and she forbids him from

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entering it, she is not entitled to maintenance unless she had asked him to remove her to
his own house or to hire a house for her. When she ceased to be a nashizah or rebellious,
she is again entitled to maintenance.”

Quantum of Maintenance
The quantum of maintenance is not prescribed under any matrimonial statute. It is
decided as per the discretion of court depending upon the condition of husband and wife.
Under the Shia Law, the quantum of maintenance is decided by taking into consideration
the requirements of the wife. Under Shafei Law, the quantum of maintenance is
determined by the post of the husband.

Maintenance under anti- nuptial agreements

Muslim marriage is a contract, an agreement is made between the parties to the marriage
which prescribes the rights and duties if husband and wife. The condition of agreement
should be valid otherwise the marriage should be considered as illegal. In this agreement,
the wife can stipulate some conditions for husband and in case of breach of such
conditions, she has a right to live separately and is entitled to maintenance. Such
conditions are as follows:

• If the husband ill-treats her;

• Takes a second wife or concubine;

An agreement which stipulates that wife is entitled to maintenance after divorce is also
valid. But she is entitled to maintenance only during the period of iddat and not beyond
that. The husband’s liability is only till the iddat period.

Ali Akbar Vs. Mst. Fatima (1929) ILR II Lah.85

An allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in addition to the
amount of maintenance which she is entitled to get from her husband. It was held that the
wife is entitled to it irrespective of the fact that she refuses to stay with her
husband. (Kharach-i-Pandan is a personal allowance and it cannot be transferred.)

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Divorced wife’s right to maintenance under Muslim law and section 125 of
Cr.P.C.and dower:
Under Muslim Law the rights of the wife to get maintenance during the marriage is
absolute but after the dissolution of marriage, her rights are limited. She is entitled to
maintenance from husband after divorce is only till iddat period ( Iddat is a period of
three menstrual courses or three lunar months). Muslim law does not provide
maintenance to wife after the iddat period is over. In Hanafi school of law, a divorced
Muslim wife is entitled to maintenance during iddat period whereas in Shefai law, a
divorced Muslim wife is not even entitled to maintenance.
In case of dower, which is the right of Muslim wife, which she is entitled at the time of
marriage, the husband is under the obligation to pay her whatever the amount of dower
has been agreed upon between the parties at the time of marriage or if no amount is
decided then a reasonable amount should be paid by the husband to wife for her
maintenance.
But this creates hardship for Muslim wife as under Muslim Law it is very easy for men to
give divorce to his wife as the Law allows him to marry thrice. Muslim wife does not
have any proper means for herself in Muslim Law. If after the expiry of iddat period, she
has no means to maintain herself then in that case husband has no liability for her and she
is left with nothing.

Under section 125 of Cr.P.C., provides for maintenance to divorced wife of all religion.
It stated that after divorce if the wife is not able to maintain herself, she is entitled to
maintenance from her husband until she gets married. The act applies this provision to
Muslim women also who are not entitled to the maintenance after the period of Iddat.
This act creates liability over husband to provide maintenance to wife even after the
period of Iddat.
But the provisions of this act are in conflict with the provisions of Muslim Law and a
debate was going on as which law should be applied. This matter was seen by the
Supreme court in a landmark judgment

Shah Bano Begum Vs Mohammad Ahmed Khan, AIR 1985 SC 945

In this case, Shah Bano Begum, a 62 years old lady filed a petition under section 125 of
Crpc before Judicial Magistrate of Madhya Pradesh. The petition stated that her husband

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has pronounced Talaq to her and she has not even remarried and thus she was entitled to
maintenance. For which her husband has stated that he had no liability to provide
maintenance to her as under Muslim Law, a divorced wife has no right of maintenance
after Iddat period.

The magistrate, in this case, passed an order stating that the husband is entitled to provide
her maintenance of Rs.25 per month as per Section 125 of Crpc.
Shah Banu filed a revision petition against this order in the High court of Indore for
enhancement of the amount of maintenance. For which Indore High court has enhanced
the amount of maintenance to 179.20 Rs per month.

Against this order, Mohd. Ahmed Khan appealed to the Supreme court. Supreme court
rejected the appeal and stated that Muslim wife is entitled to maintenance even after the
period of Iddat if she is not able to maintain herself.

The Supreme court has observed that with this judgment the distinction between the
Muslim personal law and Criminal Procedure code will come to an end. But the judgment
has even increased the controversy as a result of which the legislatures have to make a
new law to govern Muslim divorce i.e. Muslim Women (Protection of Rights on
Divorce) Act 1986.

This act has enacted some provisions in support of Muslim Personal Law and has
restricted the application of Section 125 of Crpc regarding the maintenance of Muslim
wife. The Act has stated that the husband is entitled to provide maintenance only during
the period of Iddat and not beyond that. If the wife is not able to maintain herself after
iddat period then, in that case, she can seek maintenance through Wakf Board or relatives
of her or her husband. This act has not mentioned anything clearly and has created
various confusions in the judicial system and was considered as vague. The confusion of
this act has been solved by the Supreme Court of India under:

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Daniel Latifi Vs. Union Of India, AIR 2001 SC 958
A writ petition was filed challenging the validity of the act. For which the court has stated
as under:
• As per Section 3 of the act, Muslim husband is entitled to provide fair and reasonable
maintenance to his wife and has to make proper arrangement for her maintenance after
the divorce.

• Muslim husband’s liability under this act is not limited to iddat period. He has to make
arrangement within the period of iddat for her wife’s maintenance.

• A divorced Muslim woman is entitled to maintenance under section 4 of this act from
her relatives who are entitled to her property after her death.

• If her relatives are not able to maintain her then, in that case, a Wakf board has been
created by this act who will take care of the maintenance of such women.

• The magistrate can direct this board to pay maintenance to them.

The Supreme Court on the basis of the above points has held the act constitutionally
valid.

Maintenance of the Children.

Children are the responsibility of their parents and they should be taken care of. They are
entitled to proper and adequate maintenance from their parents and especially the father.
As under Muslim Law, men are considered as superior and are in the obligation to
maintain his family, maintenance of the child is his primary responsibility.

Father’s obligation to maintain his child.

Father is under an obligation to maintain his legitimate child until he earns puberty.
Under Muslim Law, the father has to maintain his son only until he attains majority and
has to maintain his daughter until she gets married. Under certain circumstances, father is
bound to maintain his widowed or divorced daughter.

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Father is not bound to maintain his son or unmarried daughter if they refuse to live with
him without any reasonable cause. Under Muslim Law, father is under no obligation to
maintain his illegitimate child but an agreement between the parties to maintain his
illegitimate child is not valid.
Under section 125 of Crpc, if the father has sufficient means, he is under obligation to
maintain his child whether legitimate or illegitimate.

Pavitri vs. Katheesumma, AIR 1959 KER 319

In this case, it was stated that it is not at the discretion of the court to allow maintenance
to an illegitimate child. The court can allow only if asked for it.

3.2 Mother’s obligation to maintain his child

Mother’s obligation to maintain her child arises when the child is illegitimate and
husband has refused to maintain the child. But under Hanafi Law, if the father is poor and
the mother is rich then, in that case, it is the obligation of the mother to maintain the
child. However, she can recover the money when her husband gets into the condition to
repay it.

Under Shafi Law, even if the father is poor and mother is rich, then the mother is not
obliged on maintaining her child. In that case, it is the obligation of grandfather to
maintain the child.

3.3 Father’s obligation to maintain his major child

Under Muslim Law, father is obligated for the maintenance of his legitimate child only
until he attains puberty. But if the child is lunatic, mentally or physically disabled and not
in the condition to maintain himself, then, in that case, it is the obligation of the father to
maintain him.

Conclusion.
Thus, from the above article, it can be stated that the maintenance provisions of Muslim
Law are different from other personal laws. The provisions for maintenance of child are
not a matter of concern as they are provided adequate maintenance under the law but the
position of the wife is poor as compared to other laws. Though the legislature has enacted

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an act, it has not created much difference in the condition of the wives. The proper efforts
and contribution of legislature and judiciary is required to improve the position of wife
under Muslim Law.

*****
CHRISTIAN LAW OF MAINTENANCE.
Maintenance Under Christian Law.
A Christian woman can claim maintenance from her spouse through criminal proceeding
or/and civil proceeding. Interested parties may pursue both criminal and civil
proceedings, simultaneously, as there is no legal bar to it. In criminal proceedings, the
religion of the parties does not matter at all, unlike in civil proceedings.

If a divorced Christian wife cannot support her in the post divorce period she need not
worry as a remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869,
she can apply for alimony/ maintenance in a civil court or High Court and, husband will
be liable to pay her alimony such sum, as the court may order, till her lifetime. The Indian
Divorce Act, 1869 which is only applicable to those persons who practice the Christianity
religion inter alia governs maintenance rights of a Christian wife. The provisions are the
same as those under the Parsi law and the same considerations are applied in granting
maintenance, both alimony pendente lite and permanent maintenance. The provisions of
THE INDIAN DIVORCE ACT, 1869 are produced herein covered under part IX -s.36-
s.38

Maintenance
Provisions for maintenance under the Christian law are contained in The Indian Divorce
Act. 1869 as amended in 2001. The relevant sections are:
S. 36. Alimony pendente lite.-
In any suit under this Act, whether it be instituted bya husband or a wife, and whether or
not she has obtained an order of protection, ( The wife may present a petition for
expenses of the proceedings and alimony pending the suit.)

Such petition shall be served on the husband, and the court, on being satisfied of the truth
of the statements therein contained, may make such order on the husband ( for payment to

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the wife of expenses of the proceedings and alimony pending the suit) as it may deem
just.

(Provided that the petition for the expenses of the proceedings and alimony pending the
suit shall, as far as possible, be disposed of within sixty days of service of such petition
on the husband.)

S. 37. Power to order permanent alimony.-

(Where a decree of dissolution of the marriage or a decree of judicial separation is
obtained by the wife, the District Court may order that the Husband shall), to the
satisfaction of the court, secure to the wife
such gross sum of money, or such annual sum of money for any term not exceeding her
own life, as having regard to her fortune (if any), to the ability of the husband, and to the
conduct of the parties, it thinks reasonable, and for that purpose may cause a proper
instrument to be executed by all necessary parties.

Power to order monthly or weekly payments.-

In every such case the court may make an order on the husband for payment to the wife of
such monthly or weekly sums for her maintenance and support as the court may think
reasonable.

Provided that if the husband afterwards from any cause becomes unable to make such
payments, it shall be lawful for the court to discharge or modify the order, or temporarily
to suspend the same as to the whole or any part of the money so ordered to be paid, and
again to revive the same order wholly or in part, as to the court seems fit.

S.38. Court may direct payment of alimony to wife or to her trustees.-

In all cases in which the court makes any decree or order for alimony it may direct the
same to be paid either to the wife herself or to any trustee on her behalf to be approved by
the court and may impose any terms or restrictions which to the court seem expedient and
may from time to time appoint a new trustee if it appears to the court expedient so to do.

In the context of Christian parties, K. Kumar v. Leena is a significant judgment. The

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issue involved in the case was whether a Christian wife and children can invoke the
provisions of s. 9 of the Civil Procedure Code, 1908 (CPC) to claim maintenance even
though the Christian Marriage Act, l872 makes no such provision. The court held that
even though the Christian Marriage Act, makes no provision for maintenance, such right
is available under the common law, wife and children are dependents and a suit by a
Christian wife and children is not barred under the provisions of the CPC. Section 9 of the
CPC says:
The court shall ( subject to the provisions herein contained) have jurisdiction to try all
suits of civil nature excepting suits of which the cognizance is either expressly or
impliedly barred.

The following observations of the apex court in M.V Elisabeth v/s Harwan Investment
and Trading Pvt. Ltd, were relied upon in support of the case:
..where a statute is silent and judicial intervention is required, courts strive to redress
grievance according to what is perceived to be principles of justice, equity and good
conscience.

*****

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 I YEAR OF 3 YEAR LL.B
SEMESTER - I
ODD SEMESTER

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SUBJECT : LAW OF CRIMES
SUBJECT CODE : TA1F

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 SYLLABUS
TA1F - LAW OF CRIMES
Unit - I Crime Introduction Crime - Concept - Constituent Elements of Crime - Actus reas
and mensrea - Types - Strict Responsibility in Criminal Law - Mensrea in Statutory Offences.

Unit - II General Defences - Conditions - Negative Criminal Responsibility, Mistake of

Fact, Judicial Acts, Accident, Doctrine of Necessity, Infancy, Insanity, Intoxication, Consent,
Compulsion, Duress, Triviality, Right of private Defence.

Unit - III Parties to a Crime - Joint and Constructive Liability - Group Liability - Abetment
- Conspiracy, Attempt - Corporate Liability Accessories after the fact.

Unit - IV Jurisdiction - Personal, Territorial, Extra - Territorial, Admiralty.

Unit - V Punishment - Objective, Basis and Types.

Unit - VI Specific Crimes

(a) Offences affecting public.

(i) Against State (Sedition)

(ii) Against Public Peace - Unlawful Assembly, Rioting, Affray.

(iii) Against Public Administration -Bribery, Personation.

(b) Offence against Administration of Justice Giving and Fabricating false statement
(c) Offences against Persons - Homicide (murder, culpable homicide and negligent
homicide), Hurt and grievous hurt, Wrongful restraint and confinement, Kidnapping
and abduction Sexual assault, rape, stalking, voyeurism, etc.,
(d) Offences against Property-Theft, Extortion, Robbery, Dacoity, Criminal
misappropriation and Breach of trust, Cheating, Forgery, Mischief and Criminal
Trespass.
(e) Offences relating to Marriage and Religion.
(f) Defamation, Criminal insult, Criminal intimidation etc.,
(g) Cyber crimes
Unit - VII Law of Attempt.

Statutory Materials with Amendments

1. The Indian Penal Code, 1860.

2. Criminal Law Amendment Act, 2010 & 2013.

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Books for Reference:

1. Kenny : Outlines of Criminal Law (Chapters relating to General Principles).

2. Ratanlal : The Indian Penal Code.
3. Gour, K.D. : Criminal Law
4. Dr.H.S.Gour : Penal Law of India
5. Raghavan V.V. : Law of crimes
6. Atchutham Pillai : Criminal law
7. B.M.Gandhi : Indian Penal Code.
8. Glanavile Williams : Criminal law crimes.
9. Russel : Criminal law
10. Ejaz : Law of crimes
11. Nigam : Law of crime

***************************

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 LAW OF CRIMES
Unit I
INTRODUCTION
Indian Penal Code 1860 is the General Penal Code of India.The first law
Commission of India was constituted in 1834 under the Chairmanship of Lord
Macaulay. This Commission prepared the draft of IPC in 1837. Sir Beranel
Peacock and Sir J.W. Colwille revised the draft of IPC.The code was passed on
6th Oct. 1860. It came into force w.e.f. 1st Jan 1862. The code came into force
w.e.f. 1st Oct, 1963 in Goa, Daman, Diu& Pondicherry. The code applies to the
whole of India.
Preamble to the IPC –
Whereas it is expedient to provide a general penal code for India, it is
enacted as follows the Preamble suggests that:
(i) The code is not exhaustive.
(ii) It is only a general penal code for India.
The Indian Penal Code consists of 511 sections. It defines certain crimes in an
elaborative sense. For convenience we can divide the code in to two parts.
General Provisions (Sec. 1-120)
Specific offences (Sec. 120A - 511)
GENERAL PROVISIONS (SEC. 1-120)
1. Territorial Operation of Code Punishments Sec-53-70 Sec. 73, 74 Sec. 71,
72, 75
2. General Exception (Sec. 76-106)
3. Abetment (Sec 107-120)
4. Intra Territorial (Sec. 1, 2)
5. Extra Territorial (Sec. 3,4)
6. General Explanation Sec. 6-32, 36 Sec. 39-52A
7. Joint Liability Sec. 34-38

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SPECIFIC OFFENCES (SECTION 120A TO 511)
1. Criminal Conspiracy (S120A-120B)
2. Offences Against the State (SS 121-130)
3. Offence related to Army, ASR, Navy, Force (SS 131-140)
4. Offence against Public Tranquility (SS 141-160)
5. Offences by or relating to Public Servants (SS 161-171)
6. Offence Related to Elections (SS 171 A-171I)
7. Contempt of Public Servants (SS 172-190)
8. Giving False Evidence, offences Against Public Justice (SS-191- 229)
9. Offences relating to Coin & Govt. Stamps (SS 230- 263A)
10. Offences Affecting (1) Public Health (2) Safety,Convenience (Decency &
Moral (SS 268-294A)
11. Offence Related to Religion (SS 295-298)
12. Offence Against Human Body (SS 299-377)
13. Offence Against Property (SS 378-462)
14. Offence Relating to Document and to Property Marts (SS 463- 489E)
15. Criminal Breach of Contract (SS490-492)
16. Offence Related to Marriage (SS 493-498)
17. Defamation (SS 499-502)
18. Criminal Intimidation, Insults, Annoyance (SS 503-510)
19. Attempts to Commit Offences (SS 511)
DEFINITION OF CRIME
The I.P.C. nowhere defines what is Crime. A crime can be said to be an
act of commission or omission, contrary to law, tending to the prejudice of
community for which punishments can be inflicted as the result of judicial
proceeding. It tends directly to the prejudice of community, while torts tend
more directly and immediately to the prejudice of a private right.

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 "Commentaries on the Laws of England" define crime as - "An act
committed or omitted in violation of public law forbidding or commanding it."
Blackstone - "A crime is a violation of public rights and duties to the
whole community."
Stephen - modified the definition of Blackstone as - "A crime is a
violation of right considered in reference to the evil tendency of such violation
as regards the community at large."
This definition is not fully free from error, it narrows the scope of crime.
The definition given by Blackstone and Stephen further stresses that crimes are
those breaches of laws which injure the community.
Romans define crime as "delictapublica" (Public wrong) and criminal trial as
"judicapublica (Public Justice).
Kenny pointed out that "all the acts that are injurious to the community are not
necessarily crimes."
Elements of crimes
The followings are four basic elements of crime:
1. Accused person
2. Mens rea
3. Actus reus
4. Injury

ACTUS REUS:
The word actus connotes a ‘deed’ , a physical result of human conduct.
The word reus means ‘forbidden by law’. The word is defined as ‘such result of
human conduct as the law seeks to prevent’.
There constituent parts;
1. Human conduct
2. Injury

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 3. Prohibited by law
1. Human conduct:
Human conduct means something voluntarily done by a human being. The
following three parts
a. Mental or bodily activity or passivity of the doer, that is, a willed
movement or omission.
b. Circumstances
c. Consequences.
2. Injury
Crime is injury to another person or to the society at large. The injury
should be illegally caused to any person in body, mind, reputation, property.
Sec 44 : injury.
3. Prohibited by law
It is not a crime unless prohibited by law. Only those acts that the law has
chosen to forbid are crimes.
MENS REA
Guilty mind (Mens Rea): The fundamental principle of liability is that
an act alone does not amount to a crime. It must be accompanied by a guilty
mind. The Latin maxim "Actus non facit nisi mens sit rea" is a cardinal
principle of Criminal Law.
1. The Doctrine of mens rea is based on the Latin maxim "actus non facit nisi
men sit rea"
2. The maxim means wrongful act must be done with a guilty mind and then
alone criminal liability is to arise.
3. The doctrine originated when criminal law dealt with undefined offences.
Today, the offences have been precisely, strictly and accurately and statutorily
defined. In that view of the matter the doctrine becomes irrelevant or
unnecessary in relation to defined offences.

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4. Although the doctrine is unnecessarily concerning the defined offences, yet
every such definition incorporates the doctrine through some specific words or
expressions forming part of the definition, saying it the other way.

Doctrine of mens rea and the IPC

1. The doctrine has no general and direct application to the Indian Penal Code.
Penal definitions are meticulous, precise and comprehensive under the code.
Therefore, it is correct to say that there is no general application of the doctrine.
2. Every penal definition under the act states the following two things:
a) The Act done by the accused person.
b) The required state of mind while doing that act.
3. In view of the above, no room is left for application of general doctrine of
mens rea. The definitions are almost self-sufficient. If the act of the accused
falls within the four walls of the definition it would constitute an offence.

Exceptions to the doctrine of mens rea

1. Statutes creating strict liability constitute an exception to the doctrine of mens
rea. The exclusion may be either express or by necessary implication.
2. Strict liabilities are created in consideration of public health, public safety,
public welfare, matters of food and drugs etc.

Case laws:
Niwas Mal Bairdia, 1947, PC the privy council held that -
a) In case of absolute prohibition the question of mens rea becomes
irrelevant.
b) Liability without mens rea may be imposed only in exceptional and
limited classes of offences and these offences are comparatively of minor
character.

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Case laws:
Nathu Lal V/s State of M.P., 1966, Sc the Hon'ble Supreme Court held that
a. Mens rea is an essential ingredient of an offence, but a legislature may
enact a law and thereby excuse the requirement of mens rea regarding an
offence or a class of offences.
b. Unless mens rea has been excluded expressly or impliedly, every penal
provision has to be construed in conformity to the doctrine of mens rea rather
than against it.
c. Merely because a statute is directed to social welfare it cannot be
decisively presumed that requirement of mens rea has been done away with (no
conclusive presumption).
In some cases, exclusion of mens rea may be presumed. Such a
presumption can be raised where this is absolutely clear from the statute that the
subject of statute would otherwise be defeated.
There is yet another reason for exclusion of mens rea in cases of absolute
or strict liability. Strict liability may be imposed where it is difficult to prove
mens rea.
Essentials of Mens Rea
1. Mens Rea is constructed from a person’s thought process, their motive
and intention.
2. Motive and intention are two separate ideas. Motive is the reason behind
the act whereas intention is a person’s state of mind and willingness to
break the law.
3. Presence of both Motive and Intention facilitates the prosecution of a
crime but motive is not a necessary element for conviction. Intention,
whereas, on the other hand is more important than motive. It is a
subjective fact which is required by the criminal law by the prosecution.

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Example: A person takes another person’s bike with them in good faith but it
was taken without consent. This act will be considered as theft.

Understanding the Implication of Mens Rea

For the better understanding of the Concept of Mens Rea it is necessary
to understand the meaning of certain words that are often used as synonyms for
Mens Rea.
Intention: It is the state of mind of the person doing the crime. It can be
provedwhen the defendant can foresee virtually that the consequences of the
action of the person is going to kill, cause grievous injury or any other
prohibited harm to them.
Motive: A motive in criminal law is the cause that moves people to
induce into a certain action. Motive is not a basic element of crime but it is
mostly looked into while investigation of a criminal case. Motive is the reason
of any act, hence, even if motive was good but the act was wrong then criminal
liability may arise.
Knowledge: the word knowledge or knowingly is used in certain places
in IPC to denote Mens Rea. It can be seen from two sides, firstly a person had
knowledge and act in a wrongful manner and secondly they had knowledge
about the bad consequences and chose not to act hence resulting in a wrongful
act. Both can be understood as a part of Mens Rea and are punishable.
Negligence: It cannot be used as a synonym for Mens Rea but while
looking forguilty intent in any criminal case this aspect is also covered.
Negligence is the lack of attention or due care that a reasonable or prudent
person may have while performing any task. For a negligent act to turn into
criminal negligence its degree shall be high enough to cause criminal liability.
Voluntarily: This word is used in the code to show that the person doing
an acthad the knowledge of what they are doing and had full control of their

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actions. Voluntarily can be used to show intention as well. It is used only
because it has more extended meaning than ‘intentionally.’
Mens Rea in Statutory Offences
Offence can be defined as the violation of law. The word offence is
generally interpreted as a criminal wrong. There are certain offences that are not
created by criminal laws but by different statutes like taxation, national security
etc. are Statutory Offences. The acts those are inherently wrong such as murder,
rape or grievously hurting someone etc. are offences but acts like driving on the
wrong side of the road which is not inherently wrong but is also an offence.
Such offences are known as statutory offences. Some examples of these
offences are:
1. Adulteration of food items and drugs.
2. Tax evasion or avoidance
3. Black Marketing, false advertising, hoarding, profiteering etc.
4. Misappropriation or theft of public funds or property.
5. Misuse of position by public servants in any field of work.
While statutory interpretations are done there are certain aspects that are
Presumed. Here the presumption is that all criminal actions contain the element
ofMens Rea.
It has also held that- “ it is of the utmost importance that the protection
of the liberty of the subject that a court should always bear in mind that, unless
a statute, rules out Mens Rea as a constituent part of crime the court should not
find a man guilty of an offence against criminal law, unless he has guilty mind’.
Though a statutory crime does not contain the explicit but a statute require
specific intention, knowledge malice etc. to act in such manner. In some case
the statute may be silent on the requirement of Mens Rea in such a situation the
objects and terms of the statutes are looked into.

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 The court some court has also stated that even when there is no clear
mention of state of mind in the language of the statute it is implied that Mens
Rea is an important ingredient in the constitution of any offence.In other
instances the court has created a strict liability on statutory offences irrespective
of the presence of mens rea. Strict liability arises on matters concerning food ,
drugs , taxes etc.
Illustrations
1. A driver was waiting for person ‘P’ to show up on the streets, and when he
did the driver deliberately hit that person in order to kill him or at least with an
intention to cause grievous injury to him. In such case mens rea is present and
the driver is criminally liable for his actions.
2. In a case where ‘A’ was out for hunting and in a sudden haste shot fires his
gun which caused the death of ‘B’, here B is dead but ‘A’ did not intended to
kill him or did any type of prior preparation for it. Here Mens Rea is not
present. ‘A’ shall be given punishment for his actions but not for murder.

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 Unit IV
Jurisdiction
Introduction:
The word jurisdiction is derived from two Latin words, “Juris” and “dicere”.
‘Juris’ means law and ‘dicere’ mean to speak. Kinds of jurisdiction,
1. Territorial jurisdiction (sec 1)
2. Personal jurisdiction (sec 2)
3. Extra- territorial jurisdiction (sec 3, 4)
4. Admiralty Jurisdiction (sec 4(2))
Territorial Jurisdiction:
It ascertains the court’s authority to try the cases which arise within a
certain geographical limit and which involves the people residing in a particular
geographical limit.
Sec 1:Title and extent of operation of the code:
This Act shall be called the Indian Penal Code, and shall extend to the
whole of India except the State of Jammu and Kashmir.
Personal jurisdiction:
Section 2 of the code states that the provisions of the code are applicable
to ‘every person’ who commits an act or omits to do an act within the territory
of India which is in contravention to the provisions of the Act.
Sec 2: Punishment of offences committed within India:
Every person shall be liable to punishment under this code and not
otherwise for every act or omission contrary to the provisions thereof, of which
he shall be guilty within India
Mobarik Ali v. The State of Bombay, a person who was a Pakistani
national induced a person residing in Bombay through telegram, telephone
conversations, letters and to send him money. When the case came in front of
the court, the Pakistani national pleaded that he can not be made liable for the

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offence of cheating since he was not physically present within the territory of
India. The court rejected the contention and held that the basis of jurisdiction
under Section 2 of the Act is not the corporeal presence of the offender but the
locality where the offence is committed and since the offender committed the
offence in Bombay it is immaterial that at the time of commission of offence he
was not present within the territory of India.
State of Maharashtra v. Mayer Hans George, the court held the
foreigner liable under Foreign Exchange Regulation Act, 1973 where he
without making an express declaration about the gold which he was carrying
during his journey through the aeroplane and as soon as the plane landed the
Indian territory, he was held liable.
Exception:
1. Art 361: President, Governor, Raj Pramukhs
2. CJI, SC judges, CJ of HC, other judges
3. Ambassadors
4. Diplomatic agents
5. Foreign sovereigns’
6. Alien enemies – Military court.
7. Ordinary court of law not apply
8. Special procedure

Extra-territorial Jurisdiction

Section 3 and Section 4 of Indian Penal Code confers extraterritorial

jurisdiction to the Code. Crime is said to be extraterritorial when it is tried in a
country other than the one in which he committed it. According to Section 3 of
the Act, any person who commits an act beyond the territorial limits of the
country but the repercussions of such an act is such that it has been committed
within the territory of India. Then such a person could be dealt with in

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accordance with the provisions of the Code for the act committed by him even
though in the country in which he committed the act is not an offence under the
ordinary laws of that country.

Section 4 of the Indian Penal Code expands the ambit of application of

Section 3 of the Act. According to Section 4 of Indian Penal Code, when an
offender has committed an offence outside the territory of India but is found
within the territory of India. Then there are two courses of actions which may
be resorted to:

 Extradition: He can be sent to the country where the effect of his

wrongdoing took place,
 Extraterritorial jurisdiction: he may be tried in accordance with the
criminal laws of India.

Scope of Sections 3 and 4, Indian Penal Code 1860

According to Section 4, the jurisdiction of the Code is applicable to any

person beyond the territory of India who commits a crime. The Section also
covers the following category of people:

1. Any Indian citizen who is present beyond the territory of India and has
committed a wrong,
2. Any person travelling through any ship or aircraft which is registered
in India,
3. Any person present in any place which is not under the territorial limit
of India and targets the computer resources present in India.

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Illustration:

A, who is a citizen of India, commits a murder in Uganda. He can be tried

and convicted of murder in any place in which he may be found.

About Liability of a Foreigner for Offences Committed in India

The court in the case of Nazar Mohammad v. State held that foreign
citizen committing an offence in India will be held guilty under the Indian laws
and ignorance of Indian laws is not an excuse although ignorance may be
pleaded at the time of mitigation of the sentence. The prerequisite for the
application of Section 3 and Section 4 is not the physical presence of the
offender and the only requirement is that the wrong should take place in. The
Section only means that the offence must take place in India although the
offender is outside.

In the case of State of Maharashtra v. M.H. George, when the

defendant pleaded ignorance in front of the court on the ground that he did not
know about the recent changes which took place in the Indian legislation
regulating the foreign exchange, the court rejected the plea and held him liable
under the Act and held that the publication of changes made in the existing
Indian laws cannot be expected to be made in every country and therefore
ignorance of Indian law cannot be pleaded.

Territory of India

What constitutes the territory of India has been defined under Article 1(3) of the
Indian Constitution. Which says that the territory of India comprises of:

 Territories of the states,

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  Union territories which are specified in the first schedule, and
 Other acquired territories.

Effect of Reading Sections 3 and 4, Indian Penal Code, 1860, with Section
188 of Criminal Procedure Code, 1973

According to Section 188 of the Criminal Procedure, 1973. When a wrong is

committed outside the territory of India:

 By any citizen of India, either on the high sea or elsewhere, or

 By any non-citizen on ship or aircraft which is registered in India.

He may be made liable in accordance with the provisions of Indian laws as if

the offence has been committed within the territory of India.

In the case of Samaruddin v. Asstt.Director of Enforcement, the court

held that the courts in the country do not have the authority to try an offence
committed outside the territory of India without the prior sanction of the central
Government.

Admiralty Jurisdiction

Admiralty Jurisdiction is the jurisdiction which confers the power to try

offences which are committed on the high seas. Incorporation of Admiralty
Jurisdiction into the Indian statutes was the result of various charters and British
statutes, for example, Admiralty Offences Act, 1849, Colonial Courts of
Admiralty Act 1890 conjointly read together with the Indian Colonial Courts of
Admiralty Act 1891, and the Merchant Shipping Act, 1894. Sec 4(2) of Indian
Penal Code,A ship is considered to be a floating island and belongs to the
country.The notion that a ship which floats on the high seas is like a floating

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island is the basic principle behind the Admiralty Jurisdiction. The extension of
Admiralty Jurisdiction is over the cases which involve the following offences:

 Offences which are committed on the Indian ships on the high seas;
 Offences which are committed on foreign ships within Indian
territorial waters.

In Enrica Lexie Case, an Italian ship named Enrica Lexie while passing
off the coast of Kerala fired at a fishing boat registered in India, thereof. The
firing resulted in the on-spot death of 2 fishermen. Against the Italian mariners,
an FIR was filed and the Italian ship marines were arrested. the Supreme Court
held that subject to the provisions of Article 100 of The United Nations
Convention on the Law of the Sea, 1982 the Union of India was entitled to
prosecute the accused.

Dishonesty under Section 24 of IPC

Whoever does anything with the intention of causing wrongful gain to
one person or wrongful loss to another person is said to do that thing
“dishonestly”.

Ingredients of Dishonesty:
In order an act to be a dishonest act following ingredients are necessary—

(i) Some act has been done;

(ii) This has been done with intention to cause wrongful gain or wrongful loss.

So far as the Penal Code is concerned, the word “dishonestly” does not
carry the popular sense of the term. When a person acts with the intention of
causing “wrongful gain”, i.e., gain by unlawful means, of property to which the
person gaining is not entitled, or when a person acts with the intention of
causing “wrongful loss”, i.e., loss by unlawful means, of property to which the
person losing is legally entitled, he acts dishonestly.

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SEC 39.“VOLUNTARILY”.

A person is said to cause an effect “voluntarily” when he causes it by

means whereby he intended to cause it, or by means which, at the time of
employing those means, he knew or had reason to believe to be likely to cause
it.

Illustration-
A sets fire, by night, to an inhabited house in a large town, for the purpose of
facilitating a robbery and thus causes the death of a person. Here, A may not
have intended to cause death; and may even be sorry that death has been caused
by his act; yet, if he knew that he was likely to cause death, he has caused death
voluntarily.

Harbour
“harbour” according to Section 52A includes the supplying a person
with shelter, food, drink, clothes, arms, ammunition of means of conveyance, or
the assisting a person by any means to evade apprehension.

SEC 52A: Harbour

Except in sec 157 and in sec 130 in the case in which the harbour in
given by the wife or husband of the person harboured the word “harbour”
includes the supplying a person with shelter, food, drink, money, clothes, arms,
ammunition or means or conveyance or the assisting a person by any means,
whether of the same kind as those enumerated in this section or not to evade
apprehension

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Sec 212: Harbouring offender

whoever an offence has been committed, whoever harbours or conceals a

person whom be knows or has reason to believe to be the offender, with the
intention of screening him from legal punishment.

Sec 157: harbouring persons hired for an unlawful assembly:

whoever harbours, receives or assembles in any house or premises in his

occupation or charge or under his control any person, knowing that such
persons have been hired, engaged or employed or are about to be hired, engaged
or employed to join or become members of an unlawful assembly,

- 6 months or fine or both

Sec 130: Aiding escape of rescuing or harbouring such prisoner:

- State prisoner or prisoner of war in escaping from lawful custody or

rescues or attempts to rescue any such prisoner
- Attempt
- Life or 10 years and fine
- Parole – limit – escape from legal custody.

Sec 136: Harbouring deserter

- Army man , Air force, navy

- 2 years or fine or both

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 Unit V

Punishment under the Indian Penal Code

Chapter III of the IPC Sec 53-75 has laid down the general provisions
relating to the punishment.
Object of punishment:
The Object of Punishment is to protect society from mischievous and
undesirable elements by deterring potential offenders, by preventing the actual
offenders from committing further offences and by reforming and turning them
into law abiding citizens.

Theories of Punishment

There are different kinds of punishment that a person can face. In order to
understand them, first, we need to understand the theories of the punishment.
There are majorly four theories of punishment. These theories are the deterrent
theory, retributive theory, preventive theory, and reformative theory. We will
discuss these theories in length below.

Deterrent Theory

The retributive theory assumes that the punishment is given only for the
sake of it. Thus, it suggests that evil should be returned for evil without taking into
consideration any consequences. There are two theories in which this theory can
be divided further. They are specific deterrence and general deterrence.

In specific deterrence, punishment is designed such that it can educate the

criminals. Thus, this can reform the criminals that are subjected to this theory.

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Also, it is maintained that the punishment reforms the criminals. This is done by
creating a fear that the punishment will be repeated.

While a general deterrence is designed to avoid future crime. So, this is

done by making an example of each defendant. Thus, it frightens the citizens to
not do what the defendant did.

Retributive Theory

Retribution is the most ancient justification for punishment. This theory insists
that a person deserves punishment as he has done a wrongful deed. Also, this
theory signifies that no person shall be arrested unless that person has broken the
law. Here are the conditions where a person is considered as an offender are:

 The penalty given will be equivalent to the grievance caused by the person.

 Performed a crime of certain culpability.

 That similar persons have been imposed for similar offenses.

 That the action performed was by him and he was only responsible for it.
Also, he had full knowledge of the penalty system and possible
consequences.

Preventive Theory

This theory has used a restraint that an offender if repeats the criminal act is
culpable for death, exile or imprisonment. The theory gets its importance from the
notion that society must be protected from criminals. Thus, the punishment here is
for solidarity and defense. The modern criminologists saw the preventive theory
from a different view. They first realized that the social and economic forces
should be removed from society. Also, one must pay attention to individuals who
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show anti-social behavior. This is because of psychological and biological
handicaps.

Reformative Theory

Deterrence and retributive are examples of classical and non-classical

philosophies. The reformative theory was born out of the positive theory that the
focal point of crime is positive thinking. Thus, according to this theory, the
objective of punishment needs to be reformation by the offender. So, this is not a
punishment virtually but rather a rehabilitative process. Thus, this process helps in
making a criminal a good citizen as much as possible. Furthermore, it makes the
citizen a meaningful citizen and an upright straight man.

Sec 53 punishment of IPC

Sec 53 provides for five types of punishments that can be awarded to a
man convicted under the IPC namely,
1. Death sentence
2. Imprisonment for life
3. Imprisonment with or without hard labour
4. Forfeiture of property and
5. Fine

Types of Punishments

1. Death Sentence

The death sentence is a punishment which is sanctioned by the

government and ordered by the court where a person is put to death for a crime
acted by him. It is also referred to as ‘Capital Punishment’. The act of carrying

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out such practice is called execution. As per the Amnesty International survey,
the report on as of July 2018 is 56 countries retain capital punishment and 106
countries have completely abolished capital punishment for all crimes. In India,
the death penalty is given by the method of hanging. The otherways through
which death sentences executed at world scenarios are stoning, sawing, blowing
from a gun, lethal injection, electrocution, etc.

The subject of death sentence always has been a matter of controversy.

While considering the Constitution as the supreme, the validity of death
sentence v/s fundamental rights constantly came forward for the debates.
However, the death sentences are rarely given in the Indian criminal courts.

In the case of Bachan Singh vs State Of Punjab, the Supreme Court

held that capital punishment shall be given in the “rarest of the rare” case.
However, what constitutes the “rarest of the rare cases” is not prescribed by the
Supreme Court or by the legislature.

In the case of Jagmohan Singh v. State of Uttar Pradesh, the SC ruled

that the approach towards imposing capital punishment shall be balanced on
mitigating and aggravating factors of the crime. However, in the case of Bachan
Singh, for the first time, this approach was called into question due to the
amendments in the Cr.P.C. As per the amendment in the Cr.P.C. in the offence
of murder the offender shall be punished with the sentence of life imprisonment.
After taking due consideration of the amendment, the Court stated that capital
punishment shall be given in special cases only. However, in the case
of Sangeet&Anr.v. State of Haryana, the court noted that the approach laid
down in Bachan Singh’s case is not fully adopted. The courts still give primacy
to the crime and not to the circumstances of the criminal. The balance of the

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mitigating and aggravating factors have taken a bit of a back seat in ordering
punishment.

The provisions under which the death penalty is given as punishment

under IPC are as follows:

 Section 115– Abetment for an offence punishable with death or

imprisonment for life (if offence not committed);
 Section 118– Concealing design to commit an offence punishable with
death or imprisonment for life.
 Section 121– When armed rebellion (i.e. waging, abetting to waging of
war or attempting to wage war) is made against the constitutionally
and legally established government;
 Section 132– Uprising, supporting and encouraging the formation of
the mutinous group of people in the nations armed forces;
 Section 194- With the intent to obtain a death sentence to an innocent
by presenting concocted vexatious proof;
 Section 302– Causing murder of another;
 Section 305– Abetting suicide to an insane or minor person;
 Section 303– When a life convict person murders another person;
 Section 396– Causing dacoity with murder;
 Section 364A– Kidnapping;
 Section 376A (as per the Criminal Law Amendment Act, 2013)- Rape

Some other Acts under which the death penalty covered as punishment are:

1. Section 4, part II of the Prevention of Sati Act- Abetting or aiding an

act of sati.

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 2. Section 31A of the Narcotic Drugs and Psychotropic Substances Act-
Drug trafficking in cases of repeat offences.

However, the death penalty as a punishment is an exception to certain

persons like intellectually disabled, pregnant women and minors.s

Procedure When Death Penalty is Imposed

The death sentence is executed by two modes in India:

1. Hanging by the neck till death (this is mostly ordered by the Courts);
2. Being shot to death.

The various states of India have jail manuals that provide a method for the
execution of death sentences. In accordance with Section 354(5) of the Code of
Criminal Procedure Act, 1950 hanging by neck till death is the mode of the
execution. After the death sentence is awarded by the court, the accused have
the right to appeal the order. After exhausting all remedies and confirmation of
the order, the execution is made as per procedure under Section 354(5) of
Cr.P.C. The process of execution is provided separately under the Air Force
Act, 1950, the Army Act, 1950 and the Navy Act, 1957. However, the
procedure under the above-mentioned defence acts is applicable to defence
officers only.

The Prison manual of different states of India gives detailed instructions

about the execution particulars. Some are as follows:

1. The prisoner who is convicted for death sentence shall be given a

proper diet, examined twice a day. The officers shall satisfy that the
prisoner has no article by which he can attempt for suicide.

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 2. The description of the rope and testing of rope.
3. Regulation of the drop while executing the hanging.
4. Time of executions.

Constitutional Validity of Death Penalty

The issue of the death penalty is not a recent issue. It has been discussed,
studied and debated for a prolonged time. However, till today no conclusion is
drawn about the abolition or retention of the provision. The death penalty has
been the mode of punishment from the British era. Various countries have
abolished this practice. However, in Arab countries the principle of retributive
punishment i.e. “an eye for an eye” is practised. In the list of retention countries
as mentioned above, India is one of them which have retained to give death
penalty unless some ‘special reasons’ or ‘rarest of rare case’ condition arise.

Under Article 21 of the Constitution of India, the right to life and liberty
is guaranteed, including the right to live with human dignity. There are certain
exceptions that are recognized by the law wherein in the name of law and public
order the state can restrict the rights. In Maneka Gandhi v. Union of India, the
SC laid down the principle of “due process” through which a state can restrict
the citizens from enjoying their rights. In the case of the death penalty the due
process can be as follows:

 Death penalty to be given in ‘rarest of the rare’ cases;

 The accused shall be given the ‘right to heard’;
 As per Article 136, the death penalty shall be confirmed by the High
Court;

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  Under Section 379 of the Cr.P.C., the accused have the right to appeal
in the Supreme Court;
 Under Section 433 and 434 Cr.P.C., the accused may pray for
commutation, forgiveness, etc. of the sentence.

In various cases, the constitutional validity of the death penalty was

challenged. In the case of Jagmohan Singh v. State of U.P, the argument was
that the death penalty is in violation of Article 14 (Right to Equality), Article 19
(Right to Freedom) and “right to life” i.e. Article 21, which has been
unanimously rejected by the five-judge bench of the Supreme Court. Further, it
was contended that as per Cr.P.C. the procedure is confined to findings of guilt
and not awarding death sentence. However, the Supreme Court held that the
death sentence is a choice by the court made according to the procedure
established by law and the choice between capital sentence or imprisonment of
life is based on the circumstances, nature and facts of the case brought during
the trial.

In the case of Rajendra Prasad v. State of U.P, Justice Krishna Iyer had
empathetically stressed that the death penalty is violative of articles 14, 19 and
21. With this the Justice Iyer said two conditions under which the death penalty
can be given:

 While giving the death penalty the court shall record special reasons.
 Only in extraordinary cases the death penalty to be imposed.

However, in the case of Bachan Singh vs. State of Punjab, within one year
the five-judge bench (4:1- Bhagwati J. dissenting) overruled the decision of
Rajendra Prasad’s case. The judgment expressed that the death penalty is not
violative of Article 14,19 and 21 of the Constitution of India and pronounced
that in the “rare of the rarest case” i.e. those cases in which the collective
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conscience of the community is so shocked that it will expect the judiciary to
deliver the death penalty on the accused the death penalty can be ordered.
Although, Justice Bhagwati in his dissenting judgment stated that the death
penalty is not only being violative to Article 14 and 21 but also undesirable
because of several other reasons.

Further, in the case of Machhi Singh vs. State of Punjab, the Supreme
Court laid down the broad outlines of the circumstances under which the death
sentence can be imposed. The court pointed out that under five categories of
cases the extreme penalty can be given. Those points are as follows:

1. Manner of commission of murder;

2. Motive;
3. The magnitude of the crime;
4. Anti-social abhorrent nature of the crime;
5. The personality of the victim of murder.

Similarly, in the case of Sher Singh v. State of Punjab and Triveniben vs. State
of Gujarat, the Apex court asserted affirmatively that the death penalty does not
invalidate the rights enriched under the Constitution of India.

In the case of Mithu v. State of Punjab, the Supreme Court held that the
mandatory death penalty is invalid and unconstitutional in nature. However, no
comments were made on the consequent legislation for drug and criminal
offences wherein the death penalty is considered mandatory. But at the same
time, Indian courts actually applied the mandatory death penalty for these
crimes.

However, recently in the case of Channu Lal Verma v. State of

Chattisgarh, the question of the constitutional validity of the death penalty came
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to the three-judge bench. The Bench Constituted of Justice Kurian Joseph,
Justice Deepak Gupta, and Justice Hemant Gupta. The bench upheld the
decision of the Bachan Singh case. However, Justice Kurian Joseph had a
different view, he said that “there is no substantial proof for the death penalty as
a deterrent to crime”

Evolving Parameters for Imposition of Death Sentence

The basic evolving parameters for the imposition of Death Sentence are:

1. The punishment shall not be so severe, so as to degrade the dignity of

humans;
2. The state shall not arbitrarily inflict a severe punishment;
3. In a contemporary society such severe punishment shall not be
unacceptable;
4. Such severe punishment must not be unnecessary.

However, there are other two questions which can be pondered by the Court
while imposing the death penalty as punishment:

1. There is something uncommon in the crime which calls for the

imposition of the death penalty and renders the sentence of
imprisonment for life as inadequate.
2. Even after giving maximum weightage to the mitigating factors which
are in favour of the offender there is no other alternative other than
imposing the death sentence.

Sentencing Procedure: Mandatory Provision of Section 235(2), Code of

Criminal Procedure 1973

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 In the ‘41st report of Law Commission’, it recommended for the insertion
of new provision which made a significant contribution in acknowledging the
cardinal feature of procedural fairness and natural justice. Under the old code,
there was no statutory opportunity given to the accused to explain the mitigating
factor which is relevant to decide the nature of the punishment. However, after
the recommendation of the Commission introduction of Section
235(2) and Section 248(2) of the Cr.P.C. was made. The new provisions
provided an opportunity for the convict to place necessary information to the
court to determine the mitigating factors and decide the case accordingly.
Therefore, the choice of sentence shall be made after following the procedure
under section 235(2) duly followed by the court. In the cases of death sentence
the importance of “right of hearing” has been overemphasized.

In 1976, in the case of Santa Singh v. State of Punjab, the Supreme Court
explained the nature and scope of Section 235(2). The Bench remarked that
“The provision is an acknowledgement of the fact that sentencing is an
important stage in the criminal justice administration as the adjudication of
guilt. And in no case, it should be consigned to a subsidiary position. It seeks to
personalize the punishment so that the reformist component remains as much
operative as the deterrent element. It is, for this reason, the facts of social and
personal nature, maybe irrelevant for guilt determination, should be brought to
the notice of the court at the time of actual determination of sentence”.

Further, the court also opined about the meaning of the word ‘hearing’.
The hearing is not only limited to the oral submissions but it is wider than that.
It gives both parties the right to put facts and materials which can be essential
for the questions of sentencing. The Court stressed on the point that it is
mandatory for the lower courts to comply with this provision. Not complying

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with Section 235(2) will not only be considered as mere irregularity, but that
shall vitiate the sentence.

In the case of AllauddinMian v. State of Bihar, Justice Ahmadi

emphasized the purpose of Section 235(2):

1. It gives the accused an opportunity of being heard, which satisfies the

rule of natural justice;
2. To determine the sentence of the award it assists the court.

Case laws on Death Sentence (When the death sentence is confirmed)

(1) State of Tamil Nadu v Nalini

In the case of State of Tamil Nadu v Nalini, the case was filed as an
appeal against the judgment of the High Court of Tamil Nadu. This case is
popularly known as Rajiv Gandhi’s assassination case. The offenders were
accused under Indian Evidence Act, 1872, Indian Wireless Telegraphy Act,
1933, The Foreigners Act, 1946, Passports Act, 1967, Arms Act, 1959,
Explosive Substances Act, 1908, Indian Penal Code, 1908 (IPC), TADA Rules,
The Terrorist And Disruptive Activities (Prevention) Act, 1987. In the case,
there were 26 accused out of which four accused were punished death penalty
by the Apex Court. The accused were from the LTTE (Liberation Tigers of
Tamil Eelam) group and were seeking revenge for the Indian government’s
decision for sending army troops in Srilanka. However, as per recent update
NaliniSriharan, V Sriharan, and Murghan have applied plea for mercy killing as
there is no response to their mercy petition till date.

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(2) Jai Kumar v State of Madhya Pradesh

In Jai Kumar v State of Madhya Pradesh case, an appeal by the grant of

special leave against the order of the Division bench of the High Court of
Madhya Pradesh was made. In this case, the accused brutally murdered sister-
in-law and 7-year-old niece. The Court considered the factual matrix of the case
and observed that the act of murder was not done in the rage and the accused
himself under Section 313 of the Cr.P.C admitted the murder. Thereby, the
Supreme Court upheld the verdict of the Sessions Court and the High Court of
Madhya Pradesh.

(3) Suresh Chandra Bahri v State of Bihar

The case of Suresh Chandra Bahri v State of Bihar was filed as an appeal
from the High Court of Patna. The Sessions Court convicted the three appellants
named Suresh Bahri, Gurbachan Singh and Raj Pal Sharma for the death
penalty under Section 302 and Section 120 B of the IPC. The High Court of
Patna dismissed the appeal affirming the sentence awarded by the trial court. In
this case, the accused killed UrshiaBahri and her two children because of some
dispute in the property. The Supreme Court confirmed the death penalty of
Suresh Bahri, whereas the death penalty of the Gurbachan Singh and Raj Pal
Sharma was commuted to a life sentence.

(4) Dhananjoy Chatterjee alias Dhana v State of West Bengal

In the 21st century, the case of Dhananjoy Chatterjee alias Dhana v State
of West Bengalcan be called as a historic case as the accused was the first
person who was lawfully executed for a crime not related to terrorism. The
accused was working as a watchman in the building of the deceased. He had
raped and murdered an 18-year-old girl at her own home. The trial court ordered
the death penalty under Section 302 of the IPC. The same has been confirmed
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by the High Court of West Bengal. While the appeal in the Supreme Court, the
court held that case will be considered under “the rarest of the rare” case,
thereby there will be no commutation of the punishment.

(5) Sushil Murmu v State of Jharkhand

In the case of Sushil Murmu v State of Jharkhand, the accused was

punished with the death penalty for the sacrifice before Goddess Kali of a 9-
year-old child. The accused made the sacrifice for his own prosperity. The trial
court held the accused liable under Section 302 and 201 of the IPC, 1860 and
the Jharkhand High Court confirmed the death penalty. The Appeal was made
to the Supreme Court, however, the Apex court upheld the order of the lower
court and affirmed that this is an exemplary case which can be treated as the
rarest of rare case, therefore there is no exception to be given to this case.

(6) HoliramBardokti v State of Assam

In the case of HoliramBardokti v State of Assam, there were 17 accused.

The appellant is one of the accused who has been awarded the death penalty
under Section 302 read with Section 149 of the IPC by the Sessions Judge. The
same has been confirmed by the High Court of Assam. The accused was being
held for two murders i.e. of Narayan Bordoloi, PadamBordoloi and Nayanmoni
(6-year-old child). The Supreme Court observed that the appellant had no spark
of kindness or compassion while burning the bodies and cutting the body into
pieces, the whole accident shocked the collective conscience of the community.
Therefore, the Apex Court upheld the order of the lower courts and observed
that the court is not able to find any mitigating factors to refrain from the death
penalty.

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Cases laws on Death Sentence (When Death Sentence has been Commuted
to Life Imprisonment)

(1) Om Prakash v State of Haryana

In the case of Om Prakash v State of Haryana, the accused named Om

Prakash was guilty of seven murders, thereby the Sessions court held him guilty
under Section 302 of IPC, which was upheld by the High Court of Punjab and
Haryana. There were two other accused but they were given life imprisonment
and a fine of Rs.2000. During the appeal to the Apex Court, the court observed
that mitigating factors of the case and considering other circumstances of the
case, this cannot be counted under the rarest of rare cases. The court considering
the background of the case found that the murder was acted due to constant
harassment of the family members (deceased ones).

Further, the court observed that this is not the case which was committed
to fulfil the lust for women or wealth, neither it is for money, the act does not
include any anti-social element like kidnapping or trafficking, the act does not
include any dealing in dangerous drugs, nor any act committed for political or
power ambitions. And further, the accused was working in BSF at the age of 23
with no criminal antecedents. Thereby, the Apex Court converted the death
penalty to the sentence of imprisonment for life.

(2) Rajendra Rai v. State of Bihar

In the case of Rajendra Rai v. State of Bihar, the accused were held guilty
of the murder of Krishnandan (deceased 1) and Sir Bahadur (the son of
deceased 1), as the accused and deceased had a dispute over the land situated
between their houses. The Trial court-ordered death penalty and the High Court
confirmed the order. However, the Apex Court was of the view that the case

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cannot be regarded under the rarest of rare cases. Thereby the death penalty was
reduced to life imprisonment.

(3) Kishori v State of Delhi

In the case of Kishori v State of Delhi, the accused was in relation to the
mob attack which occurred against the Sikh community immediately after the
assassination of Mrs. Indira Gandhi, the then Prime Minister which broke out in
several places including Delhi. The appellant was held to be a part of the mob.
The Sessions court was of the view that the accused deserves a death sentence,
as he has been convicted for several murders and he killed innumerable Sikhs in
a brutal manner. The High Court of Delhi confirmed the order. However, the
Apex Court had a different opinion. The Court said that the acts conducted
during the chain of events shall be considered as one. Further, the act of the
accused was not a personal action, was just a part of the group activity which
can not be called as a systematic or organized activity. Therefore, the Apex
court felt that the act of the accused as a result of the temporary frenzy act, so
the court reduced the death penalty to life imprisonment.

(4) State v PaltanMallah&Ors

In the case of State Of M.P Through C.B.I., Etc vs PaltanMallah, the

deceased Shankar Guha Yogi, who was a popular and powerful trade union
leader was killed. As he had been working for the welfare of the labour, the
industrial unit at Bhillai and Durg wanted him to be out of their way. The
deceased was the leader of the labourer organization named “CHATTISGARH
MUKTI MORCHA” (‘CMM’). The workers at Bhillai asked for help in the
protest. To help those labourers SG Yogi shifted to Bhilla with his servant
Bhahal Ram. There was a widespread movement, due to this, the leaders of the
CMM were attacked by the industrialists. The deceased apprehended that there

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is a serious threat to his life. On the midnight of 27.09.1991, Bahul Ram heard a
noise from the neighbouring room where the deceased was sleeping. The
servant found Niyogi lying on the bed in pain because of gunshot injuries.
However, the accused PaltanMallah and others were acquitted by the Sessions
and High Court due to lack of evidence. However, the Supreme Court reviewed
the matter and reversed the order of acquittal by the lower court. As there was a
long lapse of time from the lower court’s decision of acquittal to appeal, the
court sentenced him to undergo imprisonment of life.

(5) Sambhal Singh v State of Uttar Pradesh

In the case of Sambhal Singh v. State of UP, wherein the four accused
(Sambhal Singh, Jag Mohan Singh, Krishna Mohan Singh, and Hari Mohan
Singh) murdered the three children of the Munshi Mall (deceased- the brother of
the Sambhal Singh) because of a family land dispute. The Sessions court found
them guilty and the High Court confirmed the sentence. However, the Apex
Court observed that the age of the four accused was not considered by the lower
court. Sambhal Singh was old and the other three were young, therefore, the
court reduced the punishment of death penalty to life imprisonment.

(6) SwamyShraddananda @ Murali Manohar Mishra v State of Karnataka

In the case SwamyShraddananda @ Murali Manohar Mishra v State of

Karnataka, the accused was the second husband of the deceased Shakereh. The
deceased came from a highly reputed and wealthy family. The accused
murdered the deceased after a well-designed plan and executed it accordingly
for attaining property which was on her name. The Session Court ordered the
death penalty and the same was confirmed by the High Court of Karnataka.
However, the Supreme Court converted the death penalty to life imprisonment.
This is an important case from the point of view of sentencing and remitting the

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sentence. The Apex Court clearly differentiated the sentence of imprisonment
for life from ordinary life imprisonment and held that the remission is not
applicable to the cases where the imprisonment of life is given as a substitute to
the death penalty, it means the accused will be in imprisonment till his last
breath.

Commutation of Death Sentence by the State or Central Government

Scope

The powers of commutation of the death sentence by the State and Central
government is provided under the following provisions of the Constitution:

1. Article 72– gives pardoning power to the President.

2. Article 161– gives pardoning power to the Governor.

The difference between Article 161 and Article 72 are:

1. Article 161 is narrower than Article 72.

2. Article 72 covers the punishment sentenced by a Court Martial,
however, Governor is not entitled with such powers.
3. Article 72 covers all death sentences, however, under the ambit of
Article 161 death sentences are not covered.

Imprisonment for Life

Life imprisonment is one of the types of punishment which is recognized

under Section 53 of the IPC. Earlier this was also known as transportation for
life. This punishment is given for serious crimes wherein the convicted remains
in prison until his/her last breath.

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Scope of Section 57

Section 57 of the IPC is used when fractions of terms of punishment need

to be calculated. However, it is important to understand that this section does
not give any implied or explicit right to the prisoner to reduce his life
imprisonment to 20 years of the sentence.

Under some sections like Section 116,119,120 and 511 of the Code, the
prisoners can ask for relief under this section.

Is Life Sentence does Period of 14 Years?

In the case of Duryodhan Rout vs State Of Orissa (2014), the Apex Court
clearly stated that reading Section 55 of the Code and Section 433 and 433 A of
Cr.P.C, life imprisonment is not confined to 14 years of imprisonment, only the
appropriate government can commute the life imprisonment of the prisoner.

The government can commute the punishment of life imprisonment to the

imprisonment of term equal to or less than 14 years, or if the prisoner exceeded
14 years of imprisonment then he can be released.

In 1961 in Gopal VinayakGodse vs. The State of Maharashtra &Ors., the

question ‘whether there is any section in the law wherein the life imprisonment
without formal remission by the appropriate government can be automatically
treated as one for a definite period?’ came to the Apex Court as a question of
law. Answering the question the court pointed out the observation made by the
judicial committee which stated that, the transportation for life shall be deemed
to be transportation for 20 years, however, this does not say that it shall be
deemed to be considered the same for all purposes. Further, the provisions
under which transportation for life has been amended to imprisonment for life

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can also not be put under Section 57 IPC. Therefore, a sentence of
imprisonment for life or transportation for life must prima facie need to be
considered as imprisonment or transportation for the whole life of the prisoner
till his natural death.

The distinction between ‘Commutation’ under Section 55, Indian Penal

Code 1860, and Section 433, Code of Criminal Procedure 1973

There is a thin line difference between Section 55, IPC and Section 433,
Cr.P.C. Section 55 of IPC covers only the commutation of life imprisonment for
a term not exceeding 14 years. Whereas Section 433 of Cr.P.C. covers the
following powers of commutation to the appropriate government:

1. Death sentence- to any other punishment can be given which is

recognised under the IPC.
2. Life imprisonment- to imprisonment not exceeding 14 years or fine.
3. Sentence of rigorous imprisonment- to any term of simple
imprisonment (within the term he is convicted ) or fine.
4. Sentence of simple imprisonment- Fine.

However, both provisions give power to the appropriate government to

commute the sentencing of the offender without the consent of the offender. For
the understanding of the section, the appropriate government can be either State
or Central Government. If the order is passed under the matter which is
exclusively covered by the union list, then the central government will be
considered as an appropriate government. Otherwise, in all other cases, the State
Government will have the power to commute the sentence.

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 In the case of Harishankar, Gayaprasad Jaiswal vs State Of Gujarat, the
Gujarat High Court observed that Section 55 of IPC is independent of Section
433 (b) of Cr.P.C.

Imprisonment

The general meaning of imprisonment means captivity or to put someone

in prison. Under Section 53 of IPC, imprisonment can be of two types. One is
simple and the other is rigorous. As per Section 60 of the IPC, the competent
court has the discretion to decide the description of sentencing. It can be of
various types, like:

1. Wholly or partly rigorous; or

2. Wholly or partly simple; or
3. Any term to be rigorous and the rest simple.

Minimum Wages for Prisoners

The prisoners who are prisoned in jail get wages for doing work inside
the jail. The work done by them either can be voluntary or it can be part of their
punishment. The wages of the prisoners are fixed as per their skills. Their
classification is based on a) skilled, b) semi-skilled and c) unskilled.

Kerala High Court was the first High Court which took the initiative of
giving minimum wages to the prisoners. The National Human Rights
Commission (NHRC) after taking into the recommendation of the Mulla
Committee proposed Indian Prisons Bill 1996. As per the Bill, it was prescribed
that the wages should be fair, adequate and equitable wage rates. While
considering the minimum wage rate it shall be prevalent to each State and
Union territory agricultural, industry, etc. wage rate. Units of work shall also be

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prescribed for such minimum wages. The average per capita cost of the food
and clothing shall be reduced from the wages and the remaining wages shall be
paid to the prisoners.

The wages are given on per day basis. The idea of the prisoner’s wage is
to compensate the victim or the relative of the victim from the fund made by the
prisoner’s wage. As per Prison Statistics India 2015 of National Crime Records
Bureau (NCRB), the highest wages were paid in Puducherry, followed by
Delhi’s Tihar and Rajasthan. The wages for skilled varied from Rs.180- Rs.150,
for semiskilled Rs.160- Rs.112 and for unskilled Rs.150- Rs.103 as per the top
three high waged states.

Forfeiture of Property

Forfeiture generally means the loss of property without any compensation

in return, which is the result of the default caused by the person in terms of
contractual obligation, or in paying penalty for illegal conduct.

In two provisions the forfeiture of the property has been abolished:

1. Under Section 126 for committing depredation on territories of Power

at peace with the Government of India.
2. Under Section 127 for receiving property taken during war or
depredation mentioned in sections 126 and 126 of IPC.

Fine

The court may impose a fine as an alternative for imprisonment or can

add it is an addition to the imprisonment. In certain cases the fine is added along
with imprisonment. Section 63 to 69 covers various fines under the IPC.

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However, as per Section 64 of the Code, when there is a default in the payment
of a fine, the court may order for imprisonment.

Amount of Fine should not be Excessive

As per Section 63 of the IPC, when the sum is not expressed under the
provisions of the Code, the amount of fine to which the offender is liable is
unlimited, however, the fine shall not be excessive.

In the case of PalaniappaGounder v. State of Tamil Nadu, the Apex Court

stated that the sentence given by the court shall be proportionate to the nature of
the offence which includes the sentence of fine. And the punishment shall not
be unduly excessive.

Sentence of Imprisonment for Non-payment of Fine

Under IPC Section 64, the following offences are covered:

1. Imprisonment with fine;

2. Imprisonment or fine;
3. Fine only and where the offender is sentenced to:

(i) imprisonment; or

(ii) fine or both.

In such cases, the court of competence shall direct the sentence to the offender
for a certain term. Under Section 66 of the IPC, the court has the discretion to
provide any description for the imprisonment.

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 In the case of H.M Treasury (1957), the court said that in the case if the
death of the convict has occurred then also the fine will be recovered from his
property.

Scope of Section 65

As per Section 65 of IPC, the court shall limit the imprisonment when the
offender is sentenced to imprisonment and fine because of non-payment of fine.
The limit of imprisonment shall not exceed one-fourth of the term of
imprisonment which is the maximum period of the particular offence.

Scope of Section 67

Under Section 67 of IPC, the offences for which this section will be
applicable is the offence which is punishable with fine only.

1. The imprisonment so awarded shall be simple only;

2. However, the term shall not exceed the following scale:

 If fine does not exceed Rs. 50- the term shall not exceed two months;
 If fine does not exceed Rs. 100- the term shall not exceed four months;
 If fine exceeding of Rs. 100 to any amount- term shall not exceed six
months.

Recovery of Fine

Under Sec 421 of the Cr.P.C., the Court after passing the sentence can
take the action for the recovery of the fine in two ways:

1. The court can issue a warrant to levy the amount by attaching and
selling any movable property which belongs to the offender; or
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 2. Can issue a warrant to the collector of the district at the place of living
of the offender, authorizing him to take the money from the
immovable property or movable property or both.
3. Provided that such actions shall not be ordered by the court if the
offender has undergone imprisonment due to the default he made for
the payment of the fine. Further, if the court gives any such order as
after the offender has undergone imprisonment, then the court shall
give special reasons for the same.

Further, in the case of Raju Tiwari v. State of Chhattisgarh, the

Chhattisgarh High Court stated that without giving a proper ‘special reason’ the
court cannot order for the levy of money under Section 421 of CrPC when the
offender already had undergone imprisonment for non-payment.

Conviction for Doubtful Offences

As per Section 72 of the IPC, when there is doubt regarding which

offence has been committed by the offender and there is a problem to get
evidence for the offences committed by the offender, in such circumstances the
court can give the lowest punishment if the same punishment provided for all.

Solitary Confinement

Section 73 of the IPC covers solitary confinement (“Sol. Conf.”). The

Code gives the description of the way punishment to be ordered by the Court.
While giving solitary confinement the court shall keep in mind not to exceed
three months in total. The scale is as follows:

 If the term not exceeds more than six months- Sol. Conf. not
exceeding one month;

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  If the term exceeds more than six months but not exceed one year- Sol.
Conf. not exceeding two months;
 If the term exceeds one year- Sol. Conf. not exceeding three months.

Section 74 of the IPC gives the limit of Solitary Confinement while executing
the Sol. Conf. the duration shall not exceed fourteen days.

And further, if the solitary confinement given exceed three months, then
confinement shall not exceed 7 days in one month.

Scope of the Sections Providing Solitary Confinement

In the case of Sunil BatraEtc vs Delhi Administration AndOrs. the court

observed that the Sol. Conf. should not be ordered unless it is deemed to be
required as per the offence committed by the offender. The offence shall be
extreme violence or the commission of the offence shall be brutally committed
by the offender. However, the court felt that Sol. Conf. inhumane and
horrendous.

In the case of Smt. Triveniben&Ors vs State Of Gujarat &Ors, the court

had a similar view and held that under Sec 30 (2) of the Prisons Act, the jail
authorities do not have right to Sol. confine the prisoner who is under sentence
of death.

Enhanced Punishment

Scope of Section 75

Under Section 75 of the Code when a person is convicted for the second
time of an offence which is punishable under Chapter XII (Offences Relating to
Coin and Government Stamps) or Chapter XVII (Offences Against Property), if
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sentenced for more than three years imprisonment, they are liable to greatly
enhanced sentence.

However, even when it seems like under Section 348 of the Cr.P.C. the
magistrate is competent, the magistrate is not competent to award sentence
under this provision when viewed with the amendment in Section 30 of Cr.P.C.
wherein the Session Judge has the power to adjudicate such matters. Even
though Section 75 makes certain classes of cases liable to be enhanced, it is not
obligatory to the Court to do so while sentencing.generally this provision is
used to give a deterrent effect. Further, it needs to be noted that the previous
convictions for the attempt to commit an offence not covered under the ambit of
this section.

Compensation to Victims of Crime

The purpose of the criminal justice system is to protect the rights of the
individuals and give punishment to the offenders. In such cases, the accused is
caught and he is punished. However, an essential part is left over i.e. the
‘victim’. Earlier no one uses to consider the losses of the victim. Thereby
compensation is the method to provide justice to the victim.

Compensation to Victims of Crime from Fine

The IPC provided various provisions under which fine is given as a mode
of punishment. However, the fine sometimes is not sufficient enough to realise
the actual loss of the victim. And the amount prescribed under IPC is minimal
which need to be amended as per the current requirements.

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Compensation to Victims of Crime from Victim Compensation Scheme

In 2009, the Central Government ordered the State to prepare a scheme

for the compensation of victims. The main objective of the scheme was to
support the dependents of the victims who suffered the loss or injury due to
offence. Under this scheme, the rehabilitation can also be made.

Compensation to Victims of Crime from Wages of Prisoners

Under this, from the wages of the prisoners, a certain percentage of

money is deducted and the saved money is converted into a fund for the welfare
of the victims. However, recently a PIL was filed in the High Court of Delhi
wherein the deduction of the wage of the Prisoners was considered to be
arbitrary in nature and asked for repealing such provisions. Another interesting
fact is as per the records of 2006 around Rs.15 crore was collected out of which
only Rs.14 Crore is lying unutilised. However, the Delhi High Court held that
deduction in prisons wages not wrong if allowed under the law.

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 UNIT – II
General Exceptions under the IPC

The Criminal law covers various punishments which vary from case to
case. But it is not always necessary that a person gets punished for a crime
which he/she had committed. The Indian Penal Code (IPC), 1860 recognizes
defences in Chapter IV under “General Exceptions”. Section 76 to 106 covers
these defences which are based on the presumption that a person is not liable for
the crime committed.

Object of Chapter IV

Every offence is not absolute, they have certain exceptions. When IPC was
drafted, it was assumed that there were no exceptions in criminal cases which
were a major loophole. So a separate Chapter IV was introduced by the makers
of the Code applicable to the entire concept. In short, the object of Chapter IV
includes:

 Exceptional circumstances in which an individual can escape liability.

 Making Code construction simpler by removing the repetition of criminal
exceptions.

Burden of Proof

 Generally, Prosecution has to prove its case beyond reasonable doubt

against the accused.
 Before the enforcement of the Indian Evidence Act 1882, the prosecution
had to prove that the case does not fall under any exception, but section
105 of Evidence act shifted the burden on the claimant.

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  But in exceptions, as per Section 105 of Evidence Act, a claimant has to
prove the existence of general exception in crimes.

The fabric of Chapter IV

Section 6 of IPC

“Throughout this code, every definition of offence, every penal provision

and every illustration of every such definition or penal provision, shall be
understood subject to exceptions contained in the chapter titled General
Exceptions”.

The General Exceptions are divided into 2 categories:

 Excusable Acts
 Judicially Justifiable Acts

Excusable Acts Justifiable Act

A mistake of Fact under An act of Judge and Act performed in pursuance of an

section 76 and 79. order under Section 77 and 78.

Accident under Section 80. The necessity under 81.

Infancy – Section 82 and 83. Consent under Section 87 – 89 and Section 90 and 92.

Insanity – Section 84. Communication under Section 93.

Intoxication – Section 85 and

Duress under Section 94.
86.

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 Trifles under Section 95.

Private Defence under Section 96 – 106.

Excusable Acts

An Excusable Act is the one in which though the person had caused
harm, yet that person should be excused because he cannot be blamed for the
act. For example, if a person of unsound mind commits a crime, he cannot be
held responsible for that because he was not having mens rea. Same goes for
involuntary intoxication, insanity, infancy or honest mistake of fact.

A mistake of Fact under Section 76 and 79

Under Section 76: Act done by a person bound or by mistake of fact

believing, himself to be bound by law in included. Nothing is an offence which
is done by a person who is or by reason of a mistake of fact, not by mistake of
law in good faith believes himself, to be, bound by law to do such act. It is
derived from the legal maxim “ignorantiafacti doth excusat, ignorantia juris non
excusat”.

 Example: If a soldier firing on a mob by the order of his officer in

conformity through the command of the law, then he will not be liable.

Under Section 79: Act done by a person justified or by mistake of fact

believing, himself justified, by law is included. Nothing is an offence which is
done by any person who is justified by law, or who by reason of mistake of fact
and not mistake of law in good faith, believes himself to be justified by law, in
doing that particular act

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  Example: A thought Z to be a murderer and in good faith and justified by
law, seizes Z to present him before authority. A has not committed any
offence.

Case law for Section 79

In Kiran Bedi v. Committee of Inquiry, petitioner refused to deposed to

the beginning of the inquiry as she believed that she could depose only at the
end of the inquiry

Accident under Section 80

Accident committed while doing a lawful act. Nothing is an offence

which is done by accident or misfortune, without any criminal intention or
knowledge in the doing of a lawful act in a lawful manner by lawful means and
with proper care and caution.

 Example: Suppose M is trying to shoot a bird with a gun but

unfortunately the bullet reflected from the oak tree causing harm to N,
then, M will not be liable.

Case law for Section 80

In King Emperor v. Timmappa, a division bench held that shooting

with an unlicensed gun does not debar an accused from claiming defence under
Section 81 of IPC. The appeal of acquittal was dismissed and the order of trial
magistrate was upheld. The court was of the opinion that there is no reason why
sentence awarded under Section 19(e) of the Indian Arms Act should be
enhanced. The respondent was liable under the provision but no more. He just
borrowed a gun for few minutes to kill as he thought a wild animal might attack

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him and his partners. The application was dismissed regarding enhancement of
sentence.

Infancy – Section 82 and 83

Section 82: It includes an act of a child below seven years of age. Nothing is
an offence which is done by a child under seven years of age.

 Suppose a child below seven years of age, pressed the trigger of the gun
and caused the death of his father, then, the child will not be liable.

Section 83: It includes an act of a child above seven and below twelve of
immature understanding. Nothing is an offence which is done by a child above
seven years of age and under twelve, who has not yet attained sufficient
maturity of understanding to judge the nature and repercussions of his conduct
during that occasion.

 Example: Suppose a child of 10 years killed his father with a gun in the
shadow of immaturity, he will not be liable if he has not attained maturity.

Case law for Section 83

In Krishna Bhagwan v. State of Bihar, Patna High Court upheld that if

a child who is accused of an offence during the trial, has attained the age of
seven years or at the time of decision the child has attained the age of seven
years can be convicted if he has the understanding an knowledge of the offence
committed by him.

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Insanity – Section 84

Act of a person of unsound mind. Nothing is an offence which is done by a

person who at that time of performing it, by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or that he is doing what is either
wrong or contrary to law.

 Example: A, who is insane or unsound, killed B with a knife, thinking it

to be a fun game, will not be liable for B’s death as he was not aware of
the nature of act and law. he was incapable of thinking judiciously.

Case law for Section 84

In Ashiruddin Ahmed vs. State, the accused Ashiruddin was

commanded by someone in paradise to sacrifice his own son, aged 4 years. Next
morning he took his son to a Mosque and killed him and then went straight to us
uncle, but finding a chowkidar, took the uncle nearby a tank and told him the
story. The Supreme Court opined that the accused can claim the defence as even
though he knew the nature of the act, he did not know what was wrong.

Intoxication – Section 85 and 86

Section 85: Act of a person incapable of judgment by reason of intoxication

caused against his will. Nothing is an offence which is done by a person who at
the time of doing it, is, by reason of intoxication, incapable of knowing the
nature of the act, or that he is doing what is either wrong, or contrary to law,
provided that the thing which intoxicated him was administered involuntarily
without his will or knowledge.

 Example: A drank alcohol given by a friend thinking it to be a cold drink.

He became intoxicated and hit a person on driving his car back home. He

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 will not be liable as alcohol was administered to him without his will and
knowledge.

Section 86: Offence requiring a particular intent or knowledge committed by

one who is intoxicated. This applies to cases where an act done is not an offence
unless done with a particular knowledge or intent, a person who does the act in
state of intoxication, shall be liable to be dealt with as if he had the same
knowledge as he would have had if he had not been intoxicated, unless the thing
which intoxicated him was administered to him without his knowledge or
against his will.

 Example: A person intoxicated, stabs another person under influence of

alcohol which was administered to him in the party against his knowledge
or will, will not be liable. But if that person had stabbed that person under
voluntary intoxication, then he will be liable.

Case law for Section 86

In Babu Sadashiv Jadhav case, the accused was drunk and fought with
the wife. He poured kerosene and set her on fire and started extinguishing the
fire. The court held that he intended to cause bodily injury which was likely to
cause death under section 299(20 and sentenced h under section 304, Part I of
code).

Justifiable Acts

A justified act is one which would have been wrongful under normal
conditions but the circumstance under which the act was committed makes it
tolerable and acceptable. Act of Judge and Act performed in pursuance of an
order under Section 77 and 78

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Section 77: Act of Judge when acting judicially. Nothing is an offence which is
done by a judge when acting judicially in the exercise of any power which is, or
which in good faith he believes to be, given to him by law.

 Example: Giving Capital Punishment to AjmalKasab was done under the

judicial powers of judges.

Section 78: Act done pursuant to the Judgement or order of the court. Nothing
which is done in pursuance of, or which is warranted by the judgment or order
of, a court of justice, if done whilst such judgment or order remains in force, is
an offence, notwithstanding the court may have no jurisdiction to pass such
judgment or order, provided the person doing the act in good faith believes that
the court had such jurisdiction.

 Example: A judge passing an order of giving lifetime jail punishment,

believing in good faith that the court has jurisdiction, will not be liable.

Necessity under 81

Act likely to cause harm, but done without criminal intent, and to prevent
other harm. Nothing is an offence merely by reason of its being done with the
knowledge that it is likely to cause harm if it is done without any criminal
intention to cause harm, and in good faith for the purpose of preventing or
avoiding other harm to person or property.

 Example: A Captain of a ship turned the direction of the ship of 100

people in order to save their lives, but harming the life of 30 people of a
small boat, without any intention or negligence or fault on his part. He
will not be liable because necessity is a condition in which a person
causes small harm to avoid great harm.

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Case law for Section 81

In Bishambher v. Roomal, 1950, the complainant Bishambhara had

molested a girl Nathia. Khacheru, Mansukh, and Nathu were accused related to
father of the girl. The Chamars were agitated and determined to punish
Bhishambher. Rumal Singh, Fateh Singh, and Balwant Singh intervened and
tried to bring a settlement. They collected a panchayat and the complainant’s
black was blackened and given shoe beating. It was found by the court that
accused had intervened in good faith but the panchayat was having no authority
to take such a step.

Consent under Section 87 – 89 and Section 92

Section 87: Act not intended and not known to be likely to cause death or
grievous hurt, done by consent. Nothing which is not intended to cause death, or
grievous hurt, and which is not known by the doer which is likely to cause death
or grievous hurt, is an offence by reason of any harm which it may cause, or to
be intended by the doer to cause, to any person, above 18 years of age, who has
given consent, whether express or implied, to suffer that harm; or by reason of
any harm which it may be known by the doer to be likely to cause to any such
person who has consented to that risk of harm.

 Example: A and E agreed to fence each other for enjoyment. This

agreement implies the consent of each other to suffer harm which, in the
course of such fencing, may be caused without foul play and if A while
playing fairly hurts E, then A, has committed no offence.

Case law for Section 87

In PoonaiFattemah v. Emp, the accused who professed to be a snake

charmer, induced the deceased to believe him that he the power to protect him
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from any harm caused by the snake bite. The deceased believed him and got
bitten by the snake and died. The defence of consent was rejected.

Section 88: Act not intended to cause death, done by consent in good
faith for person’s benefit. Nothing, which is not intended to cause death, is an
offence by reason of any harm which it may cause, or be intended by the doer to
cause, or be known by the doer to be likely to cause, to any person for whose
benefit it is done in good faith, and who has given a consent, whether express or
implied to suffer that harm, or to take the risk of that harm.

Case law for Section 88

In R.P Dhanda V. Bhurelal, the appellant, a medical doctor, performed

an eye operation for cataract with patient’s consent. The operation resulted in
the loss of eyesight. The doctor was protected under this defence as he acted in
good faith.

Section 89: Act done in good faith for the benefit of a child or insane
person, by or by consent of the guardian. Nothing which is done in good faith
for the benefit of a person under twelve years of age, or of unsound mind, by or
by consent, either express or implied, of the guardian or other person having
lawful charge of that person, is an offence by reason of any harm which it may
cause, or be intended by the doer to cause or be known by the doer to be likely
to cause to that person

Section 92: Act done in good faith for benefit of a person without
consent. Nothing is an offence by reason of any harm which it may causes to a
person for whose benefit it is done in good faith, even without that person’s
consent, if the circumstances are such that it is impossible for that person to
signify consent, or if that person is incapable of giving consent, and has no

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guardian or other person in lawful charge of him from whom it is possible to
obtain consent in time for the thing to be done with benefit.

Section 90: Consent known to be given under fear or misconception. A

consent is not such a consent as is intended by any section of this Code,

1. if the consent is given by a person under fear of injury, or under a

misconception of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in consequence of such fear
or misconception; or
2. Consent of insane person if the consent is given by a person who, from
unsoundness of mind, or intoxication, is unable to understand the nature
and consequence of that to which he gives his consent; or
3. Consent of children, the contrary appears from the context, if the consent
is given by a person who is under twelve years of age.

Case law for Section 90

In Jakir Ali v. State of Assam, it was proved beyond doubt that the
accused had sexual intercourse with the victim on a false promise of marriage.
The Gauhati High Court held that submission of the body by a woman under
fear or misconception of fact cannot be construed as consent and so conviction
of the accused under sections 376 and 417 of the Indian Penal Code was proper.

Section 91: Exclusion of acts which are offences independently of harm

caused. The exceptions in sections 87, 88 and 89 do not extend to acts which are
offences independently of any harm which they may cause, or be intended to
cause or be known to be likely to cause, to the person giving the consent, or on
whose behalf the consent is given.

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Communication under Section 93

Communication made in good faith. No communication made in good faith is

an offence by reason of any harm to the person to whom it is made if it is made
for the benefit of that person.

 Example: A doctor in good faith tells the wife that her husband has cancer
and his life is in danger. The wife died of shock after hearing this. The
doctor will not be liable because he communicated this news in good
faith.

Duress under Section 94

Act to which a person is compelled by threats. Except murder, and offences

against the state punishable with death, nothing is an offence which done by a
person compelled to do it under threats, which, at the time of doing it,
reasonably cause the apprehension that instant death to that person will
otherwise be the consequence, provided the person doing the act did not of his
own accord, or from reasonable apprehension of harm to himself short of instant
death, place himself in the situation by which he became subject to such
constraint.

 Example: A was caught by a gang of dacoits and was under fear of instant
death. He was compelled to take gun and forced to open the door of house
for entrance of dacoits and harm the family. A will not be guilty of
offence under duress.

Trifles under Section 95

Act causing slight harm is included under this section. Nothing is an

offence by reason that it causes, or that it is intended to cause, or that it is
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known to be likely to cause, any harm if that harm is so slight that no person of
ordinary sense and temper would complain of such harm.

Case law for Section 95

In Mrs. Veeda Menezes v. Khan, during the course of exchange of high

tempers and abusive words between appellant’s husband and the respondent, the
latter threw a file of papers at the former which hit the appellant causing a
scratch on the elbow. SC said that the harm caused was slight and hence, not
guilty.

Private Defence under Section 96 – 106

Section 96: Things done in private defence.

Nothing is an offence in which a person harms another person in the

exercise of private defence.

Section 97: Right of private defence of body and property.

Every person has a right to private defence, provided under reasonable

restriction under Section 99.

1. Protecting his body or another person’s body, against any offence in

which there is a danger to life.
2. Protecting his or another person’s movable or immovable property,
against any offence like theft, robbery, mischief or criminal trespass or an
attempt to commit theft, robbery, mischief or criminal trespass.

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  Example: A father, in order to protect the life of daughter from the attack
of a thief, shoots him in his leg. But the father will not be liable as he was
protecting the life of his daughter.

Case law for Section 97

In Akonti Bora v. State of Assam, the Gauhati High Court held that while
exercising the right of private defence of property the act of dispossession or
throwing out a trespasser includes right to throw away the material objects also
with which the trespass has been committed.

Section 98: Right of private defence against the act of a person of unsound
mind etc.

When an act which would otherwise be a certain offence, is not that offence,
by reason of the youth, the want of maturity of understanding, the unsoundness
of mind or the intoxication of the person doing that act, or by reason of any
misconception on the part of that person, every person has the same right of
private defence against that act which he would have if the act were that
offence.

 Example: A attempts to kill Z under influence of insanity but A is not

guilty. Z can exercise private defence to protect himself from A.

Section 99: Acts against which there is no right of private defence.

 There is no right of private defence against an act which does not

reasonably cause the apprehension of death or of grievous hurt, if done, or
 Attempted to be done, by a public servant acting in good faith under color
of his office, though that act may not be strictly justifiable by law.

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  There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done, or
 Attempted to be done, by the direction of a public servant acting in good
faith under colour of his office though that direction may not be strictly
Justifiable by law.
 There is no right of private defence in cases in which there is time to have
recourse to the protection of the public authorities.
 The harm caused should be proportional to that of imminent danger or
attack.

Case law for Section 99

In Puran Singh v. State of Punjab, the Supreme Court observed that

where there is an element of invasion or aggression on the property by a person
who has no right of possession, then there is obviously no room to have
recourse to the public authorities and the accused has the undoubted right to
resist the attack and use even force, if necessary.

Section 100: When the right of private defence of the body extends to
causing death.

 Assault causing reasonable apprehension of death.

 Reasonable apprehension of grievous hurt.
 Committing rape
 Unnatural lust
 Kidnapping or abducting
 Wrongfully confining a person in which that person reasonably
apprehends the assault and not able to contact public authority.
 Act of throwing or attempting to throw acid, causing apprehension in the
mind that assault will cause grievous hurt.
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Case law for Section 100

In YogendraMorarji v. state, the SC discussed in detail the extent and

limitations of the right of private defence of the body. There must be no safe or
reasonable mode of escape any retreat for the person confronted with imminent
peril to life or bodily harm except by inflicting death.

Section 101: When such rights extend to causing any harm other than
death.

If the offence be not of any of the descriptions enumerated in the last

preceding section, the right of private defence of the body does not extend to the
voluntary causing of death to the assailant, but does extend, under the
restrictions mentioned in section 99, to the voluntary causing to the assailant of
any harm other than death.

Case law for Section 101

In Dharmindar v. State of Himachal Pradesh, that onus of proof to

establish the right of private defence is not as onerous as that of a prosecution to
prove its case. Where the facts and circumstances lead to a preponderance of
probabilities in favor of the defence case it would be enough to discharge the
burden to prove the case of self-defence.

Section 102: Commencement and continuance the right of private defence

of the body.

The right of private defence of the body commences as soon as a reasonable

apprehension of danger to the body arises from an attempt or threat to commit
the offence though the offence may not have been committed; it continues as
long as such apprehension of danger to the body continues.1

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  Example: A, B, and C were chasing D to kill him in order to take revenge,
but suddenly they saw a policeman coming from another side. They got
afraid and turned back to run. But D shoots B in his leg, even when there
was no imminent danger of harm. D will be liable as there was no
apprehension of death or risk of danger.

Section 103: When the right of private defence of property extends to

causing death.

1. Robbery;
2. House-breaking by night;
3. Mischief by fire committed on any building, tent or vessel, building, tent
or vessel used as a human dwelling, or a place for the custody of property;
4. Theft, mischief, or house-trespass, under such circumstances, as may
reasonably cause apprehension that death or grievous hurt will be the
consequence if such right of private defence is not exercised.

 Example: C Attempts to stab D maliciously while committing burglary in

D’s house. There is a reasonable apprehension in the mind of D that C
will hurt him grievously, so in order to save himself and property, C
throttled D with a knife in his chest, causing Death. C will not be liable.

Case law for Section 103

In Mohinder Pal Jolly v. State, the deceased worker and some of his
colleagues were shouting slogans for demands outside the factory. Some
brickbats were also thrown by them which damaged the property of the owner
who fired two shots from outside his office room, one of which killed the
deceased worker. The court held that it was a case of mischief and the accused
will not get the defence of this section.

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Section 104: When such right extends to causing harm other than death.

If the offence, the committing of which, or the attempting to commit which

occasions the exercise of the right of private defence, be theft, mischief, or
criminal trespass, not of any of the descriptions enumerated in the last preceding
section, that right does not extend to the voluntary causing of death, but does
extend, subject to the restrictions mentioned in section 99, to the voluntary
causing to the wrong-doer of any harm other than death.

 Example: If A has committed criminal trespass in order to annoy B or hurt

him, then B will have the right to harm A in proportional manner, not
causing death of the person.

Case law for Section 104

In V.C Cheriyan v. State, the three deceased along with other persons
had illegally laid a road through private property of the church. A criminal case
was pending against them. The three accused belonging to church put up
barricades across this road. The deceased was stabbed by accused and Kerela
HC held that private defence does not extend to causing the death of a person in
this case.

Section 105: Commencement and continuance of the right of private

defence of property.

The right of private defence of the property commences when:

 A reasonable apprehension of danger to the property commences. The

right of private defence of property against theft continues until the
offender has effected his retreat with the property

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  Or, either the assistance of the public authorities is obtained,
 Or, the property has been recovered.
 The right of private defence of property against robbery continues as long
as the,
 Offender causes or attempts to cause to any person death or hurt
 Or, wrongful restraint
 As long as the fear of instant death or
 Instant hurt or
 Instant personal restraint continues.
 The right of private defence of property against criminal trespass or
mischief continues as long as the offender continues in the commission of
criminal trespass or mischief.

The right of private defence of property against house-breaking by night

continues as long as the house-trespass which has been begun by such house-
breaking continues.

 Example: Suppose a thief into the house of an individual, and attempts to

hurt him instantly with a knife, then that individual has the right to act in
private defence and harm that thief to save life and property.

Case law for Section 105

In Nga Pu Ke v. Emp, paddy sheaves belonging to the accused were

removed illegally by a person. Accused attacked the cartmen and that cartmen
jumped off the carts and ran away leaving sheaves. The accused still chased him
and attacked him leading to death. The court held him as guilty of offence.

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Section 106: Right of private defence against deadly assault when there is a
risk of harm to innocent person.

If in the exercise of private defence against an assault, a person causes

apprehension of death, in which defender has no choice but harming an
innocent person, his right will extend to that running of risk. 4

 Example: C is attacked by a mob who attempts to murder him. He cannot

exercise his right to private defence without firing on the mob. In order to
save himself, he is compelled to hurt innocent children while firing so C
committed no offence as he exercised his right.

Conclusion

So these were the general exceptions which are available to the accused
to escape liability or save himself from the offence committed. It may extend to
even causing the death of a person or harm an innocent person too depending
upon the circumstances. The accused should also have the right to be heard,
keeping in view the democratic character of our nation. That’s why these
exceptions are provided so as to represent oneself in the court of law.

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 Unit III

Abetment

Introduction;
A person not committing a crime himself, may still encourage, urge,
command, request, induce or assist a third party in committing the wrong and as
a result of such commission be guilty of the offence of abetment. The meaning
of abetment as has been given in Corpus Juris Secundum. Chapter V of the
Indian Penal Code deals with the offences related to abetment. The English
have similar laws governing the liability of person involved in abetting the
commission of an offence. The English law has categorized three types of
accessories involved:
 Accessories before fact
 Accessories at the fact
 Accessories after the fact
Further, there are parties known as ‘Principals in the first degree’ who are
directly connected with the perpetrating the crime i.e. by themselves or by using
an innocent agent. ‘Principals of second degree’ are the persons who abet and
assist the principle offender, and who may be actually or constructively present
at the scene of a crime.

IPC recognises both the principals of second degree and accessories at the fact
denoting essentially the same kind of offenders and has termed them as abettors
in Chapter V.

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Meaning of Abetment

In common parlance, the word ‘abet‘ signifies help, co-activity and

support and incorporates within its ambit, illegitimate reason to commit the
crime.

Abetment under Section 107, IPC

Chapter 5 of the Indian Penal Code, 1860 deals with offences relating to
abetment. Abetment basically means the action of instigating, encouraging
or promoting a person into committing an offence. It can also mean aiding the
offender while he is committing a crime.

When more than one person contributes to committing an offence, each person’s
involvement may vary. This variation may be either in the manner or in the degree
to which the involvement occurs.

For example, one person may procure a gun and hand it over to another who may
shoot somebody with it. The former person is guilty of abetment, while the latter
commits murder.

Definition of Abetment

The definition of abetment under Section 107, IPC requires a person to abet
the commission of an offence. This abetment may occur in any of the three
methods that the provision prescribes.

The Section says that abetment basically takes place when a person abets the
doing of a thing by:

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(1) instigating a person to do that thing; or

(2) engaging with another person (or persons) in a conspiracy to do that thing; or

(3) intentionally aiding a person to do that thing.

When any of these requirements exists, the offence of abetment is

complete. Sometimes a person may commit more than one of these three
circumstances in a single offence.

In the case of Sanju v. State of Madhya Pradesh[1] the honourable

Supreme court defined ‘abet’ as meaning to aid, to assist or to give aid, to
command, to procure, or to counsel, to countenance, to encourage, or encourage
or to set another one to commit. The definition of ‘abet’ as laid down, makes it
clear that abetment only occurs when there are at least two person involved,
which further directs us towards the arrangementand operation of the act.

(1) Abetment by Instigation

Instigation basically means suggesting, encouraging or inciting a person to do or

abstain from doing something. Instigation may take place either directly or
indirectly, by written or oral words, or even by gestures and hints.

The instigation must be sufficient to actively encourage a person to commit an

offence. It should not be mere advice or a simple suggestion. The Instigator need
not even possess mens rea (a guilty intention to commit the crime).

Explanation 1 of this Section throws some lights on what instigation may mean in
this context. It says that instigation may generally happen even by:

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(a) wilful misrepresentation; or

(b) willful concealment of a material fact which a person is bound to disclose.

For example, a court directs Amit, a police officer, to arrest Raj under an arrest
warrant. Brijesh informs Amit that Chandan is Raj despite knowing that he is not.
Under this misrepresentation, Amit ends up arresting Chandan instead of Raj. In
this case, Brijesh is guilty of abetting Amit in wrongfully apprehending Chandan.

(2) Abetment by Conspiracy

Conspiracy basically means an agreement between two or more persons to

commit an unlawful act. Merely intending to commit an offence is not sufficient
for this purpose.

Thus, the conspirators must actively agree and prepare themselves to

commit that offence, it becomes a conspiracy. Furthermore, the act which the
conspirators conspire to commit itself must be illegal or punishable.

For example, in dowry death cases, the in-laws of the victim are often
guilty of abetment by conspiracy. They may do so by constantly taunting,
torturing or instigating the victim. Even suicides may take place in this manner
through abetment by conspiracy.

(3) Abetment by Aiding

The third manner in which abetment may take place is by intentionally

aiding the offender in committing that offence. This generally happens when the
abettor facilitates the crime or helps in committing it. The intention to aid the
offender is very important.

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 For example, merely giving food or clothing to an alleged offender may not
be punishable. But giving him food, clothing and shelter to help him hide from the
police or commit a crime is punishable.

Punishment for Abetment under the Indian Penal Code

In Section 109 of the Indian Penal Code, the one who abets an offence is
given the same punishment as that of the principal perpetrator of the crime if the
actus reus of the principal offender has occurred as a result of the inducement
made by the abettor. Section 109 of the Penal Code is applicable in case no
separate provision is made for the punishment of such an abetment.

Abettor: S.108

Section 108 specifically deals with abetment of an ‘offence’ unlike Section

107 which dealt with abetment of a ‘thing’. The section lays down the definition
of an abettor as being a person who abets:

 The commission of an offence

 Commission of an act which if committed by such a person would be an
offence under the law
It is important to note that this Section will not find its application for cases
where the thing abetted is not an offence. Another important point with
reference to Section 108 is that it does not contemplate that the person abetted
shall be capable under the law to commit an offence or that such person must
possess the same guilty intention as that of the abettor.

Explanation 1: Abetment of illegal omission is an offence

When a private person instigates a public servant to leave a crime scene
and the public servant leaves a duty which he was bound to do. Here the public

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servant has committed an illegal omission and the public servant has abetted the
illegal omission, despite the fact that the person was not bound to serve that
duty.

Explanation 2: Abetted Act Need not be Committed

The offence abetment is completed with instigation and does require the
effect expected as a result of it to follow. Also despite the fact that the other
person who was being abetted has not committed the act or has refused to do it.

Explanation 3: Person Abetted Need not be Capable of Committing an

Offence
This section does not contemplate that the person abetted shall be capable
under the law to commit an offence or that such person much possess the same
guilty intention as that of the abettor. For example – an injury could be caused
by using an innocent agent such as a child or a lunatic and so the abettor will
not be absolved of his guilt who uses such tools for perpetrating an offence.

Explanation 4: Abetment of an Abetment is an offence

Abetment of an abetment is an offence in case the principle or the
substantive offence is an offence. However, it is not necessary that the offence
should be committed.

Explanation 5: Abettor need not Concert in the Abetment by Conspiracy

The conspiracies are not required to have complete knowledge or
awareness of the details of the scheme to constitute their liability under this
Section. Although Section 108A which was inserted by an amendment to IPC in
the year 1898 provided that if an act has been abetted outside India, it will still
be punishable if committed inside India.

Punishment for Abetment: S. 110-114

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 Section 109 lays down the provision of such acts of abetments wherein a
person having being abetted has committed such offence pursuant to the
abetment and there is no specific provision related to the abetment of such an
offence in IPC. In such cases, the punishment will be equivalent to the
punishment as is provided for such offence which has been abetted.
The extent of liability of an abettor is dependent upon four factors:

 What act he had abetted

 With what intention
 Act which was committed
 With what intention it was committed
Section 110 comes into play when the act which has been committed with an
intention different from the intention of the abettor abetting the commission of
such act. However, when an entirely different act is committed Section 111 is to
be applied. Section 113 will come into play when the effect produced by the
commission of the act which was abetted by the abettor is different from what
he had intended to produce. A charge under Section 114 will lie when abettor is
actually present during the commission of the offence which he has abetted to
take place.

It is worthwhile to note here the distinction among sections 34, 109 and
120B. In the case of Noor Mohammad Yusuf Momin v State of
Maharashtra,the Apex court has elaborated the difference which has been
provided hereunder:
Quantum of Punishment when offence abetted is punishable with death or
imprisonment: S.115 -116
Abetment of offences which are punishable with either death or life
imprisonment are covered under the purview of Section 115 subject to such acts
having abetted must not have taken place. As a consequence of the instigation if
no offence is committed, then the instigator is convicted and charged with
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imprisonment for seven years, however, in case hurt is caused as a result of the
abetment then the abettor is punished with fourteen years of imprisonment.

Section 116 covers such cases wherein the abetment of offence is with
respect to the offence which is punishable with imprisonment and the offence is
not committed. In such cases, the abettor is guilty of imprisonment for one-
fourth of the maximum term of imprisonment provided for that offence or fine,
or both.

Concealing Designs or Plans to Commit offences: S.118-120

Sections 118, 119 and 120 deal with abetment by way of concealing the
design of commission of crimes. The element of crime in such cases lies in the
act of concealment, despite having knowledge of the plans of the commission of
the offence and thereby facilitating and enabling the commission of such
offence. Two ingredients are required to be established to constitute conviction
under these provisions:

 Existence of a criminal design on the part of persons who intend to commit

the crime
 Concealment of such design by others
There must be an active intent to conceal the design and possession of
knowledge that such non-disclosure will assist in perpetrating the offence.
These provisions basically envisage three things:

 Concealment by an act or illegal omission and this must be voluntary

 Making a false representation knowingly with regards to the design or plan
to commit an offence.

Abetment not specified under chapter -V:

131 - Abetment of mutiny
132 - Abetment of mutiny and mutiny committed in consequence thereof
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 133 - Abetment of assault by soldier, sailor, airman on his superior officer
when in execution of his office.
134 - Abetment and assault committed in consequence of such abetment.
135 - Abetment of desertion.
138 - Abetment of act of insubordination by soldiers, sailors, or airmen.
305 - Abetment of suicide of child or insane person
306 - Abetment of suicide.
Criminal Conspiracy
Introduction
Criminal conspiracy and joint liability are terms that go hand in hand.
Joint liability is the liability that is shared by people who conspired to an
unlawful act. All the people who have agreed on doing an unlawful act, with
criminal intent, will be jointly liable for the conspiracy.
Criminal Conspiracy
Criminal Conspiracy can be defined as an act when two or more persons
agree to do or cause to do:

1. Any illegal act.

2. Any act which is done through illegal means.

It is important to note that the objective to do such a crime is very

important in this act. In the case of Mulcahy v. Regina, it was said that the
criminal intent of doing an act is very indispensable from constituting an act of
conspiracy. In Rex v. Jones, it was first held that “Criminal Conspiracy ought to
charge a conspiracy, either to do an unlawful act or a lawful act by unlawful
means”. The idea of intent extends in various cases in national and international
law. Many have argued on the constitution of the ‘unlawful’ act.

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 The real meaning to that is still getting scrutinised by the courts, however,
we can still count that as anything which is against the law.

Ingredients of Section 120A, Indian Penal Code 1860

In Rajiv Kumar v State of UP, the court took out some basic necessary
ingredients in order to constitute conspiracy,

1. There must be two or more persons;

2. There must be an illegal act or an act in an illegal way;
3. There must be a meeting of minds;
4. There must be an agreement regarding the same thing.

The ingredients must be present in any act in order to constitute it as a

crime of criminal conspiracy. In PratapbhaiHamirbhai Solanki v. State of
Gujarat and another, the apex court held that the most important ingredient is
the intent to cause an illegal act.

Nature and Scope of the Law of Conspiracy in Section 120A, Indian Penal
Code 1860

The nature and scope of Criminal Conspiracy are limited to conspiring to

do an illegal act by two or more persons. No one person can constitute the
offence. It requires two or more persons to agree to do some act. The underlying
purpose of the Sections was to prevent any illegal act from happening before the
constitution of a criminal act. The nature of the sections is preventive. It helps in
the prevention of any criminal activity. The next step after this stage is the
performance of the act. So, the scope of the law is only limited to agreement
and meeting of minds with regards to a criminal act.

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 In Ram Narayan Popli v CBI, the court laid down several aspects of
Criminal Conspiracy,

(a) an object to be accomplished,

(b) a plan or scheme embodying means to accomplish that object,

(c) an agreement or understanding between two or more of the accused persons

whereby, they become definitely committed to cooperate for the
accomplishment of the object by the means embodied in the agreement, or by
any effectual means, and

(d) in the jurisdiction where the statute required an overt act.

Nature and Scope of Section 120B

Section 120B specifies the punishment given to the persons convicted for
the crime of conspiracy. They may be punished with death or rigorous
imprisonment. The nature of this section is punitive. The scope of this section is
limited to providing punishments after the accused has been convicted.

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 UNIT VI
Special crime

Offences against the State

The Indian Penal Code, 1860 deals with offences against the State under
Chapter VI (Section 121 to Section 130). The purpose of these codes is to
ensure the safety of the State as a whole. The existence of the State can be
safeguarded by giving severe punishments in case of offences against the State
such as life imprisonment or the death penalty. Offences against the State as
well as the government to disturb the public tranquillity, public order and
national integration.

Waging War

Waging war means an attempt to fulfil any purpose of public nature by

the means of violence. Such a war occurs when several people rise and
assemble against the State in order to attain any object of public nature by force
and violence. In order to constitute an offence against the State, the purpose and
intention are taken into consideration and not the murder or the force.

Difference between Waging war and Rioting

BASIS WAGING WAR RIOTING

Where the rising is primarily to

Where the rising is for general
accomplish some private purpose,
purpose, affecting the whole
affecting only those who are engaged
community and directly
MEANING in it without questioning the
strikes at the government
government authority then it is a riot
department then it is waging
irrespective of how numerous or
war against the state.
outrageous it is.

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 It is against the Government
PURPOSE It is against the public tranquillity.
of India.

SERIOUS It is a more serious offence as It is a less serious offence as

OFFENCE compared to rioting. compared to waging war.

The number of persons in

NUMBER OF waging war is not specific as The number of persons in rioting
PERSONS it has not been mentioned must be five or more.
anywhere.

It is mentioned and explained It is mentioned and explained under

MENTION IN
under Section 121 to 123 of Section 146 to 148 of the Indian
THE CODE
the Indian Penal Code, 1860. Penal Code, 1860.

Serious punishment is given Comparatively, less serious

in such a case, that is, life punishment is given, that is,
PUNISHMENT
imprisonment, or the death imprisonment for two years, or fine,
penalty, and fine. or both.

Waging War against the Government of India

Section 121 to Section 123 of the Code deals with waging war against the
Government of India. Here, the phrase ‘Government of India’ is used in a much
wider sense, that is, to imply the Indian State which derives the right and power
of authority from the will and consent of its people. In other words, this
expression signifies that although the State derives the power of authority from
Public International Laws, however, such authority is vested by the people of
the territory and is exercised by the representative government.

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 Under Section 121, the following are considered as essentials of the
offences as they need to be proved in order to constitute an offence for waging
war against the Government of India:

The accused must have:

 Waged war; or
 Attempted to wage war; or
 Abetted the waging of war.

Such a war must be against the State.

The punishment under this Section includes either life imprisonment or

the death penalty. A fine can also be imposed in certain cases. ‘Whoever’

The word ‘whoever’ is used in a broader sense and is not only limited to
the people who owe loyalty to the established Government. Even the Supreme
Court of India is unable to justify if the foreign nationals who enter into the
territory of India for the purpose of disrupting the functioning of the
Government and destabilising the society should be held guilty or not.

For instance, in the case of Mumbai Terror Attack, the first and the
primary offence committed by the appellant and other conspirators was the
offence of waging war against the Government of India. The attack was by
foreign nationals and aimed at Indians and India. The purpose of this attack was
to accelerate communal tensions, affect the financial situation of the country
and most importantly to demand India to surrender Kashmir. Therefore, under
Section 121, 121A and 122 of the Code, the appellant was rightly held guilty for
waging war against the Government of India.

Waging War

The phrase ‘waging war’ must be understood in the general sense and can
only mean waging war in the manner usual in war. It doesn’t include overt acts
like collection of men, arms and ammunition. Also, in the international sense,

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the inter-country war involving military operations between two or more
countries is not included under this type of war.

Under, Section 121 it has been made clear that ‘war’ is not conventional
warfare between countries, however, joining or organising an insurrection
against the Government of India is a form of war. Waging war is a way to
accomplish any purpose of public nature by violence.

Intention

In the case of waging war intention and purpose are considered to be the
most important factors to be examined behind such aggression against the
Government. In such a war, murder and force are irrelevant.

Sedition and Abetting War

Both the offences are cognizable, non-compoundable and non-bailable.

Theses offences can be tried in a Court of Session.Section 124A of IPC deals
with sedition. This offence means that the intention is to bring hatred or
contempt or excite disaffection (including disloyalty and a feeling of enmity)
against the Government of India.Abetting the war is a special type of offence.
The main purpose of such instigation should be necessarily waging of war.

For instance, in Najot Sandhu’s case, the appellant was a part of the
criminal conspiracy and was deemed to have abetted the offence. He took an
active part in a series of steps taken for the purpose of the conspiracy.
Therefore, the judgement given by the High Court was upheld and the appellant
was convicted under Section 121 of IPC.

In a case under Section 121 of IPC if the charge doesn’t set out the
speeches to be seditious, then this doesn’t spoil or affect the proceedings. Thus,
it can be concluded that there is a difference between sedition and abetting war.

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Conspiracy to Wage War

Section 121A was added to IPC in 1870. It states that it is not necessary
for any act or illegal omission to take place explicitly in order to constitute a
conspiracy.

This section deals with two types of conspiracies:

1. Conspiring to commit an offence punishable under Section 121 of the

Code, within or without India.
2. Conspiring to overawe, that is, intimidated by means of criminal force
or a mere show of criminal force against the Government.

The punishment under this Section includes imprisonment for ten years or
life imprisonment along with a fine. Such punishment can be given by the
Central Government as well as the State Government.

Preparation to Wage War

Section 122 of the IPC deals with the preparation of war. There is a
difference between an attempt and preparation for committing the offence. The
essentials of this Section are:

 Collection of men, arms and ammunition.

 There must be an intention to wage war or make preparations to wage
war for such collection.
 The accused must participate in such collection.
 The war must be waged against the Government of India.

The punishment under this Section is either life imprisonment or

imprisonment for ten years along with a fine.

For instance, if print material along with other things is found in the room
of the accused, then they are neither considered objectionable nor infuriating.
Thus the accused cannot be convicted under this Section.

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Concealment of Design to Wage War

Section 123 of the IPC deals with the concealment of design to wage war.
The essentials of this Section are:

 There must be an existence of a design which is prepared to wage war

against the Government of India.
 The concealment should be done with the intention of facilitating the
war against the Government of India.
 The person should know about the concealment of the design.

The punishment under this Section is imprisonment of up to ten years

along with a fine.

For instance, in the Parliament attack case, the accused had information of
conspiracy along with a plan of terrorists. Thus his illegal omission made him
liable under Section 123 of the IPC.

War against Asiatic Power

Section 125 deals with ‘Waging war against any Asiatic Power in alliance
with the Government of India. This Section contempt the waging of war against
any Asiatic power. Here, the accused should have waged war against the State
or attempted to wage war, or abetted the waging of war. The essentials of this
Section are:

 There must be an Asiatic State along with an international influence.

 Such a State should be other than India.
 Such a State should be in alliance with or at pace with the Government
of India.

The punishment under this Section is life imprisonment or imprisonment for

seven years along with a fine in some cases; or fine.

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Depredation in Friendly Countries

Section 126 deals with ‘Depredation on territories of Power at peace with

the Government of India’. Depredation refers to an act of attacking. The
essentials of this Section are:

 The accused should have committed or prepared to commit

depredation.
 The act must be done on the territories of any power which is in
alliance with or at peace with the Government of India.

Punishment under this Section is imprisonment for a term of seven years

along with a fine. Any property used for the purpose of committing such
offence or acquired as a result of this offence can also be forfeited.

NOTE: Section 126 is wider than Section 125, as the latter deals with the
waging of war against Asiatic Power in alliance with the Government of India
whereas the former Section applies to a Power which may or may not be
Asiatic.

Receiving Property Taken by War or Depredation

Section 127 deals with the ‘Receiving property taken by war or

depredation as mentioned in Section 125 and 126’. The essentials of this
Section are:

 The accused must have received any property.

 The accused must have been received the property by waging war with
a Power at peace with the Government of India or by committing
depredation on its territories.

Punishment under this Section is imprisonment for a term of seven years along
with a fine. Also, the property must be forfeited.

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Assault on High Officials

Section 124 of the IPC deals with the assault on high officials, that is, the
President, Governor, etc. Such assault should be done with the intention of
inducing or compelling the high officials to exercise or refrain from exercising
their lawful powers. The ingredients of this Section are:

 The accused should have assaulted the President or the Governor of

any State; or
 The accused should have wrongfully restrained the President or the
Governor; or
 The accused attempted to assault or wrongfully restrain the President
or the Governor; or
 The accused attempts to instigate or influence the President or the
Governor with force or show of force with an intention to compel them
from exercising or refraining from exercising their powers.

Escape of a State Prisoner

Section 128, 129 and 130 deals with the various aspects of the escape of a
state prisoner.

The expression ‘State prisoner’ refers to a person whose imprisonment is

necessary to preserve the security of India from internal disturbances as well as
foreign hostility.

Section 128 of the IPC deals with ‘public servants voluntarily allowing
prisoners of State or war to escape’. The ingredients of this Section are:

 The accused should be a public servant; or

 The confined person should be a prisoner of State or war; or
 Such prisoner should be in the custody of the accused person; or
 The accused servant should have allowed such a prisoner to escape
voluntarily.

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NOTE: This Section doesn’t apply in the case of the prisoner escapes during
the transit.

The offence under this Section is an aggravated form of an offence under

Section 225-A. In both cases, the public servant is punished if he voluntarily
allows the prisoner to escape, however, under Section 225-A a prisoner may be
an ordinary criminal.

Punishment under this Section is either life imprisonment or punishment for a

term of ten years along with a fine.

Section 129 of the IPC deals with ‘public servant negligently causing the
prisoner of State or war to escape’. The ingredients of this Section are:

 The accused should be a public servant, necessarily at the time of

committing the offence.
 Such a prisoner should be in the custody of the accused person.
 Such a prisoner should be rescued or escaped.
 Such an escape or rescue should be due to the negligence of the
accused.

The offence under this Section is an aggravated form of an offence under

Section 223. In both cases, the public servant is punished if he negligently
causes the prisoner to escape, however, under Section 223 prisoner may be an
ordinary criminal.

Punishment under this Section is simple imprisonment of up to three years

along with a fine.

Section 130 of the IPC deals with the ‘any person who aids or assists the
escape of, rescuing, or harbouring of a prisoner of State or the war to escape’.
This Section is more extensive as compared to Section 128 and 129. The
ingredients of this Section are:

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  The accused knowingly aids or attempts to aid, rescue, harbour or
conceal such prisoner.
 Such a prisoner should be in lawful custody.
 The act or omission should be done intentionally or knowingly.

Punishment under this Section is life imprisonment or imprisonment up to ten

years, and a fine.

Sedition

Section 124A deals with sedition.Under this Section, any person who by:

 Words, written or spoken; or

 Signs; or
 Visible representations; or
 Otherwise;

Brings or even attempts to bring hatred or excites disaffection (including the

feeling of enmity and disloyalty) towards the Government of India, is
punishable with:

 Life imprisonment along with a fine in certain cases; or

 Imprisonment for up to three years along with a fine in certain cases;
or
 Fine.

Essential Ingredients of Section 124A

Words, Sign, Visible Representation or Otherwise

Sedition can be made in various ways- by words, written or spoken, by

signs, or by visible representation. Seditious deeds include music, publications,
performances (films and puppets), sculptures, photographs, cartoons, paintings
and any other method.

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 Under sedition, it is immaterial whether the seditious articles are being
used by the actual authors or not. The editor, publisher or printer is equally
liable as the author in such a case. Thus, whoever wrote or used it for the
purpose of exciting disaffection is guilty of sedition. In case, the accused pleads
that he did not authorise the article, then the burden of proof lies with the
accused. Moreover, if the accused is unaware of the contents of the published
article or paper then he is not guilty under this Section as the intention is
absent.

Sedition doesn’t necessarily consist of written or spoken words but can

also be of other kinds such as signs and by visual representation. For instance, it
can be evidenced by a woodcut or engraving of any kind.

Brings or Attempts to Bring into Hatred or Contempt

The expression ‘brings or attempts to bring into hatred or contempt’

attempts to not interfere or interfere less with the freedom of speech.

For instance, the writers in the public press are not allowed to write or get
indulged in improper or dishonest motives. A writer when publishes an article
with a calm, unsentimental and dispassionate view, and discusses his little
feelings that may or may not cause a man to think, are not considered to be
seditious. However, if the article goes beyond and contains improper, corrupt
and dishonest motive, then such an article is considered to be seditious.

Excite Disaffection

The term ‘disaffection’ includes disloyalty and all other feelings of

enmity. In order to amount to sedition, an act of disaffection must be excited
among the people. In other words, the feeling of disaffection must be stirred
among the people of the State.

As per this Section, the disaffection can be excited in several ways, such as:

 Poem,
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  Allegory,
 Historical or philosophical discussion,
 Drama, etc.

In order to amount to sedition, the publication is necessary. The publication can

be of any kind and manner, including posts.

Government Established by Law

This expression refers to the existing political system which includes the
ruling authority and its representatives. In other words, it refers to the people
who are authorised by law to administer the Executive Government in any part
of India. It includes the State Government as well as the Central Government.

An offence to come under this section must be directed toward the Government
of India.

The following situations do not fall under the umbrella of sedition:

 Speech urging strike against businessmen or mill owners and not

Government.
 Discouraging recruiting.

 Pursuing people to not pay land revenue.

Thus, sedition means attacks on the established Government or the Sovereign.

An attack on the justice administration does not fall under the ambit of Section
124A.

Expressing Disapprobation – Explanations 2 and 3

The phrase ‘expressing disapprobation’ simply refers to expressing

disapproval. A man can be liked by someone, however, such liking doesn’t
necessarily amount to approval of that man’s sentiments or actions. Explanation
2 and 3 give a plethora of options for people to make comments expressing

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disapprobation of the measures of the Government. It is done in order to obtain
their alteration by lawful means or other Government actions. All this can be
done without exciting hatred or exciting disapprobation of the Government.

Explanation 2 and 3 have a limited scope and are strictly defined. Thus,
the objective of these explanations is to protect bonafide criticism of public
measures as well as their institutions, in order to improve. It is the right of the
free press in a free country to accelerate changes in policy by criticising such
measures. Nowadays, the freedom given to media is much more when
compared to earlier years or pre-independence.

For instance, an article in the newspaper is not seditious when it attacks a

proposed bill or the policy of the ministry, however, an attack on the ministry
would amount to sedition.

Constitutional Validity of Section 124A

The provisions of this Section are not considered to be unconstitutional as

being violative of the fundamental right of freedom of speech and expression
under Article 19(1)(a) of the Indian Constitution.

Ram Nandan v. State of U.P. was the first case in which the constitutional
validity of sedition was questioned. The Allahabad High Court held that the
Section imposed a restriction on freedom of speech and was not considered to
be in the interest of the general public. Therefore, this Section was considered
as ultra vires to the constitution.

However, it was overruled in the case of KedarNath Das v. State of

Bihar. In this case, it was held that this Section would only limit the acts
involving an intention to create a disturbance of law and order or enticement of
violence. Thus, the Supreme Court held this Section intra vires.

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Conclusion

Offences against the State play a crucial role in regulating and

maintaining public order. The people of the State have a right to criticise the
policies of the Government, however, they should not misuse their liberty to
cause harm to the people around them or the Government. Waging war against
India and against power is a punishable offence. The law also protects the high
officials, such as the President, the Governor of every State etc. in case of
assault against them. Most importantly, sedition is considered to be one of the
most dangerous cognizable offences against the State. Thus, it can be concluded
that the State needs to restrict the freedom of the people of the country for the
betterment of the State.

Unlawful Assembly (Section 141):

According to Section 149 IPC an assembly of five or more persons is
designated as 'Unlawful Assembly', if the common object of the persons
composing that assembly is:
First - To overawe by criminal force, or show of criminal force, the Union or
any State Government or Parliament or the Legislature of any state, or any
public servant in the exercise of the lawful power of such public servant; or
Second - To resist the execution of any law, or of any legal process; or
Third - To commit any mischief or criminal trespass, or other offence; or
Fourth - By means of criminal force, or by show of criminal force, to any
person to take or obtain possession of any property, or to deprive any person of
the enjoyment of a right of way, or of the use of water or other incorporeal right
of which he is in possession or enjoyment, or to enforce any right or supposed
right; or
Fifth - By means of criminal force, or show of criminal force to compel any
person to do what he is not legally bound to do, or to omit to do what he is
legally entitled to do.

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 Explanation - An assembly, which was not unlawful when it assembled,
may subsequently become an unlawful assembly.
The Principle of Common Intention: Section 34 of IPC is related with
doctrine of common intention.
Section 34 - Acts done by several persons in Furtherance of Common
Intention: "When a criminal act is done by several persons, in furtherance of
the common intention of all, each of such persons is liable for that act in the
same manner as if it were done by him alone."
From the analysis of Sec. 34 following essentials are made clear:
1. There must be two or more persons.
2. They must have a common intention.
3. Their common intention must have been furthered.
If the above conditions are satisfied, each of the accused person would be liable
for the resulted Criminal Act as if it were done by him alone.
Common Intention
1) Common intention means following:
a) Concerted action.
b) Knowledge of each other's intention and sharing thereof.
c) Prior meeting of minds.
2) Common intention is essential ingredient of Sec. 34. Common Intention must
not be confused with same or similar intention.
3) Presence of common intention is a question of facts and circumstances.
4) Common intention must be strictly proved. Courts cannot infer common
intention readily.
Furtherance of Common Intention
1) Presence of common intention is not enough. Its furtherance must also be
proved.
2) Furtherance suggests participation or performance of some role.

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It was held that in a planned murder, one of the persons played the role of
keeping of people from coming to the rescue of deceased. He and others were
held guilty of murder u/s 302 read with Section 34
3) It is not necessary that the roles should be same. Acts of the accused persons
may differ.
4) Word 'Furtherance' enlarges the scope of Sec. 34. The accused persons would
be liable for a criminal act done in furtherance of common intention though it is
different from what was commonly intended.
5) Where one of the accused persons develops an independent intention, the act
done in furtherance thereof shall be his individual act and other co-accused
persons would not be liable.
In the case of Barendra Kumar Ghosh vs. Emperor 52 IA 4014 (PC):
That act refers to the 'Criminal act' used in Section 34 which means the unity of
criminal behaviour which results in something for which an individual would be
punishable if it were all done by himself alone in an offence. Even if the
appellant did nothing as he stood outside the door it is to be remembered that in
crimes as in other things "they also serve who only stand and wait."
In the case of Mehboob Shah vs. Emperor AIR 1945 PC 118:
Common intention implies a prearranged plan, prior meeting of minds, prior
consultation in between all the persons constituting the group.
Common Intention Must Precede the Criminal Act
1. Common intention must precede the criminal Act; the time interval between
them may be narrow or wide.
In the case of Ram Chander vs. State of Rajasthan 1970 Cr.L.J. 653:
It is held that there need not be a long interval of time between the formation of
the common intention and the doing of the Act.
2. Common intention may develop even on the spur of moment.

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Difference between Common intention, same or similar intention
1) In Mehboob Shah case, it was held that common intention and same intention
are different. The difference or distinction may be few but it is real and
substantial.
2) Sec. 34 requires common intention. Concerted Action is the essence of the
term. In case of same or similar intention there is no concerted action.
Framing of Charge U/s 34 is not necessary
1) Sec. 34 does not create any offence. It is a deemed provision and not a penal
provision. It only provides for a rule of evidence.
2) Since Sec. 34 does not create any substantive offence no charge is required to
be framed U/s 34.
The Principle of Common Object (Section 149 IPC):
Every member of an unlawful assembly is guilty of offence committed in
prosecution of common
Sec. 149 provides:
"If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members to
that assembly knew to be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that offence, is a member of
the same assembly, is guilty of that offence.
Ingredients:
The following are the essentials of common object:
a) There must be an unlawful assembly.
b) Any of the members of the unlawful assembly must have committed an
offence.
c) Offence must have been committed in prosecution of common object. (It
includes the offence the likelihood of the commission of which was known to
the members) If the above requirements are satisfied all the members of the

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unlawful assembly would be liable for the offence provided they were members
at the time of commission of offence.

Distinction between Common Intention and Common Object (Sec. 34 &

sec, 149)
1. Sec. 34 does not create any substantive Sec. 149 creates a substantive
offence. It only provides for a rule of evidence.offence.
2. Common object must be proved to attract Sec. Common intention is
necessary to Common intention means concerted action or attract Sec. 34. 149;
common Prior meeting of mind of knowledge and sharing of each other's
intention.
3. Sec. 34 does not require any unlawful assembly. Unlawful assembly is a
condition President for Application of Sec. 149
4. Sec.34 requires participation or performance Sec. 149 does not require of
some roles by accused of common intention. Participation by all accused person
This Sec. imposes liability on persons who are members of unlawful assembly
at Framing of charge is not necessary as it Framing of charge is necessary as it
contemplates no offence. contemplates a substantive offence.
Difference between Section 34 & Section 149 was laid down in Barendra
Kumar Ghosh v Emperor 52 IA 40 (PC) Similarity: Both are examples of
constructive criminal liability.
Cooperation by Doing One of Several Acts Constituting an Offence
Section-37
Section – 37
The accused must have cooperated in the commission of the offence by
doing any of those acts. The accused must have done that act either singly or
jointly. If the above conditions are satisfied the accused shall be liable for the
commission of that offence.

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Illustration - 'A' is a jailor. T is a prisoner under his charge. 'A', intends to kill
'Z'. 'A', commits illegal omissions in supplying food to T. 'Z' is much reduced in
strength. However the starvation is not sufficient to cause death. 'A' is dismissed
from service. 'B' is a new jailor. There is no collusion or cooperation between
'B' & 'A'. 'B' too, commits illegal omissions in supplying food to T. 'B' knows
that 'Z' may die. T dies of hunger. Determine the Cr. liabilities of 'A' & 'B'. 'A' is
liable for attempt to murder while 'B' is guilty of murder. (as he has knowledge
that Z could die).

OFFENCES AGAINST PUBLIC TRANQUILITY

Rioting and Affray
General
Sec. 146 defines rioting Sub. Sections 147 & 148 provide for punishment
for the offence of rioting.Sec. 147 provides for punishment for simpler forms of
rioting. Sec. 148 provides for punishment for aggravated forms of rioting. Sec.
159 defines the offence of Affray. Sec. 160 provides for punishment for offence
of affray.
Definition and Essentials of Rioting - Section-146 :"Whenever force or
violence is used by an unlawful assembly or by any member thereof, in
prosecution of the common object of such assembly, every member of such
assembly is guilty of the offence of rioting."From the analysis of Sec. 146,
following essentials of rioting are made out:
a) There must be an unlawful assembly.
b) Force or violence must have been used by any member of such
assembly in prosecution of common object of that assembly. If the above
requirements are satisfied, every member of that assembly would be guilty of
committing rioting.

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 c) Unlawful assembly - five or more persons are designated as an
unlawful assembly if they have any of the seven common objects enumerated in
Sec. 141.
d) Use of force or violence by any member of unlawful assembly in
prosecution of its common object makes all the members liable for rioting.
e) Here the word 'force' is to be used in the sense it has been defined in
(Sec. 349-IPC) (Ganikhan, 46,I.C.) & Oudh-IC-lndian cases.The word 'force' in
Sec. 146 is limited to men or persons.
f) The word 'violence' is comparatively a wider term than 'force'.
Violence extends to men as well as to property. Therefore, the word violence
shall cover use of force even against things. (Samar-ud-din,1912, Calcutta)
g) Rasool, 1889. In this case Plauden J. observed that it is the use of force
which distinguishes the rioting from unlawful assembly.
h) Use of force or violence is necessary for constituting rioting. The
prosecution is bound to establish that use of force or violence was made by a
member of unlawful assembly in prosecution of common object.
Punishment for Rioting - Section- 147, 148
1. Sec. 147 provides for punishment for simple rioting. Under it, the
person found guilty is punishable with imprisonment of either description for 2
yrs or with fine or with both.
2. Sec. 148 provides for punishment for aggravated forms of rioting.
Under it, the person found guilty is liable to punishment up to 3yrs or fine or
with both.
Sec. 148 is attracted where rioting is committed being armed with deadly
weapon. The section is also attracted in cases in which the thing used as a
weapon of offence is likely to cause death. Rioting is a cognizable and a
bailable offence. It is non - compoundable.

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Definition and Essentials of Affray - Section- 159
1. Sec. 159 defines Affray as under: "Where two or more persons, by
fighting in a public place, disturb the public peace, they are said to commit an
affray."
A mere verbal wrangle is not fighting. So to constitute fighting there must
be use of limbs and violence by both parties.
Essentials of affray are made out:
a) There must be two or more persons.
b) There must have been a fighting between such persons.
c) The fight must have been at a public place.
d) Such fight must have resulted in the disturbance of public peace.
2. Two persons may be enough for affray. An unlawful assembly is not
necessary.
3. Fight is an essential ingredient of affray. Fight suggests active
opposition and conflict. It is serious in so far as consequences are concerned.
A mere use of threatening words is not enough. The fight presupposes an
attack. A scuffle with the use of violence is a fight.
4. Fight must have been at a public place. A place is a public place if
people may frequent it without any hindrance. It is not material whether the
public has a right to frequent that place or not.
Madan Mohan, 1883: Held: A Railway platform is not a public place
when no other train except goods train is to arrive there.
Joghevis State: Held: Where one of the parties is beating the other and
that other did not offer any resistance or opposition, it would not constitute a
fight. Besides, the prosecution must establish that disturbance of public peace
has occasioned on account of fight. A mere public inconvenience does not
constitute disturbance in public peace. A general Sensation and obstruction or
disturbance is necessary.

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Punishment for Affray - Section- 160:
The person found guilty is liable to be punished with imprisonment of
either description which may extend to one month or with a fine up to Rs. 100
or with both. Affray is a cognizable, bailable and non compoundable offence.
Distinction between Rioting & Affray
Rioting Affray
1) Definition u/s 146 1) Definition u/s 159
2) Punishment u/s 147 & u/s 148 2) Punishment u/s 160
3) More serious offence 3) Less serious comparatively.
4) Unlawful assembly required 4) Requires two persons only.
5) Use of force or violence in prosecution of 5) Fighting at public place.
common object. (Public place not necessary)

FALSE EVIDENCE (SEC. 192)

DISTINCTION BETWEEN "GIVING FALSE EVIDENCE" AND
"FABRICATING FALSE EVIDENCE":
The distinction between giving false evidence and fabricating false evidence lies
in the following five important points:
1. First of all, it is the intentional giving of false evidence or the
intentional fabrication of false evidence that is punishable. The law will not
punish a witness who, through ignorance or mistake, or through carelessness or
inadvertence, foolishly makes a false statement.
The intention forms the essence of both offences. But there is a difference
between the two as regards the kind of intention. In the case of giving false
evidence, only general intention is sufficient.
It insufficient if the false evidence is intentionally given, i.e., if the person
making the statement makes it advisedly knowing it to be false and with the
intention of deceiving the person conducting the proceeding and leading such

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person to believe that what he states is true. In the case of fabricating false
evidence, a particular intention is essential.
The offence cannot be committed unless the accused fabricates evidence
with a particular intention, viz., to use a false circumstance, entry or document
in evidence in a proceeding and to procure the formation of a material point.
2. Secondly, the offence of giving false evidence is committed by a
person who is bound by an oath or by an express provision of law to state the
truth or to make a declaration upon any subject. In the case of fabricating false
evidence, this ingredient is not necessary.
3. Thirdly, in the case of giving false evidence, the false statement need
not be made on a material point. The offence is complete if any false statement
is made. But in the case of fabricating false evidence, the evidence fabricated
must be on a material point; otherwise the offence cannot be committed.
4. Fourthly, the question of the effect of the evidence on the officer
before whom the evidence is given is of no consequence in the case of giving
false evidence, but this is an important point to be considered in fabricating
false evidence. If the accused gives any information which he knows or believes
to be false he shall be punished.
Offences affecting Public Health (Section 268-278)
There are ten offences against public health. These fall in groups, viz.-
Public nuisance: S. 268.
1. Acts likely to spread infection: Ss. 269-271.
2. Adulteration of food or drink: Ss. 272-273.
3. Adulteration of drugs: Ss. 274-276 and
4. Fouling water and vitiating atmosphere: Ss. 277-278.
A common nuisance is not excused on the ground that it causes some
convenience or advantage: S. 268.

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Kinds of Nuisance:
It is to be remembered that nuisance is of two kinds
1. Public
2. Private

Private nuisance;
Private nuisance is some unauthorized use of a man's own property
causing damage to the property of another, or some unauthorised interference
with the property or proprietary rights of another, causing damage, but not
amounting to trespass. Private nuisance includes obstruction to light and air,
wrongful escape of foul gas, or noise, water, filth, germs etc.
Thus, if one's neighbour plays rock-and-roll music at full blast well past
midnight, this may cause considerable inconvenience and annoyance, and one
would have a civil cause of action against such a music-minded neighbour. But,
one cannot criminally prosecute the neighbour, the act being a private nuisance,
and not a public nuisance, which alone is made punishable under the Code.
Public nuisance or common nuisance
Public nuisance is an offence against the public, either by doing a thing
which tends to the annoyance of the whole community in general, or by
neglecting to do anything which the common good requires. Acts which
seriously interfere with the health, safety, comfort or convenience of public
generally, or which tend to degrade public morals, have always been considered
to be public nuisance.
Thus, a public nuisance cannot be committed with respect to a particular
individual or individuals. When the nuisance affects the public or a section of
the public residing in the neighbourhood or persons exercising a public right, it
is indictable, and there is no excuse to say that it causes some convenience or
advantage.

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 Acts which seriously interfere with the health, safety, comfort or
convenience of the public generally, or which tend to degrade public morals, are
always punishable as public nuisance. Thus, blasting stones near a public road,
on working a printing press at night in a residential quarter of a city, or keeping
gaming houses or slaughtering animals in a public place, are instances of public
nuisances for remedying which, both a civil suit, as also a criminal prosecution,
will lay.
Public and private Nuisance Distinguished: There are five points of
distinction between the two:
a) As to the Nature of the Right Involved: A public or common nuisance
affects the public at large, or some considerable portion thereof, whilst a private
nuisance affects only one person or a determinate body of persons. In other
words, while a public nuisance is an offence against public rights, safety or
convenience, a private nuisance is a violation of the private right of a person to
the comfortable occupation of property.
b) As to who can Sue: Public nuisance does not create a civil cause of action
for any person. An action cannot be maintained by a private individual in his
own name in respect of public nuisance, except abatement, damages and
injunction. Private nuisance, on the other hand, is actionable at the suit of any
person in possession of land who is injured by reason thereof.
c) As to Acquisition of Right of Nuisance: Whilst no length of time can
legalize a public nuisance, a right to continue a private nuisance may be
acquired by prescription.
d) Remedies Available: An action for damages lies in respect of a private
nuisance, but not in respect of public nuisance, unless the plaintiff has sustained
special damage. In the case of a public nuisance, the action generally is for
declaration and injunction.

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e) Abatement: While a private nuisance may be abated by the person
injuriously affected thereby, a public nuisance cannot be so abated by him.
Abatement of Nuisance:
A private person can, under certain circumstances, abate a private
nuisance, i.e., take the law into his own hands, and stop it in a reasonable
manner. But a public nuisance cannot be abated by private individuals. There is
no statutory provision in India justifying a private person or a member of the
public in demolishing a building and causing loss to another by way of abating a
nuisance.
In Narsihulu v. Nagur, the complainants rebuilt their house which
abutted on a public street. A portion of the superstructure was an encroachment
on a portion thereof. The accused gathered there for the purpose of abating what
they considered to be a public nuisance, and demolished a portion of the
superstructure which stood on the encroached portion.
The harm caused by the encroachment was not of such a nature or so
imminent as to justify the accused to take the law into their own hands and
demolish the superstructure. It was held that, as the accused had no right of
abating the public nuisance, the demolition of the superstructure by them had no
justification in law, the loss caused to the complainants by such demolition was
wrongful loss within the meaning of S. 23, and the accused were guilty of the
offence of mischief.
Ingredients of Section 268:
The following are the two ingredients of S. 268:
a. Doing any act or being guilty of an illegal omission. Illegal omission.-
It is to be remembered that every omission causing a nuisance is not punishable.
The omission must be illegal. The word illegal is defined in S. 43 as applicable
to everything which is an offence or which is prohibited by law or which
furnishes ground for a civil action.

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b. Such act or illegal omission must cause any common injury, danger or
annoyance.
(i) to the public. or
(ii) to the people in general who dwell or occupy property in the vicinity,
(iii) must necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right.
Common Injury, Danger etc.:
The injury contemplated in this section must be common, i.e., it must
affect the public, and not any solitary individual. There is no nuisance where
there is no annoyance to the public.
Acts likely to spread infection (5s. 269-271):
Acts likely to spread infection (and which are made punishable) are two:
1) Negligent or malignant act likely to spread infection or any disease
dangerous to life: Ss. 269-270.
2) Willful disobedience to a quarantine rule: S 271

OFFENCES AFFECTING THE HUMAN BODY

Offences affecting life (Section 299-377)
Culpable Homicide & Murder
General: Following are the main offences affecting human life:
a) Culpable homicide.
b) Murder Culpable homicide
Culpable homicide
1. Culpable homicide is called manslaughter under English law. Under US Law
it is called second degree murder.
2. Under US law, murder is called first degree murder.
3. Culpable homicide has following two kinds :

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 a) Culpable homicide not amounting to murder. (Culpable homicide
Simplicitor)
b) Culpable homicide amounting to murder (Murder)
4. Both in Culpable homicide (not amounting to murder) and in murder, death
of a human being takes place. The degree of criminality is different in the two
offences.
5. Culpable homicide as defined in Sec. 299 & Sec. 300 specifies the additional
requirements which aggravate culpable homicide to make it a murder.
6. Every murder is primarily a culpable homicide. In fact, murder is only a
species of culpable homicide, which is a genus.
7. Sir James Stephan has criticized the definitions of the offences-culpable
homicide and the murder. He is of the view that the definitions are not well
drawn.
8. These definitions are the weakest part of the code. (Homo-man, cide- cut)
9. a) Culpable homicide is defined u/s 299 and is punishable u/s 304 of the
code.
b) Murder is defined u/s 300. Sec. 300 is to be read with Sec. 299.
Murder is punishable u/s 302 IPC.
10. culpable homicide and murder are cognizable, non bailable and non
compoundable. exclusively triable by court of session.

Definition of Culpable Homicide - Section- 299:

Whoever causes death by doing an act with the intention of causing
death, or with the intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide. From the analysis of Sec. 299,
following essential elements of culpable homicide are made out:
a) The accused must have committed some act

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 b) The act must have been committed with any of the following intentions
or knowledge:
i) Intention to cause death.
ii) Intention to cause such bodily injury as is likely to cause
iii) Knowledge that the death is likely to be caused thereby.
c) The victim must have died in consequence of the act of the accused
person. Death caused by an act done with the intention of causing death
constitutes culpable homicide of the first degree. This is the gravest form of
culpable homicide. It constitutes murder. (If the case does not fall under any of
the exceptions to Sec. 300).
Illustration:
(a) A lays sticks and turf over a pit, with the intention of thereby causing death
or with the knowledge that the death is likely to be thereby caused. 'Z' believing
the ground to be firm, treads on it, falls in and is killed. 'A has committed the
offence of culpable homicide.
Death resulting from an act done with the intention of causing such
bodily injury as is likely to cause death constitutes culpable homicide in the
second degree. It is not invariably murder. It would be murder if it satisfies the
requirements of clause II or III to sec. 300. (If the case does not fall in any of
the exceptions to Sec. 300)
Illustration:
(b) A knows Z to be behind a bush. B does not know it A, intending to
cause, or knowing it to be likely cause's death, induces B to fire at the bush. 8
fires and kills Z. Here B may be guilty of no offence but A has committed the
offence of culpable homicide. Death caused by an act done with the knowledge
that death was likely to be caused thereby constitutes culpable homicide of third
degree.

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 This culpable homicide is also not a murder invariably. It may amount to
murder if the requirements of clause IV to Sec. 300 are satisfied. (If the case
does not fall under any of the exceptions to Sec. 300)

Illustration:
(c) A, by shooting at a fowl with the intent to kill and steal it, kills B who
is behind a bush, A not knowing that he was there. Here, although A was doing
an unlawful act, he was not guilty of culpable homicide, as he did not intend to
kill B or to cause death by doing an act that he knew was likely to cause death.
Explanation 1 to Sec. 299:
A person who causes bodily injury to another who is labouring under a
disorder, disease or bodily infirmity, and thereby accelerates the death of the
other, shall be deemed to have caused his death. (culpable homicide of second
degree)
Explanation 2 to Sec. 299:
Where death is caused by bodily injury, the person who causes such
bodily injury shall be deemed to have caused the death, although by resorting to
proper remedies and skillful treatment the death might have been prevented,
(will amount to culpable homicide of second degree).
The principle underlining explanation II is that one who supplies the
primary cause of death is to be held liable for deemed death. In such cases the
secondary cause of death is to be ignored. Constructive doer is liable as the
actual doer is. The above principle has its basis in public policy.
Explanation 3 to Sec. 299 :
The causing of the death of a child in the mother's womb is not homicide.
But it may amount to culpable homicide to cause the death of a living child, if
any part of that child has been brought forth, though the child may not have
breathed or been completely born.

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 Nirbhaya Singh v/s State: A constable who had a loaded but defective
gun with him wanted to arrest an accused who was going on a bullock cart by
climbing on the cart and there was a scuffle between him and the accused and in
course of which the gun went off and killed the constable. Held: The accused
Nirbhaya Singh was not liable for culpable homicide because the intention or
knowledge contemplated in Sec. 299 could not be proved.
Joginder Singh v/s State: Where a person being pursued could not be
held guilty of culpable homicide. Where a person being pursued closely on his
heels in an open field by his enemies who had already killed one of his relations
in the incident jumped into a well in order to save himself and in the process
met with his death, it was held that the act of the accused did not constitute an
actwhich was done with the intention or knowledge specified in Sec. 299, IPC,
and as such they had to be acquitted.
Basappa v/s State: Where a person was attacked by his enemies on a
roof and given a few cuts with a dangerous weapon and in order to avoid the
attack he jumped from the roof to his death, it was held that even if the death
was caused by his own act of jumping, the accused were guilty of murder as
jumping was necessitated by their act.
Punchanun Tanti v/s State: The accused, having received great
provocation from his wife, pushed her with both arms so as to throw her with
violence to the ground, and after she was down, slapped her with his open hand.
The woman died on account of the rupture of her spleen which was diseased. It
was held that he was guilty of causing hurt.
ChaturNath v/s States: In the course of an altercation between the
accused and the complainant on a dark night, the former aimed a blow with his
stick at the head of the latter. To ward off the blow, the complainant's wife, who
had a child on her arm, intervened between them. The blow missed its aim, but
fell on the head of the child, causing severe injuries, from the effects of which

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it died. It was held that inasmuch as the blow, if it had reached the complainant,
would have caused simple hurt, the accused was guilty of simple hurt only
Culpable Homicide when Amounts to Murder - Section- 300:
Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done with the intention of causing death.
(Sec.300 (1)
Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done with the intention of causing bodily
injury as the offender knows to be likely to cause the death of the person to
whom the harm is caused (Sec. 300 (2).
Except in the cases hereinafter excepted culpable homicide is murder, if
the act by which the death is caused is done with the intention of causing bodily
injury to any person and the bodily injury intended issufficient in the ordinary
course of nature to cause death (Sec. 300 (3).
Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is known to the doer to be so imminently
dangerous that it must in all probability, cause death or such bodily injury as is
likely to cause death and commits such act without any excuse for incurring the
risk of causing death of such injury as aforesaid (Section 300).
Culpable Homicide when it does not amount to Murder:
1. Culpable homicide would not amount to murder in the following cases:
a) Culpable homicide would not amount to murder if it does not satisfy
the additional requirements of the corresponding clause of Sec. 300.
b) Culpable homicide would not amount to murder if it falls under any of
the five exceptions to Sec. 300.
2. Following are the exceptions to Sec. 300.
a) Grave and sudden provocation
b) Exceeding in the exercise of right of Private defence.

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 d) Public servant exceeding powers given to him by law.
e) Causing of death in a sudden fight, without premeditation.
f) Consent of the deceased above the age of 18.
Grave and Sudden Provocation:
Culpable homicide is not murder if the offender whilst deprived of power
of self-control by grave and sudden provocation causes the death of person who
gave the provocation or of any other person by mistake or accident. It only
reduces criminal liability. No complete exception from criminal liability.
Exception 1: to Sec. 300 is subject to following limitations:
a) The provocation must not be sought or voluntarily provoked as an excuse for
killing or doing harm to any person.
a. Provocation is not given by:
b. Anything done in obedience to the law.
c. Anything done by a public servant in lawful exercise of his powers.
d. Anything done in the lawful exercise of the right of private defence.
Whether the provocation was grave and sudden to prevent the offence from
amounting to murder is a question of fact.
KM Nanawati v/s State of Bombay
Held :
1. In India, words and gestures may, under certain circumstances, cause grave
and sudden provocation.
2. The mental background created by previous acts of the victim may be taken
into account when the plea taken is of grave and sudden provocation.
3. Nature of the act of the victim is also to be taken into consideration. The
court has to see whether a reasonable man belonging to the same class of
society to which the accused belongs, if placed in the same situation, would
suffer provocation of a nature so as to lose his self-control.

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4. The fatal blow should be clearly traceable to the passion arising from the
provocation. A fatal blow after the passion has cooled down cannot be the basis
of sudden and grave provocation. Where there was time and scope for
premeditation and calculation, the benefit of exception 1 cannot be given.
State v/s Ullah, 1950, Cuttack: Held: Mere words howsoever
provocative cannot so provoke a reasonable man as to induce him to commit a
violence.(This case was overruled in KM Nanawati's case, 1962, SC)
Exception II - Exceeding the limits prescribed by law in exercise in good
faith of Right of Private
Defence: Culpable homicide is not murder if the offender, in the exercise
in good faith of the right of private defence of person or property exceeds the
power given to him by law and causes the death of the person against whom he
exercises the right. Benefit of exception can be availed if it is further shown that
the offender, without premeditation and without any intention of doing more
harm than is necessary, has caused the death in question.
Exception III- public servant
1. Culpable homicide is not a murder if the offender, being a public
servant or aiding a public servant acting for the advancement of public justice,
exceeds the power given to him by law, and causes death.
2. Benefit of exception can be claimed only if the act done was in good
faith and only in the belief that the act done was lawful and necessary in the due
discharge of his duties. Further, it has to be shown that the offender did not have
any ill will towards the deceased.
Exception IV- Death Caused in a Sudden Fight:
1. Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in heat of passion upon a sudden quarrel and
without the offender's having taken undue advantage or acted in a cruel or
unusual manner.

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 2. Here it is immaterial as to which party offers provocation or commits
the assault.
Exception V: Culpable Homicide with Consent:
Culpable homicide is not murder if the person whose death is caused,
being above age of 18 years, suffers death or takes the risk of death with his
own consent.
Distinction between Culpable Homicide and Murder:
1. The main point of distinction between murder and culpable homicide is
degree of criminality. Degree of criminality is higher in case of murder in
comparison to culpable homicide.
2. Every murder is primarily and necessarily a culpable homicide. But
every culpable homicide is not necessarily a murder. In other words culpable
homicide is a genus, while murder is only a species thereof.
3. Murder has been defined u/s 300. It is punishable U/s 302. Culpable
homicide is less serious an offence and is punishable u/s 304 IPC.
4. The distinction between culpable homicide and murder is very fine but
is appreciable. In order to distinguish the two offences the key words occurring
in the different clauses of Sec. 300 must be taken note of.
R V/s Govinda, (1876, Bombay): In this case Melvile J. distinguished
the offence of culpable homicide from murder by undertaking a comparison
between the corresponding clauses of the two sections.
State v/s R. Punnaya, 1977, SC:
a) The code practically recognizes three degrees or kinds of culpable
homicide.
b) Culpable homicide in the first degree has been defined as murder in
Sec. 300. It is the gravest form of culpable homicide.
c) Second culpable homicide is termed as culpable homicide in second
degree. It is punishable under clause I of Sec. 304.

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 d) Culpable homicide in the third degree is the lowest from. It is
punishable under clause II of Sec. 304.
e) The courts must first see whether the death complained of has resulted
from the act of the accused. If the act of the accused in question is in affirmative
Sec. 300 should be taken into consideration.
f) If the case is not covered u/s 300 it would not be a murder. Further, if
case falls in any of the exceptions to Sec. 300 again it would not be a murder.
g) The above guidelines, if kept in mind, would facilitate the task of the
court.
Punishment:
1) Culpable homicide (not amounting to murder) is punishable u/s 304.
Culpable homicide of the first and second degrees are punishable under clause I
to Sec. 304. The punishment provided is lifeimprisonment or imprisonment of
either description which may extend up to 10yrs and fine. Culpable homicide of
third degree is punishable with an imprisonment of either description which
may extend up to 10yrs or with fine or with both.
2) Murder is punishable u/s 302 IPC. Life imprisonment is the general
punishment to be given for murder. In the rarest of the rare case murder may be
punished with death. The rarest of the rare cases are the cases in which the
offender commits murder in the most cruel and unusual manner.
Culpable Homicide by Causing Death of Person other than Person whose
Death was Intended :
Section- 301
1. The accused must have intended or known to be likely to cause death.
2. The offender must have caused death of a person by the act though he neither
intended nor knew to be likely to cause death of a person actually killed.

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3. In the above case, the accused would be liable to be punished as if he had
caused the death of the person whose death he intended or known or likely to be
caused.
4. The principle incorporated in Sec. 301 is generally known as Doctrine of
Transfer of Malice.
5. A person whose case, falls u/s 301 is to be punished U/s 302 or 304 as the
case may be.

Punishment for Murder Committed by a Person under Life Imprisonment.

The section provides for death as the only punishment - Section- 303
Mithu V/s State of Punjab: This section has been struck down by the
Supreme Court as void and unconstitutional being violative of both Arts. 14 and
21 of the Constitution. It regards life-convict to be a dangerous class without
any scientific basis and thus violates Art. 14 and similarly by completely cutting
out judicial discretion it becomes a law which is not just, fair and reasonable
within the meaning of Art. 21.
a) It was declared unconstitutional as it deprives the court of its
discretionary power and compels the judge to act like a machine.
b) Death penalty given by Court of Session shall not be executed unless it
is confirmed by the High Court.
c) Doctrine of transfer of malice is also known as Doctrine of
transmigration of malice.
Hurt (Section 319)
1. Sections 319-338 provides for hurt and its different aspects.
2. Sec. 319 defines the term 'hurt'. Sec. 320 lists certain kinds of hurts
which have been designated as grievous.
3. Hurt is causing:
a) bodily pain; or

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b) bodily disease; or
c) bodily infirmity, to a person.
Grievous Hurt - Section- 320:
The following kinds of hurt only are designated as grievous:

1. Emasculation,
2. Permanent injury to eyesight or either of the eye,
3. Permanent deafness or injury to either of the eye,
4. Privation of any member or joint (loss of limb),
5. Impairing of Limb,
6. Permanent disfiguration of the head or face,
7. Fracture or dislocation of a bone or tooth,
8. Any hurt which risks life or which causes the victim to be during the
time of twenty days in severe bodily pain, or unable to follow his
ordinary pursuits.

There is no importance of intention u/s 319 or 320.

Voluntarily causing Hurt – Section – 321, 323, 334
1. Whoever does any act with the intention of causing hurt to any person and
does cause hurt to any person voluntarily commits hurt.
2. Whoever does any act with the knowledge that he is likely to cause hurt to
any person, and does cause hurt, is said voluntarily to cause hurt.
b) Such an act must have been done:
i) With the intention of causing hurt; or
c) Must have thereby caused hurt to any person.
The offence u/s 321 is punishable u/s 323 (Imprisonment of either description
up to one year or fine up to Rs. 1000/- or both). It is non-cognizable, bailable,
compoundable and triable by a Magistrate.

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Section- 334:
Provides where the hurt is caused under provocation.
If the voluntary causing of hurt is referable to grave and sudden provocation, the
punishment may be reduced to imprisonment of either description up to 1 month
or fine up to Rs. 500 or both.
1) Whoever does any act with the intention of causing grievous hurt to any
person and does cause grievous hurt to any person voluntarily commits grievous
hurt.
2) Whoever does any act with the knowledge that he is likely to cause grievous
hurt to any person, and does cause grievous hurt is said voluntarily to cause
grievous hurt.
a) The accused must have done some act.
b) Such an act must have been done:
i) With the intention of causing grievous hurt; or
ii) With the knowledge that hurt was likely to be caused thereby; and
c) Must have thereby caused grievous hurt to any person.
The offence u/s 322 is punishable u/s 325 (Imprisonment, of either description
up to 7yrs and also fine.) It is cognizable, bailable and compoundable offence. It
is triable by Magistrate.
Section- 335:
If the voluntarily causing of grievous hurt is referable to grave and
sudden provocation the punishment into be reduced to imprisonment, of either
description up to four years or with fine up to Rs. 2000 or both.
Sub. Sec. 334 & 335 are to be read with exception 1 to Sec. 300 (requirements
(proviso) to exception 1 to Sec. 300 also apply to Section 334 and 335).
Wrongful Confinement and Wrongful Restraint
Sec.- 339-Wrongful restraint
Sec.- 340-Wrongful confinement

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Law is not after form but is after effect.
Wrongful confinement is called False imprisonment under the law of torts (It is
a civil wrong also). Form of obstruction is immaterial. It is sufficient that a
person is wrongfully abstained from exercising his right to go.
General :
1. Chapter XVI (Sections 299-377) provides for offences affecting the
human body.
2. Sections 339 and 340 of Chapter XVI define wrongful restraint and
wrongful confinement respectively.
3. Every wrongful confinement is primarily a wrongful restraint.
However, every wrongful restraint is not necessarily a wrongful confinement.
Therefore, wrongful restraint is a genus and wrongful confinement is its species.
4. Wrongful restraint is punishable U/s 341. (simple imprisonment up to
one month or fine up to Rs. 500 or both). Wrongful confinement is punishable
U/s342. (imprisonment up to 1 year or fine up to Rs. 1000 or both)

Wrongful Restraint - Section- 339 read with Sec.- 341:

Whoever voluntarily obstructs any person so as to prevent that person
from proceeding in any direction in which that person has a right to proceed, is
said to wrongfully restrain that person.
Sec. 339 allows one exception. Therefore, it is not a wrongful restraint to
obstruct a private way to a land or water which a person in good faith believes
himself to have a lawful right to obstruct.
Essential Elements:
1) The complainant must have a right to proceed in any direction.
2) The accused must have made a voluntary obstruction.
3) On account of the obstruction the complainant must have been
obstructed from proceeding in adirection in which he had a right to proceed.

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 4) The accused must not have made restriction under a belief in good
faith that he had a legal right.
Right to Obstruct: The form, kind or reason of the obstruction is not relevant.
Law is after the consequence and not after the form of obstructions. Penal laws
are to be strictly construed as they have direct a impact on the personal liberty
and life of the accused.
Shan Mugham, 1971 Cr. LJ 182: Held: Sec. 339 contemplates physical
obstruction. Other obstructions may also be covered under it.
ArumugaNadar, 1910 : Held: During the absence of complainant and
his wife the accused put a lock at the outer door of the house. The accused is
guilty of wrongful restraint.
Gopala ReddivisLaxmi Reddy, 1947: The accused obstructed a bus in
which the passenger were traveling. Accused was held liable for wrongful
restraint.
Ram Lal, 1912: Held: There would be no wrongful restraint if the
passengers sitting in the bus can get down and proceed without being
obstructed.
Punishment for Wrongful Restraint: Section- 341 - Simple
imprisonment up to one month or with fine up to Rs. 500 or with both.
Wrongful confinement – Section -340
1) Sec. 340 provides: Whoever wrongfully restrains any person in such a
manner as to prevent that person from proceeding beyond certain
circumscribing limits, is said wrongfully to confine that person. Following
essential elements are made out from the analysis of Sec. 340:
a) The accused must have committed a wrongful restraint within the
meaning of Sec. 339.
b) By such wrongful restraint the victim must have been prevented from
proceeding beyond certain circumscribing limits.

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GM Rangacharya, 1985 : Held: For wrongful confinement no wall, wire or
enclosure is necessary. Confinement may be effected even in an open land.
2) Malice is not essential for wrongful confinement.
The time/period of confinement is also not material except in the matter
of punishment (to determine punishment). A person may be wrongfully
confined even without being aware of that (no knowledge of confinement).

Punishment for Wrongful Confinement - Section- 342:

Imprisonment of either description up to one year or with fine up to Rs.
1000 or with both.Wrongful confinement is also a tort. Under law of torts, it is
known as false imprisonment or false arrest. The victim any institute civil as
well as criminal proceedings simultaneously.
Distinction between Wrongful Restraint and Wrongful Confinement
Wrongful Restraint
a) It is partial restraint of the personal liberty of a person.
b) It does not imply wrongful confinement.
c) It does not require any limits or boundary.
d) In wrongful restraint movement in only one or some direction is
obstructed leaving thereby a choice for victim to move in any other direction.
Wrongful Confinement
a) It is absolute or total restraint or obstruction of personal liberty.
b) It implies wrongful restraint.
c) It requires certain circumscribing limits which are always necessary.
d) In wrongful confinement movement in all directions is obstructed and
a person is either not allowed to move or is compelled to move against his
wishes.
CRIMINAL FORCE AND ASSAULT
1. Sections (299-377) provide for offences against human body.

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 2. Sections (349-358) provide for criminal force and assault.
3. Sec 349 defines force.
Section 350- criminal force
Whoever
a) Intentionally uses force to any person, without that person's consent.
Uses that force :
b) Knowledge that he is likely to cause injury, fear or annoyance to that
person is said to use criminal force to that other.
Section 351- Assault:
Whoever;
- makes any - gesture
- preparation
With intention such gesture/preparation will cause Knowledge any person
present to apprehend that he is about to use criminal force to that person is said
to commit an assault.
- Mere words do not amount to assault.
Words+gestures/preparation = assault.
Sec 352-punishment assault
Criminal force otherwise than on Gave provocation
Imprisonment up to 3 months or RS.500/- fine or both.
353 - Assault to deter punishment from discharge of his duty:
Imprisonment up to 2yrs or fine or both
354 - Assault to woman to outrage her modesty
Imprisonment up to 2yrs or with fine or with both.
355 – assault or criminal force with intent to dishonour person, otherwise
than on grave provocation
Imprisonment up to 2yrs or with fine or with both
358 - Assault on grave provocation

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 2 months/fine/both
356- to commit theft- simple imprisonment up to
2 months/with fine/with both 1 month/fine/both
357 – to wrongfully confine a person
2 months/100/B
KIDNAPPING AND ABDUCTION
General
1. Sec. 359 provides for two kinds of kidnapping:
a) Kidnapping from India (Sec. 360)
b) Kidnapping from lawful guardianship. (Sec. 361)
2. Both the offences are punishable U/s 363.
3. Sec. 362 defines Abduction. Abduction by itself is no offence. Kidnapping
from India - Section- 360
Kidnapping has following two kinds:
1. Kidnapping has following two kinds:
a) Kidnapping from India.
b) Kidnapping from lawful guardianship.
2. Sub. 360 defines kidnapping from India. It provides:
"Whoever conveys any person beyond the limits of India without the consent of
that person, or of some person legally authorized to consent on behalf of that
person, is said to kidnap that person from India."
Sec. 360 following essentials are made out:
1. The accused must have conveyed the victim.
2. The conveying must have been beyond the limits of India.
3. Such conveying must have been without the legally authorized on his
behalf to consent.
4. Kidnapping from India may be committed against a person of any age.
The conveying must have been of a natural person.

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 5. The word 'person' has been used in narrower sense in Sec. 360. Here
the word 'person' is restricted to natural persons. Any company or body of
persons or association are not persons for the purposes of Sec. 360.
6. The word conveying has not been defined in the code. Ordinarily it
suggests carrying away or getting carried away. The offence u/s 360 is
punishable u/s 363. Punishment of either description which may extend up to 7
yrs and also fine.
Kidnapping from Lawful Guardianship - Section 361
Sec. 361 provides: "Whoever takes or entices any minor under 16 yrs of
age if is a male of under 18 yrs of age if is a female, or any person of unsound
mind, out of the keeping of the lawful guardian of such minor or person of
unsound mind, without the consent of such guardian is said to kidnap such
minor or person from lawful guardianship."
Sec. 361 following essentials are made out:
a) The accused must have taken or enticed a minor. (under 16 yrs in case
of a male or under 18 yrs of age in case of a female) or a person of unsound
mind.
b) Such taking or enticing must have been out of the keeping of the
lawful guardian.
c) Such taking or enticing must have been without the consent of lawful
guardian.
The word lawful guardian has been used in wider sense in Sec. 361. The
explanation to Sec. 361provides:
"Lawful guardian includes any person lawfully entrusted with the care or
custody of the minor or other person."
Exception: Sec. 361 does not extend to the acts of following persons:
a) A person who in good faith believes himself to be the father of the
illegitimate child.

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 b) A person who in good faith believes himself to be entitled to the lawful
custody of such child. The above persons may also be held liable for offence
defined u/s 361 if their act is unlawful and for an immoral purpose.
There is difference in ages of minors on the basis of their sexes. In case of
male minor the age is under 16yrs. In case of female minor the age is under 18
yrs. of age.
Taking or Enticing
1. Taking or enticing suggests inducement or external influence. It has its basis
in temptation or creation of a false expectation. In it the act of the victim is not
voluntary.
2. Taking or enticing suggests an active role of the accused persons.
Varadrajan v/s State of Madras: Held: Taking or enticing a minor is
entirely different from permitting a minor to accompany a person. The two
expressions are not synonymous. In taking or enticing external influence or
inducement is necessary.
NemaiChattroj v\s Emperor: X took away J, a minor girl, from her
husband's house and keep her in his own house for two days. One M removed
her to his house and kept her for twenty days. Thereafter, M clandestinely
removed J to V's house and took her to Calcutta.
Held : Y could not be convicted of kidnapping J from lawful custody. Y
cannot be said to have taken or enticed J out of the keeping of her guardian.
Baldeo v/s State, 1870 : The accused met a girl aged about 14 years, who
was living with a Brahmin woman in the sarai of a village, where they
maintained themselves on begging. The girl was persuaded by a goldsmith-
named Ghasi and was married to his son. But as she was no given enough food
to eat, she lent herself to the persuasion of the accused to quit Ghasi's house and
to go with him for which he was prosecuted.

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 High Court held that since Ghasi from whose house the girl was
abducted was not her lawful guardian, as he had not been lawfully entrusted
with the care and custody of the minor, the accused was not liable for
kidnapping.
RasoolvIs State, 1976, Alld: Held: It would be no defence to say that the
victim was immoral character or that she had consented.
Abduction – Section 362
Sec. 362 provides: "Whoever by force compels, or by any deceitful
means induces, any person to go from any place, is said to abduct that person."
One who commits abduction is not a criminal. Abduction by itself is no
offence, it is only a helping or accessory act.
Abduction is punishable only if it is committed by some criminal
intention. Abduction in the circumstances as contemplated by Sec. 364 to 368
may be punishable.
Allah Rakhyo, 1934, Sindh Held: To constitute abduction compelling
by force or inducement by necessary means is necessary. For abduction it must
be proved that the change of the mind of the victim was by external influence.
Fatnaya, 1942, Lahore : Held: Taking a woman forcibly and against her
desire constitutes abduction not withstanding that the purpose was to take her to
her husband.
Ganga Devi, 1914, Alld-: Held: Every time there is a fresh abduction
when a person abducted is taken to a fresh place. Thus abduction is a
continuous act.

Punishable abductions
1) Abduction in order to murder (Sec. 364)
2) Abduction with intent secretly and wrongfully to confine a person (sec.
365)

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 3) Abduction of a woman to compel her marriage etc. (Sec. 366)
4) Abduction in order to subject a person to grievous hurt or slavery etc.
(Sec. 367)
5) Wrongfully concealing or keeping in confinement abducted person
(Sec. 368)
6) Abducting a child under 10 yrs of age with intent to steal from its
person (Sec. 369)
Kidnapping Abduction
1 ) Minor - male 16 years - female 18 years - unsound mind - Refers to
the person kidnapped/ abducted need not be in the keeping of any body.
2) Removed out of lawful custody, no Force, compulsion or deceitful
means used. Kidnapping of an orphan
3) Simple taking or enticing away of Consent, if free and given
voluntarily, an unsound mind minor or condones the offence.
4) Consent of person taken immaterial. 5) Intention is important because
abduction is not an offence unless committed with certain intent
5) Intention of kidnapper is irrelevant.
6) Not a continuing offence; complete 6) Continuing offence so long as
person is the moment a person is deprived of moved from one place to other
lawful guardianship
7) Substantive offence
8) Auxiliary offence, not punishable by itself till intention specified
SEXUAL OFFENCES
Rape:
Section 375, IPC lays down that the sexual intercourse must be under
circumstances falling under any of the six clauses. A man is said to commit
'rape' who has sexual intercourse with a woman:
i) Against her will; or

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 ii) without her consent; or
iii) with her consent by putting her in fear of death or of hurt; or
iv) with her consent, when the man knows that he is not her husband and
that her consent is given because she believes that he is another man to whom
she is lawfully married; or
v) with her consent, when, at the time of such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance she is unable to
understand the nature and consequences of that to which she gives consent; or

Explanation:
Penetration is sufficient to constitute sexual intercourse. Exception -
Sexual intercourse by a man with his own wife is not rape, if the wife is above
15 years of age. It may be noted that if the woman is under 16 years of age, it is
immaterial that the act be done with her consent or even at the invitation of
woman herself (or that she had sex experiences already), for the policy of the
law is to protect children of such immature age against sexual intercourse.
This is also known as 'statutory rape'. A 'man' is defined by Sec. 10 of the
Code as a male human being of any age. Thus, a boy above 12 years of age is
capable of committing rape under this section, whereas a boy below 12 but
above 7 years of age enjoys a qualified immunity.

Punishment for Rape:

S. 376 provides the punishments for various categories of rape as follows:
Rigorous imprisonment for not less than 10 years and upto life (i. e. life-
imprisonment) and fine, for the following persons, viz., whoever:
a) being a police officer commits rape
i) within the limits of the police station to which he is appointed; or

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ii) in the premises of any station house whether or not situated in the police
station to which he is appointed; or
iii) on a woman in his custody or in the custody of a police officer subordinate
to him;
b) being a public servant, takes advantage of his official position and
commits rape on a woman in his custody as such public servant or in the
custody of a public servant subordinate to him; or
c) being on the management or on the staff of a jail, remand home or
other place of custody established by or under any law for the time being in
force, or of a women's or children's institution, takes advantage of his official
position and commits rape on any inmate of such jail, remand home, place or
institution; or
d) being on the management or on the staff of a hospital, takes advantage
of his official position and commits rape on a woman in that hospital; or
e) commits rape on a woman knowing her to be pregnant; or
f) commits rape on a woman when she is under twelve years of age; or
g) commits gang rape.
In all the above cases, the minimum period of imprisonment is 10 years.
However, in a fit case, the Court may impose a sentence of simple or rigorous
imprisonment for a term of less than 10 years, for adequate and special reasons
to be mentioned in the judgment. Simple or rigorous imprisonment for not less
than 7 years and upto life (i. e. life-imprisonment) and fine in all other cases,
except where the woman raped is his own wife and is not under 12 years of age,
in which case the maximum imprisonment is 2 years or fine, or both. Here also,
the Court may impose a sentence of less than 7 years, for adequate and special
reasons to be mentioned in the judgment.

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 It is also clarified that when a woman is raped by one or more of a group
of persons, acting in furtherance of their common intention, each of such
persons is deemed to have committed "gang rape".
Various ingredients explained.-From the definition given above, it is clear
that "rape" is forcible ravishment of a woman, and the essence of the crime
consists in the act being done against the will or without the consent of the
woman. Clauses (b) to (d) are only explanatory of non-consent.
Against her Will:
An act done against a woman's will when she is in full possession of her
senses and reason, is aware of what is being done and objects or resists.
Without her Consent:
This occurs when the woman is incapable of knowing the nature of the
act and thus legally unable to give rational consent or being aware of its nature,
thinks that it is being done under circumstances which make it an innocent act.
Man:
A man of any age may commit the offence. Under the English law, a boy
under 14 years of age, owing to physical immaturity, is presumed to be
incapable of committing this offence. But this presumption has no
application in India.
Fear of Death:
This means fear of death of herself or of any other person in whom she is
interested. Thus, if a person obtains consent of a woman by putting her in fear
of death of her infant, such consent is not valid.
Intercourse with a Girl under Sixteen:
The policy of the law is to protect a girl of immature age against sexual
intercourse; hence, connection with even a girl under 16 would be rape, even
though she consents to the act.

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Explanation:
The degree of penetration is immaterial. But some penetration, however
slight is essential. It is not essential that the hymen should be ruptured, or that
there should be emission of semen. Without some penetration, there can be no
rape, though the act may amount to an attempt to rape.
Exception:
A man cannot be guilty of rape of his own wife, if she is over the age of
15 years, on account of the matrimonial consent she has given which she cannot
retract. But he has no right to enjoy her person without regard to the question of
her safety.
Physical Incapacity:
A person who, through impotency or otherwise, is physically incapable of
committing rape cannot be guilty of its attempt, but he may be found guilty
under sec. 354 of indecent assault.
Can a Husband Abet Rape on his Own Wife? :
A husband, no doubt, has a right to the person of his wife, and he cannot
be charged for forcible connection, but he has no right to invite others to ravish
her. If he does so, he can be said to abet the offence.
Rape by Husband:
It should be remembered that the distinction between rape by a husband
on his wife and rape by a man on any other woman lies in the age of the
woman. If the woman is under 15 years of age, any man who has sexual
intercourse with her, be he her husband or not, and be it with her consent or not,
would be guilty of the offence of rape. For, under the exception to S. 375, a
husband is not guilty of rape on his wife if she is above 15 years: but under the
other clause of that section, subject to the exception of the husband's case, a
man is guilty of rape if he has sexual intercourse with a woman who is under 16
years of age, even though the act be done with her consent or even at the

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invitation of woman herself, for the policy of the law is to protect children of
such immature age against sexual intercourse. This is also known as statutory
rape.
Rape, Assault and Criminal Force Distinguished
1. The offence of assault or criminal force to a woman (S. 354) is of
lesser gravity than the offence of rape: (S. 376).
2. In rape, there is sexual intercourse with a woman; in assault or criminal
force to a woman, there is only assault or criminal force to a woman with the
intention or knowledge that her modesty will be outraged.
Intercourse by a Man with his Separated Wife (S. 376-A) - Under S. 376 :
A, if a man has sexual intercourse with his own wife, who is living
separately from him, under any decree of separation, or under any custom or
usage, and such intercourse is without her consent, he is punishable with
imprisonment upto 2 years and fine.
Intercourse by Public Servant with Woman in his Custody - (S. 376):
If a public servant, taking advantage of his official position, induces or
seduces any woman in his custody to have sexual intercourse with him, and
such intercourse does not amount to "rape", he is punishable with imprisonment
upto 5 years and fine.
Intercourse by Superintendent of Jailor Remand Home - (S. 376):
If a superintendent or manager of a jail, remand home or of a women's or
children's institution, taking advantage of his official position, induces or
seduces any female inmate of such jail, remand home or institute to have sexual
intercourse with him,and such intercourse does not amount to - "rape", he is
punishable with imprisonment up to 5 years and fine.

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Intercourse by any Member of the Management or Staff of Hospital - (S.
376):
Whoever being on the management of a hospital or being on the staff of a
hospital, takes advantage of his position and has sexual intercourse with any
woman in that hospital, and such intercourse does not amount to "rape", he is
punishable with imprisonment upto 5 years and fine.
Note : Sections 376 –A to 376-0 (above) were inserted by the Criminal Law
(Amendment) Act, 1993)
UNNATURAL OFFENCE (SECTION 377)
Lastly, the sixth kind of offence against the human body is of unnatural
offence. Section 377 defines unnatural offences as under: Whosoever
voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for life, or 10 years and
fine.
Explanation:
Penetration is sufficient to constitute the carnal intercourse necessary to
the offence described in this section: Section 377.
This section provides punishment for what is known as sodomy, buggery
and bestiality. The offence consists in a carnal intercourse committed against
the order of nature by a man with man, or in the same manner with a woman, or
by a man or woman in any manner with a beast.
As in rape, penetration, however slight, is essential. Consent is
immaterial in a case under this section. The person who takes a passive part is
equally guilty as an abettor with the person actively participating in the act.

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OFFENCES AGAINST PROPERTY
THEFT, ROBBERY, EXTORTION, DACOITY
Theft
General
1. Sec. 378-462 provides for offences against the property.
2. The offences under this chapter may be broadly classified into
following three classes:
a) Offences in which victim is deprived of his property (for ex. Theft, robbery,
extortion, dacoity)
b) Offences in which victim suffers damage to his property (for ex. Mischief)
c) Offences which violate proprietary rights of victim. (for ex. Trespass)
3. In theft the victim is deprived of his property. Theft is a wrong against
possession. Therefore, a person may be held guilty of theft of his own property.
Res null ins cannot be the subject matter of theft (in no one's possession).
Natural (naturally independent and free) creatures free in their natural forms not
being in anyone's possession cannot be subjected to theft.
4. Movables alone are the subject matter of theft. An immovable property
after being converted to movable form can be subjected to theft.
5. A man, whether living or dead is not a property. Therefore, he cannot
be subjected to theft. However, the human body, human skeleton or any organ
of human being preserved in any laboratory or scientific institution etc are
regarded as property and as such liable to theft.
6. Electrical energy is not a movable property. But on account of legal
fiction created u/s 39 of the Indian Electricity Act, 1910, dishonest use of
electrical energy may amount to theft.
7. Land is not a movable property. Therefore, it cannot be subjected to
theft.

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 8. Moving of a movable property with a view to take it dishonestly out of
the possession of someone without his consent constitutes theft. Intention to
take permanently is not necessary to constitute theft. Therefore, accused cannot
plead intention to return as a defence. Theft is a wrong against possession of
property (not against ownership). Where anything is in no one's possession it
cannot be said to be stolen. Only moveable property can be stolen. But
immovable can be converted into moveable and then
Theft (378-382)
1. Theft Simplicitor (378)
2. Punishment of 378 (379) Agaravated Form of theft
3. Theft in Dwelling house (380)
4. Theft by Clerk/ Servant/Agent (381)
5. Theft with preparation to Commit violence (382) theft committed.
6. Sec. 23-wrongful gain/wrongful loss Sec. 24-dishonest intention/mens
rea.
7. Mischief against property
8. Human being is not a property, though animal may be. Dead body is not
a property.
9. Preserved human body/human parts could be stolen.
10. Electricity-not moveable-fiction juris (legal fiction) thus can be stolen.
Essentials of Theft:
On the basis of section 378 of IPC the following are the essentials of
theft.
1. Dishonest intention to take property
2. The property must be movable
3. It should be taken out of the possession of another person
4. It should be taken without the consent of that person; and

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 5. There must be some movement of the property in order to accomplish
the taking of it. A thing so long as it is attached to the earth, not being movable
property, is not the subject of theft; but it becomes capable of being the subject
of theft as soon as it is severed from the earth-
Explanation 1:
A moving effected by the same act which effects the severance may be a
theft.
Explanation 2:
A person is said to cause a thing to move by removing an obstacle which
prevented it from moving or by separating it from any other thing, as well as by
actually moving it-
Explanation 3 :
Bisakhi, (1917) PR No. 29 of 1917- The accused cut the string which
fastened a neck ornament to the complainant's neck and forced the ends of the
ornament slightly apart in order to remove the same from her neck with the
result that in ensuing struggle between the accused and the complainant the
ornament fell from her neck and was found on the bed later on. The accused
was held guilty of theft as there has been in the eyes of law sufficient moving of
the ornament to constitute theft.
A person, who by any means, causes any animal to move, is said to move
that animal, and to move everything which, in consequence of the motion so
caused, is moved by that animal
Explanation 4:
The consent mentioned in the definition may be express or implied, and
may be given either by the person in possession, or by any person having for
that purpose authority either expressed or implied-

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Explanation 5:
Judah, (1925) 53 Cal. 174 - In a case an electric kettle was given to a
repairer for repairs, the repairer did not complete the work within the stipulated
time or even within a reasonable time thereafter and the owner forcibly removed
the kettle from the repairer's shop without payment of the sum demanded by the
latter for work already done to it. Here the owner was not held guilty of theft, as
his intention was not to cause wrongful loss to the repairer or wrongful gain to
himself within meaning of section 24 of the Code, but to recover his property
after lapse of a reasonable time.
Hands, (1887) 16 Cox 188 - An 'automatic box' was fixed against the
wall of a public passage and anybody who dropped a penny piece coin into the
slit and pushed in the knob could get a cigarette out of it. The accused dropped
into the slit in the box a brass disc about the size and shape of a penny and thus
obtaineda cigarette, which he took to the other accused. It was held that both the
accused were guilty of larceny.
H.J. Ransom v. Triloki Nath1- B had taken a bus on hire, purchase
system from a company which had reserved the right of seizing the bus in case
of default in payment of installments. The company took possession of the bus
by force from the driver of the bus who was B's servant. It was held that the
possession of the driver was possession of the master and the company was not
entitled to recoverpossession of the bus even though default in payment of
installment had taken place. The question whether ownership had or had not
passed to the purchaser is wholly immaterial as this section deals with
possession and not ownership. Therefore, the agents of the company who had
taken possession of the bus forcibly were liable under this section.
Illustration:
'A intending to commit theft enters the house of 'B' at night and removes
from one of the rooms a heavy box to the courtyard where he opens it. He does

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not find in the box anything worth taking and leaving it there goes away. In this
case A will be liable for attempting theft and also for house trespass under
Section 442 of IPC.
Intention to Return /intention to take only temporarily: It is no defence to
a charge of theft that the accused intended to take only temporarily or that he
had an intention to return.
Illustration :
"A” takes an article belonging to 'Z' out of his possession without his consent
with an intention of keeping it until he obtains reward form 'Z'. 'A' is guilty of
theft.
Naushe Ali Khan, 1911, Alld :
The accused snatched away the books of a child who was coming out of
the school gate, saying that the same would be returned to him (child) if he
came to the house of the accused. The accused had committed the theft.
Pyare Lal, 1963, SC 1094:
The Accused was working in a government office. He removed certain
file, made it available to an outsider and then returned it to the office after two
days. It was held by the Supreme Court that the accused was guilty of theft.
Extortion - Section- 383:
1. Ch. XVII (Sub. Sec. 378-462) provides for offences against property.
2. Offences defined and made punishable Ch. XVII may be broadly classified
into following three categories:
a) Offences causing deprivation of property.
b) Offences causing damage to the property affected.
c) Offences which violate any of the proprietary rights of the victim.
3. Theft, extortion, robbery and dacoity are most common offences in which a
person suffers deprivation of his property.

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4. Offence of extortion is defined U/s383 IPC. Extortion is punishable U/S 384
IPC. Extortion is a cognizable and non bailable offence. It is non-
compoundable.
5. The subject matter of extortion could be any property or valuable security or
anything signed or sealed which may be converted into a valuable security.
6. Dishonest intention is one of the essential elements of extortion. Extortion
consists in obtaining delivery of some property by putting a person in fear of
injury.
7. Extortion becomes a robbery in the circumstance provided for in sec. 390.
Definition and Essentials of Extortion - Section- 383 :
"Whoever, intentionally puts any person in fear of injury to that person,
or to any other, and thereby dishonestly induces the person so put in fear to
deliver to any person, any property or valuable security or anything signed or
sealed which may be converted into a valuable security, commits extortion."
From the analysis of Sec. 383 the following essentials of offence of extortion
are made out:
1. The accused must have put any person directly or indirectly in an
intentional fear of injury.
2. The accused must have obtained delivery directly or indirectly from the
person so put in fear.
3. The accused must have done it with a dishonest intention.
4. The accused must have obtained directly or indirectly the delivery of
one or more of the following:
a) Any property.
b) Valuable security.
c) Anything signed or sealed which may be converted into valuable
security.

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Ingrediences:
1) Subject matter of extortion)
a) Movable
b) Immovable
c) Any other (such as valuable security)
2) Similarity with theft)
a) Dishonest Intention
b) Deprivation.
3) Extortion-vitiated consent. Theft-lack of consent.
4) Delivery of property is essential in extortion.
5) Delivery-change/transfer of possession.
6) If there is no delivery there is no extortion but there is attempt to extortion.
Subject Matter
1. Any property, valuable security or anything signed or sealed
convertible into valuable security may be the subject matter of extortion.
2. Property means any property, movable or immovable, corporeal or
incorporeal.
3. Valuable Security is a document. However, all documents are not
valuable security. Sec. 30 IPC.
4. Valuable security is a document. The word document has been defined
u/s 29 IPC.
5. Sec. 29 provides anything signed or sealed and convertible into
valuable security may be the subject matter of extortion.
ChandrakalavIsRamkrishna, 1985, SC 1268
Where the head-master of a school called a lady teacher to a place where
he was alone and induced her to sign there blank papers by threatening an attack
on her modesty, the Supreme Court held that it amounted to an offence under
this section.

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Fear of Injury:
Fear of injury is one of the essentials of extortion. IPC defines the word
injury. Sec. 44 provides: "The word injury denotes any harm whatever illegally
caused to any person in body, mind, reputation or property."
Delivery:
1. The word delivery is not defined in the code. Ordinarily, delivery
suggests change of possession.
2. Enforcing delivery of any property or valuable security etc. by putting
a person in fear of injury is the essence of extortion. There can be no extortion
where no delivery was effected.
Labh Shankar, 1955: Held: Offence of extortion is not completed unless
the actual delivery of the possession of the property by the person put in fear.
D. Sheikh, 1886: The accused entered into a person's house. The house
owner was badly frightened. Out of fear he offered no resistance. Accused
picked up certain properties from there and left. The house owner had not
delivered anything himself to the accused.Held: Since no delivery was made, it
was no extortion. Accused was held liable for robbery through theft.
Distinction between Theft & Extortion:
Theft and Extortion
1. In theft, property is taken away without the 1. In extortion, the consent
of the consent of the owner.owner is obtained but wrongfully.
2. Theft may be only in respect of movable 2. The property may be either
Property movable or immovable.
3. There is no element of force. 3. Property is obtained by putting a
person in fear of injury and thereby inducing him to part with his property.
4. There is no delivery of property by 4. There is delivery of the property.
the owner.

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Punishment for Extortion - Section- 384:
Imprisonment of either description up to 3 yrs with fine or with both.
When Theft is Robbery - Section- 390 :
Every robbery is, primarily, a theft or extortion. Thus robbery is an
aggravated form of theft or extortion.
"Theft is robbery, if:
1. a) In order to the committing of the theft; or
b) In committing the theft; or
c) In carrying away or attempting to carry away property obtained by
theft.
2. The offender for that end,
3. Voluntarily causes or attempts to cause to any person
- Death or hurt or wrongful restraint, or
- fear of instant death or fear of instant hurt or fear of instant wrongful
restraint.
- hurt includes both simple hurt and grievous hurt.
When Extortion is Robbery - Section- 390: "Extortion is robbery, if :
1. The offender, at the time of committing the extortion, is in the presence
of the person put in fear; and
2. Commits the extortion by putting in fear of instant death, or instant
hurt or of instant wrongfulrestraint and to that person or to some other person.
3. By so putting in fear, induces the person to deliver up then and there
the things extorted." The offender is said to be present which is sufficiently near
to put the person in position of instant death,instant hurt or instant wrongful
restraint.
Punishment for Robbery - Section- 392:

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 Rigorous Imprisonment upto 10 yrs and also fine.- If robbery committed
at night (after sunset and before sunrise) on the highway-Rigorous
Imprisonment up to 14yrs. and also fine.
Dacoity - Section- 391
General
1. Sec. 391 IPC defines dacoity. This section accepts the alternative forms of
dacoity. It is to be read with 390.
2. Sec. 391 provides:
When:
a) five or more persons conjointly commit or attempt to commit a
robbery; or
b) where the whole number of persons conjointly committing or
attempting to commit a robbery, and persons present and aiding such
commission or attempt, amount to five or more, every person so committing
attempting or aiding is said to commit dacoity.
Conjointly
1. The word conjointly refers to united or concerted action.
2. D.D. Inzal, 1951 Assam
Held : the word conjointly implies a common intention of the accused persons.
3. N.L. Tulsi, 1956, A.P.
Held: The prosecution must establish that the person committing robbery and
those attempting robbery were at least five in number and that they were
participating in furtherance of common intention. Common intention must be
clearly established.
Whether less than five persons may be convicted of Dacoity :
Lingayya, 1958, A.P.: Where there were only five named accused who
committed the dacoity and out of five two were acquitted holding that only
three took part in the offence, it was held that the remaining three could not be

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convicted of dacoity, as the offence of dacoity could not be committed by less
than five persons.
Ghamandi, 1970: Where in spite of the acquittal of a number of persons,
it is found as a fact that along with the persons convicted there were other
unidentified persons who participated in the offence, bringing the total number
of participants to five or more, it was held that the conviction of the identified
persons, though less than five, was perfectly correct.
Punishment for Dacoity - Section- 395:
Life imprisonment or rigorous imprisonment up to 10yrs and also fine.
Aggravated forms of Dacoity
1. Dacoity with murder (Sec.396) - Death or life imprisonment.
2. Dacoity with attempt to caused death or grievous hurt. (sec. 397) Shall
not be less than 7yrs.)
3. The preparation was to commit robbery.
Preparation to Commit Dacoity – Section -399
Ingredients
1. The act of the accused persons amounted to preparations;
2. The presence of five or more person making preparations;
3. The preparation was to commit robbery.
The offence is cognizable, non-bailable, non-compoundable, punishable to the
extent of rigorous imprisonment up to 10 years and fine, and triable by the
Court of Sessions.
CRIMINAL MISAPPROPRIATION OF PROPERTY (SECTION-403)
Whoever dishonestly misappropriates or converts to his own use any
movable property, shall be punished with imprisonment of either description for
a term which may extend to two years, or with fine, or with both.
Illustration 1

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 a) A takes property belonging to Z out of Z's possession in good faith,
believing, at the time when he takes it, that the property belongs to himself. A is
not guilty of theft; but if A, after discovering his mistake, dishonestly
appropriates the property to his own use, he is guilty of an offence under this
section.
b) A, being on friendly terms with Z, goes into Z's library in Z's absence,
and takes away a book without Z's express consent. Here, if it was under the
impression that he had, is implied consent to take the book for the purpose of
reading it, A has not committed theft. But, if A afterwards sells the book for his
own benefit, he is guilty of an offence under this section.
c) A and B, being joint owners of a horse, A takes the horse out of B's
possession, intending to use it. Here, as A has a right to use the horse, he does
not dishonestly misappropriate it. But, if A sells the horse and appropriates the
whole proceeds to his own use, he is guilty of an offence under this section.

Explanation1:
A dishonest misappropriation for a time only is a misappropriation within
the meaning of this section.

Illustration 2:
A finds a Government promissory note belonging to Z, bearing a blank
endorsement. A, knowing that the note belongs to Z, pledges it with a banker as
a security for a loan, intending at a future time to restore it to Z. A has
committed an offence under this section.
Explanation 2:
A person who finds property not in the possession of any other person,
and takes such property for the purpose of protecting it for, or of restoring it to,

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the owner, does not take or misappropriate it dishonestly, and is not guilty of an
offence; but he is guilty of the offence above defined, if he appropriates it to his
own use, when he knows or has the means of discovering the owner, or before
he has used reasonable means to discover and give notice to the owner and has
kept the property a reasonable time to enable the owner to claim it.
It is not necessary that the finder should know who is the owner of the
property, or that any particular person is the owner of it: it is sufficient if, at the
time of appropriating it, he does not believe it to be his own property, or in good
faith believes that the real owner cannot be found.
CRIMINAL BREACH OF TRUST (SECTION 405)
General
1. Sec. 405 defines criminal breach of trust. Criminal Breach of Trust
simpliciter is punishable u/s 4061PC
2. Section 407, 408 & 409 provide for aggravated forms of criminal
breach of trut.
-Sec 407 - Criminal breach of trust by a carrier
- Sec 408- Criminal breach of trust by servant/agent.
- Sec 409- Criminal breach of trust by public servant, banker etc.
Essentials of Criminal Breach of Trust
1. The accused must have been entrusted with property, or he must have been
given any dominion (possession and control) over property.
2. The accused must have dishonestly:
- Misappropriated it; or
- Must have converted it to his use; or
- Must have used or disposed of the property in violation of the law or
contract touching the discharge of the trust; or
- Must have suffered knowingly the same.
Deductions made for Provident Funds: Explanation. I to Sec. 405

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 a) A person (employer of an establishment) who deducts the employee's
contribution from the wages payable to the employee for credit to a Provident
Fund or Family Pension Fund shall be deemed to have been entrusted with the
amount so deducted.
b) If the employer makes default in payment of such contribution to the
concerned funds, he shall be deemed to have dishonestly used them.
Deductions for Employees State Insurance Fund:
Explanation II to Sec. 405 : A person (employer of an establishment) who
deducts the employees contribution from the wages payable to the employees
for credit to an Employees' State Insurance Fund shall be deemed to have been
entrusted with the amount.
Dishonest Misappropriation of Property:
Sec. 403 defines dishonest misappropriation of property and also provides
for punishment for an aggravated form of dishonest misappropriation of
property.
Elements:
1) Dishonest intention
2) Movable property

Punishment Sec-403
Imprisonment of either description up to 2 years or with fine or
both.Misappropriation or conversion to own use.
Dishonest Misappropriation of Property possessed by Deceased person at
the time of his death:
Sec. 404
Possession ceases as soon as the death of possessor occurs.
1. If the offender was clerk or servant of the deceased he would be liable
to Imprisonment up to 7 yrs and also fine.

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 2. If the offender was someone else he would be liable to punishment up
to 3yrs and also fine.
CHEATING AND MISCHIEF
Sec 415 – Defines cheating
Whoever, by deceiving any person
Induces that person-
- fraudulently; or
- dishonestly to deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the person so deceived
to do/omit to do anything causing damage or
- harm to
- body
- mind
- reputation
- property of that person is said to cheat.
- punishment for cheating is Imprisonment up to 1yr/fine/both.

Mischief - Section- 425

1. Sec. 425 IPC defines mischief. Mischief simplicities is punishable U/s
426 IPC
2. Sections 427-440 provide for specific cases of mischief in different sets
of facts and circumstances.
- Quantum of punishment depends on value of property affected by
mischief.
- Under Chapter XVII: of offences against the property, mischief is an
offence in which victim suffers damage to his property.

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Definition and Essentials of Mischief – Section -425
Whoever:
1. With intent to cause, or knowing that he is likely to cause,
2. Wrongful loss or damage to the public or to any person,
3. Causes destruction of the property; or
a) Any such change in it or its situation as to destroy or diminish its value
or utility or affect it injuriously, is said to commit mischief. It is not necessary
that the offender should intend to cause loss or damage to the owner.
(Explanation 1 to Sec. 425)
b) Mischief may be committed by an act which affected a property under
joint ownership of the offender and the victim. (Explanation 1 to Sec. 425)
Punishment - Section- 426 :
Imprisonment of either description up to 3 months or with fine or with
both.

Section- 436:
Mischief by fire or explosive substance with intent to destroy a house
etc.Punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and also be liable to fine.

CRIMINAL TRESPASS
Criminal Trespass and Other Allied offences
Section/Definition Penal Clause Offence
441, 447 Criminal trespass
442, 448 House trespass
443, 453 Lurking House trespass
444, 456 Lurking House trespass by night
445, 456, 453 House breaking

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446, 456 House breaking by night

Criminal Trespass- Section – 441

1. Sec. 441 defines Criminal Trespass. It is a cognizable offence; this is a
bailable and compoundable offence.
2. U/s 447 it is punishable with imprisonment of either description up to 3
months or with fine up to Rs. 500 or both.
Essentials of Criminal Trespass: (Illegal Means)
1. The accused must have entered into or upon property in possession of
another.
2. The accused must have entered with any of the following intentions:
a. To commit an offence.
b. To intimidate, insult or annoy any person in possession of the
property.

Possession of property is the essential ingredient of criminal trespass.

There is yet another or alternative form of criminal trespass. It has
following essentials:
a. The accused must have entered into or upon the property in another's
possession lawfully. The accused must have unlawfully remained there with any
of the following intentions to commit an offence.
b. To intimidate, insult or annoy any person in possession of the property.

House Trespass - Section-442 read with Section-448

Essentials of House Trespass:
1. The accused must have committed a criminal trespass.
2. Such criminal trespass must have been made by entering into or
remainingin any building, tent or vessel.

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 3. Such building tent or vessel must be used as human dwelling or as a
placefor worship or as a place for the custody of property.
Punishment for House Trespass - Section- 448:
Imprisonment of other description up to 1 year or fine up to Rs. 1000 or
both. (The introduction of any part of body would be enough to convict the
person for housetrespass)
Lurking House Trespass : Section – 443 read with section – 453
Essentials
1. The house trespasser must have taken precaution to conceal the house
trespass.
2. The precaution to conceal must have been taken by some person who
has aright to exclude or evict the trespasser.
Punishment - Section- 453:
Imprisonment of either description up to 2yrs and also fine (fine
compulsory).
Lurking House Trespass by Night - Section- 444 read with Sec.- 456 :
Whoever commits lurking house trespass after sunset and before sunrise
is said to commit lurking house trespass by night.
Punishment – Section – 456 : imprisonment of either description up to 3 yrs
and also fine.
House Breaking - Section - 445 read with Section - 453
i) House breaking is a kind of house trespass.
ii) House trespass may amount to house breaking if the offender (house
trespasser) effects his entry or makes his exit in any of the six ways specified
u/s 445.
iii) Sec. 445 lists following 6 ways:
a. Entry or quitting through a passage made by himself or by the abettor.
b. Any passage not intended to be used for entry or exit.

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 c. A passage opened for committing house trespass.
d. A passage by opening lock.
e. Making a way by scaling to exit or enter.
f. Entry or exit by use of criminal force or assault or threat thereof.
House breaking is an aggravated form of house trespass. In the matter of
exit following should be considered:
a) The offender must have been in the house for committing an offence.
b) The offender must have made his exit in any of the ways after
committing the offence.
Example:
a) 'A' makes a hole in the wall and thrusts his hand through that.
House trespass.
b) A' commits a house trespass through window. It is house breaking.
c) A' finds the key of Z's house. 'N opens the door of the house and enters. It is
house breaking.
Punishment: Imprisonment of 2 yrs and also with fine.
House breaking by Night - Section- 446 read with Sec.- 456 :
Whoever commits house breaking after
sunset and before sunrise is said to commit house breaking by night.
Punishment: Imprisonment up to 3yrs and also fine.

FORGERY, MAKING FALSE DOCUMENTS

Sec 463 - Defines forgery
Whoever makes any false document, or part of a document With intent to:
a) cause – damage Injury. to Public; or any other person.
b) to support a claim title; or
c) to cause any person to part with property; or
d) To enter into any express or implied contract; or

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 e) With intent to commit fraud or that fraud may be committed, commits
forgery.
Sec 465 - Punishment for forgery - Imprisonment of either description up to
2yrs/fine/both.
Sec 466 - Forgery of record of court or of public up to 7yrs and also fine. 470 -
Forged document - A false document made-
- wholly
- in part by forgery.
Sec 471 - Using a forged document as genuine. Punished in the same manner as
if he had forged such document.
Sec 482- Punishment for using false document. Imprisonment up to one
year/fine/both
DEFAMATION
SECTION 499
GENERAL
1. Defamation is a civil as well as a criminal wrong. Therefore, the person
aggrieved may file civil as well as criminal proceedings simultaneously.
2. Although defamation is both civil and criminal wrong, yet the essential
ingredients are different for each. So the exceptions are also different for each.
3. Civil Law recognizes following two kinds of defamation
a) Libel
b) Slander
Criminal Law does not recognize the above kinds.
4. Chapter XXI (499-502) provides for defamation. Section 499 IPC defines
defamation. Section 500 provides for punishment for defamation. Sections 501
and 502 provide for specific cases of defamation.
5. Defamation consists in making or publishing any imputation. The imputation
must be with necessary mens rea.

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6. All imputations do not constitute defamation. Only that imputation
constitutes defamation which harms reputation of a person.
-Intention
-knowledge harm to reputation
-reason to believe
Definition and Essentials of Defamation -
Words - oral
Means - written
visible representation (eg: cartoon, caricature, signs and gestures)
Whoever-
(1) By words either spoken or intended to be read, or by signs or by
visible representation,
(2) makes or publishes any imputation concerning any person,
(3) Intending to harm, or knowing or having reason to believe that such
imputation will harm the reputation of such person is,
(4) Exception in cases hereinafter excepted, said to defame that person.
Defamation of a DeceasedPerson : Section 499- Explanation I:
1. Defamation of a dead person is not a civil wrong or a tort. But the same
may amount to an offence u/s 499 IPC.
2. An imputation concerning a deceased person may be a defamation if it
could have harmed the reputation of the deceased person if he were alive and if
it intended to hurt the feelings of his family or near relatives.
3. Making an imputation against a deceased person is not only uncivilized
but also immoral.
Imputation against a company or association or collection of persons -
Explanation II:
Section 499: An imputation concerning a company or an association or
collection of persons as such may amount to defamation.

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Imputation in the form of an alternative or ironical expression -
Explanation III Section 499:
An imputation in the form of an alternative or ironical explanation may
be a defamation. An Imputation harmful to the reputation: Explanation. IV to
Section 499
1) All imputations are not harmful to the reputation.
2) Only those imputations are harmful to the reputation which lower a person in
the estimation of others.
3) Imputations are considered to harm a person's reputation:
a) One which lowers the moral or intellectual character of a person; or
b) One which lowers a person's morale concerning his caste or his calling,
c) One which lowers the credit of a person; or
d) One which causes it to believe that person's body is in a loathsome
state or in a disgraceful state.
Defamatory Statements Against a Class:
1. Class defamation is no defamation under civil law.
2. When a class or collection of persons is in the form of an association or
company or any juristic entity, it may amount to defamation under criminal law.
However, class defamation is no defamation in criminal law generally.
3. Section 499 recognizes ten exceptions. Burden of proof would lie on
the accused person (Section 105 Evidence Act.)
4. Following are the exceptions u/s 499:
a) Imputation of truth if it is required for public good.
b) Expression of opinion in good faith concerning conduct of a public servant in
discharge of his public functions or as to his character apparent from such
conduct.
c) Expression of opinion in good faith as to a person's conduct on any public
question and on his character apparent from such conduct.

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d) Substantially true report of court's proceedings or results of court's
proceedings.
e) Expression of opinion in good faith as to decision in a civil or criminal case
or as to any witness, party or agent concerning their conduct and character as
apparent from such conduct.
f) Explanation of opinion in good faith as to merits of public performance or
respecting the character of the author as apparent from such performance.
g) Censure passed in good faith on a person under authority of a person who has
authority to pass in good faith either under law or under a contract.
h) Accusation preferred in good faith to authorized persons.
i) Accusation/ prosecution-preferred-IawfuI authority /court.
j) Imputation in good faith against the character for protection of interests of the
person making it, or of any other person, or public servant.
k) Caution intended for good of a person to whom conveyed, or for public good.
Punishment for Defamation - Section - 500:
Simple imprisonment, up to two years or fine or with both.
Specific cases of defamation - Section - 501:
Printing or engraving any matter known or having good reason to believe
to be defamatory is punishable. (Imprisonment simple up to 2 years/fine or
both.)
Section - 502 :
Selling or offering to sale any printed or engraved substances containing
defamatory matter knowing it to be so is punishable u/s 502 (simple
Imprisonment up to 2yrs with fine or with both)
OFFENCES RELATING TO MARRIAGE
Sec 493 - Cohabitation caused by a man deceitfully inducing a belief of
lawful marriage.

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 - Causes any woman, not lawfully married to him, to believe that she is
lawfully married to him;
- She cohabits or has sexual intercourse with him in that belief.
- Imprisonment up to ten years and fine also.
Sec 494:
Marrying again during lifetime of husband or wife. (Bigamy)
Imprisonment of either description up to 7yrs and fine.
Exception
1) Where the first marriage is declared void by a court of competent
jurisdiction.
2) Where the former husband or wife has been continually absent for 7
years and not heard of by the spouse. But he/she must disclose the fact of first
marriage to parties to the second marriage. 495 - Marrying again during lifetime
of husband or wife, with concealment of former marriage for person with whom
subsequent marriage is contracted. Imprisonment of either description which
may extend to 10yrs and fine.
Sec 497- Adultery
Whoever has sexual intercourse with a person who is and whom he
knows or has reason to believe to be the wife of another man, without the
consent or connivance of that man, such sexual intercourse not amounting to the
offence of rape, is guilty of the offence of adultery, and shall be punished with
imprisonment of either description for a term which may extend to five years or
with fine or with both, in such case the wife shall not be punishable as an
abettor (this sec repealed)
498 – Enticing, taking away or detaining a married woman with a criminal
intent:
Whoever takes or entices away any woman who is and whom he knows
or has reason to believe to be the wife of any other an, from that man, or from

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any person having the care of her on behalf of that man, with intent that she
may have illicit intercourse with any person, or conceals or detains with that
intent any such woman, shall be punished with imprisonment of either
description for a term which may extend to two years or with fine or with both
SPECIAL PROVISION FOR WOMEN IN IPC
In IPC there are many provisions according to which a men can be
punished. A women cannot commit such offence or in sum offences only a
women may become the victim.
For example:
Section 304B is related with dowry death. An offence under this section
may be committed against a married women hence a man can not be victim
under this section. Section 498A is related with cruelty against a married
women by her husband or his relatives. Under this section only a married lady
may be subjected to physical torture or mental harassment. The husband or his
relatives may commit offence under this section.
Section 497;
Sec 497is related with adultary. For the offence of adultary a man in
promiscuity with a married lady may be accused under this section. The married
women is treated as victim cease not party is Section 375 and 376 are related
with rape. In India this offence may be committed only against a women not
against a men. Hence a man may be punished for such offence.

CRUELTY BY HUSBAND OR RELATIVE OF HUSBAND (SECTION

498A)
Dowry Death (304-B) - General
1. Section 304-B has been inserted by the Amendment Act No. 43 of
1986.

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 2. Section 304-B is to be read with Section 2 of the Dowry Prohibition
Act. 1961.
3. Dowry Death is a cognizable, non-bailable, and non-compoundable
offence. It is triable exclusively by the Court of Sessions.

Essential Elements Section 304-B

1. The death of a married woman must have been caused.
2. Such death must have been by burns or bodily injury or otherwise than under
the normal circumstances.
3. The death must have resulted within 7 years of the marriage of the victim.
4. Soon before her death the victim must have been subjected to cruelty or
harassment by her husband or any of her husband's relatives.
5. Such cruelty or harassment must be in connection with or for any demand for
dowry. Death resulting in the above circumstances shall be called dowry death
and the person causing such death shall be deemed to have caused such death.

Burden of Proof: Section 113-B Indian Evidence:

Section 304-B(1) is to be read with S-113-B of Evidence Act. The burden
of proving that the accused husband or his relative has not caused the dowry
death lies on such accused person.
The presumption of guilt U/s 1138 is rebuttable.

Punishment for Dowry death: Section 304-B

1. Imprisonment of either description for a minimum period of 7 yrs.
2. The extent of Imprisonment may extend to life imprisonment also.
Imprisonment up to 3 years and fine.Explanation-defines guilty. Any willful
conduct of such nature

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 a) anywillful conduct of such nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life of the woman Limb
b) Harassment Health Mental or Physical

To coerce her or any other person related to her-

1. To meet any unlawful demand for any Property, Valuable Security.
2) On account of failure by her or person related to her to meet such
demand.

CRIMINAL INTIMIDATION, INSULT AND ANNOYANE

(SECTION 503)
- Whoever,
- Threatens Another or any person in whom that person is interested
- With any injury to Person reputation or Property.
- With intention to cause of harm
- That person to do any act which he is not legally bound to do to omit any
act which that person is legally entitled to do
- As the means of avoiding execution of such threat Commits criminal
intimidation.
Explanation: A person in whom the other person is interested includes a
deceased person also.
Sec 506 –
punishment for criminal intimidation-imprisonment of either description
up to 2yrs/fine/ both. Sec 506(I)
If threat be to cause -
Imprisonment which may death/grievous hurt extend to 7 years or
destruction of any property by fire fine or both. Any offence punishable with
death/life Imprisonment punishable with Imprisonment up to 7yrs. sec 506 (II)

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 Sec 509 - Word, gesture, or act intended to insult the modesty of a
woman. Simple imprisonment up to one year/or fine or both.
Sec 510 - Misconduct in public by a drunken person in a public place
In any place which IS a trespass for him to enter causes annoyance to any
person. Simple Imprisonment up to 24hrs/fine up to Rs. 10/both.
Insult:
Section 504 lays down that whoever intentionally insults, and thereby
gives provocation to any person, intending, or knowing it to be likely that such
provocation will cause him.
a) to break the public peace, or
b) to commit any other offence, shall be punishable with imprisonment
upto two years, or with fine, or both. This section provides a remedy against the
use of an abusive and insulting language. However, mere breach of good
manners would not be an offence under this section.
Illustration:
C was the daughter of P. and was married to M. After her marriage, some
misunderstanding arose between P and M in respect of certain advances alleged
to have been made by C to P. P became very angry and wrote a letter to C in
which he stated that as he has got only old and torn shoes he had placed an
order for better ones and that as soon as he gets them he will send them over to
her and her husband. Here, no offence is disclosed, as there is no likelihood of
any breach o the peace. Uttering any word or making any sound or gesture or
exhibiting any object, intending to insult the modesty of a woman or intruding
upon her privacy is punishable with imprisonment upto one year, or with fine,
or both: S. 509.
Mahomed C. Chisty1, - The accused followed in his carriage the
complainant's unmarried daughter at various places and laughed and grinned
and stared at her while passing and re-passing in his carriage, and stood up in it

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and shouted her name, and so on. The Court held that the accused was rightly
convicted underS. 509 of the Code.
Tarak Das Gupta , - The accused, a University graduate, sent by post, to
the complainant, an English nurse, a letter containing indecent overtures and
suggesting that the complainant should take certain action in order to show
whether she accepted the terms mentioned in the letter. It was held that the
accused was guilty under section 509, I.PC. A reference may also be made to
Mrs. R. D. Bajaj v. K. P. S. Gill case (S. 354), where the Supreme Court held
that an allegation of the complainant that she was slapped on her posterior by
the Director-General of Police, at a gathering comprising the elite of the society,
did make out a case for a prosecution under S. 354 and S. 509 of the Indian
Penal Code.
Difference between defamation and Insult:
1. In the former, a person's reputation is concerned, not so in the latter.
All defamation in a way involves some idea of insult, but all insults do not
necessarily amount to defamation.
2. In defamation, the defamatory matter must be published to some
person other than the person defamed: an insult is directly addressed to the
person insulted. In other words, publication is not a sine qua non in the offence
of insult as it is in defamation. If a defamatory matter is directly addressed to
the person defamed, it is not defamation, but may amount to insult, and if such
matter is likely to provoke a breach of the peace, it falls with the purview of S.
504 of the Code.
Difference between Assault and Insult:
Insult, however deliberate and intentional, is only punishable as an
offence when it tends to provoke a breach of the peace or the commitment of
any other offence. The offence is not made to depend upon the sensitive feeling

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of the person insulted, but on the intention or knowledge of the offender. But an
assault need not have intended to do any such thing.
Mere words do not amount to an assault, but something else is required in
addition, whereas, insult may be given by mere words. Insult provokes in the
party to whom it is given, a tendency to commit a breach of the peace while
assault endangers in his mind an apprehension of the use of criminal force to
himself.
Provisions of the Code as to Insults Offered to Persons other than Public
Servants:
The following are the six provisions of the Penal Code with regard to
insults offered to persons - other than public servants:
1. Destroying, damaging or defiling any place of worship, or any object
held sacred by any class of persons, with the intention of thereby insulting the
religion of any class of persons, or with the knowledge that any class of persons
is likely to consider such destruction etc., as an insult to their religion: S. 295.
2. Deliberate and malicious acts intended to outrage the religious feelings
of any class by insulting its religion or religious beliefs: S. 295A.
3. Trespassing on burial places etc., with the intention of wounding the
feelings of any person, or insulting the religion of any person: S. 297.
4. Entering upon another's property, or unlawfully remaining there, with
intent to insult any person in possession thereof: S. 441.
5. Intentional insult with intent to provoke breach of the peace: S. 504.
6. Uttering words, making any sound or gesture, or exhibiting any object
intending to insult the modesty of a woman: S. 509.
Statements Conducing to Public Mischief (Section 505):
Section 505 makes it an offence to make, publish or circulate any
statement, rumour or report:

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 i) with intent to cause any officer, soldier, sailor or airman in the Army,
Navy or Air Force, to mutiny, or to disregard or fail in his duty; or
ii) with intent to cause fear or alarm to the public, whereby any person
may be
iii) induced to commit an offence against the State or public tranquility;
or
iv) with intent to incite any class of persons to commit any offence
against any class.
[Punishment: Imprisonment for two years or fine, or both.]
Divine Displeasure (Section 508) :
Any act or omission caused by inducing a person to believe that he will
be rendered an object of Divine displeasure, if he does not do or omits to do the
things which it is the object of the offender to cause him, to do or omit, is
punishable by Section 508. (Punishment: Imprisonment for
one year, or fine, or both.]
Misconduct in Public by Drunken Person (Section 510):
Intoxication alone is not made punishable by the Code. But a person who,
in state of intoxication, appears in any public place, or in any place which it is a
trespass in him to enter, and there conducts himself in such a manner as to cause
annoyance to anyperson, is liable to punishment under Section 510.
[Punishment: Imprisonment for 24 hours, or fine of Rs.10, or both.]
CYBER CRIMES
Cyber-crimes can be defined as the unlawful acts where the computer
is used either as a tool or a target or both. The term is a general term that
covers crimes like phishing, credit card frauds, bank robbery, illegal
downloading, industrial espionage, child pornography, kidnapping children via
chat rooms, scams, cyber terrorism, creation and/or distribution of viruses,
Spam and so on. Cyber-crime is a broad term that is used to define criminal

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activity in which computers or computer networks are a tool, a target, or a place
of criminal activity and include everything from electronic cracking to denial of
service attacks. It also covers the traditional crimes in which computers or
networks are used to enable the illicit activity.

The various offenses related to internet which have been made

punishable under the IT Act and the IPC are enumerated below:
Cybercrime under the IT Act:

1. Tampering with Computer source documents - Sec.65

2. Hacking with Computer systems, Data alteration - Sec.66
3. Publishing obscene information - Sec.67
4. Un-authorised access to protected system Sec.70 Breach of
Confidentiality and Privacy - Sec.72
5. Publishing false digital signature certificates - Sec.73

Cyber Crimes under IPC and Special Laws :

1. Sending threatening messages by email - Sec 503 IPC

2. Sending defamatory messages by email - Sec 499 IPC
3. Forgery of electronic records - Sec 463 IPC
4. Bogus websites, cyber frauds - Sec 420 IPC
5. Email spoofing - Sec 463 IPC
6. Web-Jacking - Sec. 383 IPC
7. E-Mail Abuse - Sec.500 IPC

Cyber Crimes under the Special Acts:

1. Online sale of Drugs under Narcotic Drugs and Psychotropic Substances

Act
2. Online sale of Arms Act

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 Unit VII
Attempt
Introduction

Attempt’ in general meaning is said to be an effort to achieve tasks or

activities. “An ‘Attempt to crime’ is when someone tries to commit a crime
but fails. ‘Law of Attempt’ under IPC prevents offenders from attempting the
offence again and helps keep society safer. ‘Attempt’ is not defined in the
Indian Penal Code. Chapter XXIII, Section 511 of the IPC only dealt with
punishment for attempting to commit offences.

‘A’ makes an attempt to steal some valuable things by breaking a box and finds
after opening the box, that there is nothing in it. In this case, there is no crime
occurred but it is punishable under the Indian Penal Code because it is
considered as an “Attempt to Commit a crime”.

Sec 511: Punishment for attempting to commit offences punishable with

imprisonment for life or other imprisonment:

“Whoever attempts to commit an offence punishable by this Code with

[imprisonment for life] or imprisonment, or to cause such an offence to be
committed, and in such attempt does any act towards the commission of the
offence, shall, where no express provision is made by this Code for the
punishment of such attempt, be punished with [imprisonment of any description
provided for the offence, for a term which may extend to one-half of the
imprisonment for life or, as the case may be, one-half of the longest term of
imprisonment provided for that offence], or with such fine as is provided for
the offence, or with both.”

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Essentials of Sections- 511
Three elements
1. Intent to commit a crime
2. Conduct that constitutes a substantial step toward completing the
crime
3. A failure a complete the crime
Stages in the Commission of an Offence
There are four stages in the commission of an offence:

1. Intention to commit an offence;

2. Preparation to commit an offence;
3. Attempt to commit an offence; and
4. The actual commission of the offence.

Intention:

Everyone cannot prove malice by looking at the brains of criminals. It is a

psychological factor. It is impossible to know exactly the intention of a person.
However, the acts of people and the context in which they act are often used to
clearly indicate the intention of a person. So, it is not punishable.But there are
some exceptions in which ‘Intention to commit a crime’ are punishable. These
exceptions are:

i) Waging war against the Government (Section 121,122,123)

ii) Sedition (Section 124 A)

Preparation:

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 Preparation means ‘to arrange the means or measure for intending
criminal act’. It is difficult to prove that the preparation was made for
committing an offence.

For example:

‘A’ buys a knife for the purpose of killing ‘B’ but after some time, his intention
to kill ‘B’ has changed and he used that knife in the kitchen. In this way, we can
not be held liable for arranging means and measure for murder. So, mere
preparation is not punishable under IPC. But there are some exceptions in which
mere preparation is punishable in IPC:

i) Preparation to commit Dacoity (Section 399);

ii) Preparation for counterfeiting coins and government stamps;
ii) Waging war (Section 122).
Attempt:

Attempts to commit a crime are basically a positive step toward

committing the contemplated crime after preparations have been made. The trail
cannot be cancelled. Once an attempt is made, the perpetrator cannot change
his/her mind and return to its original state without committing a crime.

Commission of Crime:

The actual commission of the offence leads to criminal liability. If the

accused succeeds in his attempt, the offence is accomplished. If he missed then
it is considered as an attempt.

Illustration

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 “If ‘A’ shoots ‘B’ by pistol to kill him. If ‘B’ dies, then ‘A’ is liable for
murder. If ‘B’ is injured, then ‘A’ is liable for Attempt to murder”.

“If ‘A’ makes an attempt to pick the pocket of ‘Z’ by inserting his hand
into Z’s pocket. ‘A’ fails in the attempt in reason of Z’s having nothing in his
pocket. But ‘A’ is guilty under Section 511 of the ‘Indian Penal Code’ because
he has attempted to commit the offence by putting a positive step towards the
commission of the offence.

An Attempt to Commit all Offence:

Approach of the Indian Penal Code 1860. There are four different ways to deal
with an offence in the Indian penal code:

1. In some cases, the commission of offences and attempt to commit that

offence have been dealt with the same section and the same punishment is
prescribed for both. Such provisions are contained in Sections121, 124, 124-
A, 125, 130, 131, 152, 153A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241,
251, 385, 387, 389, 391, 394, 395, 397,459 and 460.

2. Attempt to commit offence and commission of the same offence, both

have separate punishment in Indian penal code e.g. Section 302 dealt with
punishment of murder and Section 307 dealt with an attempt to murder.

3. Section 309 dealt with punishment of attempt to commit suicide.

4. There are some cases where no specific provisions are made regarding
an attempt. Section 511 of the IPC deals with such type of cases, which
provided that accused shall be punished with ½ of the longest term of
imprisonment mentioned for the offence or with fine mentioned for offence or
both.
Page 170 of 171
 In Aman Kumar v State of Haryana, the Supreme Court held that the
word ‘Attempt’ is to be used in its ordinary meaning. There is a difference
between intention to commit offence and preparation. Attempt begins and
preparation ends. It means when any step is taken towards committing that
offence is considered as ends of preparation and begins of attempt.

Om Prakash v/s State, 1961, SC: Held: If the act of the accused is
sufficiently approximate to the offence, it may amount to an attempt.
Attempt to cause an Offence Punishable with life Imprisonment or
Imprisonment to be Committed:
Conclusion
This expression suggests attempt to abet an offence. Therefore, attempt of
an abetment is also punishable u/s 511. Abetment is a substantive offence.
Therefore, its attempt is also punishable.
----------

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 I YEAR OF 3 YEAR LL.B
SEMESTER - II
EVEN SEMESTER

Page 1 of 73
SUBJECT : LAW OF CONTRACTS-II
SUBJECT CODE : TA2A

Page 2 of 73
 SYLLABUS
TA2A - LAW OF CONTRACTS-II

Unit - I Indemnity
1. Definition - English and Indian
2. Rights of the Indemnity holder
3. Rights of the Indemnifier.
4. Rights of Indemnity dealt with Sections 59,145, 164 and 222 of the Contract Act.
5. Codification not exhaustive - principles of equity applicable

Unit - II Guarantee
1. Definition - English and Indian definitions
2. Essentials and nature of guarantee
3. Distinction between guarantee and indemnity - guarantee and Insurance
4. Elements of consideration in a contract of guarantee
5. Nature and quantum of surety's liability
6. Kinds of guarantee and their incidents
7. Suretyship arises on contract and not on notice-position in English Law
8. Duty of disclosure in guarantee Rights of surety against principal debtor - credit or - co -
sureties - difference in English Law - Circumstances which a surety discharges

Unit - III Bailment

1. Definition - Indian and English definitions
2. Essentials of bailment and classification of bailment
3. Distinction between bailment and pledge - deposit - sale - agency
4. Rights and duties of the bailor and bailee - difference in English Law
5. Pledge - definition - Rights of the Pawner and Pawnee
6. Pledge by non-pawners
7. Lien - kinds of lien - their nature and incidents - how lost

Unit -IV Sale of Goods

1. Definition of sale and agreement to sell - distinction between sale and agreement to self-
contract of work and layout. Hire purchase agreement - Bailment - Exchange - Gift.
2. Definitions - goods - specific goods - future goods - Mercantile agent - Documents of title of
goods.
3. How is sale made - rules for fixing price and effect of goods getting damages or perished in
a contract of sale.
4. Stipulation as to time and other stipulation
5. Conditions and warranties - effect of breach - ex - post facto Warrantly - when condition is
treated as warranty
6. Implied conditions and warranties - in a contract of sale - Exemption clauses - effect of
fundamental breach
7. Rule as to passing off property
8. Sale by non - owners - exception to Nemo data quod non habet.
9. Rules as to delivery
10. Unpaid vendor - His rights or lien and stoppage in transit

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11. Remedies available to seller and buyer
12. Auction sales
13. Competition law
Unit -V Agency
1. Definition of contract of agency - Creation of agency - kinds of agency
2. Distinction between Agent and servant and independent contractor
3. Who may be an agent - kinds of Agents - Authority of the different kinds of Agents -
authority of Agents - Ostensible and emergency - delegation of authority - delegatus non
potest delegare - sub agent - substituted agent
4. Essentials of ratification and its effect
5. Effect to notice to agent - necessary conditions to bind Principal
6. Principal and third parties - The doctrine of undisclosed - Principal and concealed
Principal
7. Termination of agency and when it becomes irrevocable
Unit -VI Partnership
1. Definition of partnership - Essentials of partnership - Joint Hindu - partner ship
2. Distinction between partnership and co-ownership - Joint Hindu family - Incorporation
companies - contract of service - legal notion and mercantile notion
3. Kinds of partners and duration of partnership
4. Natural rights and duties of partnership.
5. Minor as a partner - difference in English Law
6. Rights of Legal Representative and surviving partners
7. Authority of partners implied and emergency
8. Liability of the partners for the acts of the firm and for the wrongful acts of other partner -
nature of liability - limited liability partnership
9. Principles of agency in partnership
10. Partnership property - Tests
11. Settlement of accounts - Goodwill and its disposal - distribution of assets
12. Retirement of partners
13. Dissolution of firm and modes and circumstances
14. Effect of non - registration of firm
Unit -VII Consumer Protection
1. History of Consumer Protection movement in India
2. Consumer Protection Act. Definition of Complainant, Complaint, Consumer, Goods
Restrictive Trade practice, Service, unfair Trade Practice
3. Consumer Protection councils - its organization, objects and procedure
4. Consumer disputes redressal agencies - kinds, establishment, composition, jurisdiction
5. Complaint - manner in which made, procedure on receipt of Appeals, Limitation period,
dismissal of frivolous or vexatious complaints.
6. Orders of the Consumer Disputes Redressal Agencies - findings of the forum - finality of
orders, enforcement of orders, penalties.
Statutory Materials with Amendments
1. Indian Contract Act, 1872
2. Sale of goods Act 1930
3. Indian Partnership Act, 1932
4. Consumer Protection Act, 1986

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 5. Limited liability of Partnership Act, 2008
6. Indian Partnership (Tamil Nadu Amendment Act No.21 of 1959
7. Competition Act, 2002
Books for Reference
1. Avatar Singh : The Law of Contracts
2. Mulla : Sale of goods
3. Krishna Nair : Law of Contracts
4. Anson : Law of Contracts
5. Avatar Singh : Competition Law
6. Avtar Singh : Law of Consumer Protection (Principles & Practice)
7. P.K. Majumdar : Law of Consumer Protection in India
8. S.S. Gulshan : Consumer Protection & Satisfaction
9. Leela Krishnan : Consumer Protection & Legal Control
10. Avtar Singh : Law of Contracts (Indemnity Gurantee, Bailment & Agency)
**************************

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 UNIT – I
CONTRACT OF INDEMNITY
MEANING AND DEFINITION: -

A Contract of indemnity is an agreement between two parties whereby one promises to

save another from harm or loss suffered by him. According to Section 124 of the Indian
Contract Act, 1872 a contract of indemnity means, “a contract by which one party
promises to save the other from loss caused to him by the conduct of the promisor himself
or by the conduct of any other person.”

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’.

In New India Assurance Company Ltd. v. K. Kameshwara Rao & Others, (1997), it
was held that a Contract of indemnity is a direct engagement between two parties whereby
one promises to save the other harm. It does not deal with those classes of cases where the
indemnity arises from loss caused by events or accidents which do not or may not depend
on the conduct of indemnifier or any other person.

ESSENTIAL ELEMENTS:-

The following are the essentials of the Contract of Indemnity:-

 There must be a loss.
 The loss must be caused either by the promisor or by any other person.
 Indemnifier is liable only for the loss.

Thus it is clear that this contract is contingent in nature and is enforceable only when the
loss occurs.

COMMENCEMENT OF LIABILITY

Liability of the indemnifier commences on the happening of some loss or contingency.

In the case of Gajanan Moreshwar v. Moreshwar Madan, (1942), Bombay high court
observed that the contract of indemnity held very little value if the indemnity holder could
not enforce his indemnity until he had actually paid the loss. If a suit was filed against him,
he had to wait till the judgement and pay the damages upfront before suing the indemnifier.
Thus, it was held that if his liability has become absolute, he was entitled to get the
indemnifier to pay the amount.

Thus Indemnity is not repayment after payment. Indemnity requires that the party to be
indemnified shall never be called upon to pay.

RIGHTS OF INDEMNITY HOLDER

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 The Indemnity holder or promisee in a contract of indemnity acting within the scope of his
authority is entitled to recover damages from the Indemnifier or promisor. Section 125 of
the Indian Contract Act defines the rights of an indemnity holder which are as under:-

1. Right of recovering Damages: - All the damages that he is compelled to pay in a suit in
respect of any mater to which the promise of indemnity applies.

2. Right of recovering Costs: - All the costs that he is compelled to pay in such suit if in
bringing o defending it he did not contravene the orders of the promisor and has acted as it
would have been prudent for him to act in the absence of the contract of indemnity or if the
promisor authorised him in bringing or defending the suit.

3. Right of recovering sums :- All the sums which he may have paid under the terms of a
compromise in any such suite if the compromise was not contrary to the orders of the
promisor and was one which would have been prudent for the promisee to make in the
absence of the contract of indemnity.

In another case of Mohit Kumar Saha v. New India Assurance Co. (1997) it was held
that the indemnifier must pay the full amount of the value of the vehicle lost to theft as
given by the Surveyor. Any settlement at the lesser value is arbitrary and unfair and
violates Article 14 of the Constitution of India.

IMPLIED INDEMNITY

 Sec. 59: Application of payment where debt to be discharged is indicated.

Where a debtor, owing several distinct debts to one person, makes a payment to him, either
with express intimation, or under circumstances implying, that the payment is to be applied
to the discharge of some particular debt, the payment, if accepted, must be applied
accordingly.

Illustration

A owes B, among other debts, 1,000 rupees upon a promissory note, which falls due on the
first June. He owes B no other debt of that amount. On the first June, A pays to B 1,000
rupees. The payment is to be applied to the discharge of the promissory note.

 Sec. 145: Implied promise to indemnify surety.

In every contract of guarantee there is an implied promise by the principal debtor to
indemnify the surety, and the surety is entitled to recover from the principal debtor
whatever sum he has rightfully paid under the guarantee, but no sums which he has paid
wrongfully.

 Sec. 164: Bailor’s responsibility to bailee.

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 The bailor is responsible to the bailee for any loss which the bailee may sustain by reason
that the bailor was not entitled to make the bailment, or to receive back the goods, or to
give directions respecting them.

 Sec. 222: Agent to be indemnified against consequences of lawful acts.

The employer of an agent is bound to indemnify him against the consequences of all lawful
acts done by such agent in exercise of the authority conferred upon him. —The employer
of an agent is bound to indemnify him against the consequences of all lawful acts done by
such agent in exercise of the authority conferred upon him."

DIFFERENCE BETWEEN INDEMNITY & GUARANTEE

Contract of Indemnity (Section 124)
It is a bipartite agreement between the
indemnifier and indemnity-holder.
Liability of the indemnifier is
contingent upon the loss.
Liability of the indemnifier is primary
to the contract.
The undertaking in indemnity is
primary and independent.
There is only one contract in a
contract of indemnity - between the
indemnifier and the indemnity holder.
The reason for a contract of indemnity
is to make good on a loss if there is
any.
Once the indemnifier fulfills his
liability, he does not get any right over
any third party. He can only sue the
indemnity-holder in his own name.
Contract of Guarantee (Section 126)
It is a tripartite agreement between the Creditor,
Principal Debtor, and Surety.
Liability of the surety is not contingent upon
any loss.
Liability of the surety is co-extensive with that
of the principal debtor although it remains in
suspended animation until the principal debtor
defaults. Thus, it is secondary to the contract
and consequently if the principal debtor is not
liable, the surety will also not be liable.
The undertaking in a guarantee is secondary or
collateral to the original contract between the
creditor and the principal debtor.
There are three contracts in a contract of
guarantee - an original contract between
Creditor and Principal Debtor, a contract of
guarantee between creditor and surety and an
implied contract of indemnity between the
surety and the principal debtor.
The reason for a contract of guarantee is to
enable a third person get credit.
Once the guarantor fulfills his liability by
paying any debt to the creditor, he steps into the
shoes of the creditor and gets all the rights that
the creditor had over the principal debtor.

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 UNIT – II

CONTRACT OF GUARANTEE
INTRODUCTION: -

The Contract of guarantee may be an ordinary or some different type of guarantee which is
different from an ordinary guarantee. Guarantee may be either oral or written. Basically it
means that a contract to perform the promise or discharge the liability of third person in
case of his default and such type of contracts are formed mainly to facilitate borrowing and
lending money which based on the following facts :-

i) Surety is the person who gives the guarantee.

ii) Principal debtor is the person from whom the assurance is given.
iii) Creditor is the person to whom the guarantee is given.

DEFINITION: - Section 126 of Indian Contract Act, 1872 defines a contract of guarantee
as follows: “A Contract of guarantee is a contract to perform the promise or to discharge
the liabilities of a third person in case of his default. The person who gives the guarantee
is called surety, the person in respect of whose default the guarantee is given is called
Principal Debtor and the person to whom the guarantee is given is called creditor. A
guarantee may be either oral or written.”

In the case of Birkmyr v. Darnell (1704), the court held that when two persons come to
shop one person buys and to give him credit the other person promises, “ if he does not
pay, I will”, this type of a collateral undertaking o be liable for the default of another is
called a contract of guarantee.

ESSENTIALS: - The following are the essential elements of Guarantee:-

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1. Existence of Creditor, Surety, and Principal debtor: - The economic function of a
guarantee is to enable a credit-less person to get a loan or employment or something else.
Thus there must exist a principal debtor for a recoverable debt for which the surety is liable
in case of the default of the principal debtor. In the case of Swan v. Bank of Scotland
(1836), it was held that a contract of guarantee is a triplicate agreement between the
creditor, the principal debtor and the surety.

2. Distinct Promise of Surety: - There must be distinct promise by the surety to be answerable
for the liability of the Principal debtor.

3. Liability must be legally enforceable: - Only if the liability of the principal debtor is
legally enforceable, the surety can be made liable. For example a surety cannot be made
liable for a debt barred by Statute of Limitation.

4. Consideration: - As with any valid contract the contract of guarantee also must have a
consideration. The consideration in such contract is nothing but anything done or the
promise to do something for the benefit of the principal debtor.

The Section 127 of the Act clarify as under :-

“Anything done or any promise made for the benefit of principal debtor is sufficient
consideration to the surety for giving the guarantee.”

5. It should be without misrepresentation or concealment: - Section 142 of the Act

specifies that a guarantee obtained by misrepresenting facts that are material to the
agreement is invalid, and section 143 specifies that a guarantee obtained by concealing a
material fact is invalid as well. In a case of London General Omnibus v. Holloway
(1912): A person was invited guarantee an employee, who was previously dismissed for
dishonesty by some employer. This fact was not told to the surety. Later on the employee
embezzled funds but the surety was not held liable.

Rights of the Surety

A Contract of guarantee being a contract, all rights that are available to the parties of a
contract are available to a surety as well. The following are the rights specific to a contract
of guarantee that are available to the surety.

Rights against principal debtor

1. Right of Subrogation

As per Section 140, where a guaranteed debt has become due or default of the principal
debtor to perform a duty has taken place, the surety, upon payment or performance of all
that he is liable for, is invested with all the rights which the creditor had against the
principal debtor. This means that the surety steps into the shoes of the
creditor. Whatever rights the creditor had, are now available to the surety after paying the
debt.

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 In the case of Lampleigh Iron Ore Co Ltd, Re 1927, the court has laid down that the
surety will be entitled, to every remedy which the creditor has against the principal debtor;
to enforce every security and all means of payment; to stand in place of the creditor to have
the securities transferred in his name, though there was no stipulation for that; and to avail
himself of all those securities against the debtor. This right of surety stands not merely
upon contract but also upon natural justice.

In the case of Kadamba Sugar Industries Pvt Ltd v. Devru Ganapathi (1993),
Karnataka High Court held that surety is entitled to the benefits of the securities even if he
is not aware of their existence.

In the case of Mamata Ghose v. United Industrial Bank (1987), Calcutta High Court
held that under the right of subrogation, the surety may get certain rights even before
payment. In this case, the principal debtor was disposing off his personal properties one
after another lest the surety, after paying the debt, seize them. The surety sought for
temporary injunction, which was granted.

2. Right to Indemnity

As per Section 145, in every contract of guarantee there is an implied promise by the
principal debtor to indemnify the surety; and the surety is entitled to recover from the
principal debtor whatever sum he has rightfully paid under the guarantee but no sums
which he has paid wrong fully. This right enables the surety to recover from the principal
debtor any amount that he has paid rightfully. This concept is rightfully is illustrated in the
case of Chekkara Ponnamma v. A. S. Thammayya (1983). In this case, the principal
debtor died after hire-purchasing four motor vehicles. The surety was sued and he paid
over. The surety then sued the legal representatives of the principal debtor. The court
required the surety to show how much amount was realized by selling the vehicles, which
he could not show. Thus, it was held that the payment made by the surety was not proper.

Rights against creditor

1. Right to securities

As per Section 141, 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
whether the surety knows about the existence of such security or not; and if the creditor
loses or without the consent of the surety parts with such security, the surety is discharged
to the extent of the value of the security.

This section recognizes and incorporates the general rule of equity as expounded in the
case of Craythorne v. Swinburne (1807) that the surety is entitled to every remedy which
the creditor has against the principal debtor including enforcement of every security.

The expression ‘security’ in Section 141 means all rights which the creditor had against

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 property at the date of the contract. This was held by the Supreme Court in the case
of State of M.P. v. Kaluram (1967). In this case, the state had sold a lot of felled trees for
a fixed price in four equal installments, the payment of which was guaranteed by the
defendant. The contract further provided that if a default was made in the payment of an
installment, the State would get the right to prevent further removal of timber and the sell
the timber for the realization of the price. The buyer defaulted but the State still did not
stop him from removing further timber. The surety was then sued for the loss but he was
not held liable.

It is important to note that the right to securities arises only after the creditor is paid in full.
If the surety has guaranteed only part of the debt, he cannot claim a proportional part of the
securities after paying part of the debt. This was held in the case of Goverdhan Das v.
Bank of Bengal (1891).

2. Right of set off

If the creditor sues the surety, the surety may have the benefit of the set off, if any, that the
principal debtor had against the creditor. He is entitled to use the defenses that the principal
debtor has against the creditor. For example, if the creditor owes the principal debtor
something, for which the principal debtor could have counter claimed, then the surety can
also put up that counter claim.

Rights against co-sureties

1. Effect of releasing a surety

As per Section 138, Where there are co-sureties, a release by the creditor of one of them
does not discharge the others; neither does it free the surety so released from his
responsibilty to the other sureties. A creditor can release a co-surety at his will. However,
as held in the case of Sri Chand v. Jagdish Prashad (1966), the released co-surety is still
liable to the others for contribution upon default.

2. Right to Contribution

As per Section 146, where two or more persons are co-sureties for the same debt jointly or
severally, with or without the knowledge of each other, under same or different contracts,
in the absence of any contract to the contrary, they are liable to pay an equal share of the
debt or any part of it that is unpaid by the principal debtor.

As per Section 147, co-sureties who are bound in different sums are liable to pay equally as
far as the limits of their respective obligations permit.

Discharge of Surety

A Surety is said to be discharged from liability when his liability comes to an end. Indian
Contract Act, 1872 specifies the following conditions in which a surety is discharged of his
liability

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 1. Section 130 - By a notice of revocation
.2. Section 131 - By death of surety
3. Section 133 - By variance in terms of contract - A variance made without the consent
of the surety in terms of the contract between the principal debtor and the creditor,
discharges the surety as to the transactions after the variance.

4. Section 134 - By discharge of principal debtor - The surety is discharged by any

contract between the creditor and the principal debtor by which the principal debtor is
discharged; or by any action of the creditor the legal consequence of which is the discharge
of the principal debtor.

If the principal debtor is released by a compromise with the creditor, the surety is
discharged but if the principal debtor is discharged by the operation of insolvency laws, the
surety is not discharged. This was held in the case of Maharashtra SEB v. Official
Liquidator (1982).

5. Section 135 - By composition, extension of time, or promise not to sue - A contract

between the principal debtor and the creditor by which the creditor makes a composition
with, or promises to give time to, or promises to not sue the principal debtor, discharges the
surety unless the surety assents to such a contract.

It should be noted that as per Section 136, if a contract is made by the creditor with a third
person to give more time to the principal debtor, the surety is not discharged. However, in
the case of Wandoor Jupitor Chits v. K P Mathew (1980), it was held that the surety was
not discharged when the period of limitation got extended due to acknowledgement of debt
by the principal debtor.

Further, as per Section 137, mere forbearance to sue or to not make use of any remedy that
is available to the creditor against the principal debtor, does not automatically discharge the
surety.

It must be noted that forbearing to sue until the expiry of the period of limitation has the
legal consequence of discharge of the principal debtor and thus as per section 134, will
cause the surety to be discharged as well. If section 134 stood alone, this inference was
correct.

However, section 137 explicitly says that mere forbearance to sue does not discharge the
surety. This contradiction was removed in the case of Mahanth Singh v. U.B.Yi by Privy
Council. It held that failure to sue the principal debtor until recovery is banned by period of
limitation does not discharge the surety.

6. Section 139 - By impairing surety's remedy - If the creditor does any act that is
inconsistent with the rights of the surety or omits to do an act which his duty to surety
requires him to do, and the eventual remedy of the surety himself against the principal
debtor is thereby impaired, the surety is discharged.

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 Illustrations -

C contracts with B to build a ship the payment of which is to be made in installments at

various stages of completion. A guarantee's C's performance. B prepays last two
installments. A is discharged of his liability.

In the case of State Bank of Saurashtra v. Chitranjan Ranganath Raja (1980), the bank
failed to properly take care of the contents of a godown pledged to it against a loan and the
contents were lost. The court held that the surety was not liable for the amount of the goods
lost.

Creditor's duty is not only to take care of the security well but also to realize it proper
value. Also, before disposing of the security, the surety must be informed on the account
of natural justice so that he can have the option to take over the security by paying off the
debt. In the case of Hiranyaprava v. Orissa State Financial Corp (1995), it was held that
if such a notice of disposing off of the security is not given, the surety cannot be held liable
for the shortfall. However, when the goods are merely hypothecated and are in the custody
of the debtor, and if their loss is not because of the creditor, the surety is not discharged of
his liability.

Extent of Surety's Liability

As per section 128, the liability of a surety is co-extensive with that of the principal debtor,
unless it is otherwise provided in the contract.

Illustration - A guarantees the payment of a bill by B to C. The bill becomes due and B
fails to pay. A is liable to C not only for the amount of the bill but also for the interest.

This basically means that although the liability of the surety is co-extensive with that of the
principal debtor, he may place a limit on it in the contract. Co-extensive implies the
maximum extent possible. He is liable for the whole of the amount of the debt or the
promises. However, when part of a debt was recovered by disposing of certain goods, the
liability of the surety is also reduced by the same amount. This was held in the case
of Harigopal Agarwal v. State Bank of India (1956).

The Surety can also place conditions on his guarantee. Section 144 says that where a
person gives guarantee upon a contract that the creditor shall not act upon it until another
person has joined it as co-surety, the guarantee is not valid if the co-surety does not join.

In the case of National Provincial Bank of England v. Brakenbury (1906), the defendant
signed a guarantee which was supposed to be signed by three other co-sureties. One of
them did not sign and so the defendant was not held liable. Similarly, a surety may specify
in the contract that his liability cannot exceed a certain amount.

However, where the liability is unconditional, the court cannot introduce any conditions.

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 Thus, in the case of Bank of Bihar Ltd. v. Damodar Prasad (1969), Hon’ble Supreme
Court overruled trial court's and high court's order that the creditor must first exhaust all
remedies against the principal debtor before suing the surety.

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.

CONTINUING GUARANTEE

A Guarantee which extends to a series of transactions is called continuing guarantee. A

guarantee may be an ordinary guarantee or a continuing guarantee is almost different from
an ordinary guarantee.

Example: - A in consideration that B will employ C in collecting of Rent of B’s

Zamidari. B promises that he is responsible to the amount of Rs.5000/- for due collection
and payment by C of those rents. This is a continuing guarantee.

2. A guarantees payment to B, a tea-dealer, for any tea that C may buy from him from time
to time amount of Rs.100/-. Afterwards, B supplies C tea for the amount of Rs.200/- and C
fails to pay. A’s guarantee is a continuing guarantee and so A is liable for Rs.100/-.

It is clearly noted from the above examples that continuing guarantee is given to allow
multiple transactions without having to create a new guarantee for each transaction.

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 DEFINITION:- According to Section 129 of the Indian Contract Act, 1872 a continuing
guarantee means a guarantee which extends to a series of transactions without creating a
new guarantee for another transaction.

Illustration: - A guarantees payment to B for 5 sacks of rice to be delivered by B to C over

the period of one month. B delivers sacks to C and C pays for it. Later on B delivers 4
more sacks but C fails to pay. A’s guarantee is not a continuing guarantee and so he is not
liable to pay for the 4 sacks.

REVOCATION OF CONTINUING GUARANTEE: -

Section 130 of the Act a continuing guarantee can be revoked at any time by the surety by a
notice to the creditor. Once the guarantee is revoked the surety is not liable for any future
transaction however he is liable for all the transactions that happened before the notice of
revocation is given.

1. Lloyd v. Harper (1880): It was held that employment of a servant is one transaction. The
guarantee for a servant is thus not a continuing guarantee and cannot be revoked as long as
the servant is the same employment. In the case of Wingfield v. De St Cron (1919) it was
held that a person who guaranteed the rent payment for his servant but revoked it after the
servant left his employment was not liable for the rents after revocation.

2. A guarantees to B to the amount of Rs.10,000/- that C shall pay for the bills that B may
draw upon him. B draws upon C and C accepts the bills. Now A revokes the guarantee. C
fails to pay the bill upon its maturity. A is liable for the amount up to Rs. 10,000.00.

3. As per provisions laid down in Section 131 of the Act that the death of the surety acts as a
revocation of continuing guarantee with regards to future transactions if there is no contract
to the contrary.

4. It is pertinent to mention here that there must not be any contract that keeps the guarantee
alive even after the death. In the case of Durga Priya v. Durga Pada (1928): It was held
by the court that in each case the contract of guarantee between the parties must be looked
into to determine whether the contract has been revoked due to the death of the surety or
not. It there is a provision that says that death does not cause the revocation then the
contract of guarantee must be held to continue even after the death of the surety.

UNIT - III
BAILMENT
INTRODUCTION:-

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 In General ‘Bailment’ means the delivery of goods i.e. moveable property by one person
who is generally the owner thereof, to another person for some purpose. The goods are to
be returned to the owner after accomplished the purpose to take further action as per
directions of the owner of the goods.

In a contract of bailment
 the person who delivers the goods called the “Bailor” and
 to whom the goods are delivered is called as “Bailee”.

DEFINITION:-

Section 148 of the Indian Contract Act, 1872 ‘A bailment is the delivery of goods by one
person to another for upon a contract that they shall when purpose is accomplished be
returned or otherwise disposed of according to the directions of the person delivering
them.’

ESSENTIAL INGREDIENTS OF BAILMENT: -

The following are the essentials of the bailment under the Contract Act:-

(a) DELEVERY OF GOODS FOR SOME PURPOSE:-

Delivery means transfer of the goods from the possession of one person to another person.
Delivery need not always be actual, sometimes it may be constructive or symbolic as per
instructions laid down in section 149 of the Act, and this section recognises it other than
actual delivery. However section 149 also provides below in this regard:-

“The delivery to the bailee may be made by doing anything which has the effect of putting
the goods in the possession of the intended bailee or any other person authorized to hold
them on his behalf.”

i) Jagdish chand Trikha v. Punjab National Bank, (1998): It was held by the court
that the position of the bank was that of a Bailee and it failed in its duty to take care of the
goods and return them to the Bailor. The Bank was held liable to pay the cost of Rs.
3,72,400/- along-with simple interest @12% from the date of institution of the suit.

ii) Ultzen v. Nicoles, (1894):- It was held that the defendant was the bailee of the coat as
his servant had assumed the possession of the same and he was therefore liable for its loss
which was occurred due to his negligence.

(b) IF THE OWNER MAINTAINS CONTROL OVER THE GOODS THERE IS NO

BAILMENT: When the person keeps his goods in the premises of others but he continues
to have the control over them, this is not sufficient delivery for being considered to be
bailment.

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 Kaliaperumal Pillai v. Visalakshmi, (1938): It was held that there was no bailment as she
had not handed over the possession of the jewels to the goldsmith, and therefore the
goldsmith could not be made liable for the loss.

(c) THERE CAN BE BAILMENT WITHOUT CONTRACT: - In some cases there can
be a bailment when the person obtains the possession without a contract of the bailment as
it was done in the case of :

L.M. Co-operative Bank v. Prabhudass HathiBhai (1966):- It was held that the
government stood in the position of a Bailee to take due care of the goods. Govt., duty to
prove that they had taken proper care as was possible for them and the damage was due to
reasons beyond their control.

POSITION OF FINDER OF GOODS

A Person who finds goods belonging to another and takes them into his custody is subject
to the same responsibility as a bailee as provided Section 71. Since the position of the
finder of goods is that of a bailee. He is supposed to take the same amount of care with
regard to the goods as is expected of a bailee under Section 151. He is also subject to all
duties of a bailee including a duty to return the goods after the true owner is found.

Section 168 and 169 confer certain rights on the finder of goods which are as under:

 May sue for specific reward offered: The finder of goods has no right to sue the owner
for compensation or trouble and expenses voluntarily incurred by him to preserve the
goods, but he may retain the goods until he receives such compensation and a specific
reward offered by the owner for return of the goods. Refer sec. 168 of the Act.

 If true owner is diligence not found or he refuses to pay the lawful charges of the finder of
the goods, the finder may sell it on the following conditions:-

 When the thing is in danger of perishing or losing part of its value.

 When the lawful charges of the finder, in respect of the found goods amount to two-third of
its value.
 Right of Lien: He can retain the Lien on the found goods until his expenses on find goods
are paid.
 Right to sell the goods found: Finder of the goods has the right to sell the goods found by
him under certain circumstances provided in section 169 of the act with a reasonable notice
mentioning the intention to sale the goods found.

RIGHTS AND DUTIES OF BAILEE

RIGHTS OF BAILEE:-

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 Under the provisions of Indian Contract Act 1872, the following are the rights to the bailee
in Bailment contract:-

1. RIGHT TO RECOVER NECESSARY EXPENSES INCURRED ON BAILMENT: -

According to Section 158 of the Act when a contract of bailment is made some
remuneration is to be paid to the bailee for the services he renders in respect of them. So
he has the right to recover the same. In case of gratuitous of bailment the bailee has no
right even not entitled to receive any remuneration for the services he renders.

Section 158 says that, “Where by the conditions of the bailment the goods are to be kept or
to be carried or the work to be done upon them, the bailee for the bailor and the bailee is to
receive no remuneration the bailor shall pay the necessary expenses incurred by the bailee
for the purpose of bailment.”

Illustration: - A leaves his horse with the neighbour for safe custody for a week. B is
entitled to recover the expenses incurred by him in feeding the horse.

2. RIGHT TO RECOVER THE COMPENSATION: -

According to Section 164 of the act, “The Bailor is responsible to the Bailee for any loss
which the bailee may sustain by reason that the bailor was not entitled to make the
bailment or to receive back the goods or to give directions in respect of them.” From the
definition it is noticed that when the Bailor sometime not entitled to make the bailment or
to receive back the goods which may results a loss to the bailee, then the bailee is entitled
to recover the loss from the Bailor.

3. RIGHT OF LIEN ON THE GOODS BAILED: -

According to Section 170 of the Act the bailee can retain the lien on the goods of the
Bailor and can refuse to deliver them back to Bailor until his due remuneration for services
he renders or any amount due is paid by the Bailor.

4. COMPENSATION FOR THE LOSS CAUSED BY NON-DISCLOSURE OF FAULTS

IN GOODS BAILED: -

The goods so bailed contain a fault which is known to the bailor but he does not convey it
to the bailee and as a result thereof bailee sustains some injury. The bailee can ask for the
compensation.

5. LOSS CAUSED BY THE DEFECTS OF THING BAILED:-

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 When the things bailed for hire or on rent the bailee can ask for compensations for the loss
or injury caused by both latent or patent defects of the thing bailed irrespective of
awareness of bailor about those defects as provided in Section 150 of the Act.

6. RIGHT TO SUE:

The bailee has the right to sue the wrong-doer who wrongfully deprives the bailee of the
use or possession of the goods bailed or does them any injury on the basis of instructions in
Sec.180 of the Act.

DUTIES OF THE BAILEE:-

A Bailee has to observe the following duties:-

1. Duty to take reasonable care of the goods bailed: Under Section 151-152 of the act
bailee is bound to take reasonable care of goods bailed to him as man of ordinary prudent
under similar circumstances as he is taking care of his own goods.

2. Duties not make unauthorised use of the goods bailed: Section 153-154 of the act bailee
is not authorised to make unauthorised use of the goods bailed to him.

3. Duty not to mix bailor’s goods with his own goods: Section 155 and 157 of the Act says
that bailee may not mix the bailed goods with his own goods which will create a problem at
the time of return of the goods to bailor.

4. Duty to return the goods on fulfilment of the purpose: Section 159-161and 165-
167 provides that when the purpose is accomplished the bailee has to return the goods to
bailor or to disposed of as per his directions.

4. Duty to deliver to the bailor increase or profit on the goods bailed: - Under Section 163
of the Act it is the duty of the bailee to pay to bailor the profits earned through the goods
bailed or any increase thereby.

PLEDGE
DEFINITION OF PLEDGE: - Section 172 of the Contract Act, “Pledge is the bailment
of goods as security for the payment of a debt or for the performance of a promise.” The
delivery may be actual or constructive. The possession in a pledge must be judicial
possession.

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 DIFFERENCE BETWEEN PLEDGE & BAILMENT
PLEDGE BAILMENT
Pledge is a species of bailment. Bailment is a genus.

Pledge is bailment of goods as security Bailment is a delivery of goods by one

for the payment of debt or for the person to another for some purpose upon
performance of a promise. a contract.

Moveable property is subject-matter In the contract of bailment after the

of pledge under the contract Act. accomplishing of the purpose the goods
are to be returned or otherwise disposed
of according to the directions of the
Bailor.

Rights of a Pawnee

1. Right of retainer (Section 173- 174) - As per Section 173, the pawnee may retain the goods
pledged, not only for a payment of a debt or the performance of the promise, but also for
the interest of the debt, and all necessary expenses incurred by him in respect of the
possession or for the preservation of the goods pledged. Further, as per Section 174, in
absence of any contract to the contrary, the pawner shall not retain the goods pledged for
debt or promise other than the debt or promise for which they have been pledged. However,
such contract shall be presumed in absence of any contract to the contrary with respect to
any subsequent advances made by the pawnee.

This means that if A pledges his gold watch with B for 1000 Rs and later on he promises to
teach B's son for a month and takes for 500Rs for this promise , and if he does not teach B's
son, B cannot retain A's gold watch after A pays 1000Rs. Thus, the right of retainer is a
sort of particular lien.

The difference was pointed out in Bank of Bihar v. State of Bihar (1972) by Supreme
Court. It observed that a pawnee obtains a special interest in the pledged goods in the
sense that he can transfer or pledge that special interest to somebody else. The lien only
gives the right to detain the goods but not transfer. Thus, a pledgee get the first right to
claim the goods before any other creditor can get them. The pledgee's loan is secured by the
goods.

2. Right to extra ordinary expenses (Section 175) - As per section 175, the pawnee is
entitled to receive from the pawner extra ordinary expenses incurred by him for the
preservation of the goods pledged. For such expenses, however, he does not have right to
detain the goods. Section 175 says that the pawnee is entitled to receive from the pawner
extraordinary expenses incurred by him for the preservation of the goods pledged.

3. Right of sale (Section 176) - As per section 176 (Pawnee's right where pawnor
makes default) - If the pawnor makes default in payment of the debt or performance at the

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 stipulated time, of the promise, in respect of which the goods were pledged, the pawnee
may bring a suit against the pawnor upon the debt or the promise and retain the goods
pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor
reasonable notice of the sale.

This right secures the debt for the pawnee up to the value of the goods pledged because it
allows the pawnee to either sue the pawnor for recovering the debt or perform the promise
or sell the goods pledged. If the value received after selling the goods, the pawner is still
liable for the difference and if the value of the sale is more than the amount of debt, the
pawnee is supposed to give the difference to the pawnor. However, if the pawnee has sold
the goods, he cannot sue for the debt.

Lallan Prasad v. Rahmat Ali (1967) the defendant borrowed 20,000Rs from the plaintiff
on a promissory note and gave him aeroscrapes worth about Rs.35,000, as a security for the
loan. The plaintiff sued for repayment of the loan but was unable to produce the security,
having sold it. The Supreme Court rejected his action. It was held that the pledgee cannot
maintain a suit for recovery of debt as well as for retainment of the pledged property.
The pawner is required to give a reasonable notice to the pawnee about the sale. The notice
is not a mere notice but reasonable notice. In Prabhat Bank v. Babu Ram (1966), the
terms of an agreement of a loan enabled the bank to sell the securities upon default without
notice. The pawnor defaulted in payment. The bank sent a reminder upon which the
pawnor asked for more time. The bank sold the securities. The Supreme Court held that this
was bad in law. The bank is required to give a clear and specific notice of the impending
sale. Pawner's request for more time cannot be interpreted as a notice of sale.

When the goods are lost due to pawnee's negligence, the liability of the pawnor is reduced
to the extent of value of the goods.

Pawnor's Right to Redeem (Section 177)

Section 177 provides a very important right to the pawnor. It allows the pawnor to redeem
his property even if he has defaulted. It says that if a time is stipulated for the payment of a
debt or performance of the promise for which the pledge is made, and the pawnor make
default in payment of the debt or performance of the promise at the stipulated time, he may
redeem the goods pledged at any subsequent time before the actual sale of them; but he
must, in that case, pay, in addition, any expense which have arisen from his default.

In Lallan Prasad v. Rahmat Ali (1967), it was observed that the pawnor has as absolute
right to redeem his property upon satisfaction or the debt or the promise. This right is not
extinguished by the expiry of the stipulated time for repayment of debt or performance of
the promise but only by the actual sale of the goods. If the pawnor redeems his goods after
the expiry of the stipulated time, he is bound to pay the expenses as have arisen on account
of his default.

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 UNIT IV

THE SALE OF GOODS ACT, 1930

“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.” ‘Contract of sale’ is a generic term which
includes both a sale as well as an agreement to sell.

Essential elements of Contract of sale

1. Seller and buyer

There must be a seller as well as a buyer. ‘Buyer’ means a person who buys or agrees to
buy goods [Section 2(1)]. ‘Seller’ means a person who sells or agrees to sell goods [Section

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 2(3)].

2. Goods

There must be some goods. ‘Goods’ means every kind of movable property other than
actionable claims and money includes stock and shares, growing crops, grass and things
attached to or forming part of the land which are agreed to be severed before sale or under
the contract of sale [Section 2(7)].

3. Transfer of property

Property means the general property in goods and not merely a special property [Section
2(11)].General property in goods means ownership of the goods. Special property in goods
means possession of goods. Thus, there must be either a transfer of ownership of goods or
an agreement to transfer the ownership of goods. The ownership may transfer either
immediately on completion of sale or sometime in future in agreement to sell.

4. Price

There must be a price. Price here means the money consideration for a sale of goods
[Section 2(10)].When the consideration is only goods, it amounts to a ‘barter’ and not sale.
When there is no consideration , it amounts to gift and not sale.

5. Essential elements of a valid contract

In addition to the aforesaid specific essential elements, all the essential elements of a valid
contract as specified under Section 10 of Indian Contract Act, 1872 must also be present
since a contract of sale is a special type of a contract.

Meaning and types of goods

Meaning of goods [Section 2(7)]

Goods means every kind of movable property other than actionable claims and money,and
includes the following:

 Stock and share

 Growing crops, grass and thing attached to or forming part of the land which are agreed to
be served before sale or under the Contract of sale.

Types of Goods [Section 6]

1. Existing Goods

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 Existing goods mean the goods which are either owned or possessed by the seller at the
time of contract of sale. The existing goods may be specific or ascertained or unascertained
as follows:

a) Specific Goods [Section 2(14)]:

These are the goods which are identified and agreed upon at the time when a contract of
sale is made. For example specified TV, VCR, car, ring.

b) Ascertained Goods:

Goods are said to be ascertained when out of a mass of unascertained goods, the quantity
extracted for is identified and set aside for a given contract. Thus, when part of the goods
lying in bulk are identified and earmarked for sale, such goods are termed as ascertained
goods.

c) Unascertained Goods:

These are the goods which are not identified and agreed upon at the time when a contract of
sale is made e.g. goods in stock or lying in lots.

2. Future Goods [Section 2(6)]

Future goods mean goods to be manufactured or produced or acquired by the seller after
the making of the contract of sale. There can be an agreement to sell only. There can be no
sale in respect of future goods because one cannot sell what he does not possess.

3. Contingent Goods [Section 6(2)]

These are the goods the acquisition of which by the seller depends upon a contingency
which may or may not happen.

Price of Goods

Meaning[Section 2(10)]

Price means the money consideration for a sale of goods.

Modes of determining Price [Section 9(1)]

There are three modes of determining the price as under:

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 It may be fixed by the contract or

 It may be left to be fixed in an agreed manner

 It may be determined by the course of dealing between the parties.

Thus, the price need not necessarily be fixed at the time of sale.

Consequences of not determining the Price in any of the Mode [Section 9(2)]

Where the price is not determined in accordance with Section 9(1), the buyer must pay
seller a reasonable price. What is a reasonable price is a question of fact dependent on the
circumstances of each particular case. It may be noted that a reasonable price need not be
market price.

Consequence of not Fixing Price by third party[Section 10(1)]

The agreement to sell goods becomes void if the following two conditions are fulfilled.

 If such agreement provided that the price is to be fixed by the valuation of a third party,

 If such third party cannot or does not make such valuation.

Duty of buyer

A Buyer who has received and appropriated the goods, must pay a reasonable price there
for.

Right of party not at fault to sue.

Where such a third party is prevented from making the valuation by fault of the seller or
buyer, the party not at fault may maintain a suit for damages against the party in fault.

Conditions and Warranties

It is usual for both seller and buyer to make representations to each other at the time of
entering into a contract of sale. Some of these representations are mere opinions which do
not form a part of contract of sale. Whereas some of them may become a part of contract of
sale.

Representations which become a part of contract of sale are termed as stipulations which
may rank as condition and warranty e.g. a mere commendation of his goods by the seller

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 doesn’t become a stipulation and gives no right of action to the buyer against the seller as
such representations are mere opinion on the part of the seller. But where the seller
assumes to assert a fact of which the buyer is ignorant, it will amount to a stipulation
forming an essential part of the contract of sale.

Meaning of Conditions [Section 12(2)]

A Condition is a stipulation which is essential to the main purpose of the contract

the breach of which gives the aggrieved party a right to terminate the contract.

Meaning of Warranty [Section 12(3)]

A Warranty is a stipulation which is collateral to the main purpose of the contract. The
breach of which gives the aggrieved party a right to claim damages but not a right to reject
goods and to terminate the contract.

Conditions to be treated as Warranty [Section 13]

In the following three cases a breach of a condition is treated as a breach of a warranty:

Where the buyer waives a condition:

Once the buyer waives a condition, he cannot insist on its fulfillment e.g. accepting
defective goods or beyond the stipulated time amount to waiving a condition.

Where the buyer elects to treat breach of the condition as a breach of warranty:

e.g. where he claims damages instead of repudiating the contract.

Where the contract is not severable and the buyer has accepted the goods or part thereof,
the breach of any condition by the seller can only be treated as breach of warranty. It
cannot be treated as a ground for rejecting the goods unless otherwise specified in the
contract.

Thus, where the buyer after purchasing the goods finds that some condition is not fulfilled,
he cannot reject the goods. He has to retain the goods entitling him to claim damages.

Express and Implied Conditions and Warranties

In a contract of sale of goods, conditions and warranties may be express or implied.

1. Express Conditions and Warranties.

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 These are expressly provided in the contract. For example, a buyer desires to buy a Sony
TV Model No. 2020.Here, model no. is an express condition. In an advertisement for
Khaitan fans, guarantee for 5 years is an express warranty.

2. Implied Conditions and Warranties

These are implied by law in every contract of sale of goods unless a contrary intention
appears from the terms of the contract. The various implied conditions and warranties have
been shown below:

Implied Conditions

1. Conditions as to title [Section 14 (a)]

There is 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 in the case of an agreement to sell, he will have a right to sell the
goods at the time when the property is to pass.

2. Condition in case of sale by description [Section 15]

Where there is a contract of sale of goods by description, there is an implied condition that
the goods shall correspond with description. The main idea is that the goods supplied must
be same as were described by the seller. Sale of goods by description include many
situations as under:

i. Where the buyer has never seen the goods and buys them only on the basis of description
given by the seller.

ii. Where the buyer has seen the goods but he buys them only on the basis of description
given by the seller.

iii. Where the method of packing has been described.

3. Condition in case of sale by sample [Section 17]

A Contract of sale is a contract for sale by sample when there is a term in the contract,
express or implied to that effect. Such sale by sample is subject to the following three
conditions:

 The goods must correspond with the sample in quality.

 The buyer must have a reasonable opportunity of comparing the bulk with the sample.

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 The goods must be free from any defect which renders them unmerchantable and which
would not be apparent on reasonable examination of the sample.

Such defects are called latent defects and are discovered when the goods are put to use.

4. Condition in case of sale by description and sample [Section 15]

If the sale is by sample as well as by description, the goods must correspond with the
sample as well as the description.

5. Condition as to quality or fitness [Section 16(1)]

There is no implied condition as to the quality or fitness for any particular purpose of goods
supplied under a contract of sale. In other words, the buyer must satisfy himself about the
quality as well as the suitability of the goods.

Exception to this rule:

There is an implied condition that the goods shall be reasonably fit for a particular purpose
described if the following three conditions are satisfied:

 The particular for which goods are required must have been disclosed (expressly or
impliedly) by the buyer to the seller.

 The buyer must have relied upon the seller’s skill or judgement.

 The seller’s business must be to sell such goods.

6. Condition as to merchantable quality [Section 16(2)]

Where the goods are bought by description from a seller who deals in goods of that
description, there is an implied condition that the goods shall be of merchantable quality.
The expression ‘merchantable quality’ means that the quality and condition of the goods
must be such that a man of ordinary prudence would accept them as the goods of that
description. Goods must be free from any latent or hidden defects.

7. Condition as to wholesomeness

In case of eatables or provisions or foodstuffs, there is an implied condition as to

wholesomeness. Condition as to wholesomeness means that the goods shall be fit for
human consumption.

8. Conditions implied by custom [Section 16(3)]

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 Condition as to quality or fitness for a particular purpose may be annexed by the usage of
trade.

Implied warranties

a) Warranty as to quiet possession [Section14(b)]

There is an implied warranty that the buyer shall have and enjoy quiet possession of the
goods. The reach of this warranty gives buyer a right to claim damages from the seller.

b) Warranty of freedom from encumbrances [Section 14(c)]

There is an implied warranty that the goods are free from any charge or encumbrance in
favour of any third person if the buyer is not aware of such charge or encumbrance. The
breach of this warranty gives buyer a right to claim damages from the seller.

c) Warranty as to quality or fitness for a particular purpose annexed by usage of

trade [Section 16(3)]

d) Warranty to disclose dangerous nature of goods

In case of goods of dangerous nature the seller fails to do so, the buyer may make him
liable for breach of implied warranty.

Transfer of property in goods

Meaning of Passing of Property/Transfer of Property

Passing of property implies transfer of ownership and not the physical possession of goods.
For example, where a principal sends goods to his agent, he merely transfers the physical
possession and not the ownership of goods. Here, the principal is the owner of the goods
but is not having possession of goods and the agent is having possession of goods but us
not the owner.

Significance of Transfer of Property

The time of transfer of ownership of goods decides various rights and liabilities of the
seller and the buyer. Thus, it becomes very important to know the exact time of transfer of
ownership of goods from seller to buyer to answer the following questions:

Rules relating to Passing of Property/Transfer of Ownership from seller to buyer

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 For the purposes of ascertaining the time at which the ownership is transferred from seller
to the buyer, the goods have been classified into the following three categories:

a) Specific or ascertained goods

Specific goods mean goods identified and agreed upon at the time when a contract of sale
is made. [Section 2(14)]

b) Unascertained goods

c) Goods sent ‘on approval’ or ‘on sale on return’ basis.

Performance of the Contract

It is the duty of the seller and buyer that the contract is performed. The duty of the seller is
to deliver the goods and that of the buyer to accept the goods and pay for them in
accordance with the contract of sale.

Unless otherwise agreed, payment of the price and the delivery of the goods and concurrent
conditions, i.e., they both take place at the same time as in a cash sale over a shop counter.

Delivery (Sections 33-39)

Delivery is the voluntary transfer of possession from one person to another. Delivery may
be actual, constructive or symbolic.

1. Actual or physical delivery - takes place where the goods are handed over by the seller to
the buyer or his agent authorized to take possession of the goods.

2. Constructive delivery - takes place when the person in possession of the goods
acknowledges that he holds the goods on behalf of and at the disposal of the buyer. For
example, where the seller, after having sold the goods, may hold them as bailee for the
buyer, there is constructive delivery.

3. Symbolic delivery - is made by indicating or giving a symbol. Here the goods themselves
are not delivered, but the “means of obtaining possession” of goods is delivered, e.g, by
delivering the key of the warehouse where the goods are stored, bill of lading which will
entitle the holder to receive the goods on the arrival of the ship.

Rules as to delivery

The following rules apply regarding delivery of goods:

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 (a) Delivery should have the effect of putting the buyer in possession.

(b) The seller must deliver the goods according to the contract.

(c) The seller is to deliver the goods when the buyer applies for delivery; it is the duty of
the buyer to claim delivery.

(d) Where the goods at the time of the sale are in the possession of a third person, there will
be delivery only when that person acknowledges to the buyer that he holds the goods on his
behalf.

(e) The seller should tender delivery so that the buyer can take the goods. It is no duty of
the seller to send or carry the goods to the buyer unless the contract so provides. But the
goods must be in a deliverable state at the time of delivery or tender of delivery. If by the
contract the seller is bound to send the goods to the buyer, but no time is fixed, the seller is
bound to send them within a reasonable time.

(f) The place of delivery is usually stated in the contract. Where it is so stated, the goods
must be delivered at the specified place during working hours on a working day. Where no
place is mentioned, the goods are to be delivered at a place at which they happen to be at
the time of the contract of sale and if not then in existence they are to be delivered at the
place at which they are manufactured or produced.

(g) The seller has to bear the cost of delivery unless the contract otherwise provides. While
the cost of obtaining delivery is said to be of the buyer, the cost of the putting the goods
into deliverable state must be borne by the seller. In other words, in the absence of an
agreement to the contrary, the expenses of and incidental to making delivery of the goods
must be borne by the seller, the expenses of and incidental to receiving delivery must be
borne by the buyer.

(h) If the goods are to be delivered at a place other than where they are, the risk of
deterioration in transit will, unless otherwise agreed, be borne by the buyer.

(i) Unless otherwise agreed, the buyer is not bound to accept delivery in instalments.

Acceptance of Goods by the Buyer

Acceptance of the goods by the buyer takes place when the buyer:

(a) intimates to the seller that he has accepted the goods; or

(b) retains the goods, after the lapse of a reasonable time without intimating to the seller
that

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 he has rejected them; or

(c) does any act on the goods which is inconsistent with the ownership of the seller, e.g.,
pledges or resells. If the seller sends the buyer a larger or smaller quantity of goods than
ordered, the buyer may:

1. reject the whole; or

2. accept the whole; or

3. accept the quantity be ordered and reject the rest. If the seller delivers with the
goods ordered, goods of a wrong description, the buyer may accept the goods
ordered and reject the rest, or reject the whole.

Where the buyer rightly rejects the goods, he is not bound to return the rejected goods to
the seller. It is sufficient if he intimates the seller that he refuses to accept them. In that
case, the seller has to remove them.

Instalment Deliveries

When there is a contract for the sale of goods to be delivered by stated instalments which
are to be separately paid for, and either the buyer or the seller commits a breach of contract,
it depends on the terms of the contract whether the breach is a repudiation of the whole
contract or a severable breach merely giving right to claim for damages.

Suits for Breach of Contract

 Where the property in the goods has passed to the buyer, the seller may sue him for the
price.

 Where the price is payable on a certain day regardless of delivery, the seller may sue for
the price, if it is not paid on that day, although the property in the goods has not passed.

 Where the buyer wrongfully neglects or refuses to accept the goods and pay for them, the
seller may sue the buyer for damages for non-acceptance.

 Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer
may sue him for damages for non-delivery.

 Where there is a breach of warranty or where the buyer elects or is compelled to treat the
breach of condition as a breach of warranty, the buyer cannot reject the goods. He can set
breach of warranty in extinction or diminution of the price payable by him and if loss
suffered by him is more than the price he may sue for the damages.

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 If the buyer has paid the price and the goods are not delivered, the buyer can sue the seller
for the recovery of the amount paid. In appropriate cases the buyer can also get an order
from the court that the specific goods ought to be delivered.

Anticipatory Breach

Where either party to a contract of sale repudiates the contract before the date of delivery,
the other party may either treat the contract as still subsisting and wait till the date of
delivery, or he may treat the contract as rescinded and sue for damages for the breach.

In case the contract is treated as still subsisting it would be for the benefit of both the
parties and the party who had originally repudiated will not be deprived of:

(a) his right of performance on the due date in spite of his prior repudiation; or

(b) his rights to set up any defence for non-performance which might have actually arisen
after the date of the prior repudiation.

Measure of Damages

The Act does not specifically provide for rules as regards the measure of damages except
by stating that nothing in the Act shall affect the right of the seller or the buyer to recover
interest or special damages in any case were by law they are entitled to the same. The
inference is that the rules laid down in Section 73 of the Indian Contract Act will apply.

Unpaid seller and his rights

Meaning of an Unpaid Seller [Sec 45(1)(2)]

The seller of goods is deemed to be an ‘unpaid seller’-

 When the whole of the price has not been paid or tendered

 When a bill of exchange or other negotiable instrument (such as cheque) has been received
as conditional payment and it has been dishonoured [Section 45(1)].

The term ‘seller’ includes any person who is in the position of a seller(for instance,an
agent of the seller to whom the bill of lading has been endorsed or a consignor or agent
who has himself paid or is directly responsible for the price) [Section 45(2)].

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 Rights of an Unpaid Seller [Section 46-52,54-56,60-61]

The rights of an unpaid seller can broadly be classified under the following two categories:

 Rights against the goods

 Rights against the buyer personally

I Rights against the goods where the property in the goods has passed to the buyer
a) Right of Lien [Section 47,48 and 49]

Meaning of Right of Lien:

The right of lien means the right to retain the possession of the goods until the full price is
received. Three circumstances under which right of lien can be exercised [Section 47(1)]

1. Where the goods have been sold without any stipulation to credit;

2. Where the goods have been sold on credit, but the term of credit has expired;

3. Where the buyer becomes insolvent.

Other provisions regarding right of lien[Sections 47(2),48,49(2)]

1. The Seller may exercise his right of lien, even if he possesses the goods as agent or
bailee for buyer [Section 47(2)]

2. Where an unpaid seller has made part delivery of the goods, he may exercise his right of
lien on the remainder, unless such part delivery has been made under such circumstances as
to show agreement to waive the lien [Section 48].

3. The Seller may exercise his right of lien even though he has obtained a decree for the
price of the goods [Section 49(2)].

Circumstances under which right of lien in the following cases:

1. When he delivers the goods to a carrier or other bailee for the purpose of transmission to
the buyer without reserving the right of disposal of the goods [Section 49(1)(a)].

2. When the buyer or his agent lawfully obtains possession of the goods [Section 49(1)(b)]

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3. When the seller waives his right of lien [Section 49(1)(c)].

4. When the buyer disposes of the goods by sale or in any other manner with the consent of
the seller [Section 53(1)].

5. Where document of title to goods has been issued or lawfully transferred to any person
as buyer or owner of the goods and that person transfers the document by way of sale, to
a person who takes the document in good faith and for consideration. [Proviso to
Section
53(1)].

b) Right of Stoppage of Goods in Transit

The right of stoppage of goods means the right of stopping the goods while they are in
transit, to regain possession and to retain them till the full price is paid.

Conditions under which right of stoppage in transit can be exercised [Section 50]

The unpaid seller can exercise the right of stoppage in transit only if the following
conditions are fulfilled:

1. The seller must have parted with the possession of goods, i.e. the goods must not be in
the possession of seller.

2. The goods must be in the course of transit.

3. The buyer must have become insolvent.

c) Right of Resale[Section 46(1) and 54]

An unpaid seller can resell the goods under the following three circumstance:

1. Where the goods are of a perishable nature.

2. Where the seller expressly reserves a right of resale if the buyer commits a default in
making payment.

3.Where the unpaid seller who has exercised his right of lien or stoppage in transit gives a
notice to the buyer about his intention to resell and buyer does not pay or tender within a
reasonable time.

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 II Rights against the goods where the property in the goods has not passed to the
buyer

Right of withholding delivery[Section 46(2)]

Where the property in the goods has not been passed to the buyer, the unpaid seller, cannot
exercise right of lien, but get a right of withholding the delivery of goods, similar to and co-
extensive with lien and stoppage in transit where the property has passed to the buyer.

Rights of Unpaid Seller against the Buyer Personally

The unpaid seller, in addition to his rights against the goods as discussed above, has the
following three rights of action against the buyer personally:

1. Suit for price (Sec. 55): Where property in goods has passed to the buyer; or where the
sale price is payable ‘on a day certain’, although the property in goods has not passed; and
the buyer wrongfully neglects or refuses to pay the price according to the terms of the
contract, the seller is entitled to sue the buyer for price, irrespective of the delivery of
goods. Where the goods have not been delivered, the seller would file a suit for price
normally when the goods have been manufactured to some special order and thus are
unsaleable otherwise.

2. Suit for damages for non-acceptance (Sec. 56) Where the buyer wrongfully neglects or
refuses to accept and pay for the goods, the seller may sue him for damages for non-
acceptance. The seller’s remedy in this case is a suit for damages rather than an action for
the full price of the goods.

3. Suit for Interest [Section 61(2)]

In case of breach of the contract on the part of seller, the buyer may sue the seller for
interest from the date on which the payment was made.

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 UNIT - V

AGENCY

Meaning

When a person employs another person to do any act for himself or to represent him
in dealing with third persons, it is called a ‘Contract of Agency’. The person who is
so represented is called the ‘principal’ and the representative so employed is called
the ‘agent (Sec. 182).

The duty of the agent is to enter into legal relations on behalf of the principal with
third parties. But, by doing so he himself does not become a party to the contract to
the contract not does he incur any liability under that contract. Principal shall be
responsible for all the acts of his agent provided they are not outside the scope of his
authority.

Competence of the parties to enter into a contract of agency

The Person employing the agent must himself have the legal capacity or be
competent to do the act for which he had employed the agent. A Minor or a person
with unsound mind cannot appoint an agent so as to be legally represented by him
(Sec. 183). But an agent so appointed need not necessarily be competent to contact
(Sec: 184) and hence minor or an insane can be appointed as an agent he can bring
about legal relations between the principal and the third party but such an
incompetent agent cannot personally be held liable to the principal.

Consideration not required: Contract of agency requires no consideration. It comes

under the category of those contracts which law has declared to be valid without
consideration (Sec. 185).

Creation of Agency: Agency may be created by any of the following ways:

1. Expressly (Sec. 187)

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 When an agent is appointed by words spoken or written, his authority is said to be
express.

2. Impliedly (Sec. 187)

When agency arises from the conduct of the parties or inferred from the
circumstances of the case, it is called implied agency.

Partners, servants and wives are usually regarded as agents by implications because
of their relationship.

Agency by necessity

Under certain circumstances, a person may be compelled to act as an agent to the

other, e.g. master of the ship can borrow money at a port where the owner of the
ship has not agent, to carry out necessary repairs to the ship in order to complete the
voyage. In such a case of necessity, person acting as an agent need not necessarily
have the authority of the principal. However, the agent must act under pressing
conditions and for the benefit of the principal.

Agency by estoppel (Sec. 237)

When an agent has without authority, done acts or incurred obligations to third
persons on behalf of his principal, the principal is bound by such acts and
obligations if he has by his words or conduct induced such third person to believe
that such acts and obligations were within the scope of the agent’s authority.

Agency by ratification (Sec. 196 to 200)

Ratification means subsequent acceptance and adoption of an act by the principal

originally done by the agent without authority. According to section 196. “Where
acts are done by one person on behalf of another but without his knowledge or
authority, he may check to ratify or to disown such act. If he ratifies them, the same
effects will follow as if they had been performed by his previous authority.”

In order that ratification may be legal and valid, it must satisfy the following
essentials.
(1) The act must be done in the name of the principal.

(2) Principal must have been in existence and competent to contract at the time
when agent acted on his behalf as well as on the date of ratification.

(3) The act must be legal which the principal must be competent to do.

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 (4) Ratification must be with full knowledge of all the material facts (Sec. 198).

(5) Ratification must relate to the whole act and not to a part of it. Ratification of a
part of the act will not be valid (Sec. 199).

(6) There can be no valid ratification of an act which is to the prejudice of a third
person (Sec. 200).

Bilton Partners v. Lambert (1889) 41 Ch. D. 295

Example: A holds a lease from B, terminable on three months notice. C, an

unauthorised person gives notice to termination to A. The notice cannot be ratified
by B, so as to be binding on A.

(7) Ratification of an act must be made, either within the time fixed for this purpose
or within a reasonable time after the contract was entered into by the agent.

Extent of agent’s authority (Sec. 186 to 189)

Principal is responsible for the acts of the agent done by him within the scope of his
authority. The authority of an agent may be express or implied. An authority is said
to be express when it is given by words spoken or written. An authority is said to be
implied when it is to be inferred from the circumstances of the case (Sec. 186 to
187).

The authority of an agent extends to the performance of every lawful thing

necessary to do an act for which he is appointed. When he is appointed to carry on
business he can do every lawful thing necessary for the purpose or as is usually done
in the course of conducting such business (Sec. 188).

An agent has authority in an emergency to do all such acts for the purpose of
protecting the principal from loss as would be done by a person of ordinary
prudence, in his own case, under similar circumstances, the emergency must be real
not permitting the agent of communicate with the principal (Sec. 189).

Delegation of agent’s authority (Secs. 191 to 195)

The general principal is “A delegate cannot further delegate”. (Delegatus non-

protest delegare). An agent, himself being the delegate of his principal, cannot
further delegate his powers. However, under certain circumstances the agent may

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 delegate some or all of his powers to another person. Such person may be either a
sub-agent or a substituted agent.

Sub-agent

A ‘sub-agent” is a person employed by and acting under the control of the original
agent in the business of agency (Sec. 191). In the following cases an agent can
appoint a sub-agent unless he is expressly forbidden to do so:-
(i) When the ordinary custom of trade permits the appointment of a sub-agent.

(ii) When the nature of the agency business requires the appointment to a sub-agent.

(iii) When the act to be done is purely ministerial and involves no exercise of
discretion or confidence, e.g. routine clerks and assistants.

(iv)When the principal agrees to the appointment of such a sub-agent expressly or

impliedly.

(v) When some unforeseen emergency has arisen.

The relations of the sub-agent to the principal depend on the question whether the
agent had an authority to appoint the sub-agent and whether sub-agent is properly
appointed.
Where the sub-agent is properly employed the principal is, so far as regard third
persons, represented by the sub-agent and is bound by and is responsible for his acts
as if he was an agent originally appointed by the principal, therefore, will be
responsible for the acts of a properly appointed sub-agent.

Where an agent, without having authority to do so, has appointed a person to act as
a sub-agent, i.e., a sub-agent is improperly appointed, the principal is not
represented by or responsible for the acts of the sub-agent as between himself and
the third parties. The sub-agent is also not responsible to the principal for anything.
The agent is responsible for the acts of the sub-agent both to the principal and to the
third persons (Sec. 193).

Substituted agent

Where an agent holding an express or implied authority to name another person to

act in the business of the agency, has accordingly, named another person such
person is not a sub-agent but a substituted agent. The substituted agent shall be
taken as the agent of principal for such part of the work as is entrusted to him (Sec.
194).

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 In selecting substituted agent for his principal an agent is bound to exercise the same
amount of discretion as a man of ordinary prudence would exercise in his own case,
and if he does this, he is not responsible to the principal for acts or negligence of the
substituted agent.

Effect of agency on contracts made with third persons

The Consequences of agents’ acts, done in the course of his employment, in relation
to third parties can be studied under the following three heads:

1. When the agent expressly contracts as an agent for a named principal.

2. When the agent expressly contracts as an agent for an unnamed principal.

3. When the agent acts for an undisclosed principal.

1. When the agent contracts for a named principal

(i) Acts within authority of agent: The principal is bound by the acts done by the
agent within his actual authority. He will also be liable to the third parties for the
acts of the agent which may be beyond his actual authority but which come within
his ostensible or apparent authority unless the third party knows of the limitations of
the agent’s apparent authority.

(ii) Acts beyond agent’s authority (Sec. 27): “When an agent does more than he is
authorised to do and when the part of what he does, which is within his authority,
can be separated from the part which is beyond his authority, so much only of what
he does as is within his authority, is binding as between him and his principal.”

Where an agent does more than he is authorised to do, and what he does beyond the
scope of his authority cannot be separated from what is within it, the principal is not
bound to recognise the transaction (Sec. 228).

(iii) Liability of principal inducing belief that agent’s unauthorised acts were
authorised: When agent has, without authority, done acts or incurred obligations to
a third person on behalf of his principal, the principal is bound by such acts or
obligations if he has by his words or conduct induced such third persons to believe
that such acts and obligations were within the scope of the agent’s authority (Sec.
37).

(iv) Notice to the agent: “Any notice given to or information obtained by the
agent, provided it be given or obtained in the course of business transacted by him

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 for the principal shall be between the principal and the third parties, have the same
legal consequences as if it had been given to or obtained by the principal.” (Sec. 29).

(v) Misrepresentation or fraud by an agent:

The principal is liable for misrepresentation or fraud of the agent committed in the
course of the employment or within the scope of employment or within the scope of
agent’s apparent authority (Sec. 38). It is immaterial for whose benefits such fraud
or misrepresentation has been done. Of course, the principal is not liable for
misrepresentation made or fraud committed by his agent in matters which do not fall
in agent’s authority.

(vi) Admission made by an agent: The law considers the principal and agent as
one person and, therefore, any admission made by the agent in the course of agency
business will be taken to have been made by the principal and the principal will be
bound by that admission. In a case where the station master reported to the police
that one of the porters had run away with the parcel, it was held that admission made
by the station master was admission made by the railway company itself and,
therefore, it was responsible to compensate for the loss.

When the agent contracts for an unnamed principal

An agent is not personally liable to third parties when he has disclosed the fact that
he is an agent but has not disclosed the name of his principal to them. The third
parties can proceed only against the principal and not against the agent. However, if
the agent declines to disclose the identity of his principal then asked by the third
parties, they can sue him personally also.

When the agent contracts for an undisclosed principal

When an agent makes a contract with a person who neither knows, nor has reason to
suspect that he is an agent, his principal is termed as an undisclosed principal. The
position of the third party, the principal and the agent in such a case is as follows:

(i) If the, third party comes to know the existence of the principal before obtaining
judgement against the agent, he may sue either the principal or the agent or both. If
he decides to sue to the principal, he must allow the principal the benefit of all
payments received by him (third party) from the agent (Sec. 231).

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 (ii) The principal, if he likes, may intervene and sue the third party. In such a case
he can obtain such performance subject to the rights and obligations subsisting
between the agent and the other party to the contract. (Sec. 232).

(iii) Para 2 of Sec. 231 states that the principal discloses himself before the contract
is completed, the other contracting party may refuse to fulfil the contract if he can
show that, if he had known who was the principal in the contract, or if he had known
that agent was not a principal, he would not have entered into the contract.

(iv) When a person who has made a contract with an agent induces the agent ot act
upon the belief that the principal only will be held liable, or induces the principal to
act upon the belief that the agent only will be held liable, she cannot afterwards,
hold liable the agent or principal respectively (Sec. 234).

(v) A person untruly representing himself to be the authorised agent of another, and
thereby inducing a third person to deal with him as such agent, is liable, if his
alleged employer does not ratify his acts, to make compensation to the other in
respect of any loss or damage which he has incurred by so dealing (Sec. 235).

Personal liability of the agent

Generally an agent is not personally responsible for the contracts made by him on
behalf of his principal. But he incurs personal liability in the following cases:

1. Foreign principal: When the contract is made by the sale or purchase of goods
for a merchant resident abroad, in case of breach of contract the third party can
make the agent personally liable.

2. Undisclosed principal: When the agent does not disclose the name of the
principal the third party can make the agent personally liability if he has relied upon
the responsibility of the agent.

3. Principal cannot be sued: Where the principal though disclosed cannot be sued,
e.g. foreign sovereign, ambassador, etc., or the principal is disqualified from
contracting though otherwise competent to contrast and this inability of the principal
was not communicated to the third party at the time of contracting, he can hold the
agent personally liable.

4. Personal liability by agreement: When the agent expressly by agreement or

impliedly by conduct undertakes personal liability of the contract.

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 5. Agent’s liability for breach of warranty: When the agent acts without or beyond
his authority and in this was commits a breach of warranty of authority, he can be
hold personally liable.

If the agent knows that he is exceeding his authority, the breach of warranty will
amount to deceit (Polhill V. Walter (1832) 3 B & Ad. 114).

6. Agent signs the contract in his own name: An agent who signs a Negotiable
Instrument e.g. Bills of Exchange, Promissory Notes etc., his own name without
making it clear that he is signing as an agent, will be held, personally liable.

7. Agency coupled with interest: Where the contract of agency relates to a subject
matter in which the agent has a special interest, agent shall be personally liable to
the extent of his interest since he shall be a principal for that interest.

8. Non-existent principal: If an agent acts for a non-existent principal, he shall be

held personally liable as if he had contracted on his own account, e.g., promoters
entering into contracts on behalf of a company yet to come into existence.

Rights of an Agent

1. Right to claim reimbursement for expenses: Agent has the right to retain, out of
the money received on behalf of the principal, money advacned or expenses
properly incurred in conducting the agency business (Sec. 217). The agent may have
paid the money at the request of the principal, or on account of the understanding
implied by the terms of the agency or through mercantile usage.

2. Right to receive remuneration: He has also a right to claim remuneration as may

be payable to him for acting as an agent. In the absence of any contract to the
contrary, this right to claim remuneration will arise only when he has carried out the
object of the agency in full without being guilty of misconduct (Sec. 219).

An agent who is guilty of misconduct in the business of the agency is not entitled to
any remuneration in respect of the part of that business which had been
misconducted (Sec. 220).

3. Right to indemnification against consequences of all lawful acts: An agent has a

right to be indemnified by the principal against the consequences of all lawful acts
done in exercise of his authority. (Sec. 222).

4. Rights of indemnification against consequences of acts done in good faith: An

agent has a right to be indemnified by the principal for any compensation which he
may be required to pay to the third parties for injuries caused to them by his

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 wrongful acts within the scope of his actual authority done in his good faith, i.e.,
without any wrong or dishonest intentions (Sec. 223).

But where one person employs another to do an act, which is criminal, the employer
is not liable to the agent either upon an express or an implied promise, to indemnify
him against the consequences of the act (Sec. 224).

5. Right of indemnification for injuries caused by Principal’s neglect: An agent

has a right to claim compensation from the principal for injuries caused to him by
the negligence or want to skill on the part of the principal (Sec. 225).

6. Right of particular lien: An agent is entitled to retain under the possession both
movable and immovable of the property of the principal received by him until the
amount due to him for commission, disbursements and services has been paid or
accounted for him, provided the contract does not provide otherwise (Sec. 221).

Duties of an Agent

1. To follow the instructions of his principal: The agent must conduct the business
of the principal according to the directions of the latter. In the absence of any such
directions, he must follow the custom of the business prevailing in the locality
where the agent is conducting such business. If the agent acts otherwise and the
principal sustains a loss, the former must compensate the latter for it. He will have
to account for the profits to the principal if there are any. He will also lose his
remuneration (Sec. 211).

2. Duty to act, with skill and diligence (Sec. 212): The agent must conduct the
business of agency with as much skill as is generally possessed by persons engaged
in similar business unless the principal has notice of his want of skill.

3. Duty to render accounts: An agent is bound to render proper accounts to his

principal on demand. He must explain those accounts to the principal and produce
the vouchers in support of the entries (Sec. 213).

4. Duty to communicate with the principal: In cases of difficulty it is the duty of

the agent to use all reasonable diligence in communicating with the principal and in
seeking to obtain the instructions. It is only in an emergency where there is no time
to communicate that he may act bonafide without consulting the principal (214).

5. Duty not to deal on his own account: The relationship of principal and agent is
of a fiduciary character. An agent, therefore, should not deal on his own account and
should not do anything which may indicate a clash between his interest and duties.
An agent shall have to pay all the benefits to the principal, which may have resulted

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 to him from his dealings on his own account in the business of the agency without
the knowledge of the principal (Secs. 215 & 216).

6. Duty not to delegate his authority: An agent cannot delegate his authority to
another person unless authorised or warranted by the usage of trade or nature of the
agency. A work entrusted to the agent must be done by him.

7. Duty to protect the interest of principal or his legal representative in the event
of principal’s unsoundness of mind or his death: When an agency is terminated by
the principal dying or becoming of unsound mind, the agent is bound to take on
behalf of the representatives of his late principal, all reasonable steps for the
protection and preservation of the interests entrusted to him (Sec. 209).

8. Duty to pay sums received for principal: The agent is bound to pay to his
principal all sums received on his account after deducting for his own claim (Sec.
218).

Rights and Duties of the Principal

The Agent’s duties are principal’s right and agent’s rights are principal’s duties.

Termination of Agency

Agency may be terminated by any of the following ways.

By Act of Parties

1. By agreement between the principal and agent: In some cases contract of agency
itself may contain provisions as regard the termination of agency. They may be
express or implied, which may be inferred from the circumstances of the case and
terms of the contract.

2. By revocation of agency by the principal: Principal may either expressly or

impliedly, after giving reasonable notice, revoke the authority of the agent before
it has been exercised by the latter so as to bind the former (Sec. 207).

Principal shall have to pay compensation to the agent for any earlier revocation of
his authority without sufficient cause before the period for which it was given to
him.
Irrevocable agency: However, the principal will not be entitled to revoke the
authority of the agent in the following circumstances.

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 (i) Where the agency is coupled with interest: An agency where the agent himself
has an interest in the property which from the subject matter of agency is said to be
agency coupled with interest. Such an agency cannot be revoked.

(ii) Where authority has been partly exercised by the gent: If the authority has
partly been exercised by the agent, the principal cannot revoke the authority of the
agent so far as regards such acts and obligations as arise from acts already done in
the agency (Sec. 204).

(iii) Where agent has incurred personal liability: Where the agent has purchased
bounds in his personal name for the principal has thereby made himself personally
lilable, the principal cannot revoke agent’s authority.

4. By renunciation of business by the agent: Agent, after giving reasonable notice

to the principal, may renounce the business of agency. In case the contract of agency
is enterest into for a fixed period, agent shall have to pay compensation to the
principal for his earlier renunciation of the business of agency.

5. By insolvency of the principal: The contract of agency will come to an end when
the principal becomes insolvent and the fact of his insolvency comes to the
knowledge of the agent. As against third persons, the agency will terminate when it
comes to their knowledge. Insolvency of an agent will not lead to the termination of
the contract of agency.

6. Destruction of the subject matter of the contract of agency: The contract of

agency will come to an end when the subject matter of the agency will come to an
end or when it ceases to exist or when the principal is deprived of his powers on the
subject matter of the contract of agency.

7. Principal becoming an alien enemy: Breaking out of war between two countries
in one of which resides principal and in the other resides the agent, shall cause the
termination of the authority of an agent.

When termination of agent’s authority takes effect as to agent, and as to third

person: The termination of the authority of an agent does not, so far as regards the
agent, take effect before it becomes known to him, or so for as regards third persons,
before it becomes known to them. (Sec. 208).

Agent’s duty on termination of agency by principal’s death or insanity when an

agency is terminated by the principal dying or becoming of unsound mind, the agent
is bound to take on behalf of the representatives of his late principal, all reasonable
steps for the protection and preservation of the interests entrusted to him (Sec. 209).

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 Termination of sub-agent’s authority: The termination of the authority of an agent
causes the termination (subject to the rules herein contained regarding the
termination of an agent’s authority) of the authority of all sub-agents appointed by
him (Sec. 210).

UNIT - VI

PARTNERSHIP

Partnership is the relation between persons who have agreed to share the profits of a
business carried on by all or any one of them acting for all (Section 4).

Essential Elements of Partnership

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 (1) Agreement: Partnership must be the result of an agreement between two or
more persons. An agreement from which relationship of Partnership arises may be
express. It may also be implied from the act done by partners and from a consistent
course of conduct being followed, showing mutual understanding between them. It
may be oral or in writing.

(2) Sharing profits of the business:

First, there must exist a business i.e. trade, occupation and profession. The motive
of the business is the acquisition of gains. Therefore there can be no partnership
where there is no intention to carry on the business and to share the profit thereof.

Secondly, there must be an agreement to share profits. The agreement to share

losses is not an essential element. However in the event of losses, unless agreed
otherwise, these must be born in the profit sharing ratio.

(3) Business carried on by all or any of them acting for all: Each partner carries
on the business as a principle as well as the agent on behalf of the other partners.
This is the cardinal principle of the partnership Law. Therefore, the true test of
partnership is mutual agency rather than sharing of profits.

Agreement: Section 5 declares that a partnership is created by contract, not by

status. It may be too elementary to say that a partnership can arise only by an
agreement between the parties concerned and in no other way, yet the point is
important. It is one of those elements which clearly display the distinction between a
partnership and the other business relations, like joint family carrying on business,
which do not arise by agreement, but are the result of status, operation of law,
succession or inheritance. However, it is not necessary that agreement should be
express.

Thus, in Abdul v. Century Wood Industries AIR 1954 Mys.33, two brothers
living together inherited certain properties on the death of their father. They did not
divide the properties. Rather they sold a garden of theirs for Rs. 5000 and invested
the sum in a separate timber business. There was no formal partnership agreement,
but it appeared that they intended to share profits. The business, however, failed
before any profit could be made and the question of payment of liabilities arose. It
was held that they must bear them as partners. The court said: “If two or more
persons put together certain amounts of money in certain shares for the purpose of
purchasing properties and selling them for profit for common benefits, it has to be
said that such a transaction amounts to a partnership concern. An agreement of
partnership need not be express. It can arise out of mutual understanding shown by
a consistent course of conduct.”

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 Deed of Partnership

When the partnership agreement is in writing, it is called the deed of partnership.

Writing is not prescribed by the Partnership Act not even for getting the firm
registered under the Act with the Registrar of Firms. But writing, known as
“instrument of partnership”, is necessary under the Income Tax Act, 1961 if the
partners desire their firm to be assessed as such firm. One of the chief advantages of
getting the firm assessed as such is that working partners can be paid salary and thus
the taxable income of the firm can be materially reduced.

Business: A Partnership can exist in business and business alone. Section 2 of the
Act says that ‘business’ includes every trade, occupation and profession. It refers to
any activity which if successful would result in profit. Where certain persons joined
in the purchase of wheat [Gibsan v. Lupton, 9 Bing 297: (1832) 2 LJ CP4] and
oil [Coope v. Eyre, 1BI H 37: (1788) 2 RR 706] with the intention of dividing the
payment for it equally, it was held that, they being not interested in profit or loss,
were not partners. Where, on the other hand, two persons hired coach with their
individual horses and shared the profits, this was held to be a business. [Fromont v.
Coupland, 2 Bing 170: (1824) 27 RR 575].

The idea involved is that of a joint operation for the sake of gain. Therefore, a
society for religious or charitable purposes is not a partnership. Similarly, voluntary
associations for the purpose of carrying on temporary functions of a social character
are not partnerships.

But a partnership may exist in a single business venture. Thus, where two persons
agreed to produce a firm and share the profits of hiring it out, that was held to be
sufficient to constitute a partnership.

But whether temporary or permanent, the business must be in existence.

In R.R.Sarna v. Reuben AIR 1946 Oudh 68, the plaintiff deposited a sum of money
with the Kanpur Municipal Board in the name of a Civil Engineering Co. for
obtaining a license for producing electricity in partnership with another. The Board
refused license and the money was refunded to the Civil Engineering Co. The
plaintiff claimed it. The other partner contended that it would be paid after meeting
partnership liabilities. But the court held that there was no partnership as yet. An
agreement to carry on business at a future time does not result in partnership unless
that time arrives and the business is commenced.

Sharing of profits- The division of profits is an essential condition of the

existence of a partnership. There was a time when sharing of profit was considered
to be the final word in the determination of the existence of a partnership. Every

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 man who received any portion of the profits of a business had to incur therein the
liability of a partner.

This was the state of the law up to the year 1860 when in Cox v. Hickman (1860) 8
HL Cas 268, the House of Lords reconsidered the test of determining the existence
of partnership. The net result of this historic decision is that no man is a partner
unless he has the right to share the profits of the business. But every man who
received profits is not necessarily a partner. Thus, sharing of profits is only a prima
facie evidence of the existence of a partnership. The conclusive test is that of mutual
agency.

Mutual agency (The real test of partnership): Section 4 concludes with the words
that the business may be carried on “by all or any of them acting for all”. Thus, if
the person carrying on the business acts not only for himself but for others also, so
that they stand in the position of principals and agents, they are partners. This is the
principle behind Cox v. Hickman (1860) 8HL Cas 268. In this case S and S were
iron merchants in partnership. They became financially embarrassed and therefore,
made a compromise with their creditors. Under the compromise the property of the
firm was assigned to a few creditors selected as trustees. They were empowered to
carry on the business, to divide the net income among the creditors in a rateable
proportion and after the debts had been discharged, the business was to be returned
to S and S. Cox was one among the trustees although he never created. The other
trustees continued the business. They purchased a quantity of coke from the
plaintiff, Hickman and gave him a bill of exchange for the price. The bill remaining
unpaid. Hickman brought an action against the trustees, including Cox, for the price.

It was held that they were not partners and therefore Cox was not liable. “The
liability of one partner for the acts of his co-partner is in truth the liability of a
principal for the acts of his agent. Where two or more persons are engaged as
partners in any ordinary trade, each of them has an implied authority from the other
to bind all by contracts entered into according to the usual course of business in that
trade.

Kinds of Partnership

Section 7: Partnership at will - Where no provision is made by contract between

the partners for the duration of their partnership, or for the determination of their
partnership, the partnership is “partnership at will”.

Section 7 provides that where no provisions made by contract between the partners
for the duration of the partnership, or for the determination of the partnership, the
partnership is partnership at will. In Thiagarajan Chettiar v. EM Muthappa

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 Chettiar, AIR 1961 SC 1225 the duration of a partnership may be expressly
provided for in the contract; but even where there is no express provision, the courts
have held that the partnership will not be at will if the duration can be implied. In
Deoki Prasad Rajgarhiah v. A D Poddar, AIR 1999 Pat 22 a partnership entered
into for carrying out a specific job would continue till the completion of the job and,
therefore it would not be a partnership at will.

Partnership in single or brief business venture

Section 8: Particular partnership: A person may become a partner with another

person in particular adventures or undertakings. The relation of partnership need not
be a permanent bond. There can as much be a partnership in a single brief business
venture as in a business of everlasting nature. The section clearly recognises the
possibility of a partnership in a particular adventure.

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: Anyone 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 anyone 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 his name to the firm without having any real
interest in it. He is liable to outsiders for all the debts of the firm.

Minor’s Position in Partnership

Though a minor cannot be a partner in a firm, he can nonetheless be admitted to the
benefits of partnership under Section 30 of the Act. In other words, he can be
validly given a share in the partnership profits. When this has been done and it can

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 be done with the consent of all the partners then the rights and liabilities of such a
partner will be governed under Section 30 as follows:

Rights:

(i) A minor partner has a right to his agreed share of the profits of the firm.

(ii) He can have access to, inspect and copy the accounts of the firm.

(iii) He can sue the partners for accounts or for payment of his share but only when
severing his connection with the firm, and not otherwise.

(iv) On attaining majority he may within 6 months elect to become a partner or not
to become a partner. If he elects to become a partner, then he is entitled to the share
to which he was entitled as a minor. If he does not, then his share is not liable for
any acts of the firm after the date of the public notice served to that effect.

Liabilities:
(i) The minor’s share is liable for the acts of the firm, but he is not personally liable for
any such act.

(ii) Within 6 months of his attaining majority or on his obtaining knowledge that he had
been admitted to the benefits of partnership, whichever date is later, he may give
public notice that he has elected not to become partner and such notice shall
determine his position as regards the firm.

If he fails to give such notice he shall become a partner in the firm on the expiry of
the
said six months. If the minor becomes partner of his own willingness or by his
failure to give the public notice within specified time, the position will be as
follows:

i. He becomes personally liable to third parties for all acts of the firm done since he
was admitted to the benefits of partnership.
ii. His share in the property and the profits of the firm remains the same to which he
was entitled as a minor.

Mutual Rights and Duties of Partners

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 The contract may provide that a partner shall not carry on any business other that
that of the firm while he is a partner (Section 11). Subject to a contract between the
partners the mutual rights and liabilities are as follows:

Rights:

1. Right to take part in the conduct of the Business: Every partner has the right to
take part in the business of the firm. This is because partnership business is a
business of the partners and their management powers are generally coextensive.

2. Right to be consulted: Where any difference arises between the partners with
regard to the business of the firm, it shall be determined by the views of the majority
of them, and every partner shall have the right to express his opinion before the
matter is decided. But no change in the nature of the business of the firm can be
made without the consent of all the partners [Section 12(c)].

3. Right to remuneration: No partner is entitled to receive any remuneration in

addition to his share in the profits of the firm for taking part in the business of the
firm. But this rule can always be varied by an express agreement, or by a course of
dealings, in which event the partner will be entitled to remuneration.

4. Interest on Capital: The interest will be payable only out of profits. As a general
rule, interest on capital subscribed by partners is not allowed unless there is an
agreement or usage to that effect. The principle underlying this provision of law is
that regards the capital brought by a partner in the business; he is not a creditor of
the firm but an adventure.

5. Interest on advances: The partner is entitled to claim interest thereon @6% per
annum [Section 13(d)]. While interest in capital account ceases to run in dissolution,
the interest on advances keep running even often dissolution and up to the date of
payment.

6. Right to share profits: partners are entitled to share equally in profits earned and
so contribute equally to the losses sustained by the firm (section 13(b)).

7. Right to access the books of accounts: Every partner whether active or sleeping
is entitled to have access to any books of firm and to inspect and take out the copy
thereof (Sec12(d)).

8. Right to be indemnified: Every partner has the right to be indemnified by the

firm with respect of payments made and liabilities incurred by him in the ordinary
and proper conduct of the business as well as in the performance of an act in an
emergency for protecting the firm from any loss (Section 13(e)).

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 9. Right to stop admission of a new partner: Every partner has the right to stop
the introduction of the new partner without the consent of other partners (Section
31).

10. Right to retire: Every partner has the right to retire with the consent of other
partners and in the case of partnership at will, by giving notice to that effect to all
other partners (Section 32(1)).

11. Right not to be expelled: Every partner has got a right not to be expelled from
the firm by the majority of the partners (Section 33).

12. Right to dissolve the firm: Every partner has the right to dissolve the
partnership with the consent of other partners and in the case of partnership at will,
by any partner giving notice to that effect to all other partners (Section 40).

13. Right of outgoing partner to carry on competing business: An outgoing

partner can carrying on business competing with the firm and he may advertise such
business, but without using the firm name or representing himself as carrying on the
business of the firm or soliciting the custom of persons who were dealing with the
firm before he ceased to be a partner (Section36(1)).

14. Right of outgoing partner to share subsequent profits: When any partner has
died or ceased to be a partner, and the surviving or continuing partners carry on the
business of the firm with the property of the firm without any final settlement of the
accounts as between them and the outgoing partner, than at the representative
option, can either take the proportion of the profits attributable to the share of
property or interest at the rate of 6% per annum.

Duties:

1. Partners are bound to carry on business of the firm

 to the greatest common advantage.

 To be just and faithful to each other.

 To render to any partner or his legal representative a true account and full
information of all the things affecting the firm (Section 9).

2. Every partner is liable to indemnify the firm for any damage caused ti it by the
reason of its fraud in the conduct of his business of the firm (Section10).

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 3. Every partner is bound to attend diligently to his duties relating to the conduct of
the firms business (Section12(b)).

4. All the partners are liable to contribute equally to the loss sustained by the firm.

5. If a partner derives any profit for himself from any transaction of the firm or from
the use of the property or business connection of the firm or the firm’s name then he
is bound to account for that profit and refund it to the firm.(Section16(a).

6. A partner must identify the firm for any loss caused to it by the willful neglect of
the business of the firm. (Section13(f)).

7. If a partner carries on business of the same nature as and competing with that of
the firm, then he must account for and pay to the firm all profits made by him in the
business and the firm is not liable for any loss(Section16(b)).

Personal Profit Earned by Partners (Section 16)

Where a partner derives any profit for himself from any transaction of the firm or
firm the use of the property or business connection of the firm name, he must
account for that profit and pay it to the firm. A deed of partnership may contain a
clause that some or all the partners are not to carry any business other than of the
firm during the continuance of partnership [Section 11(2)].

A breach of such a provision may entitle the other partner to recover damages from
the defaulting partner, but it will not gives rise to any occasion for accounting to his
copartners for the profit earned unless the business is shown to be in rivalry with the
business of the firm.

Rights and Duties of Partners after a Change in the constitution of the firm
(Section 17)

Change in the constitution can occur in one of the four ways, namely:

(i) Where a new partner or partners come in,

(ii) Where some partner or partners go out, i.e., by death or retirement,

(iii) Where the partnership concerned carries on business other that the business for
which it was originally formed,

(iv) Where the partnership business is carried on after the expiry of the term fixed
for the purpose.

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 (a) Where the change occurs in the constitution because of the first three reasons
then the mutual rights and duties of the partners remains the same as before.

(b) Where the partnership business is carried on after the expiry of the term fixed for
the purpose so far they are consistent with the incidents of partnership at will.

Relation of Partners to Third Parties (Sec. 18-30)

The principal distinction between him and a mere agent is that he has a community
of interest with other partners in the whole property and business and liabilities of
partnership, whereas an agent as such has no interest in either.

A Partner is the agent of the firm for the purpose of the business of the firm, cannot
be applied to all transaction and dealings between the partners themselves. It is
applicable only to the act done by partners for the purpose of the business of the
firm.

Liability to Third Parties (Section 25 to 27)

1. Contractual liability: Under Section 25, it is necessary that the act of the firm, in
respect of which liability is bought to be enforced against a party, must have been
done while he was a partner.

2. Liability for tort or wrongful act: Section 26, the fact that the method employed
by the partner in doing it was unauthorised or wrongful would not affect the
question. Furthermore, all the partners in a firm are liable to a third party for loss or
injury caused to him by the negligent act of a partner acting in the ordinary course
of the business.

3. Liability for misappropriation by a partner: Section 27 provides that

(a) when a partner, acting within his apparent authority, receives money or other
property from a third person and misapplies it or

(b) where a firm, in the course of its business, received money or property from a
third person and the same is misapplied by a partner, while it is in the custody of the
firm, is liable to make good the loss.

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 Legal Consequences of Partner coming in and going out (Section 31-
38)Introduction of new partner (Section 31): As we have studied earlier, subject
to a contract between partners and to the provisions regarding minors in a firm, no
new partners can be introduced into a firm without the consent of all the existing
partners.

Introduction of the new partner: The liabilities of the new partner ordinarily
commence from the date when he is admitted as a partner, unless he agrees to be
liable for obligations incurred by the firm prior to the date. The new firm, including
the new partner who joins it, may agree to assume liability for the existing debts of
the old firm, and creditors may agree to accept the new firm as their debtor and
discharge the old partners.

Retirement of a partner:

A partner may retire:

(i) With the consent of all the other partners;

(ii) By virtue of an express agreement between the partners; or

(iii) In the case of a partnership at will, by giving notice in writing to all other
partners of his intention to retire.

Such a partner, however, continues to be liable to the third party for acts of the firm
after his retirement until public notice of his retirement has been given either by
himself or by other partners. But the retired partner will not be liable to any third
party of the latter deals with the firm without knowing that the former was partner
[Sub-Section (3) and (4)].

Insolvency of a partner (Section 34): When a partner in a firm is adjudicated an

insolvent, he ceases to be a partner on the date of the order of adjudication whether
or not the firm is thereby dissolved. His estate (which thereupon vests in the official
assignee) ceases to be liable for any act of the firm done after the date of the order,
and the firm also is not liable for any act of such a partner after such date (whether
or not under a contract between the partners the firm is dissolved by such
adjudication).

Death of a partner (Section 35): Where under the contract a firm is not dissolved
by the death of partner, the estate of the deceased partner is not liable for act of the
firm after his death. Ordinarily, the effect of the death of a partner is the dissolution
of the partnership, but the rule in regard to the dissolution of the partnership, by

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 death of partner is subject to a contract between the parties and the partners
competent to agree that the death of one will not have the effect of dissolving the
partnership as regards the surviving partner sunless the firm consists of only two
partners.

In order that the estate of the deceased partner may be absolved from liability for the
future obligations of the firm, it is not necessary to give any notice either to the
public or the persons having dealings with the firm.

In relation to Section 35, let us consider a concrete case. X was a partner in a firm.
The firm ordered goods in X’s lifetime; but the delivery of the goods was made after
X’s death. In such a case, X’s estate would not be liable for the debt; a creditor can
have only a personal decree against the surviving partners and a decree against the
partnership assets in the hands of those partners.

A Suit for goods sold and delivered would not lie against the representatives of the
deceased partner. This is because there was no debt due in respect of the goods in
X’s lifetime.

Revocation of continuing guarantee by change in the firm (Section 38): It

provides that a continuing guarantee given to a firm or to third party in respect of
the transaction of a firm is, in the absence of an agreement to the contrary, revoked
as to future transaction from the date of any change in the constitution of the firm.

Dissolution of a Firm

Dissolution of partnership means coming to an end of the relation known as

partnership between various partners. According to Section 39, when the dissolution
of partnership between all the partners of the firm occurs, this is called dissolution
of the firm.

Modes of dissolution [Section 40-44]

A Firm may be dissolved in the following ways:

1. By Agreement
2. Compulsory Dissolution
3. On the happening of certain contingencies
4. By notice
5. By the Court

1. Dissolution by Agreement [Section 40]

A Firm may be dissolved either-

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 With the consent of all the partners, or
 In accordance with a contract between the partners.
As partners can create partnership by making a contract as between themselves, they
are also similarly free to end this relationship and thereby dissolve the firm by their
mutual consent.

2. Compulsory Dissolution [Section 41]

According to Section 41, compulsory dissolution occurs under the following

circumstances:

When all the partners or all except one are adjudicated insolvent, the firm is
compulsorily dissolved.

If the business of the firm though lawful when the firm came in to existence,
subsequently becomes unlawful, there has to be dissolution of the firm.

3. Dissolution on the happening of certain contingencies [Section 42]

Section 42 mentions certain contingencies on the happening of which the firm is

dissolved, unless there is a contract to the contrary. The Contingencies mentioned in
the Section are:

 Expiration of the partnership term

 Completion of the adventure
 Death of a partner
 Insolvency of a partner

4. Dissolution by Court [Section 44]

At the suit of a partner, the Court may dissolve a firm on any of the following
grounds namely-

a. Unsoundness of mind - When a partner has become of unsound mind, a suit for the
dissolution of the firm can be filed. Such a suit may be filed either on behalf of the
partner who has become of unsound mind or any other partner.

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b. Permanent incapacity to perform duties - When a partner has become
permanently incapable of performing his duties as a partner that is a good ground
for applying to the court for the dissolution of the firm.

c. Conduct injurious to the partnership business - When a partner is guilty of

conduct which is likely to effect prejudicially the carrying on the business of the
firm, the court may dissolve the firm on that ground.

d. Persistent breach of partnership agreement - When a partner willfully and

persistently commits breach of agreements relating to the management of the affairs
of the firm or so conducts himself in matters relating to the firm’s business that it is
not reasonable practicable for the other partners to carry on the business in
partnership with him, a suit for the dissolution of the firm may be filed.

e. Transfer of a whole of the partner’s interest - When a partner has transferred the
whole of his interest in the firm to a third party, it can be a ground on which the
court may dissolve the firm.

f. When the business can be carried on only at a loss - The object of every
partnership is to make profits. If it appears that the business of the firm cannot be
carried on except at a loss, any of the partners may apply to the court for the
dissolution of the firm.

g. When dissolution of just and equitable - Apart from ordering the dissolution of
the firm on the grounds stated above, the court has been vested with the power of
dissolving the firm on any other ground which renders it just and equitable. In the
case of Abbot v. Crump (1870) 5 Beng.L.R. 109, adultery by one partner with
another partner’s wife was held to be a good ground for the dissolution of firm by
the court.

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.

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 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 rate ably 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.

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 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 a non-registered firm cannot sue the firm or his present or past
copartners 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.

UNIT - VII
THE CONSUMER PROTECTION ACT, 1986
Till 1985, the consumer, specifically in India, was neglected. Traders
dominated the market in every aspect of business causing concern to the consumers.
In spite of various provisions providing protection to the consumer and providing
for stringent action against adulterated and sub-standard articles in the different

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 enactments like Code of Civil Procedure, 1908, the Indian Contact Act, 1872, the
Sale of Goods Act, 1930, the Indian Penal Code, 1860, the Standards of Weights
and Measures Act, 1976 and the Motor Vehicle Act, 1988, very little could be
achieved in the field of Consumer Protection.

Though the Monopolies and Restrictive Trade Practices Act, 1969 and the
Prevention of Food Adulteration Act, 1954 have provided relief to the consumers
yet it became necessary to protect the consumers from the exploitation and to save
them from adulterated and sub-standard goods and services and to safeguard the
interests of the consumers. In order to provide for better protection of the interests of
the consumer the Consumer Protection Bill was introduced in the Parliament.

An important landmark in consumer protection endeavours in India is the Consumer

Protection Act, 1986, which provides for a system for the protection of consumer
rights and the redressal of consumer disputes. This Act extends to the whole of India
except the State of Jammu and Kashmir, and save as otherwise expressly provides
by the Central Government by notification, it applies to all goods and services.

The objective of the Act is to provide for the better protection of the interests of
consumers and for that purpose to make provision for the establishment of consumer
councils and authorities for the settlement of consumer disputes and for matters
connected therewith.

Objects of the Act

1. Promoting and protecting the rights of consumers.
2. Providing for the establishment of consumer councils and other authorities.
3. Providing speedy and simple redressal machinery at district, state and central levels
for settling consumer disputes and matters connected therewith.

Salient Features of the Act

1. The Act applies to all goods and services unless specifically exempted by the
Central Government.
2. It covers all the sectors whether private, public or cooperative.
3. The Act envisages the establishment of the Consumer Protection Councils at the
central and state levels, whose main objects will be to promote and protect the rights
of the consumers.
4. The Consumer Protection Act extends to whole of India except the State of Jammu
and Kashmir and applies to all the goods and services unless otherwise notified by
the Central Government.
5. The provisions of this act are in addition to and not in derogation of the provisions
of any other law for the time being in force.
6. The provisions of the Act are compensatory in nature.

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 Definitions

1. Consumer

According to Sec. 2(1)(d): Consumer means any person, who :

i. Buys any goods for a consideration :

 Which has been paid or promised or partly paid promised, or

 Under any system of deferred payment.

‘Consumer’ also includes any user of such goods other than the buyer himself. The
use of such goods must be with approval of the buyer for consideration paid or
promised or partly paid or partly promised, or under any system of deferred
payment. But consumer does not include a person a person who obtains goods for
resale or for any commercial purpose.

Commercial purpose does not include use by a consumer of goods bought and used
by him exclusively for the purpose of earning his livelihood, by means of self-
employment.

ii. Hires or avails of any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred
payment.

Consumer also includes any beneficiary of such services other than the person who
hires or avails of such services. The beneficiary must acquire the use of such
services with the approval of the hirer for consideration paid or promised, or partly
paid and partly promised, or under any system of deferred payment. A patient hiring
services of doctor for consideration has been held to be consumer.

2. Consumer Disputes

According to Section 2(1) (e )

‘Consumer Dispute’ means a dispute where the person against whom a complaint
has been made, denies or disputes the allegations contained in the compliant.

3. Defect

According to Section 2(1) (f)

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 A ‘defect’ mean any fault, imperfection, or shortcoming in the quality, quantity,
potency, purity or standard which is required to be maintained by or under any law
for the time being in force, or under any contract, express or implied, or as is
claimed by the trader in any manner whatsoever, in relation to any goods.

4. Deficiency

According to Section 2 (1) (g)

‘Deficiency’ means any fault, imperfection or 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

5. 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

6. Complaint - (Sec. 2(1) (c)): means any allegation in writing made by a

complainant.

7. 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.

8. 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.

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 9. 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-in charge 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
Consumer 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))

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 (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-in charge 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)

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(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 consists 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.

Jurisdiction of the District Forum - (Sec. 11)

District Forums enjoy jurisdiction to entertain complaints where the value f 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 has to be constituted at State levels has 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.

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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.

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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 lies 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

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 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 Vexatious 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.

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 I YEAR OF 3 YEAR LL.B
SEMESTER - II
EVEN SEMESTER

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SUBJECT : PROPERTY LAW
SUBJECT CODE : TA2B
YEAR : 3 YEARS
SEMESTER : II

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 SYLLABUS
TA2B - PROPERTY LAW
Unit - I Introduction
General principles relating to transfer of property in India Nature and interest in property,
subject matter of transfer restrictive covenants, future interest, conditional transfers -transfer to
unborn persons, capacity to transfer, doctrines of elections, holding out, holders under defective
titles, lis pendens part, performance -Fradulent transfer, Benami Transactions Doctrine of
priority

Unit - II Specific
Transfers Specific transfers - Sales, Mortgage, lease, exchange, gift and actionable claims
(a) Definition of Sale
(b) Difference between sale and contract for sale, in English Law and Indian Law with
reference to decide cases, rights and liabilities or buyers and seller
(c) Doctrine of marshalling in English and Indian Law
(d) Different types of mortgages - simple mortgages, mortgages by conditional sale,
usufructury mortgage, English Law and Indian Law with reference to decided cases.
(e) Mortgage when to be by assurance
(f) Rights and liabilities of mortgagagor
(g) Rights and liabilities of mortgages both with reference to English Law and Indian Law
(h) Doctrine of clog, clog on the equity of redemption in English Law and Indian Law
(i) Doctrine of redemption and mortgagor's right therein.
(j) Accession to mortgage properties in English and Indian Law
(k) Doctrine of priority in English Law and Indian Law.
(l) Doctrine of marshalling and doctrine of contribution in English Law and Indian Law.
(m) Redemption by persons other than the mortagagor.
(n) Doctrine of suborgation
(o) Doctrine of tackling in English Law and Indian Law
Unit - III Charge
(a) Definition of charge
(b) Doctrine of notice and tender
Unit - IV Lease
(a) Definition of lease
(b) Definition of lessor, lessor premium and rent.
(c) Leases - how made and kinds of leases - Distinction between a lease and license
(d) Right and liabilities of lessor
(e) Rights and liabilities of the lessee both in English law and Indian Law with reference to
decided cases

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Unit - V Gift and Exchange
(a) Definition of Exchange, rights and liabilities of parties – Exchange of money in Indian
and English Law
(b) Definition of gifts - its ingredients
(c) Gift of existing and future property. Gift to several of whom one does not accept.
(d) Suspension and revocation of gifts. Onerous gifts, Universal donee. Donatio mortis causa
and Mohammedan Law. Application in English and Indian Law.
(e) Transfer of policy of marine insurance with reference to Indian and English Law.
Unit- VI
Easements - Easements generally-imposition - acquisition and transfer of easement -
incidence of easement - Disturbance, extinction, suspension, revival of easements.
Unit - VII Licences - Difference between Easements and Licences.

Statutory Materials with Amendments

1. The Transfer of Property Act, 1882.
2. The Indian Easement Act, 1882.
3. 3. Benami Transactions Prohibition Act, 1988
Books for Reference:
1. G.Sanjiva Row : Commentaries on Easements and license
2. Vepa Sarathi : Law of Transfer of Property Act
3. Shah : Principle of Transfer.
4. Mulla : The Transfer of Property
5. Krishna Menon : The Transfer of Property
6. G.C.V. Subba Rao : The Transfer of Property
7. A.I.R. Commentaries : The Transfer of Property
8. W.Friedmann : Law in a changing society
9. Mitra : Transfer of Property
10. Goyle : Transfer of Property
11. C.L.Gupta : Law of Transfer of Property
12. Khatiar : Law of Easements
13. AIR Commentaries
.********************************

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 UNIT – I

TRANSFER OF PROPERTY ACT 1882

GENERAL PRINCIPLES RELATING TO TRANSFER OF PROPERTY ACT

 Introduction of Transfer of Property Act 1882.

 Transfer of property Act came into force in1882. The transfer of property Act is not
applicable to transfers by operation of law.

 It only applies to transfers ‘ by act of parties’.

 Chapter II of the Act which contains general principles of transfer does not affect transfer
by Muslims even if it is against any of the provisions of chapter II.

 The Act has not only defined the existing rules of transfers but also amended and
modified some of them so as to make them suitable to the socio-economic conditions of
India.

 The Act provided a parallel law to the already existing laws of testamentary and intestate
transfers.

 Object and Scope of the Act:-

 The Act defines and amend the law relating to transfer of property by act of parties.

 Further, transfer of property by act of parties again may be inter vivos or testamentary.
Inter vivos transfer means between two living persons .

Important definition Terms:-

IMMOVEABLE PROPERTY

SEC 3 - IMMOVEABLE PROPERTY DOES NOT INCLUDE STANDING

TIMBER,GROWING CROPS OR GRASS.

According to General clauses Act, 1897

 SEC 3(25) - Immoveable property includes land,benefits that arise out of land,and things
attached to the earth.

 ELEMENTS INCLUDED UNDER THE TERM “LAND”:

A determination portion of the earth’s surface.

The column of space above the surface.

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 The ground below the surface.

All the objects which are on or under the surface in its natural state

Any object placed by human beings on or under the surface.

Benefits arising out of land

 Any benefit arising out of the immoveable property and every interest in such property is
regarded as immoveable property.Ex;rights of way,lights,ferries,fisheries.

THINGS ATTACHED TO THE EARTH:

 (a) things rooted in the earth as in the case of trees and shrubs

 (b)things imbedded in the earth (walls and buildings)

 (c) attached to what is so imbedded for the permenant enjoyment of that to which it is
attached.(doors, windows)

INSTRUMENT

Generally speaking, an instrument is a legal document. Section 3 of the Transfer of property

Act defines instrument as a non-testamentary instrument.

ATTESTED

‘ Attested’ , in relation to an instrument, means and shall be deemed always to have

meant attested by two or more witnesses each of whom has –

1. seen the executant sign or affix his mark to the instrument, or

2. has seen some other person sign the instrument in his presence and by the direction of
the executant, or

3. has received from the executant a personal acknowledgement of his signature or mark,
or of the signature of such other person, and

4. each of whom has signed the instrument in the presence of the executant but it shall
not be necessary that more than one of such witnesses shall have been present at the same
time.

Effect of invalid Attestation:-

If a document is not validly attested, it cannot be enforced in court of law. Invalid

attestation makes the documents invalid.

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 Requirement of Attestation:-

It is not necessary to get attested each and every document. But transfer of immovable
property require attestation. No particular form of attestation is prescribed by the Act.
Attesting witness may put his signature anywhere on the deed. If the witness is illiterate
he may put his thumb impression on the deed. It is necessary that the attesting witness
must sign the deed after the executants has executed it.

TRANSFER OF PROPERTY:-

TRANSFER OF PROPERTY means an act by which a living person conveys property, in

present or in future,

a.to one or more other living persons, or

b.to himself, and one or more other living persons, and “to transfer property” is to
perform such act.

The performance of such act is to be regarded as transfer the property. LIVING PERSON
includes,company or association or a body of individuals whether incorporated or not, but
nothing herein contained shall affect any law for the time being in force relating to
transfer of property to or by companies, associations or bodies of individuals.

The analysis of this definition can be attempted under the following points:-

1. The transfer of property is an act of conveyance.

2. Conveyance is affected through living persons.
3. Property may be conveyed either to one or more other living persons , or to himself,
or to himself with one or more living persons.
4. Property may be transferred either in future or in present.

SUBJECT MATTER OF TRANSFER OR

PROPERTIES THAT CAN AND CANNOT BE TRANSFERRED

In order to constitute valid transfer of property , it is necessary that the-

1. The property must be transferable

2. The object or consideration of the transfer must be valid
3. The transferee be competent
4. The transfer must not be opposed to the nature of the interest affected thereby
5. The transferor must be competent to transfer.

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 6. It must be made in the prescribed manner or from.

SEC-6-of the Transfer of Property Act says that “property of all kind may be transferred
except otherwise provided by this act or any law for time being in force. “

EXCEPTIONS:-

 SPES SUCCESSIONIS.

 RIGHT OF RE ENTRY

 EASEMENT

 RESTRICTED INTRESTS

 MAINTENANCE

 MERE RIGHT TO SUE

 PUBLIC OFFICE

 PENSIONS

 NATURE OF INTEREST

 UNTRANSFERABLE INTRESTS

 SPES SUCCESSIONIS

Chance of heir apparent succeeding to an estate.

E;X - A expects that he would be inheriting a property worth Rs. 10000 belonging to
his aunt who has no issues. Since he has only a bare chance of succession to his aunt’s
property, he cannot transfer it.

 RIGHT OF RENENTRY

A mere right of re entry for breach of a condition subsequent cannot be transferred. The
land lord has the right of reentry on his immovable properties when the tenant or the
lessee makes default in payments. This right of reentry available only to the landlord or
his legal representatives. This right cannot be transferred.

 EASEMENT

An easement is a right to use, or restrict the use of land of another in some way. It cannot
be transferred.

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 E;g – X, th owner of a house has a right of path way over the neighbouring land which
belongs to Y. this right of pathway is an easementary right which cannot be transferred.
But , if the house is transferred, the easement also passes to the purchaser.

 RESTRICTED INTERESTS

An interest in property restricted in its enjoyment to the owner personally cannot be

transferred by him.

E:X – A gives a land to another B for his personal use only. B cannot extend that use of
land to any third person.

 MERE RIGHT TO SUE

a mere right to sue , as for instance in respect of damages for breach of contract, for tort
cannot be transferred.

E:X – a publishes libel of B . B has a right to sue a legally because A published

defanatory statements against him. But B transfers his right to c. C cannot sue A to
recover damages because B had assigned him only the mere right to sue.

 PUBLIC OFFICE

Under this clause, a public office cannot be transferred.

The salary of a public officer is not transferable, although under sec 60 C.P.C it is attachable
with certain limits.

 PENSIONS

Stipends allowed to military and civil pensioners of Govt and political pensions cannot be
transferred.

 NATURE OF INTEREST

This clause forbids transfer

(i) inso far as such transfer would be opposed to the interests

(ii)for unlawful object or consideration

affected there by

(iii) to a person legally disqualified to be a transferee

 UNTRANSFERABLE INTERESTS

Page 9 of 75
 A tenant having an untransferable right of occupancy , cannot alienate or assign his
interest in the occupancy

RESTRICTIVE COVENANTS

SEC-10 Condition Restraining alienation

When the property is transferred absolutely from one person to another the transferee should
enjoy that property with free will and consent and without any conditions. If the transferer
imposes any repugnant conditions restraining the transferee to alienate the property such
condition become void.This is called rule against inalienability.

Types of restrictions:-

1.Absolute 2.partial

1.Absolute restraint.

Where the property is transferred subject to a condition absolutely restraining the transferee
from parting with his interest in the property, the condition is void.

E.g; A transfers his property to B with a condition that B should not sell it. This condition is
void.

Rosher vs Rosher

A testator wrote a will and bequeathed his estate to his son with a condition that he wants to sell
the estate or any part thereof during the lifetime of the testator’s wife, she should be given a
preference to purchase the estate at a price of $3,000 for the whole or at a proportionate amount
for any part of it. The selling value of the estate on the date of the testator’s death was $15000.
Such a condition of sale at such an under value was held to be restraint on alienation and hence
void.

Partial restraint:-

The transferer can impose partial restriction on the right of the transferee.Such restriction
should not interfere materially with the free enjoyment of the property.

E.g; A sells a land to B on condition that B should not sell the land to C, the vendors
enemy.This is partial restraint and therefore valid.

Page 10 of 75
Sec-11- Restriction on enjoyment of absolute interest.

This section laysdown that any condition restraining the enjoyment of the property which is
transferred absolutely is void.

E.g; A makes an absolute gift of a house to B with a condition that gift will be forfeited if B
diesnot reside it.This condition is void.

Sec-10 is applicable to all transfers, whether limited or absolute, whereas sec-11 is limited to
the transfer of an absolute interest.

This section comes into play when two conditions are satisfied:

1. An absolute interest is created by the transfer in favour of the transferee.

2. The terms of the transfer provide that the interest in the property shall be applied or
enjoyed in the manner prescribed by the transferor.

Exceptions:-

1.Negative covenant ( not to do something)

2.positive covenant ( to do something)

Both the types of covenants can be enforced against the transferee. But negative covenant
cannot be enforced against a purchaser from the transferee without notice of the covenant.

Sec-12- Condition making an interest determinable oninsolvency or attempted alienation:-

1.there is a transfer of property.

2.such transfer creates an interest which is reserved or given to or to the benefit of any person

3.such interest is made subject to a condition or limitation that the interest shall cease on his
becoming insolvent or if he endeavours to transfer or dispose of the same.

4.if the above three conditions are fulfilled then such condition or limitation shall become void.

Transfer for benefit of unborn persons:- sec- 13

Object: There must be a owner for every property. Property at all times must vest with some
person. Property without owner (renullis) leads to its destruction.If the testator goes on reserving
properties for generations to generations, it is also leads to destruction of property.

Conditions for transfer of benefit of unborn persons:-

1.No direct transfer – A transfer cannot be made directly to an unborn person. Property should
be never in abeyance.

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2.Prior interest – If an interest is to be created in favour of an unborn person, there should be a
transfer to some living person/persons till the unborn comes into physical existence.

3.Absolute interest - The entire property must be transferred to the unborn person.

Transfer for benefit of unborn person under Hindu law;

Where an absolute interest can be created the creation of a life estate in favour of unborn person
is not permissible.

Sopher vs Administrator General of Bengal

A testator directed that his property should be divided after the death of his wife into as many
parts as there are sons living at the time of his death, or who shall have predeceased leaving issue
living at his death. The income of each share should be paid to each child for life and then to the
grand children until they attained the age of 18, and only then, the grand children were absolutely
entitled to the property. The Privy council held that the bequest to grand children was void.

Transfer for benefit of unborn persons under Mohammedan law;

Abdul fate mohammad vs Russomychoudry

A gift to unborn person under muslim law is strictly prohibited except in the case of wakf.

Sec-14- Rule against perpetuity:-

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.

Perpetuity means continuous or unending transaction. It is tying up property for an indefinite

period. Transfers involving generation after generation are known as creating perpetuities.

Essentials:-

1. There should be a transfer of property.

2. Transfer is to create an interest in the favour of an unborn person.
3. Interest so created should take effect after the life time of one or more persons living at
the date of such transfer and during the minority of the unborn person.
4. The unborn person should be in existence at the expiration of the interest of the living
person.

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E.g; if an estate is given to a living person A for life, then to a living person B for life and then to
the unborn son of B. Here the son must be existence on or before the date of the expiry of the life
estate in favour of B.

Perpetuity period:-

According to sec 14, the maximum permissible remoteness of vesting is the life of the last
preceding interest plus minority of the ultimate beneficiary.

Exceptions:-

1.Provision for payment of debt (sec 17)

2. Charities (sec 18)

3. creation of charge

4. personal agreements

5. Agreement of sale

6. mortgages

7. right of entry and re entry

8. covenant for renewal of lease

9. covenant running with land

10. power of appointment.

Sec -15- Transfer to a class of people of whom come under sec 13 and 14.

Essentials:-

1. there is a transfer of property creating an interest for benefit of class of persons.

2. of the class persons in respect of whom the interest so created fails by reason of his not being
in existence and transfer creates some prior interest to some other persons.

3. above two conditions are fulfilled the interest so created fails in regard to such persons who
are not qualified under sec-15.

E.g; A makes a transfer of his property to B for life and then to B’s unborn children with a
condition that a female child was to get only a life interest. B dies leaving three sons and one
daughter. The interest of the daughter fails by reason of the rules contained in sec-13 but it does
not fail in regard to the whole class, that is, other three sons will take.

Page 13 of 75
Bhagabati vs Kalicharan

A class gift was made by Hindu. At the time of the gift some persons were born and were
entitled to take the gift and some persons were unborn who were unqualified to take gift.
Question arose, whether the class gift shall be implemented or not?

Privy council gave the judgement in favour of persons who had already born.

Sec-17- Direction for accumulation

A direction for accumulation of income is a particular mode of restraining the enjoyment of

property. According to the principle embodied in sec-11 such direction for accumulation would
be void and inoperative. But this section provides an exception to sec-11 and and permits a
direction for accumulation of income to operate in certain cases. The section allows
accumulation of income during either of the two following periods only;

1.the life time of the transferor, or

2.a period of 18 years from the date of transfer(whichever is longer)

Exceptions;

1.Payment of debts.

2.accumulation for raising portions

3.preservations and maintenance of properties.

Sec-40- covenants

Covenants means an agreement creating an obligation contained in a deed. It may be positive or

negative.

Restrictive covenant:-

It is also called negative covenant. The burden of restrictive covenents run with the land in
equity though not at law.

Essentials:-

1. The covenant was negative in nature.

2. The burden of covenant would run with covenanter’s land in equity though not at law.
3. It always run with the land.
4. Restrictive covenants and easements are similar in one aspect both of them are
enforceable against trespassers.

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 Tulk vs Moxey
The plaintiff was the owner of a vacant site and an adjoining house. He sold the site to
one A with a condition that it should be kept vacant. This was for the benefit of the
enjoyment of the house. A transferred the land to Y. Y in turn transferred the land to X. X
wanted to build a house on the vacant site. The court held that it was a negative covenant
and so X could not construct a building. A permanent injunction was granted.

Affirmative covenants:-
1. It is also called positive covenant.
2. They are collateral
3. They are not annexed to land and do not run with the land.
4. The positive covenants burden lies upon the covenanter.
5. It is not enforceable by law.

Case law:-

Austerberry vs Corporation of Oldham

A sold his vacant land adjoining his house to B with covenant that B should construct a road
from the main municipality road to A’s door and also should keep it in repair for conveneience
of A. B sold the site to C. C had notice of covenant to repair of road. But C refused to repair the
road.

In the appeal the court gave a judgment in favour of C holding that covenant could not be
enforced against C.

FUTURE INTEREST

Sec- 19- Vested Interest

Essentials:-

1.There is a transferof property

2.such transfer creates interest in favour of person without specifying time of taking effect.

3.on the happening of event which must happen.

4.on the fulfillment of above 3 conditions the interest created becomes vested interest.

5.vested interest is transferable and heritable.

E.g; A transfers to B Rs.10000 to be paid to him upon his attaining the age of 18, B has a vested
interest in Rs.10000. Here the interest is one of which the enjoyment is postponed.

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Sec- 20- vesting of interest in case of unborn person

An interest created in favour of unborn person vests as soon as he is born. Although the
possession may not be given to him immediately on his birth, it may be postponed but the
interest is vested in him when he is born alive.

Sec-21- Contigent Interest

Contigent that awaits or depends on the happening of the event.

Essentials:-

1.There is a transfer of property creating interest in favour of a person

2. such interest takes effect only on the happening of an specified uncertain event, or

3.such interest takes effect only if a specified uncertain event shall not happen

4. on such happening or non happening of uncertain event such person acquires contigent interest
in property.

Exception:-

Where a person becomes entitled to an interest in the property under transfer upon attaining a
particular age and transferer also,

1. Gives to the transferee absolutely the income to arise from such interest before he reaches
that age, or
2. Directs the income or so much there of as may be necessary to be applied for transferee’s
benefit.

E.g;

For contigent interest;

A property is transferred to X if he shall pay Rs.50000 to B. X’s interest is contigent until he

has paid Rs.50000 to B.

Sec-23- Transfer contigent on happening of a specified uncertain event.

1.Thereis a transfer of property providing for accrual of interest in favour of specified person.

2.such accrual shall be on happening of specified uncertain event.

3.there is no time limit for the occurance of the uncertain event.

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4.when above 3 conditions are fulfilled then the interest accrued fails unless such an uncertain
event happens, either before at the same time when precedent interest ceases to exist.

E.g; A makes a gift of a property to B for life and then to C if C marries Y. C’s marriage with Y
is a contingency and this contingency must happen before the termination of B’s interest.

`CONDITIONAL TRANSFERS

Sec-25 Conditional transfer

Essentials:-

1. There is transfer of property creating an interest and dependant upon a condition

2.such interest fails if the fulfillment of condition
(a) becomes impossible
(b) forbidden by law
3. if such condition is illegal
4.fraudulant or causes injuiry to property of another
5. court regards it as immoral and oppose to public policy.
E.g; 1.A lets a farm to B on condition that he shall walk a hundred miles in an hour. The
lease is void.
2. A transfers Rs.10000to B on condition that she shall murder C. the transfer is void.
There are two types of conditions:-
1. Condition precedent.
2. Condition subsequent.

Sec-26- Condition precedent

Essentials;

1.There is a transfer of property.

2. the terms of transfer of property imposes a condition

3. such condition is required to be fulfilled before a person can taken an interest in

property and

4. If the above 3 conditions are fulfilled it is called condition precedent.

E.g; If A transfers Rs.5000 to B on a condition that B shall marry with the consent of
C,D. So B marries with the consent of C,D then B is deemed to have fulfilled the
condition.

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 Doctrine of cypress:-

It means as for as possible and performance of condition as for as possible.

E.g; If A transfers Rs.10000 to B on a condition that B shall marry with the consent of
C,D and E. E dies. So B marries with the consent of C and D only.then B is deemed to
have fulfilled the condition.

Sec-27- Rule of Acceleration

Acceleration means quickening of speed.

Essentials:-

1.sec-129 of Indian succession Act explains about this rule.

2.where the prior interest is valid and fails due to the valid condition being not fulfilled
then the doctrine of acceleration comes in to play.

3.It applies to both moveable and immoveable properties and arises on failure of prior
interest in estate.

E.g; 1. A transfers Rs.5000 to B on condition that he shall execute a certain lease within
three 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.

2.A transfers property to his wife ; but,in case she should die in his lifetime, transfer to B
that he had transferred to her. A and his wife perish together, under circumstances which
make it impossible to prove that she died before him.The disposition in favour of B
doesnot take effect.

Julis vs Jacobs

A has some property and he executed a will in favour of B with a condition that B shall
enjoy the property during his lifetime and thereafter the remainder of property shall be
devolved to C. B attested the will.The court held that B should not have attested the will
under the provisions of law of wills. As B attested the will the will failed in case of B but
accelerated to C.

Sec-29- Fulfillment of Condition subsequent

Accordingly an ulterior disposition for becoming valid the condition imposed must be
fulfilled strictly.

E.g; A transfers Rs.50000 to B, paid to him on his attaining majority or marrying , with a
provision that, if B dies as minor or marries without C’s consent, the Rs.50000 shall go to

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 D.B marries when only 17 years of age, without C’s consent. The transfer to D takes
effect.

Sec-30- Prior disposition not affected by invalidity of.ulterior disposition.

It says that if ulterior disposition is invalid, the prior disposition is not affected by
invalidity of the subsequent disposition.

E.g; A transfers the property to B for her life, and if she does not desert her husband to
C. B is entitled to the farm during her life as if no condition had been inserted.

Sec-31- condition that transfer shall cease to have effect in case specified uncertain
event happens or vcdoesnot happen.

E.g; A is under sentence of transportation for life and transfers his field to B with a
proviso that in case he returns from Port Blair, B’s interest shall cease. A returns from
PortBlair, B’s interest I the field ceases.

(Venkatrama Vs Aiyasami)

Sec-32- Such condition must not be invalid.

If a condition that an interest shall cease to exist should be valid, then it is necessary that the
event to specify must be lawful.

There are many grounds in which conditions subsequent may be invalid.1. vague and uncertain
and incapable of giving a definite meaning, the condition becomes void.

2.incapable of being performance.

3.opposed to public policy.

4.immoral

5.A condition subsequent which is in general restraint of marriage shall be void except in the
following situations,

a.a condition subsequent that a person should not remarry

b.restraining marriage with a particular person

c.a condition subsequent causing a forfeiture is the event of marriage without the consent of
some person.

Page 19 of 75
E.g; A transfers his field to B with a proviso that if B does not within a year set fire to C’s
haystack his interest shall cease.The condition subsequent is invalid and B’s interest not affected.

Sec-33- Transfer conditional on performance of act, notime being specified for

performance.

This section says that when no time is fixed for performance of a condition subsequent but the
person, who has to perform the condition and who is to take interest created, does some act by
which the condition becomes impossible to perform of its performance is permanently
postponed, the condition subsequent is broken.

E.g; a bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go
to B. A takes Holy orders, and thereby renders is impossible that he should fulfill the condition.
B is entitled to receive the legacy.

Sec-35- Doctrine of Election

This doctrine is an exception to the rule of “Nemodat quad non habet” that is “ NO one can
transfer better title than he has”.

Election means choosing between two alternative rights or inconsistent rights. The doctrine of
election is based on the principle of natural justice.

Essentials:-

1. Where a person professes to transfer property which he has no right to transfer, and
2. As a part of the same transaction confers any benefit on the owner of the property.
3. Such owner must elect either to,-
a.confirm such transfer, or
b.to dissent from it.

4.if he dissents from it, he shall relinquish the benefit

5.The benefit so relinquished shall revert to the transferer or his representative as if it has not
been disposed of.

e.g; A has one acre of land Rs.1,00,000.

A’s father B wanted to give that land to his daughter C as gift. B proposes, B would give
Rs.1,50,000 to A if consents to give land to his sister C. Then A is to elect whether to retain
property or receive the amount and transfer the land to C. There should not be any threat,
coercion or undue influence.

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2. The farm of Sultanpur is the property of C and worth Rs.800. A by an instrument of gift
professes to transfer it to B, giving by the same instrument Rs.1000 to C. C elects to retain the
farm. He forfeits the gift of Rs.1000.

Cooper vs cooper

X gave certain properties to some trustee to sell it after his widow’s death. The sale proceeds in
trust must be used for the benefit of his children. The widow executed a deed and gave the
poperty to her sons of A,B,and C. She gave the self acquired property to her sons B and C and
the deceased husband’s property to A. After the widow’s death A brought an action B and C to
elect between the deed of appointment and the inheritance or to reject both.

The court held that the doctrine of election could apply and as such B and C had either to accept
the widow’s deed and waive inheritance or to reject both.

Mode of election;-

This section also deals with the mode of election. The owner has to choose one out of the two
inconsistence rights. This choice may be express or implied from conduct.

Where the election is made by the owner in express words, it is express election which is final
and conclusive.

Where the owner of the property having full knowledge of the circumstances and being aware of
his duty to elect accepts the benefit, it means that he has chosen in favour of the transaction. In
two circumstances, there is presumption that he has knowingly accepted the benefit:-

1. Two years enjoyment

2. Impossibility – A transfers to B an estate to which C is entitled, and as part of the same
transaction gives C a coal mine. C takes possession of the mine and exhausts it. He has
thereby confirmed the transfer of the estate to B.

Time limit for election;-

The owner of the property has to signify his confirmation or dissent from the transfer within one
year after the date of the transfer.

Election by the person under disability;-

Election shall be postponed until the disability ceases or until the election is made by some
competent authority onhis behalf.

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 Sec- 41- Transfer by ostensible owner (Doctrine of Holding out)

This section deals with the transfer of property by an ostensible owner, that is one who is not the
real owner.

It is exception to the rule of “nemodat quad non habet”. An ostensile owner is one who has all
the indicia of ownership without being the real owner. A person having restricted rights cannot
be called as the ostensible owner.E.g; manager of joint hindu family, professed agent, holder of
power of attorney.

Essentials:-

1. The transferer is the ostensible owner

2. He is so by the consent, express or implied, of the real owner
3. The transfer is for consideration
4. The transferee has acted in good faith and has taken reasonable care to find out that the
transferer had power to transfer.

Ram coomer Vs Macqueen

One Alexander macdonold who lived in Calcutta had a mistress known as
Bunnoobibee. He had two children by her. One of them was the respondent, Macqueen.
The property in dispute was purchased in the name of Bunoobibee. The sale deed stood in
her name. She received the rent from the tenents.
She sold the property to Ramdhankoondoo (father of Ram coomer) . Subsequently, the
purchaser created important buildings upon the land .After the death of Bunoobibee a suit
was brought against Ramdhone by Macqueen, claiming under the will of Alexander
Macdonold.

The Calcutta High court decided in favour of the respondent and decreed the suit.

On appeal to the privy counsel, the judgement of the Calcutta High court was reversed and suit
dismissed.

Sec- 43- Doctrine of feeding the grant by Estoppel or

Transfer by unauthorized person who subsequently acquires interest in property

transferred

This principle adopted from English common law. It is based upon the two principle;

1.the common law doctrine of estoppel by deed

2. the equitable principle that if a person promises more than he can perform, then he must fulfill
the promise when he gets the ability to do so.
Page 22 of 75
Essentials:-

1.where a person

2. fraudulently or erroneously represents that he is authorized to transfer certain immoveable

property and

3.professes so transfer such property for consideration

4.the transferer subsequently acquires the interest which he had professed to transfer.

E.g; A, a Hindu, who separated from his father B, sells to C three fields, X, Y, and Z,
representing that A is authorized to transfer the same. Of these fields Z does not belong to A, it
having been retained by B on the partition; but on B’s dying, A as heir obtains Z. C, not having
recinded the contract of sale, may require A to deliver Z to him.

BhairabChandra Vs. Jiban Krishna

A obtained property by way of exchange from B. At the time of exchange B only had a half
share but he professed to transfer the whole. When B subsequently purchase the remaining half,
A was held entitled to it.

This section is not applicable to the following type of transfers:-

1. Transfers without consideration

2. Transfers forbidden by law on the ground of public policy
3. Involuntary transfers (for example , sale at instance of execution creditors).

HOLDERS UNDER DEFECTIVE TITLE

Sec 50 - Rent bona fide paid to holder under defective title

No person shall be chargeable with any rents or profits of any immovable property, which he has
in good faith paid or delivered to any person of whom he in good faith held such property,
notwithstanding it may afterwards appear that the person to whom such payment or delivery was
made had no right to receive such rents or profits.

In simple words, if a tenant makes bonafide payment of rent or profits in respect of an

immoveable property to a person who is not authorized to receive it, he will not be entitled to
make the payment again to the rightful person.

Page 23 of 75
Ex: A lets a field to B at a rent of Rs. 100 and then transfers the field to C. B, having no notice of
the transfer, in good faith, pays the rent to A. B is not liable or chargeable with the rent so paid.
He is discharged from his liability.

Improvements made by bonafide holders under defective title – sec 51

Object of sec- 51:-

Dart in his book property laws explained “ where a purchaser for value is evicted in equity under
a prior title he will be credited with all moneys expended by him in necessary repairs or
permanent improvements ( except improvement made after he had discovered the defect of title)
and will be debited with the rents he had received.”

Essentials:-

1. When a transferee of immoveable property makes any improvement on the property

2. Believing in good faith that he is absolutely entitled to it,
3. But subsequently he is evicted from the property by any person having a better title,
4. Such transferee has a right to require the person causing eviction either-
a. To have the value of the improvements estimated and paid or secured to the
transferee, or
b. To sell the interest in the property to the transferee at its market value, irrespective of
the value of such improvement.
5. The amount to be paid or secured in respect of such improvement shall be the estimated
value of it at the time of eviction.
6. When the transferee has panted or sown crops on the property which are growing at the
time of his eviction, he will be entitled to such crops and to free ingress and engress to
gather and carry the crops.

Case law:-

Chennapragada vs secretary of state

Chennapragada the plaintiff was a poor agriculturist. He applied for land for cultivitation to
his livelihood. The Tashildar granted certain land. The plaintiff leveled the land with his hard
working and sweat money. He also dug a well and planted some plants after 2 years the
District collector cancelled the patta certificate of plaintiff and ordered for eviction. He was
evicted. He sued for the amount invested in plantation Govt refused to pay.

Court held; Madras H.c gave judgments in favour of plaintiff holding that he had the right to
get back the amount he invested in good faith.

Who are not allowed for benefits under this section:-

1.a trespasser
Page 24 of 75
 2. a person who discovers wrong title

3.a person invests any amount for improvement of the property with a hope that the property
would be transferred to him.

4.if a person acquires wrong title through court sales.

Sec-53A- part performance

Scope: 1. Originally doctrine of part performance was developed in England

2.It is not incorporated in T.P. Act-1882. Inserted in the Act by amendment in 1929.

3.Doctrine is born from English law of equity.

Essentials:-

1.There must be a contract to transfer an immoveable property for consideration.

2. The contract should be in writing and its terms can be ascertained with reasonable certainty.

3.The transferee should have taken the possession of the property in part-performance of the
contract or if he is already in possession in part-performance of the contract, and should have
done something in furtherance of the contract.

4. The transferee is ready and willing to perform his part of the contract.

5. The transferor shall be debarred from enforcing against the transferee any right in respect of
the property of which the transferee has taken or continued in possession, other than a right
expressly provided by the terms of the contract.

Ex: A has a house, A contracted with B to sell his house. B paid some amount as advance
towards price of house. A handed over the possession of house to B .while B was ready to pay
the balance amount A refused to take that amount, moreover demand B to vacate the house .

Here we applied the doctrine of part-performance.

S.D.P. SabhaBajinath co-operative Multipurposes society ltd Vs State of Himachal

Pradesh

Gift is a transfer without consideration, therefore this section will not come in for protection of
such cases. The transfer of property must be for consideration. So, transfer without
consideration, this doctrine will not applicable.

Page 25 of 75
Hameed vs Jayabharat credit & Investment co,

This section is applicable only to transfers of immoveable properties. It does not apply to an
agreement for transfer of moveable properties. The section will not also be applicable to any
stipulation authorizing the owner to seize a vehicle given out on hire purchase for non-payment
of installments.

Allamgangadaranrao vs Gollapalligangarao

There must be a contract to transfer an immoveable property and the contract must be in
writing.It must signed by person or his agent of his behalf whom it is sought to bind. The
transferee under oral agreement cannot take benefit of this section. However, all the terms of
previous oral agreement reduced in writing can be used for the purpose of section 53A.

PrabodhkumarDas vs Dantmara Tea co.Ltd

In this case, Gilanders&co. agreed to sell a tea estate to one S.N.Roy . The agreement was
unregistered but S.N. Roy paid the first instalment of the consideration and took possession of
the tea estate. Later on, Gilanders&co sold the tea estate to Dantmara Tea co. through a
registered sale deed on the ground that S.N. Roy had failed to give remaining installments of the
consideration. Dantmara Tea co obtained the export licence also as owners of the tea estate (but
they were without possession).

Subsequently, one Prabodhkumar Das obtained the rights under the contract of sale from S.N.
Roy and also acquired possession of a part of the tea estate. Prabodhkumar filed a suit for a
declaration that Dantmara tea co. had no right to sell the tea under export licence as it was not the
owner of the tea estate. He also prayed for an injunction.

The privy council held that equity of part-performance under sec53A was not an active equity. It
does not give any right of action to the transferee who is in possession of property under an
unregistered contract of sale. The appeal was dismissed and injunction was not granted because
this right is available only as a defense ground to protect possession of the defendant.

Exception:-

The proviso to the section contains an exception in favour of a transferee for consideration who
has no notice of the contract or of part-performance thereof.

******************************************************************************
*****

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 UNIT - II

SALE (sec-54 to 57)

Definition: Sale is a transfer of ownership in exchange for a price paid or promised or partpaid
and partpromised.

Essentials Elements of sale:

1.parties

2.subject matter

3.Transfer of conveyance

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4.Price or consideration

Difference between sale and contract for sale

SALE CONTRACT FOR SALE

1. A sale of an immoveable property is the
transfer of ownership.
2. After sale , all the rights and liabilities of the
owner transfer into the vendee.
3. It conveys a legal title to the purchaser.
4. A sale creates a right in rem.
5. sale requires compulsory registration where
the sale is of tangible immoveable property of
Rs. 100 or more.
1. It is merely an agreement
For the sale of property in future on terms
agreed between the parties.
2. Here no interest of the vendee is as such
created in the property.
3. It does not convey a legal title to the
purchaser.
4. It creates right in personam.
5. It does not require any registration.

Rights and liabilities of Buyer and seller(sec-55)

1. Before completion of sale

2. After completion of sale

Before completion of sale

Seller’s liabilities:-

1. To disclose material defects- sec-55(1)a

2. To produce title deeds for inspection – sec 55(1)b
3. To answer questions as to title- sec55(1)c
4. To execute a proper conveyance –sec55(1)d
5. To take care of property and title deed- sec55(1)e
6. To pay public charges and rents- sec 55(1)g

Seller’s rights:-

1.to take rents and profits –sec55(4)a

Buyer’s Liabilities:-

1. To disclose facts materially value of property – sec55(5)a

2. To pay the price- sec55(5)b

Buyer’s Rights:-

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 1. To charge for price prepaid –sec 55(6)b

II After completion of sale

Seller’s liabilities:-

1. To give possession -sec 55(1)f

2. Implied covenant for title - sec55(2)
3. To deliver the title deeds on receipt of price – sec55(3)

Seller’s Rights:-

1. Charge for price unpaid –sec55(4)a

Buyer’s Liabilities:-

1. To bear loss to the property – sec55(5)c

2. To pay outgoings sec55(5)d

Buyer’s Rights:-

Benefit of increment-sec55(b)a

Marshalling by purchaser:- sec-56

The section says that if the owner of two or more properties mortgages them to one person and
then sells anyone of those properties to another person, the buyer is entitled to claim that the
mortgage debt be satisfied out of the properties not sold to him. This section protects the interest
of the buyer and it applies only between the buyer and seller and not as between the subsequent
purchasers.

Essentials:

1.if the owner of two or more properties

2.mortgages them to one person and then sells one or more of the properties to another person

3.the buyer is entitled to have the mortgage debt satisfied out of the property or properties not
sold to him(subject to the contrary of contract) so far as the same will extend.

Case law;

MuhammedRafeeq vs Bank of Baroda

The application of this section has been overridden in cases which fall under the Securitization
and Reconstruction of Financial Assets and Enforcement of Security Interests Act 2002.

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The petitioner in this case was stranger to the loan transaction between the borrower and bank.
He purchased one item of the properties from the borrower over which the security interest was
created. He could not claim the benefit of section 56 over that item.

MORTGAGE

Definition :-

According to section 58, A mortgage is the transfer of an interest in some specific immoveable
property for the purpose of securing the

(a) Payment of money advanced or to be advanced by way of loan

(b) an existing or future debt, or
(c) the performance of an engagement

Which may give rise to a pecuniary liability.

Mortgagor:-

The person who transfers the interest in the property in a mortgage is known as a mortgagor.

Mortgagee:-

A mortgagee is a person in whose favour the mortgage is created.

Mortgage money:-

The principal money and interest of which the payment is secured for the time being are called
the mortgage money.

Elements of mortgage:-

1.there must be transfer of an interest

2.the interest transferred must be in specific immoveable property

3. the transfer must be made to secure a loan of money, debt or performance of an engagement
which may give rise to a pecuniary liability.

KINDS OF MORTGAGE:- sec-58

1. Simple mortgage
2. Mortgage by conditional sale
3. Usufructuary mortgage
4. English mortgage

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 5. Mortgage by deposit of title deeds
6. Anomalous mortgage

SIMPLE MORTGAGE:- sec58(b)

1. Without delivering of possession of the property

2. The mortgager,
(a) Binds himself personally to pay the mortgage money, and
(b) Agrees that in the event of his failing to payaccording to his contract, the
mortgagee shall have a right to cause the mortgaged property to be sold and
proceeds of sale to be applied, in payment of the mortgage money,

The transaction is called simple mortgage.

Remedy of the mortgagee:

Firstly the mortgagor takes personal obligation and secondly, the property which may sold in
case of failure of the mortgagor to pay.

MORTGAGE BY CONDITIONAL SALE:- sec58(c)

1. In this type of mortgage, the mortgagor ostensibly sells the property.

2. The property is sold on the condition that,
(a) On default of payment of the mortgage-money on a certain date the sale shall became
absolute, or
(b) On such payment being made the sale shall became void, or
(c) On such payment being made the buyer shall transfer the property to the seller,
3. The condition must be embodied in the document which effects or purports to effects
the sale.

Such a transaction is called mortgage by conditional sale.

Remedy: the remedy open to the mortgagee by conditional sale is by foreclosure only and not
by sale.

USUFRUCTUARY MORTGAGE:- 58(d)

Essential elements:-

1. There is delivery of possession to the mortgagee or an express or implied undertaking of

the mortgagor to deliver such possession.

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 2. Retention of the possession by the mortgagee till the payment of the mortgage-money or
he has to receive rents and profits of the property either in lieu of interest or principal or
both.
3. There is no personal liability of the mortgagor
4. Mortgagee cannot foreclose or sue for sale of property.
5. The mortgagor is entitled to redeem the property when the amount due is personally paid
or the debt is discharged by rents and profits received by the mortgagee.
6. No time limit is fixed for the limitation for the repayment.
7. Where the mortgage is for Rs 100 or more , it must be registered .

Zur-i-peshgi Lease:

Zur-i-peshgi means a payment in advance or a lease for a premium. Where the right of
enjoyment of an immoveable property is transferred for a fixed period of time and the rent is
paid in advance in lump sum, the transaction is called anzur-i-peshgi lease.

Remedies of a usufructuary mortgage:

Mortgagee cannot sue the mortgagor neither for the sale nor for foreclosure. His remedy only
retain possession of the property till the mortgage money is paidup . If the mortgagee loses his
possession, he may sue to obtain the possession, mesne profits as well as the mortgage money
under section 68.

ENGLISH MORTGAGE:- sec-58(e)

Essentials:

1. Where the mortgagor binds himself to repay the mortgage-money on a certain date.
2. Transfers the mortgaged property absolutely to the mortgagee on the condition that the
mortgagee will retransfer it to the mortgagor on the payment of the mortgage money.

MORTGAGE BY DEPOSIT OF TITLE DEEDS:- sec58(f) or

EQUITABLE MORTGAGE:-

Elements;-

1. In the towns of Calcutta, Madras, Bombay and in any other town specified by the state
Govt concerned in this behalf,
2. Delivers to a creditor or his agent documents of title to immoveable property,
3. With intent to create a security

Such transaction is called mortgage by deposit of title deeds.

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This is a special kind of mortgage because here the execution of mortgage deed is not necessary.
Mere deposit of title deeds of an immoveable property is sufficient.

Remedies:

The remedy of a mortgagee is by a suit for sale and for the mortgage money. He is not sue for
foreclosure.

ANOMALOUS MORTGAGE:- sec-58(g)

Anomalous mortgages are composite mortgages formed by the combination of two or more of
the primary types. In this class of mortgage the rights of the parties are governed by the terms of
the instrument.

Ex; Simple mortgage and usufructuary mortgage combination.

Mode of transfer;

1. By a registered instrument
2. By delivery of possession
3. By deposit of title deeds

Brhampalsingh vs state of Uttar Pradesh

A security bond creating a charge or mortgage in respect of property of the value of Rs. 100 or
more is compulsorily registerable.

RIGHTS AND LIABILITIES OF MORTGAGOR

1.Right of Redemption – sec 60

2. Right of Transfer to third party sec 60A

3. Right to inspection and production of documents – sec60B

4. Right to redeem separately or simultaneously – sec61

5. Right to accession to mortgaged property –sec63

6. Right to improvements to mortgaged property - sec63A

7. Renewal of mortgaged lease- sec 64

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8. Right to implied contracts –sec65

9. Right to Grant lease –sec65A

10. Right in case of waste – sec 66

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 principal money has become due, the mortgagor has a right
on payment or tender of the mortgage-money to require the mortgagee to recovery 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.

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.

“ Once a Mortgage always a Mortgage”

Once a mortgage always a mortgage suggests that the mortgagor’s right of redemption is an
indefeasible right which cannot be taken away from him by any law or contract. This right
cannot be detached from the mortgage.

MODE OF EXERCISE OF RIGHT OF REDEMPTION:-

1. By paying or tendering the mortgage money to the mortgagee outside court.

2. By depositing the mortgage money in the court.
3. By filing the suit for redemption.

Thularappa vs subhas

Where first suit for redemption of properties was decreed in respect of some items only and no
order was passed regarding other items, second suit for redemption in respect of other items was
held not barred by resjudicata.

EXTIGUISHMENT OF RIGHT OF REDEMPTION:-

1. Law of limitation
2. By merger
3. By subsequent agreement
4. By decree of the court
5. By act of the parties.

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RIGHT TO TRANSFER TO THIRD PARTY-60A

According to this section , the mortgagor may require the mortgagee to assign the mortgage-debt
and transfer the mortgaged ;property to a third person directed by him, instead of retransferring
the property to him.

RIGHT TO INSPECTION AND PRODUCTION OFDOCUMENTS;- sec60B

The mortgagor , who has handed over the title-deeds or other documents relating to the
mortgaged property to the mortgagee, is entitled to inspect those documents. He may require the
mortgagee to produce those documents in his possession at reasonable time and the cost of
mortgagor himself. The mortgagor may make copies or abstracts of or extracts from those
documents.

RIGHT TO REDEEM SEPERATELY OR SIMULTANEOUSLY;-SEC61

A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall be
entitled to redeem any one such mortgage separately or any two or more of such mortgages
together. However this is subject to contrary contract. It is possible only when the principal
money of any two or more of the mortgages has become due.

Doctrine of consolidation:-

It is an equitable doctrine under English law. It enabled the mortgagee of different properties
mortgaged by the same mortgagor to consolidate those mortgages and force him to redeem them
all or prevent him from redeeming one of them without redeeming other. However this doctrine
was abolished in England.

RIGHT OF USUFRUCTUARY MORTGAGOR TO RECOVER POSSESSION;- sec62

According to this section under two conditions a usufructuary mortgagor can recover possession
of the property together with the mortgage-deed and all documents relating to the mortgaged
property, which are in possession of power of the mortgagee.

The conditions are as follows,

a. where the mortgagee is authorized to pay himself the mortgage-money from the rents and
profits of the property, when such money is paid.

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b. where the mortgagee is authorized to pay himself such rents and profits when the term
prescribed for the payment of mortgage money has expired and the mortgagor pays or tenders
the mortgage money to the mortgagee or deposit in the court.

ACCESSION TO MORTGAGED PROPERTY:- sec63

a.Where the mortgaged property in possession of the mortgagee has,

b.during the continuance of the mortgage

c.received any accession,

d. the mortgagor shall upon redemption, be entitled to such accession as against mortgagee,

e. this is so in the absence of a contract to the contrary.

This section deals with the following kinds of accessions:-

1. Natural accessions

2.Acquired accessions: These are two types

a. seperable acquired accession

b. inseperable acquired accessions.

RIGHT TO IMPROVEMENTS TO MORTGAGED PROPERTY :-SEC63A

a. the mortgage property should be in possession of the mortgagee.

b. the improvements to the property should have been affected during the continuance of the
mortgage.

c. the improvements must have been effected at the cost of the mortgagee.

This section as a general rule provides that in the absence of a contract to the contrary, if the
mortgaged property has improved during the continuance of the mortgage , the mortgagor shall
be entitled to such improvements without paying its cost.

Exceptions;

1. where improvements were necessary to preserve the property destruction or deterioration, or

2. where improvements was necessary to prevent the security from becoming insufficient in
comparison to debt, or

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3. where improvement was made in compliance with the lawful order of any public servent or
public authority.

RIGHT TO RENEWAL OF MORTGAGED LEASE:- sec-64

If the mortgages property is a lease, and the mortgagee obtains a renewal of the lease, the
mortgagor upon redemption, in the absence of a contract by him to the contrary, is entitled to
have the benefit of the new lease.

RIGHT TO LEASE:- sec65A

A mortgagor, who is in lawful possession of the mortgaged property, shall have the power to
make the lease of the property which shall be binding on the mortgagee.

The right is subject to the following conditions,

1.Thelease shall be such as would be made in the ordinary course of management of the property
and in accordance with any local law, custom, or usage.

2. The lease shall reserve the best rent than can reasonably be obtained and no premium shall be
paid or promised by the lessee and no rent shall be payable in advance.

3. The lease shall operate from a date not later than six months from the date on which it is made.

4. In case the mortgaged property be a building, the duration of the lease shall in no case be
more than three years, and the lease shall contain a covenant for payment of the rent and a
condition of re-entry on the rent not being paid within a time therein specified.

LIABILITIES OF MORTGAGOR:-

The liabilities of the mortgagor are all grouped together in section-65and 66.

There are five contracts which a mortgagor is deemed to have entered into with the mortgagee in
the absence of a contract to the contrary. They are,

1. Covenant for title - sec 65(a)

2.covenant for defence of title- sec65(b)

3. covenant for payment of public charges - sec65(c)

4. covenant for payment of rents- sec 65(d)

5. covenant for discharge of prior mortgage – sec 65(e)

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Sec- 66- Liability of waste

According to this section, a mortgagor in possession of the mortgaged property not to commit
acts of waste.

Some of the acts given below are regarded as active waste by the mortgagor,

1. cutting down the timber standing on the mortgaged property.

2. removal of valuable fixtures from the property

3. pulling down the mortgaged house and selling the materials

4.working new mines under the mortgaged property.

5. mining under the mortgaged buildings so as to put them in danger.

DOCTRINE OF REDEMPTION, DOCTRINE OF CLOG, ACCESSION TO

MORTGAGED PROPERTIES.

The most important right possessed by the mortgagor is the right to redeem the mortgage.
Under this section, at any time after principal money has become due, the mortgagor has a right
on payment or tender of the mortgage-money to require the mortgagee to recovery 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.

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.

“ Once a Mortgage always a Mortgage”

Once a mortgage always a mortgage suggests that the mortgagor’s right of redemption is an
indefeasible right which cannot be taken awayfrom him by any law or contract. This right cannot
be detached from the mortgage.

Neither the mortgagor can insist on redeeming his property before the money has become due
nor the mortgagee can attempt to close. The mortgagor can redeem his property before his equity
of redemption actually been forclosed that is till a decree is passed in a foreclosure suit.

The mortgagor ‘s right of redemption and the mortgagee’s right of foreclosure are co-extensive.

Clog on Redemption:-

A mortgage is a security to a debt. The right of redemption continues although the mortgagor
fails to pay the debt at the due date. Any provision which is inserted to prevent or impede this
right is void as clog on redemption.

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M.R. Stanley vs Wilde

In this case Lord Lindley observes that , “ 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 clog or fetter on equity of redemption and is therefore void.”

Illustrative cases on clog;

1. Long term for redemption:

It is not necessary conclusion that a long term for redemption is always a clog on
redemption.
Gangadar vs shankarlala
It was held by the S.C of India that the term in the mortgage that it will not be
redeemable until the expiry of 85 years was not clog on redemption in the circumstances
of the case.

But in Fatchmohammed vs Ramdayal

In this case , a period of 200 years was held to be oppressive and unreasonable and clog
on redemption.

2.Condition of sale in default

A condition converting a mortgage into sale as a clog on redemption.

Vasantrao vs Kishanrao

The condition incorporated in the document was to the effect that in case the money was
not paid back within 5 years , the document would be deemed as sale. The
undersandingand intention of the parties was that their transaction was a mortgage. The
term of five years default was a clog on redemption.

3.Stipulation to Demolish structure;

Is there is a stipulation which bars mortgagor’s right of redemption after certain period, the
stipulation is treated as a clog on the mortgagor’s equitable right of redemption

4. Condition post poning redemption in case of default:

Mohammed sherkhan vs Rajaseth swami dayal
In this case, the mortgage was a term of 5 years with a condition that if the money was
not paid, the mortgagee might enter in to possession for a period of 12 years during
which the mortgagor could not redeem.
It was held that such a condition was a clog because it hundered an existing right to
redeem.

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 5. Restraint on alienation:-

The right of redemption can be exercised by the mortgagor as well as his assignees who take the
whole of his interest. If the mortgage contains a term that the mortgaged property shall not be
alienated by the mortgagor during the continuance of the security even for the purpose of paying
off the debt, it is void for being a clog on redemption.

6. Colleteral benefit to mortgagee:

There are two cases which are important on the point of colletarel benefit to the mortgagee.

Noakes& Co. vs Rice

In this case Rice a licenced dealer, mortgaged his premises and goodwill etc. toNoakes&co,
subject to a condition that if Rice paid all the money along with interest, Noakes would reconvey
the property to Rice or any person directed by him. There was a covenant in the mortgage deed
that during the continuance of the term, whether or not any money be due on security, Rice
would not use or sell upon the premises any malt liquors not exclusively obtained from
Noakes&co . It was held that Rice was entitled to get a decree for redemption as the covenant as
to exclusive purchase of malt liquors from Noakes&co was a clog on redemption, and therefore,
void. The house of Lords also affirmed this decision. Three principles were deduced:-

1. Once a mortgage always a mortgage ( mortgage cannot be made irredeemable)

2. The mortgagee shall not reserve to himself any collateral advantage outside the mortgage
contract.
3. Once a mortgage always a mortgage, and nothing but a mortgage.
These principles were overruled by the House of Lords in the leading case of
Kerlinger vs New Patagonia Meat and cold storageco.Ltd
A company carrying on business of meat preserves borrowed in August,1910 from a
firm of woolbrokers a sum of Rs 10,000 at 6% interest. The loan was secured by a
floating charge on the undertaking of the company. The agreement was that if the
interest was actually paid, the loan was not to be called in until September, 1915 but the
mortgagor may pay off at any time by giving one month’s notice. The mortgage deed
provided that for 5 years the mortgagor willnot sell sheep skins to any person other than
the mortgagee so long so they are willing to buy at best price offered by any other person
and that the mortgagors will pay to the mortgagee a Commission on all sheep skins sold
by them to any other person. In 1913, the mortgagors paid off the loan in accordance
with the agreement. The mortgagees claimed to exercise their option of pre-emption.
It was held that the stipulation for the right of pre-emption was not a part of a mortgage
but it was a collateral contract entered into as a conditionof the mortgagee obtaining the
loan and as such was not a clog on redemption. Therefore the right of pre-emption was
held to be enforceable.
7. Postponement of redemption by subsequent agreement:-

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A subsequent agreement having the effect of postponing redemption may either be an agreement
which creates a personal obligation or a charge on a mortgage creating a right in rem.

E;x- A borrowed money from B and executed a usufructuary mortgage in his favour redeemable
in a month of January. He again borrowed a further sum from B executing a simple bond
convenanting that he would not redeem the mortgage until the money due on the later bond was
paid.

This covenant was held to be invalid as a clog on redemption.

MODE OF EXERCISE OF RIGHT OF REDEMPTION:-

4. By paying or tendering the mortgage money to the mortgagee outside court.

5. By depositing the mortgage money in the court.
6. By filing the suit for redemption.

Thularappa vs subhas

Where first suit for redemption of properties was decreed in respect of some items only and no
order was passed regarding other items, second suit for redemption in respect of other items was
held not barred by resjudicata.

EXTIGUISHMENT OF RIGHT OF REDEMPTION:-

1.Law of limitation

2. By merger
3. By subsequent agreement
4. By decree of the court
5. By act of the parties.

RIGHTS AND LIABILITIES OF MORTGAGEE:-

The rights of a mortgagee are given below:-

1. Right to foreclosure or sale. Sec 67

2. Right to sue for mortgage-money. Sec68
3. Right to sell. Sec69
4. Right to appoint a receiver. Sc69A
5. Right to accession. Sec70

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 6. Right to renewal of lease. Sec 71
7. Right to spend money. Sec 72
8. Right to proceeds of revenue sale or compensation on acquisition. Sec73
9. Right of mesne motgages. Sec 94

1. Right of foreclosure or sale

This section is the counterpart of section 60, and gives the mortgagee a right of foreclosure or
sale in default of redemption by the mortgagor. If the mortgagor has paid or deposited the
mortgaged money, there is no occasion for the exercise of the right of foreclosure or sale. Again
if a decree for redemption is made, a suit for foreclosure or sale would be infrictuous, especially
as a redemption decree itself provides for sale or foreclosure in default of payment.

2. Right to sue for mortgage money:-

This section lays down that the mortgagee has a right to sue for the mortgage money in following
cases,

a. where the mortgagor binds himself to repay the same (personal covenant)

b. where, any fault of either party, the mortgaged property is wholly or partially destroyed (
destruction of security )

c. where the mortgagee is deprived of the whole or part of his security by reason of the wrongful
act or default of the mortgagor. ( wrongful act or default of the mortgagor )

d. where the mortgagee being entitled to possession, the mortgagor fails to deliver the same.
(failure of mortgagor to deliver possession)

3. Right to exercise power of sale:-

This section deals with the power of the mortgagee to sell the mortgaged property without
intervention of the court. The ordinary rule in the case of mortgage is that the mortgagee must
sue for foreclosure or sale through court under sec-67. He can also sue for the mortgage money
under sec-68, this section gives the mortgagee the power to sell without resource to court. They
are,

1. Where the mortgage is an English mortgage and neither of the parties is a Hindu, muslim, or
Buddist or a member of any other race, sect,tribe or class from time to time specified by the state
Govt in the official gazette.

2. Where the mortgagee is the Govt and the deed confers an expressed power of sale.

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3. Where the mortgaged property or any part thereof was, on the date of the execution of the
mortgage, situate within the towns of Calcutta, Madras, Bombay or in any other town which the
state Govt may specify in this behalf and the deed contained an express power of sale.

Right to have a Receiver appointed:-

In all cases where the mortgage is entitled to exercise the power of sale under section 69, this
section makes provision for the appointment of a receiver. The receiver may be appointed in one
of the 3 ways,

1. he may be nominated in the mortgage deed.

2. he may be appointed by the mortgagee with the consent of the mortgagor.

3. where the parties do not agree, the mortgagee may apply to the court and the court may
appoint the receiver.

Right to accession to the mortgaged property;-

If , after the date of mortgage any accession is made to the mortgaged property, the mortgagee, in
the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to
such accession.

Right to renewal of mortgaged lease:-

Where the mortgaged property is a lease the mortgagee has also got a right to the renewal of
lease.

Right to spend money in certain cases:- sec-72

• Under this section a mortgagee whether he is in possession or not, has a right to spend
money for the puroses mentioned in the section. His right to spend money is limited to
specific heads of expenditure mentioned in the section. Such specific heads of
expenditure are as follows;-

• for the preservation of the mortgaged property from destruction, forfeiture or sale.

• for supporting the mortgagor’s title to the property.

• .for making his own title thereto good against the mortgagor. i.e.,for defending his own
title against the mortgagor.

• when the mortgaged property is a renewable lease-hold, for the renewal of the lease.

• insuring the property where it is insurable nature.

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Right to proceeds of Revenue sale or compensation on Acquisition;- sec-73

• The mortgaged property is sold owing to failure to pay -1. Arrears of revenue, or

• 2. other charges of a public nature, or

• 3. rent due in respect of such property

• Such a failure did not arise from any default of the mortgagee, the mortgagee is entitled
to claim payment of the mortgage-money, in whole or in part, out of any surplus of the
sale-proceeds remaining after payment of the said charges etc.

Right to mesne mortgagee;- sec-94

Section 94 provides that where a property is mortgaged for successive debts to successive
mortgagees, a mesne mortgagee has the same rights against mortgagees posterior to himself as
has against the mortgagor. Therefore, he can redeem any prior mortgagor and can exercise the
right of foreclosure and sale against subsequent mortgagees. A mesne mortgagee can redeem all
the mortgagees before him and can foreclose all the mortrgages after him.

Section 94 and 91(a) taken together embody the principle “ redeem up and foreclose down”.

Illustration; a mortgagor mortgages his property to A,B and C respectively for debts. Here C
can redeem B or A and B can redeem A. A can foreclose the mortgagor and B and C in whose
hands equity of redemption has been assigned.

Liabilities of mortgagee:- sec-76

The liabilities mentioned in sec-76 arise only when the mortgagee enter into possession. Such
liabilities are,

1. to manage the property with ordinary prudence.

2. to collect rents and profit.

3.to pay Govt revenue.

4. to carry necessary repairs under certain circumstances.

5. not to commit any act of waste.

6. to apply the insurance money in reinstating the property.

7. to keep proper accounts.

8. to apply the rents and profits in discharge of the interest after making certain deductions.

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9. to account for gross receipts.

Doctrine of Marshalling:- sec-81

Marshalling means arrange things. This right arises when the owner of two or more properties
mortgages them to one person and then mortgages one or more of them to another person. The
subsequent mortgagee is entitled, unless there is a contract to the contrary, to have the prior
mortgage-debt satisfied out of properties not mortgaged to him.

Essentials:-

1. The mortgagees may be two or more persons but mortgagor must be common.

2. The right cannot be exercised to the prejudice to the prior mortgagee.

3. The right cannot be exercised to the prejudice of any other person having claim over the
property.

Illustration:-

A mortgagor mortgages his three properties B,C,D to a mortgagee X for Rs. 15,000. He further
mortgages only property C to Y for Rs. 5000. Here X is prior mortgagee and y is subsequent
mortgaee and property C is mortgaged to both the mortgagees. The mortgage debt of X is Rs.
15,000. This section gives Y a right to say that the debt of X should be satisfied out of sale
proceeds of properties B and D and not C. In case the proceeds of sale of B and D are less than
Rs. 15,000 only then property C may be sold.

Case law:-

Aldrich vs cooper

The principle of marshaling was stated like this: “if there are two creditors who have taken
securities for their respective debts, and the security of the one is confined to both, and the
security of the other is confined to one of those funds, the court will arrange or marshal the
assets, so as to throw the person who has two funds liable to his demand on that which is not
liable to the debt of the second creditor.”

Doctrine of contribution:- sec-82

Contribution is based on the principles of equity, justice and good conscience. This section deals
with the rules relating to contribution of money towards mortgage debt.

Rules of contribution;-

1. when mortgaged property belongs to two or more persons.

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2. when one property is mortgaged first and then again mortgaged with another property.

3. marshaling supersedes contribution.

1. when mortgaged property belongs to two or more persons:

Where the mortgaged property belongs to two or more persons who take a common loan then
according to the rule of contribution all the co-mortgagors are liable to contribute rateably. This
rule is also applicable where at the time of mortgage the property is one but later on it is
partitioned and co-shares become owner of their respective shares.

E.x: where three mortgagors A,Band C jointly mortgaged their properties to D secure a debt of
Rs. 10000. A had half share whereas B and C had one fourth each in the mortgaged property.
The mortgagee D recovers his full debt from the property belonging to A. Now, A was liable
only for Rs. 5000 in debt amount, he can ask B and C to contribute Rs. 2500 each towards the
loan amount.

2. when one property mortgaged first and then again mortgaged with another property;

Where the mortgagor has two properties and he mortgages one to secure one debt and then
mortgages both to secure another debt and if the former debt is paid out of the former property,
therein, the absence of a contract to the contrary, each property is liable to contribute rateably to
the later debt after deducting the amount of the former debt from the value of the property from
which it has been paid.

3. Marshaling supersedes contribution:

In case any conflict between the right of marshaling and contribution, the right of marshaling
prevails over that of contribution. Therefore contribution is subject to marshaling.

Redemption by persons other than the mortgagor:- sec-91

The mortgagor is entitled to redeem the mortgaged property at any time after the mortgage
money has become due. Section provides that besides the mortgagor, there are certain other
persons who may redeem or institute a suit for redemption of the mortgaged property. They are,

1. persons having interest in right to redeem property.

2. surety of mortgagor.

3. creditor of deceased mortgagor.

1. persons having interest in right to redeem property.

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 Persons who have interest in the mortgaged property or charge upon the mortgaged property are
entitled to redeem the same. Such persons are subsequent mortgagees or puisne mortgagees. A
puisne mortgagee has a right to redeem the prior mortgage. For example, a mortgagor executes
successive mortgages of the same property first to A, then to B and a third mortgage to C. Here
B is entitled to redeem the mortgage by A and C to redeem B. A prior mortgagee obtained a
decree without impleading a puisne mortgagee.

2. surety of mortgagor;-

A surety is such a person who gurantees to pay the debt if the mortgagor fails to pay. Therefore,
he is also entitled to redeem the property. After redemption, the surety is subrogated to the place
of the mortgagee. He becomes entitled to avail all the remedies open to the mortgagee as against
the mortgagor.

3. creditor of deceased mortgagor;-

When a mortgagor dies without making repayment of loan, the creditor has to file a suit for the
administration of the estate and recover the debt out of the property of the deceased mortgagor.
He has first to discharge the debt of mortgaged property to recover his own debt. That is why ,
the creditor of the deceased mortgagor has been given the right to redeem the mortgaged
property.

Doctrine of subrogation:-

“Subrogation” is a Roman word which means “substitution”. It is the right of a person to stand in
the place of the creditor after paying off his liabilities. In case of a mortgage, subrogation takes
place only by redemption. Therefore, in order to be entitled to subrogation a person must pay off
the entire amount of a prior mortgage. A partial payment of the mortgage-debt cannot give rise to
a claim for a partial subrogation.

Kinds of subrogation:-

1. conventional subrogation - by agreement

2. Legal subrogation - arises by operation of law.

Conventional subrogation:-

It takes place where the person who pay off the debt has no interest to protect but he advances
the money under an agreement express or implied that he would be subrogated to rights and
remedies of the mortgagee who is paid off.

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Legal subrogation:-

It arises by operation of law. The following persons are included as having a right of
subrogation

1. puisnemortagee

2. co-mortgagor

3. surety

4. purchaser of equity of redemption.

Doctrine of Tacking - Prohibition of Tacking:- sec – 93

The Doctrine of Tacking used for the purpose of squeezing out an intermediate mortgagee has
never been recognized in India. Tacking means uniting securities given at different times.

Tacking was abolished in India by the Transfer of property Act, 1929. Under section 93, no
mortgagee shall, by paying of prior mortgage (whether with or without notice of an intermediate
mortgage)thereby acquire any priority in respect of his original security.

No mortgagee making a subsequent advance to the mortgagor(whether with or without notice of

an intermediate mortgage) can thereby acquire any priority in respect of his security for such
subsequent advance, except in the case of section-79.

Exception:-

a. future advance

b. the balance of an engagement, or

c. the balance of a running account.

E.x : if there are successive mortgages, a property is mortgaged to B, C and D. D may redeem B
and get subrogated to the rights of B. But he only takes priority over C in respect of B’s
mortgage and not in respect of his own mortgage.

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CHARGE- UNIT III

Charge on an immoveable property is created to secure payment of money. Section 100 says that
where immoveable property of a person is made security for the payment of money to another
and the transaction is not a mortgage, it is said that a charge has been created.

Essentials:-

1. where immoveable property of one person is made security for the payment of money to some
other person by,

a. act of parties, or

b. operation of law, and

2. the transaction does not amount to a mortgage.

3. the latter person is said to have a charge on the property.

4. all the provisions of a simple mortgage apply to such a charge.

5. this section is not applicable is to the charge of a trustee on the trust-property for expenses
properly incurred in the execution of his trust.

6. no charge can be enforced against any property in the hands of a person to whom such
property has been transferred for consideration and without notice of the charge.

Illustration for charge:

1. where a person inherited an estate from his maternal grandmother and executed an agreement
to pay his sister a fixed amount of sum every year out of the rents of the estate, his sister had a
charge over the estate.

2. Two persons appointed an arbitrator to make a partition of their properties and for securing
their rights.The arbitrator allotted some properties to A and some to B. As the value of A’s
properties was greater than those of B, he directed A to pay B Rs. 5000 to make up the difference
within a month. He further directed that if such payment was not made, B should have a charge
on A’s properties for that sum and alsointerest .

Enforcement of charge:

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A charge can be enforced by a suit even when created by a decree.

Extinction of charge:

A charge may be extinguished in the same manner as simple mortgage. Therefore, a charge may
be extinguished-

a. by act of parties by release of debt or security

b. by novation, or

c. by merger.

Difference between charge and mortgage:

Every mortgage is a charge. A charge is a much wider term than mortgage.” Every mortgage is a
charge but every charge is not a mortgage.”

Mortgage
1. it is a security for the payment of money.
2. It involves transfer of an interest in some
specific immoveable property.
3. It can be created only by act of parties.
4. there may be covenant to pay.
5. It gives rise to a right in rem.
6. a mortgagee can be enforced by foreclosure
and sale.
charge
1. It is a security for the payment of money
which may or maynot be a debt.
2. There is no transfer of interest.
3. It can be created either by the act of parties
or by operation of law.
4. there can be no covenant to pay.
5. It does not give rise to right in rem.
6. a charge can be enforced only by sale of
property through the court.

DOCTRINE OF NOTICE AND TENDER

Notice is required to be served under section 69 and 83 of T.P. Act. Section 69 provides for
notice to be served on the mortgagor by mortgagee while exercising the power of sale. Section
83 provides for notice of deposite of mortgage-money in the court to the mortgagee. In all such

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cases where notice is necessary, the notice is served according to the procedure laid down in
section 102. This section provides that if the person on whom the notice is to be served or tender
is to be made does not reside in the district in which the property is situated, then notice may be
served to his agent or his duly authorized person on whom the notice is required to be served.

Where such an agent or authorized person could not be found the court may give direction as to
how such notice may be served on the concerned person.

Section 103 provides that where the person on whom the notice is to be served is not a person
competent to contract, the notice may be served on the lawful guardian of such incompetent
person.

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 UNIT- IV

LEASE

DEFINITION OF LEASE;- section 105

1. A lease of immoveable property is a transfer of a right to enjoy such property made for a
certain time (express or implied), or in perpetuity, in consideration of a ,

a. price paid or promised, or

b. money

c. a share of crops,

d. service, or

e. any other thing value.

2. To be rendered periodically or on specified occasions to the transferor by the transferee, who

accepts the transfer on such terms.

LESSOR, LESSEE, PREMIUN OR RENT:-

In a Lease transaction, the transferor is called the lessor, the transferee is called the lessee, the
price paid or promised to be paid is called the premium and the money, share service or other
thing to be so rendered is called the rent.

Essential elements:-

1. The parties to lease

2. The subject matter of lease

3. There must be a transfer of right.

4. Duration of lease

5. Consideration of lease- premium

6. Acceptance of transfer by lessee

7. Lease must be made in the mode under section 107.

Distinction between Lease and Licence:-

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Lease is the transfer of the right of enjoyment of an immoveable property whereas the licence is
the right of a person to use the land of another while it remains in the possession of another. A
licence is governed by the Indian easement Act and it is a permission to do some act which,
without such permission, would be unlawful.

Case law:-

Hamelovs Jang shersingh

In the words of supreme court, “ As per section 105 of Transfer of property Act a lease of
immoveable property is a transfer of right to enjoy such property for a certain period in
consideration for price. In short, a lease is a transfer of interest in land. A licence as defined in
section 52 of the Easement Act, 1882 to mean a right granted to another person over immoveable
property to do or continue to do the some act which in the absence of such right would be
unlawful. When such rights does not amount to an easement or creates any interest in property,
the right is called a licence.”

Distinction between Lease and Licence;-

LEASE
1. There is transfer of an interest in the
immoveable property.
2. If during the lease period, any accretion is
made property leased, such accretion is
deemed to be comprised in the lease.
3. It is transferable and heritable.
4. In lease, the lessee gets a proprietary right in
respect of the land, this right is called demise.
5. It cannot be revoked before the expiry of the
term or without breach of any express
condition by the lessee.
6. A lessee is entitled to maintain a suit in his
own name against trespassers and strangers.
7. Death of either party does not effect a lease.
LICENCE
1. There is no transfer but the licencee acquires
a right to occupy the property.
2. Whereas a licencee acquires no right in the
property.
3. it is neither transferable nor heritable.
4. Licencee gets only a personal right of using
the land of another person.
5. whereas, subject to certain exceptions, a
licence is generally revocable.
6. The licencee is not entitled to maintain such
a suit.

7. whereas in such circumstances a licence is

terminated.

Case law:-

Tata Tele services Ltd vs State of Utter Pradesh,

The petitioner installed towers for telephone companies. The premises (roofs of private house)
were taken on rent. The installation permitted was substantial in nature. The space so allowed

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was not to be used by the owner and was to remain in exclusive possession of the petitioner
during the period of 116 months. The rent was to be paid periodically. The agreement was held
to be on of the lease and not licnece.

Modes of creation of Lease:- sec-107

Section 107, provides two modes of creation of leases,

I. Leases which can be made by registered deed:-

a. Lease from year to year

b. Lease for a term exceeding one year

c. Lease reserving a yearly rent.

d. Permanent Lease.

II. Lease in which registration is optional:-

a. Lease from month to month

b. Lease for a term for one year

c. Lease for a term of less than one year.

Case law:-

Hyundai Motor India Ltd vs Opal Metal Engg.Pvt Ltd,

AIR 2009 Del 1

Lease deed on unstamped and unregistered document cannot be looked into for any purpose, not
also for specific performance.

Rajendra pradap singh vs Rameshwar Prasad,

AIR 1999 SC 37

A lease for a term exceeding one year must be through a registered instrument. But for the
validity of the instrument the signing of the instrument both by lessor and lessee is not sin qua
non. Joint execution of the instrument is sufficient for the purpose.

RIGHTS AND LIABILITIES OF LESSOR AND LESSEE:- sec-108

Section 108 provides for rights and liabilities of both the lessor and lessee. These rights and
liabilities are subject to a contrary-contract.

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Liabilities of Lessor:-

1. Duty to disclosure 108(a)

2. Duty to give possession 108(b)

3. Covenant for quiet enjoyment 108©

Rights of Lessee:-

Clauses (d) to (j) of section 108 deal with the rights of a lessee which are as follows;-

1. Right to enjoy the accretions, sec-108(d)

2. Right to avoid lease, sec- 108(e)

3. Right to repair property, sec- 108(f)

4. Right to make payments, sec- 108(g)

5. Right to remove fixtures, sec- 108(h)

6. Right to have benefit of crops, sec-108(i)

7. Right to assign his interest, sec-108(j)

LIABILITIES OF LESSEE:-

Clauses (k) to (q) of section 108 deals with the liabilities of lessee

1. Duty to disclose facts materially increasing the value of property.

2. Duty to pay rent or consideration of lease.

3. Duty to maintain the property.

4. Duty to give notice of any encroachment on the property to the lessor.

5. Duty to use the property in a reasonable manner.

6. Duty to erect permanent structure on the property.

7. Duty to re-transfer the possession on determination of lease.

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 UNIT V

EXCHANGE

Definition of Exchange:

In Exchange there is transfer of ownership of one thing for the ownership of some other thing.

According to section 118, Exchange means,

1. when two persons mutually transfer the ownership of one thing for the ownership of another,

2. neither thing or both things being money only,

The transaction is called an exchange.

An exchange includes a barter of goods for movable property. These provisions are applicable to
exchanges of both the movable and immovable properties.

CHARECTERISTICS FEATURES OF EXCHANGE:-

1. Transfer of ownership

Exchange involves transfer of ownership in some existing property. In transfer of ownership,

absolute interest of the owner is transferred. Partition of property is not a transfer of ownership.

2. Properties need not be immovable.

In exchange, the properties may be both movable and immovable. Immovable property may be
exchanged with movable property or vice versa.

3. Exchange includes barter.

Exchange of one movable property with another movable property is known as barter.

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4. Mode of transfer.

Section 118, provides that a transfer of property in completion of an exchange can be made only
in a manner prescribed for the transfer of such property by sale. Therefore, the formalities of
section 54 are to be complied with. Where both the properties are moveable, exchange effected
only by delivery of possession without registration. Where the properties are immovable and of
value is less than Rs.100, registration is optional but in case the value of immovable properties is
more than Rs.100, registration of the document is compulsory.

RIGHTS AND LIABILITIES OF PARTIES:-

The rights and liabilities of the parties to the exchange are same as that of seller and buyer in
case of a sale. In exchange, one thing is given another thing is taken or received. So each party
has rights and liabilities of both the seller as well as buyer. Where the exchanged properties are
movables, the provisions of the sale of Goods Act, 1930 may also apply.

Exchange of Money:- sec-121

Exchange is mutual transfer of ownership. Where money is transferred in consideration of

money, it is also an exchange. Section 121 provides that an exchange of money, each party
thereby warrants the genuineness of the money given by him. The money given must not be
counterfeit or fake money.

GIFTS

A gift is a gratuitous transfer i.e.,without consideration. In gift an existing property is transferred

in favour of another person without consideration.

Definition of Gift:- section 122

1. Gift is the transferor of certain existing movable or immovable property

2. made voluntarily and without consideration

3. by one person, called the donor, to the another person, called the donee;and

4. accepted by or on behalf of the done

5. such acceptance must be made during the lifetime of the donor and while he is still capable of
giving.

6. if the done dies before the acceptance, the gift is void.

ESSENTIAL ELEMENTS:-

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1. there must be a transfer of ownership of a property

2. the property must be in existence.

3. the transfer must be voluntarily made and without consideration

4. the property must be accepted by or on behalf of the person to whom it is transferred.

5. the transfer must be effected in the manner prescribed by law.

GIFT OF EXISTING AND FUTURE PROPERTY:- SEC-124

The transfer of property Act provides that the gift can be made only of an existing property. The
property which is not in existence cannot be gifted. Therefore, a gift comprising both the existing
and future property is valid for existing property but void for future property.

GIFT TO SEVERAL OF WHOM ONE DOES NOT ACCEPT:- SEC 125

Gift may be made to one or two persons jointly. For the validity of the gift it is necessary that it
must be accepted by all the donees. Sec 125 provides that a gift of a thing to two or more donees,
of whom one doesnot accept it, is void as to the interest which he would have taken had he
accepted. This means that where one of the several donees does not accept the gift, the gift is
void only for his part of interest which he would have taken, had he accepted the gift.

SUSPENSION OR REVOCATION OF GIFTS:- SEC 126

A gift once made is irrevocable, except in the following two cases provided by this section:-

1. A gift is revocable if the donor and the done have agreed that on the happening of a specified
event(not depending upon the will of the donor), the gift should be suspended or revoked.

2. A gift may also be revoked in any of the case 9save want or failre of consideration) in which,
if it were a contract, it might be recinded.

ONEROUS GIFT:- SEC 127

A gift is said to be onerous when it is accompanied with a burden or obligation. This section is
based on the maxim “ quisentitcommodumsentiredebetet onus” which means that he who
receives advantage must also bear the burden.

Essentials:-

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1. the gift must be in the form of a single transfer

2. to the same person

3. of several things (properties)

4. of such thin only one is burdened with obligation and others are not.

When such conditions are present, the done will have to accept the gift fully. He cannot accept
the benefits of gift only and reject the burdens or obligation.

E.X :A shares in X, prosperous joint stock company, and also shares in Y, a joint stock company
in difficulties. Heavy call are expected in respect of the shares in Y. A gives B all his shares in
joint stock companies. B refuses to accept the shares in Y. He cannot take the shares in X.

UNIVERSAL DONEE:- SEC 128

Universal done is such a person who gets the whole property of the donor under a gift. Both
movable as well as immovable properties of the donor are given in a gift to him. Section 128
provides that the universal done is liable personally for all the debts due and liabilities by the
donor at the time of the goft to the extent of the property comprised therein.

DONATIONS MORTIS CAUSA AND MOHAMMADAN LAW:- SEC 129

Gifts which are made in contemplation of death are known as donates mortis causa. Sec 129 has
exempted such gifts from the operation of his chapter.

Another exemption is made in the favour of Muslim gifts, where the gifts are made by Muslims.

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 UNIT VI

INDIAN EASEMENTS ACT, 1882

DEFINITION:-

Easement generally means a right which the owner or occupier of certain land possesses upon
the land of another person.

Sec 4- of Indian Easement Act defines Easement as a right which the owner or occupier of
certain land possesses for the beneficial enjoyment of that property. In such beneficial enjoyment
he may do and continue to do something or he may also prevent and continue to prevent
something done in respect of any other land (not his own).

The Indian Easements Act, 1882 does not affect the right of the Govt to regulate the collection,
retention and distribution of water of rivers, streams natural channels, natural lakes, and ponds or
of the water for all works at the public expense for irrigation.

CHARECTERISTICS:-

1. APPURTENANCE:

Appurtenance means the right of the owner to possess the property and enjoy it. The easements
are annexed to the ownership of some land. ( it is for the beneficial enjoyment of the dominant
land).

2. RIGHT IN RE-ALIENA:

An easement is a right in re-aliena.

It is the right over the property of another person. It differs from a right in re-propria, which is
the right over one’s own property. The person having the right of easement is called dominant
owner and the properties ae dominant properties. The person who allows such easementary right
is called the servient owner and the properties are called the servient properties.

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3. BENEFICIAL TO THE DOMINENT PROPERTY:

The easenmentary right is authorized for the beneficial enjoyment of the dominant property.
Prof. Gael observes that beneficial enjoyment of the dominant property is an essential
requirement of easement.

4.DOMINANT AND SERVIENT HERITAGE:

The land for which the beneficial enjoyment of right exists is called the dominant heritage. The
owner or occupier of such dominant heritage is called the dominant owner.

The land on which the liability for the beneficial enjoyment of the dominant heritage is
imposed, is called servient heritage. The owner or occupier of such servient heritage is called
servient owner.

The term “land” includes all things permenantly attached to the earth also.

The term ‘ bemneficial enjoyment “ includes all possible convenience, remote advantage and
even a mere facility.

5. RIGHTS OF DOMINANT OWNER:

The easement should entitle the dominant owner to do and continue to do, or to prevent and
continue to trevent, something in or upon or in respect of theservient tenement.

TYPES OF EASEMENTS

• POSITIVE AND NEGATIVE EASEMENTS

• APPARENT AND NON APPARENT EASEMENTS

• CONTINUOUS AND DISCONTINUOUS EASEMENTS

• EASEMENT FOR A LIMITED TIME

• CONDITIONAL EASEMENT

• EASEMENT OF NECESSITY AND QUASI EASEMENT

POSITIVE AND NEGATIVE EASEMENT

• Positive easement enables the dominant owner to commit some positive act upon the
servient property.

• E.X; right of walking, right of placing advertising board etc.

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 • Negative easement enables the dominant owner to prevent the servient owner from doing
certain acts.

• E.X; preventing the servient owner from construction of a building to stop the supply of
air. So, it imposes a duty upon the servient owner.

APPARENT AND NON APPARENT EASEMENT. SEC-5

• Apparent easement is visible to the eye. It is evidenced by its existance.

• NON APPARENT EASEMENT IS NOT VISIBLE TO THE EYE. IT IS EVIDENCED

BY ITS EXISTANCE.

• E.X: A right annexed to A’s house to prevent B from building on his own land. This is a
non-apparent easement.

CONTINUOUS AND DISCONTINUOUS EASEMENT SEC-5

• Continuous easement is effected without any intervention of the act of a man.

• E.X: continuous flow or water in drainage, the right to receive continuous sunlight etc .

• Discontinuous easement is effected only by the intervention of the act of a man.

• E.X: right to walk over the servientland .

EASEMENT FOR LIMITED TIME SEC-6

• An easement may be permanent or for particular period of years subject to periodical

interruption. It may also be exercisable only at a certain time or between certain hours. It
may also be for particular purpose.

CONDITIONAL EASEMENT SEC-6

• An easement may be subject to a condition that it shall commence or it shall become void
or voidable on the happening or non happening of a specified event. It may also depend
on the performance of a specified act.

EASEMENT OF NECESSITY AND QUASI EASEMENT SEC-13

• An easement of necessity is an easement created to meet the need for the necessity of a
particular case.

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 • Quasi easement are covenants which the servient owner must grant for the benefit of the
dominant owner. They resemble easements in many ways but lack one of the essentials of
valid easements. They are termed as quasi easement.

CREATION OF EASEMENTS

• A. IMPOSITION OF EASEMENT SEC-8

• B. ACQUISITION OF EASEMENT SEC-12

• 1. Easement by necessity sec-13

• 2. Quasi easements sec-14

• 3. Easement by prescription sec-15

• 4. Customary easement sec-18

IMPOSITION OF EASEMENT:-

1. An easement may be imposed depending on circumstances and the extent to which a person
transfers his interest in the heritage on which the stability is to be imposed.

Case law;

Mst. NafisunisavsMohdIshque

The Allahabad High court held that an easement is created by imposition. The term impose
means the creation of an easement by the voluntary act of the lessor or lessee or any other person
having the power to transfer his interest in the servient heritage.

2. A servient owner may impose on the servient heritage any easement which does not affect the
already existing easement right of the dominant owner. However, if such new easement on the
servient heritage affects the existing easement, then he should get the consent of the dominant
owner.

E;X – A hasa right of way over B’s land. This is an easementary right of A over B’s land.Now B
may grant an easementary right to C to feed his cattle on the grass growing in B’s land. Here, C’s
easementary right is valid provided it doesnot affect A’s easementary right over B’s land.

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3. A lessor may impose any easementary right on the property leased but such imposition of
easementary right must not affect the right of lessee.

E.X: A and B are lessees of the same lessor. A of a field X for a term of five years and B of a
field Y for a term of ten years. A’s interest under his lease is transferable, B’s is not. A may
impose on X, in favour of B, a right of way terminable with A’s lease.

ACQUISITION OF EASEMENT, SEC -12

An easement may be acquired by the owner of an immovable property for his beneficial
enjoyment of the property or any other person in possession of such property. So, among co-
owners of immovable property one may acquire an easement for the beneficial enjoyment of the
property without the consent of the other co-owners.

The easements may be acquired by four methods:

1. EASEMENT OF NECESSITY – SEC 13

An easement of necessity is an easement created for the necessity of a particular case.

THE EASEMENT OF NECESSITY ARISES IN THE FOLLOWING WAYS:

a. when one person transfer or bequeaths an immoveable property to another, then the transferee
or the legatee shall be entitled to any easement attached to such immovable property, provided
such easement is necessary for enjoyment of the said immovable property.

E.X: A sells to B his agricultural land. The land is approachable only by passing over A’s land or
C’s land. Now B is entitled to the right of way for agricultural purpose only.

b.If an easement is apparent, continuous and necessary for enjoying an immovable property, then
the transferee or legatee shall be entitled to such easement unless a different intention is
expressed in the transfer or bequest.

E.X; A is the owner of a house and an adjoining land. The house has windows overlooking the
land. A sells the house to B and the land to C. For enjoying the light passing over the land A
grants B this right by the sale of the house. B is entitled to the right of easement.

c. The transferor or legal heir of the testator shall continue to enjoy an easement even after the
transfer or bequest of an immovable property.

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d. If an easement is apparent, continuous and necessary for enjoying an immovable property as it
was enjoyed previously, the transferor as the legal heir of the testator shall be entitled to such
easement unless otherwise a different intention is expressed.

E.X: A is the owner of a house and an adjoining land. A’s house is also approachable through the
adjoining land to B without reserving his right of way over the adjoining land. Even then, A is
entitled to such right of pathway.

e. when partition is made jointly by several persons, then if easement over the share of one of
them is necessary for enjoying the share of another, the latter is entitled for such easement.

E.X: A,B, and C partition an agricultural land. A’s portion is approachable through B’s portion
of land only nfor agricultural purposes. However B and C are not entitled to any such easement.

f. when a partition is made jointly by several persons, then one sharer is entitled to an easement,
apparent, continuous and necessary for enjoyment of his share. However if a defferent intention
is made in the partition deed, he is not entitled to such easement.

E.X: A, B and C partition an agricultural land. A’s share of land has an easementary right of
water from a well from B’s share of land. The partition deed expressly provided that A has no
such right to water. So, A is not entitled to such easement.

g. when the easementary right is right of pathway then the servient owner has to set out the way
reasonably convenient for the dominant owner.

QUASI EASEMENTS:-

Quasi easements are covenants, which the servient owner must grant for the benefit of the
dominant owner. They resemble easements in many ways, but lack one of the essentials of valid
easements. They are termed as “Quasi easements”.

E.X; the properties of common owners can be used by each of the common owner. This is
strictly not easement but termed Easement.

EASEMENT BY PRESCRIPTION;-

Prescription means custom continued until it has the force of law. It also means getting a right
or title through enjoyment or possession for a prolonged period in the manner prescribed.

20 years easementary right is allowed by prescription.

CONDITIONS FOR VALID EASEMETS:-

1. The enjoyment of easement for 20 years must be proved.

2. it should not be by an agreement.

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3. it should be by peaceful method

4. The enjoyment must be open.

5.The enjoyment must be as a matter of right and independent of the owner’s will.

6. such enjoyment must be by way of easement only and not as owner or licencee.

7.the enjoyment must be uninterrupted

8. the enjoyment must be for 20 years and more

9. it must be a right in rem and hold good against the whole world.

TRANSFER OF EASEMENTS SEC 19

• Easements can be transferred if the dominant heritage is transferred by act of parties or

devolves by operation of law, to any other person.

INCIDENTS OF EASEMENTS

RULES OF INCIDENTS OF EASEMENTS:-

1. An easement must not be used for any purpose not connected with the enjoyment of the
dominant heritage.

2.The dominant owner must exercise his right in such a way that it creates least inconvenience to
the servient owner.

E.X; A has a right of way over B’s field. A must use the established way and must no create a
new way.

3. The dominant owner may, from time to time, alter the mode of enjoying the easement .
However, by such alteration, he should not impose any additional burden on the servient
heritage. Further just for fun or pleasure the dominant owner cannot alter the enjoyment of
easement though it does not impose any additional burden.

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E.X; A the owner of a saw mill, has a right to a flow of water sufficient to work the mill. He
may convert the saw mill into a corn-mill, provided that it can be worked by the same amount of
water.

4. the dominant owner is entitled to do all acts necessary to secure the full enjoyment of the
easement but he must do such acts without causing inconvenience to the servient owner and
damage to the servient heritage. This right of the dominant owner is called “Accessory Right”.

E.X; A has an easement to lay pipes in B’s land. A has right to dig B’s land to repair the pipes,
but he must restore the surface to its original state.

Secretary of State vs sannidhirajuSubbarayudu and others,

The Privy council held that a riparian owner is a person who owns land abutting on a stream and
who has a certain right to take water from the stream.

c. the right of riparian owner to take water may be ousted by an actual grant to the person on the
other side or ousted by the crown when the stream is tidal and navigable.

d. every riparian owner is entitled to the water in the stream without sensible diminution,
increase or alteration in its character or quality.

e. A riparian owner , while using the water of a stream must not use it so as to destroy or render
it useless or materially affect the application of water to the riparian owners below him.

f. An owner of land may use the stream for ordinary or primary purposes, for domestic purposes
and also for extraordinary or secondary purposes like irrigation of his land, without causing a
material injury to like owners.

g. Each riparian owner can be permitted to have his proportionate share of water determined by
the number of owners when there is insufficient to be used freely.

h. The unreasonable interference in the flow of water by riparian owner. For E.X; totally cutting
of the flow of water- is an actionable wrong.

i. riparian owner is not entitled to store the water by the construction of a dam across the flowing
water.

j. A riparian owner has a right to protect himself against the water of a stream or river rising in
flood and overflowing.

k. The riparian owner of a stream has a right to the purity of water and he must not take it unfit
for use by the lower riparian owners.

INCREASE OF EASEMENT:

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For the riparian lands, easement can be increased by alluvion and diminished by diluvion and it
cannot be increased by mere altering or adding to the dominant heritage and for that matter,
easement is not at all affected by any change in the dominant or servient heritage.

PARTITION OF DOMINANT HERITAGE; SEC 30

When a dominant heritage is divided between two or more persons, the easement becomes
annexed to each of the shares.

SUSPENSION, EXTICTION AND REVIVAL OF EASEMENT;-

REVIVAL OF EASEMENT;-

An extinguished easement revives under the following circumstances;-

1. when the destroyed heritage has, before the expiry of 2 years been restored by the deposit of
alluvion.

2. when the destroyed heritage is a servient building and such building is rebuilt before expiry of
20 years upon the site.

3. when the destroyed heritage is a dominant building and such building is rebuilt upon the same
site and in such a way as not to impose a greater burden on the servient heritage.

When the unity of ownership caused by a grant or bequest is nullified by a decree of the court
setting aside the grant, an easement extinguished by unity of owners revives. A necessary
easement extinguished under the same section revives when the cause of suspension is removed
before the right is extinguished by non-enjoyment before the expiry of 20 years from suspension.

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 UNIT VII

LICENCES

DEFINITION :- sec 52

Licence is defined as ‘ when one person grants to another or defined number of others a right to
do or a right to continue to do something in or upon the immovable property of the grantor, the
right is called licence’ .

In the absence of such right , the same thing becomes unlawful. Further, such right should not
amount to an easement or an interest in the property.

RULES RELATING TO LICENCE:- sec 53 to 59

1. A licence may be granted not only by the owner but by any person who transfers his interest in
the property.

2. The grant of a licence may be express or imp;ied from the conduct of the grantor. Similarily an
agreemtn, which is to create an easement but in effect may operate to create a licence.

3. All licences necessary for the enjoyment of any interest or ezxercise of any right implied in
such interest or right and are called ‘Accessory licence” .

4. A licence to attend a place of public entertainment may be transferred by licence unless a

different intention is expressed or implied.

5. The grantor of a licence must disclose to the licencee all defects in the property to be
dangerous.

India, the Indian Easements Act, 1882 provides for law relating to licences in property law.
Section 52 of Indian Easements Act, 1882 defines Licence as under:

“Where one person grants to another, or to a definite number of other persons, a right to do or
continue to do, in or upon immovable property of the grantor, something which would, in the

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absence of such rights, be unlawful, and such right does not amount to an easement or an interest
in the property, the right is called a licence.”

From the above definition of licence, it seems that if a person himself has acquired a right or
interest in an immovable property through an instrument, the right conveyed in his favour in that
instrument, will not be licence. In India, judicial and legislative definitions of licence have
followed the English definitions of the term.

Under Section 52, if a person is given the right to use the immovable property in a particular way
under certain terms while retaining control and possession of the same, the person so permitted is
only a licencee. The question that arises in this context is that whether the relationship is that of
landlord-tenant or licensor-licensee. The relationship depends on the intention of the parties that
whether there was interest in the land or merely personal privilege without any interest.

A licence cannot be granted only in favour of definite number of persons and not in favour of
fluctuating body or individuals. The agreement involved in the case, even if binding on the
defendants, cannot be considered to be at least a bilateral agreement between the representatives
of the two parties and containing reciprocal conditions. A licence is a personal right given to the
licencee and, therefore, Section 56 of the Easements Act, 1882 provides that licence cannot be
transferred by the licencee or exercised by his servants and agents.

The Supreme Court in Associated Hotels of India Ltd. v. R.N. Kapoor summed the concept of
Licence as under:

“Under the aforesaid section, if a document gives only a right to use the property in particular
way or under certain terms while it remains in the possession and control of the owner thereof, it
will be a licence. The legal possession, thereof, continues to be with the owner of the property,
but the licencee is permitted to make use of the premises for a particular purpose. But for the
permission, his occupation would be unlawful. It does not create in his favour any estate or
interest in the property.”

It important to take note of essential features of licence as under

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 1. A licence is not connected with the ownership of land / property but creates only a
personal right or obligation;
2. Licence only creates a right or interest in the immovable property to do something, under
the authority of the grantor of the licence.
3. A licence cannot be transferred or assigned;
4. Licence is purely permissive right arising only by permission, express or implied, and not
by adverse exercise or in any other way
5. It only legalize a certain act which would otherwise be unlawful and does not confer any
interest in the property itself in or upon or over which such act is allowed to be done.
6. A licencee cannot sue outsiders in his own name.

Lease and Licence: Distinction

As defined by Section 105 of the Transfer of Property Act, 1882:

A lease of immovable property is a transfer of a right to enjoy such property, made for a certain
time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of
money, a share of crops, service or any other thing of value, to be rendered periodically or on
specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the
premium, and the money, share, service or other thing to be so rendered is called the rent.

The requirements for a lease are:

 exclusive possession of a defined area of land,

 for a fixed period (or series of periods) of time,
 with the intention to create an estate in land – that is an interest in the land itself which
can be assigned or sold.

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A licence is simply a permission to use land. It allows someone access to the land of another for
an agreed purpose. It is an authority that justifies what would otherwise be a trespass. It does not
confer any interest in land.

Whether a transaction amounts to a lease or license, is a question that has been considered in a
whole host of judicial pronouncements and cases continue to be handed over. The question that
whether a transaction is lease or license depends upon the intention of the parties and whether
exclusive possession has been given or not.

The test to determine that whether a transaction is a lease or a licence is:

1. The intention of the parties, which is to be gathered from the terms of the contract. If the
terms are not clear, then the surrounding circumstances shall determine the intention of
the parties.
2. In the absence of a written document and when somebody is in exclusive possession, then
the intention is to be gathered from other evidence such as exclusive possession would be
the most relevant circumstance to arrive at the intention of the parties at the time of
making the lease.
3. If dispute arises then intention to be gathered from the reading of the document as a
whole.
4. Lease or licence is matter of contract between the parties. The contract is to be construed
or interpreted on the well-laid principles for construction of contractual terms.

In Booker v. Palmer Lord Green stated that-

“There is one golden rule to be followed is that law does not impute an intention to enter into
contractual relationships where the circumstances and the conduct of the parties negative any
intention of the kind.”

In Cubb v. Lane, Lord Denning said that-

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“The question in all these cases is one of intention: Did the circumstances and conduct of the
parties show that all that was intended was that the occupier should have a personal privilege
with no interest in the land.”

The definition in Section 52 of the Act referred to above does not refer to exclusive possession.
If there is no exclusive possession then the arrangement cannot be a lease and must be a licence.
The general rule is that the Court will look at the substance of the agreement rather than the form
in which it is expressed.

The major differences between lease and licence are:

 A Lease is a transfer of right to enjoyment (exclusive possession) of that property by the

lessor the lessee, made for a certain term in consideration of a fee subject to the terms set
out in the lease agreement while a licence is the granting of a permission to use the land
in consideration of a fee subject to the conditions set out in the licence.
 A lease grants exclusive possession for a fixed period (term). A licence does not grant
exclusive possession.
 A lease creates an interest in the land which can be transferred to the lessee for the period
of the lease. A licence does not create or transfer an interest in the land.
 A lease can be transferred (assigned) to another party and if registered on the title is
binding on a new owner of the land. A licence is not transferable.
 A lease is not revocable (other than subject to any conditions set out in the lease (e.g. a
redevelopment clause). A licence is revocable.

Licence and Easement: Distinction

As per Section 4 of the Indian Easements Act, 1882; easement is defined as right which the
owner or the 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.

An easement is right or interest in immovable property for the land belonging to another. When
once an easement is validly created, it is annexed to land. The benefit of it passes with the

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dominant tenement and the burden of it passes with the servient tenement to every person into
whose occupation the dominant and servient tenements respectively come.

The major points of difference between an easement and a licence are the following:

1. An easement is a right appertaining to property while a license is only a personal right.

2. An easement is a right in rem and is enforceable by all and against all into whose hands
the servient and the dominant tenements respectively may come, while a license is only a
right in personam and therefore, not so enforceable.
3. An easement can be assigned with the property to which it is annexed, but a license
cannot be assigned at all except where it is a license to attend a place of public
entertainment.
4. A right of easement is not revicable at the will of the grantor while a license is so
revocable, except where the grantor is stopped by his conduct from exercising the power
of revocation conferred by law.
5. A license is permissive right traceable to a grant from the licensor either expressly or
impliedly. But an easement is acquired either by assertive enjoyment by the dominant
owner or by a negative covenant between the parties or by grant or by statute.
6. An easement may be positive or negative in character, a license is invariably positive and
cannot be negative in character. It may be that there are cases in which a negative
obligation might be cast on the licensor with the object of protecting a licence coupled
with a grant but such obligation is due to the grant accompanying the licence and not to
the licence per se.

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Page 75 of 75
I YEAR OF 3 YEAR LL.B
SEMESTER - II
EVEN SEMESTER
SUBJECT : CONSTITUTIONAL LAW- I
SUBJECT CODE : TA2C
 SYLLABUS
TA2C - CONSTITUTIONAL LAW - I
Unit - I Constitution - Definition - Constitutional Law - Classification of Constitution -
Difference between Constitutional Law and Administrative Law.

Unit - II Historical Background - Framing of the Constitution of India.

Unit - III Outstanding Features of the Indian Constitution - Nature of the Indian
Constitution.

Unit - VI The Philosophy of the Constitution - Preamble and The Objectives Resolution.

Unit -V The Union and its Territory - Territory of India - 35th & 36th Amendment -
Formation of New States and Alteration of Boundaries, etc. - Procedure for Reorganization of
States - Cession of Territory.

Unit - VI Citizenship - Meaning - Citizenship of India - Citizenship under the Citizenship Act,
1955 - Loss of Indian Citizenship.

Unit - VII Fundamental Rights - General Individual Rights and Fundamental Rights - Origin
and Development of Fundamental Rights - Difference between Fundamental Rights and Rights
secured by other provisions of the Constitution. Fundamental Rights in England and in the USA -
Exceptions to Fundamental Rights - Amendability of Fundamental Rights -Suspension of
Fundamental Rights - Classification of Fundamental Rights -Parliament's Power to Modify or
Restrict Fundamental Rights - Enforcement of Fundamental Rights - A Guarantee against State
Action - Definition of State (Article 12) - Laws Inconsistent with Fundamental Rights - Power of
Judicial Review - Effect of Pre-Constitutional Laws - Waiver of Fundamental Rights,

Unit - VIII Fundamental Rights - Part III of the Constitution of India - Right to Equality -
Right to Freedoms - The Six Freedoms -Protection in respect of Conviction for Offences -
Protection of the Life and Personal Liberty - Safeguards against Arbitrary Arrest and Detention -
Right against Exploitation - Right to Freedom of Religion - Culture and Educational Rights -
History of Right to Property under the Constitution of India - The 44th Amendment, 1978 -
Vestiges of the Right to Property - Right to Constitutional Remedies.

Unit-IX Directive Principles of State Policy - Object of the Directives - Scope of the Directives
- Directives compared with Fundamental Rights - Non-Justiciability - Conflict between
Fundamental Rights and Directive Principles - Sanction behind the Directives - Utility of the
Directives - Implementation of the Directives - Directives contained in other parts of the
Constitution - Classification of the Directives - Social and Economic Charter - Social Security
Charter - Community Welfare Charter.
Unit -X Fundamental Duties - Need for Fundamental Duties - Source of Fundamental Duties -
Enforcement of Fundamental Duties.

Statutory Material with Amendments

Constitution of India, 1950

Books for Reference:

1. Dr.V.N.Shukla : Constitution of India

2. P.M.Bakshi : Constitution of India
3. Pandey : Constitution of India
4. Constituent Assembly Debates
5. Palanidurai.G : Dynamics of New Panchayatraj systems
6. D.N.Banerjee : Some aspects of Indian constitution
7. Seervai H.M. : Constitutional Law of India
8. D.D. Basu : Shorter Constitution of India
9. M.P. Jain : Indian Constitutional Law
10. Dr. Anirudh Prasad : Centre-State Relations in India
11. S.N. Jain, Subash : The Union and States C. Kashyap and N. Srinivasan
12. Dr. K.P. Krishna Shetty : The Law of Union-State Relations and Indian Federalism.
13. A.G. Noorani : The Presidental System: The Indian Debate.
14. Venkatraman R. : My Presidental Years.
15. Verinder Grover : Fedral System, Centre-State Relations and State Autonomy.
16. Kashyap S.C. : Basic Constitutional Values.
17. Tope T.K. : Constitution of India.

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 UNIT-I

Constitution: Meaning, Types and Importance of Constitution

Constitution is the supreme law of each State. It lays down rules regarding the organisation,
powers and functions of government. It also defines the basic features of the State and the
relation between the citizens and the State.
Constitution: Meaning and Definition:
In simple words, we can say a Constitution is the constitutional law of the state. Constitutional
law enjoys the position of being the supreme and fundamental law of the state. It lays down the
organisation and functions of the government of state. The Government can use only those
powers which the Constitution grants to it.
1. "Constitution is the collection of principles according to which the powers of the government,
the rights of the governed and the relations between the two are adjusted. -Woolsey
2. "Constitution is a body of judicial rules which determine the supreme organs of state,
prescribes their modes of creation, their mutual relations, their spheres of action and the
fundamental place of each of them in relation to state." -Jellinek
3. " Constitution of a state is that body of rules or laws, written or unwritten which determine the
organisation of government, the distribution of powers to the various organs of government and
the general principles on which these powers are to be exercised." -Gilchrist
On the basis of these definitions it can be said that the Constitution is the sum total of the
constitutional laws of the state.
It lies down:
(1) Organisation and powers of the government;
(2) Principles and rules governing the political process;
(3) Relations between the people and their government; and
(4) Rights and duties of the people.
The government of state gets organised and works in accordance with the provisions of the
Constitution. People get their rights protected from the constitution. No one, not even the
government, can violate the Constitution.
Types of Constitution:
1. Written Constitution:
A written constitution means a constitution written in the form of a book or a series of
documents combined in the form of a book. It is a consciously framed and enacted constitution.
It is formulated and adopted by a constituent assembly or a council or a legislature.
Garner writes, "A written constitution is a consciously planned constitution, formulated and
adopted by deliberate actions of a constituent assembly or a convention." It provides for a
definite design of government institutions, their organisations, powers, functions and inter-
relationships.
It embodies the constitutional law of the state. It enjoys the place of supremacy. The government
is fully bound by its provisions and works strictly in accordance with its provisions. A written
constitution can be amended only in accordance with a settled process of amendment written in
the constitution itself. It is a duly passed and enacted Constitution. The Constitutions of India,
the USA, Germany, Japan, Canada, France, Switzerland and several other states, are written
constitutions.
2. Unwritten Constitution:
An unwritten constitution is one which is neither drafted nor enacted by a Constituent Assembly
and nor even written in the form of a book. It is found in several historical charters, laws and
conventions. It is a product of slow and gradual evolution. The government is organised and it
functions in accordance with several well settled, but not wholly written rules and conventions.
The people know their Constitution. They accept and obey it, but do not possess it in a written
form. An unwritten constitution cannot be produced in the form of a book.
However, an unwritten constitution is not totally unwritten. Some of its parts are available in
written forms but these do not stand codified in the form of a legal document or a code or a book.
According to Garner, "an unwritten constitution is one in which most and not all, rules are
unwritten and these are not found in any one charter or document."
The Constitution of the United Kingdom is an unwritten constitution.
Difference between Written and Unwritten Constitutions:
(1) A written constitution is written in the form of a book or document, whereas an unwritten
constitution is not written in such a form.
(2) A written constitution is a made and enacted by a constituent assembly of the people. An
unwritten constitution is the result of a gradual process of constitutional evolution. It is never
written by any assembly.
(3) A written constitution is usually less flexible than an unwritten constitution. An unwritten
constitution depends mostly on unwritten rules or conventions which do not require any formal
amendment.
(4) A written constitution is definite. Its provisions can be quoted in support or against any
power exercised by the government. An unwritten constitution cannot be produced in evidence.
It has to be proved by quoting its sources and practices.
However, the difference between written and unwritten constitutions is not organic. A written
constitution has written parts in majority. Along with these, it also has some unwritten parts in
the form of conventions. In an unwritten constitution, most of the parts are unwritten and are not
written in the form of a book. However some of its parts are also found written in some charters
and other documents.
3. Flexible Constitution:
A Flexible Constitution is one which can be easily amended. Several political scientists advocate
the view that a flexible constitution is one in which the constitutional law can be amended in the
same way as an ordinary law. Constitutional amendments are passed in the same manner by
which an ordinary law is passed.
British Constitution presents a classic example of a most flexible constitution. The British
Parliament is a sovereign parliament which can make or amend any law or constitutional law by
a simple majority. Laws aiming to affect changes in a constitutional law or in any ordinary law
are passed through the same legislative procedure i.e., by a simple majority of votes in the
legislature. Similarly, a Constitution is flexible when the procedure of amending it is simple and
the changes can be made easily.
(A) Merits of a Flexible Constitution:
(i) First, a major merit of the flexible constitution is its ability to change easily in accordance
with the changes in the social and political environment of the society and state.
(ii) Secondly, it is very helpful in meeting emergencies because it can be easily amended.
(iii) Thirdly, because of its dynamic nature, there are less opportunities for revolt. The
constitution has the ability to keep pace with the changing times. The people do not feel the need
for revolutionary changes.
(iv) Finally, since the flexible constitution keeps on developing with times, it always continues to
be popular and remains up-to-date.
(B) Demerits of a Flexible Constitution:
(i) First, a flexible constitution is often, a source of instability. Flexibility enables the
government in power to give it a desired dress and content.
(ii) Secondly, it is not suitable for a federation. In a federation, a flexible constitution can lead to
undesirable changes in the constitution by the federal government or by the governments of
federating units.
4. Rigid Constitution:
The Rigid Constitution is one which cannot be easily amended. Its method of amendment is
difficult. For amending it, the legislature has to pass an amendment bill by a specific, usually big,
majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature usually
passes the law by a simple majority of its members.
A rigid constitution is considered to be the most fundamental law of the land. It is regarded as
the basic will of the sovereign people. That is why it can be amended only by a special procedure
requiring the passing of the amendment proposal by a big majority of votes which is often
followed by ratification by the people in a referendum.
The Constitution of United States of America is a very rigid constitution.
(A) Merits of a Rigid Constitution:
(i) First, a rigid constitution is a source of stability in administration.
(ii) Secondly, it maintains continuity in administration.
(iii) Thirdly, it cannot become a tool in the hands of the party exercising the power of the state at
a particular time.
(iv) Fourthly it prevents autocratic exercise of the powers by the government.
(v) Finally a rigid constitution is ideal for a federation.
(B) Demerits of a Rigid Constitution:
(i) First, the chief demerit of a rigid constitution is that it fails to keep pace with fast changing
social environment.
(ii) Secondly, because of its inability to change easily, at times, it hinders the process of social
development.
(iii) Thirdly, it can be a source of hindrance during emergencies.
(iv) Fourthly, its inability to easily change can lead to revolts against the government.
(v) Fifthly, a rigid constitution can be a source of conservativeness. It can grow becomes old
very soon because it cannot Keep pace with times.
Thus, there are both merits and demerits of Flexible and Rigid Constitutions. The decision
whether a state should have a flexible or a rigid constitution, should be taken on the basis of the
needs and wishes of society. No hard and fast rule can be laid down as to whether a state should
have a flexible or a rigid constitution.
In fact, a constitution must have both a certain degree of rigidity as well as an ability to change
for keeping pace with the changing times. An excessive rigidity or excessive flexibility should be
avoided. The Constitution of India is partly rigid and partly flexible. In several respects, it is a
rigid constitution but in practice it has mostly worked as a flexible constitution.
5. Evolved Constitution:
An evolved constitution is one which is not made at any time by any assembly of persons or an
institution. It is the result of slow and gradual process of evolution. Its rules and principles draw
binding force from the fact of their being recognised as ancient, historical, time-tested and
respected customs and conventions.
Some of these conventions get recognised by law and hence become enforceable while others are
followed because these are supported by public opinion, their practical utility and moral
commitment in their favour. Evolved Constitutions is the product of historical evolution and of
political needs and practical wisdom of the people. The Constitution of Great Britain presents a
key example of an evolved constitution.
6. Enacted Constitution:
An Enacted Constitution is a man-made constitution. It is made, enacted and adopted by an
assembly or council called a Constituent Assembly or Constitutional Council. It is duly passed
after a thorough discussion over its objectives, principles and provisions. It is written in the form
of a book or as a series of documents and in a systematic and formal manner. The Constitutions
of India the USA, Japan, China and most of other states are enacted constitutions.
Qualities of a Good Constitution:
1. Constitution must be systematically written.
2. It should incorporate the constitutional law of the state and enjoy supremacy.
3. It should have the ability to develop and change in accordance with the changes in the
environment and needs of the people.
4. It should be neither unduly rigid nor unduly flexible.
5. It must provide for Fundamental Rights and Freedoms of the people.
6. It should clearly define the organisation, powers, functions inter-relations of the government
of the state and its three organs.
7. It must provide for the organisation of a representative, responsible, limited and accountable
government.
8. It must provide for:
(i) Rule of Law
(ii) De-centralisation of powers
(iii) Independent and powerful Judiciary
(iv) A system of Local self-government
(v) A Sound Method of Amendment of the Constitution
(vi) Process and Machinery for the conduct of free and elections
9. The Constitution must clearly reflect the sovereignty of the people.
10. The language of the constitution should be simple, clear and unambiguous
The Constitution must empower the judiciary with the power to interpret, protect and defend the
Constitution and the fundamental rights and freedoms of the people against the possible
legislative and executive excesses. These are the basic features which must be present in every
good Constitution.
Importance of Constitution:
Each state has a Constitution which lays down the organisation, powers and functions of the
Government of the State. The government always works according to the Constitution, no law or
order of the government can violate the Constitution. Constitution is the supreme law and all
government institutions and members are bound by it.
Constitution enjoys supreme importance in the state because:
1. It reflects the sovereign will of the people.
2. It lies down of the aims, objectives, values and goals which the people want to secure. .
3. It contains description and guarantee of the fundamental rights of the people.
4. It gives a detailed account of the organisation of the government. The organisation, powers
and functions of its three organs of the and their interrelationship.
 5. In a federation, the Constitution lays down the division of powers between the central
government and the governments of the federating states/provinces. It is binding upon both the
centre and the state governments.
6. It specifies the power and method of amendment of the Constitution.
7. It lays down the election system and political rights of people.
8. It provides for independence of judiciary and rule of law.
9. The constitution governs all and no one can violate its rules.
Every democratic Constitution guarantees to the citizens a protection against arbitrary
governmental actions. A democratic state, like India, has a written and supreme constitution
which binds all its people and their government.

Constitutional Law
1. Constitutional law is genus.
2. Constitutional law deals with various organs of the state.
3. It deals with the structure of the state.
4. It is the highest law.
5. It gives the guidelines with regard to the general principles relating to organization and powers
of organs of the state, and their relations between citizens and towards the state. It touches almost
all branches of laws in the country.
6. It also gives the guidelines about the international relations.

Administrative Law
1. Administrative law is a species of constitutional law.
2. It deals with those organs as in motion.
3. It deals with the functions of the state.
4. It is subordinate to constitutional law.
5. It deals in details with the powers and functions of administrative authorities.
6. It does not deal with international law. It deals exclusively the powers and functions of
administrative authorities.
 UNIT -II

Historical Background- framing of the Constitution of India.

Before 1947, India was divided into two main entities – The British India which consisted of 11
provinces and the Princely states ruled by Indian princes under subsidiary alliance policy. The
two entities merged together to form the Indian Union, but many of the legacy systems in British
India is followed even now. The historical underpinnings and evolution of the India Constitution
can be traced to many regulations and acts passed before Indian Independence.

Indian System of Administration

Indian democracy is a Parliamentary form of democracy where the executive is responsible to

the Parliament. The Parliament has two houses – Loksabha and Rajyasabha. Also, the type of
governance is Federal, ie there is separate executive and legislature at Center and States. We also
have self-governance at local government levels. All these systems owe their legacy to the
British administration. Let us see the historical background of Indian Constitution and its
development through years.

Regulating Act of 1773

 The first step was taken by the British Parliament to control and regulate the affairs of the
East India Company in India.
 It designated the Governor of Bengal (Fort William) as the Governor-General (of
Bengal).
 Warren Hastings became the first Governor-General of Bengal.
 Executive Council of the Governor-General was established (Four members). There was no
separate legislative council.
 It subordinated the Governors of Bombay and Madras to the Governor-General of Bengal.
 The Supreme Court was established at Fort William (Calcutta) as the Apex Court in 1774.
 It prohibited servants of the company from engaging in any private trade or accepting bribes
from the natives.
 Court of Directors ( the governing body of the company) should report its revenue.
Pitt’s India Act of 1784

 Distinguished between commercial and political functions of the company.

 Court of Directors for Commercial functions and Board of Control for political affairs.
 Reduced the strength of the Governor General’s council to three members.
 Placed the Indian affairs under the direct control of the British Government.
 The companies territories in India were called “the British possession in India”.
 Governor’s councils were established in Madras and Bombay.
Charter Act of 1813
 The Company’s monopoly over Indian trade terminated; Trade with India open to all British
subjects.
Charter Act of 1833

 Governor-General (of Bengal) became as the Governor-General of India.

 First Governor-General of India was Lord William Bentick.
 This was the final step towards centralization in the British India.
 Beginning of a Central legislature for India as the act also took away legislative powers of
Bombay and Madras provinces.
 The Act ended the activities of the East India Company as a commercial body and it became
a purely administrative body.
Charter Act of 1853

 The legislative and executive functions of the Governor-General’s Council were

separated.
 6 members in Central legislative council. Four out of six members were appointed by the
provisional governments of Madras, Bombay, Bengal and Agra.
 It introduced a system of open competition as the basis for the recruitment of civil
servants of the Company (Indian Civil Service opened for all).
Government of India Act of 1858

 The rule of Company was replaced by the rule of the Crown in India.
 The powers of the British Crown were to be exercised by the Secretary of State for India
 He was assisted by the Council of India, having 15 members
 He was vested with complete authority and control over the Indian administration
through the Viceroy as his agent
 The Governor-General was made the Viceroy of India.
 Lord Canning was the first Viceroy of India.
 Abolished Board of Control and Court of Directors.
Indian Councils Act of 1861

 It introduced for the first time Indian representation in the institutions like Viceroy’s
executive+legislative council (non-official). 3 Indians entered Legislative council.
 Legislative councils were established in Center and provinces.
 It provided that the Viceroy’s Executive Council should have some Indians as the non-
official members while transacting the legislative businesses.
 It accorded statutory recognition to the portfolio system.
 Initiated the process of decentralisation by restoring the legislative powers to the
Bombay and the Madras Provinces.
India Council Act of 1892
 Introduced indirect elections (nomination).
 Enlarged the size of the legislative councils.
 Enlarged the functions of the Legislative Councils and gave them the power of discussing
the Budget and addressing questions to the Executive.
Indian Councils Act of 1909

1. This Act is also known as the Morley- Minto Reforms.

2. Direct elections to legislative councils; first attempt at introducing a representative and
popular element.
3. It changed the name of the Central Legislative Council to the Imperial Legislative Council.
4. The member of Central Legislative Council was increased to 60 from 16.
5. Introduced a system of communal representation for Muslims by accepting the concept of
‘separate electorate’.

MAKING OF THE CONSTITUTION

Timeline

 India was getting close to the independence and with this arise the need of the
constitution. The idea to have the constitution in India was given in the year 1934 by Mr.
M.N. Roy the pioneer of the communist movement in India.
 In the year 1935 the Indian National Congress for the first demanded a Constituent
Assembly to frame the constitution of India.
 In the year 1938 Jawharlal Nehru on the behalf of congress said that the
Constitution of India will be made by the independent constituent assembly without any
external interference.
 The demand was accepted by the British parliament which came to be known as
the August Offer in the year 1940
 In the year 1942, Cripps India Mission came to India under Sir Strafford
Cripps and said that the Constituent Assembly will be setup but after the Second World
War
 Finally in May 1946, Cabinet Mission Plan came to India under Cripps, Lawrence
and Alexander and they setup the Constituent Assembly of India

Constituent Assembly

1. The Constituent Assembly of India consists of 389 members out of

whom 292 members were elected from the various provinces, 93 members
were nominated from the princely states and 4 members were from the Chief
Commissioner areas of Delhi, Ajmer- Marwar, Coorg and British Baluchistan.
2. The members of the Constituent Assembly were on the basis of the
population and were in the ratio of roughly 1: 10,00,000(1 million).
 3. The seats of the provinces were divided into three major communities i.e.
Muslims Sikhs and general (all except Muslims and Sikhs). The members of the
each community selected there members by the method of proportional
representation with single transferable voting system.
4. The Constituent Assembly included all the important personalities of India
except Mahatma Gandhi and M.A. Jinnah.
5. After the creation of the new constituent assembly for Pakistan 90 members
resigned from the constituent assembly of India which reduced the size of the
assembly from 389 to 299 members.

Working of the Constituent Assembly

 The first meeting of the Constituent Assembly took place on 9thDecember 1946
under the leadership of Dr. Sachidanand Sinha however he was only temporary president
and was replaced by Dr, Rajendra Prasad and H.C. Mukherjee as the permanent President
and Vice President of the Constituent Assembly on 11th December 1946. Mr. B.N. Rau
was appointed as the advisor of the Constituent Assembly.
The Constituent Assembly presented three drafts of the Constitution on-
1. 04th November 1948,
2. 15th November 1948, and
3. 14th November 1949.
After enormous number of changes the Constituent Assembly of India finally accepted the
Constitution on 26th November 1949.

The last session of the Constituent Assembly took place on 24th January 1950 where Dr.
Rajendra Prasad was elected as thePresident of India; out of the total members of
the assembly 284 members signed the official copies of the Constitution. The Constitution of
India came into force on 26th January 1950 which is also celebrated as the Republic Day of
India.

The Constituent Assembly took 2 years, 11 months and 18 days in making the
Constitution and the cost of making the Constitution was approximately 64 lac.

The Constitution of India is the longest written Constitution in the history of the world having a
Preamble, 395 Articles, 22 Parts and 8 Schedules although presently it has around 465
Articles, 25 parts, 12 Schedules and more than 100 Amendment.
The nature of the Indian Constitution is Quasi-federal i.e. more federal and less unitary during
the normal circumstances it is federal but during the proclamation of National Emergency
under article 352 the nature of the constitution becomes unitary in nature.

Dr. B R Ambedkar played a major role and was the chairman of the drafting committee of the
constitution that is why he is also known as the father of Indian Constitution or “Modern
Manu”.

Chairman’s of the Important Committees

Name of the Comittee Chairman

Rules of Procedure Committee Dr.Rajendra Prasad

Fundamental Rights, Minorities Vallabhbhai Patel

Union Powers Committee Jawaharlal Nehru

Union Constitution Committee Jawaharlal Nehru

Drafting Committee B.R. Ambedkar

Flag Committee J.B. Kriplani

Drafting Committee
Among the most important committees of the Constituent Assembly, the most important was the
drafting committee which was set up on 29thAugust 1947. The main aim of this committee was
the preparation of the draft of the new Constitution. The drafting committee consists of seven
members.

1. Bhimrao Ambedkar (Father of the Constitution)

2. GopalaswamyAyyar
3. Alladi Krishnaswamy Ayyar
4. Syed Mohammad Saadullah
5. K.M Munshi
6. Madhava Rau (replaced B.L Mitra)
7. T Krishnamachari (replaced D.P. Khaitan)
The Drafting Committee took less than six months to prepare the draft, in all it sat for the total of
141 days.

Some Important Points

1. The Constitution was accepted on 26th November 1949

2. The National Song was accepted on 24th January 1950
3. The National Anthem was accepted on 24th January 1950
4. The National Flag was accepted on 22nd July 1947
5. Pingali Venkaiah from Andhra Pradesh was the designer of the National
Flag of India
6. Elephant was the symbol of the Constituent Assembly of India
7. Prem Bihari Raizada was the English Calligrapher of the Constitution
8. Vasant Krishna Vaidya was the Hindi Calligrapher of the Constitution
 UNIT-III

Outstanding features of the Indian constitution.- Nature of the Indian Constitution.

Nature of Indian Constitution of India

Nature of Indian Constitution
A critical evaluation of the Indian Constitution reveals the fact that it combines both federal and
unitary feature. Nevertheless, the centripetal bias in it is strong that it is only federal in form and
unitary in spirit and therefore, quasi-federal in nature. As such it can operate as a federal or as a
unitary constitution as time or circumstances require.

Federal Features of Indian Constitution

One of the essential marks of federal government is the division and distribution of powers. The
Indian Constitution has clearly distributed powers between the Union and the States. Indeed
following, the examples of the Government of India Act 1935, its makers adopted a very
elaborate scheme of distribution of powers. The Constitution has divided them into three lists:
1.The Union List of about 97 powers
2.The State List of about 66 powers and
3.The Concurrent List of 47 powers
The Union List mentions subjects about which the Union Parliament makes laws. The State List
mentions matters about which the state legislatures make laws while the Concurrent List
mentions such matters about which both the Central Parliament and the State Legislatures have
concurrent power of legislation.

Secondly, The Constitution of India is written and is also fairly rigid. The provisions that deal
with the distribution of powers between the Centre and the States cannot be unilaterally changed
by Parliament, the central legislature.

Thirdly, like other federations, there is in Indian Supreme Court with power to interpret the
constitution and decide the constitutional disputes between the Union and the States. It can
declare any law of Parliament or of a State Legislature to be unconstitutional and void if it
contravenes any provision of the constitution.

Fourthly, there is also some amount of special revenue arrangements both for the Union & the
States.

Unitary Features - Indian Constitution is Quasi-Federal Nature

In spite of its federal features mentioned above, the Indian Constitution is more unitary than
federal, which make it quasi-federal in nature and enable it to operate as a federal or a unitary
constitution as and when circumstances so require. Its unitary features of indianconsitution are
the following:

Power distribution favors the Constitution

First of all, the Centre has been given a long list of exclusive powers. There are, about 97
subjects in Union List. Moreover, the Concurrent List contains 47 more subjects, in which the
Union has concurrent power of legislation with the States. But even the laws passed by the
Centre override those passed by the States. Moreover, the creams of powers are allocated to the
Union.

The Residuary Powers

Unlike the US or the Pakistan provinces the residuary powers has been given to the Union
Government in the Indian Constitution. This is definitely a source of strength for the Centre.

Emergency Powers
It time of emergency, due to war or internal disturbance or caused by the failure of constitutional
machinery, the President can by proclamation transfer to Parliament all the legislative and
executive authority of the States. Thus, in times of emergency, India becomes a unitary state for
all practical purposes.

Rajya Sabha: Power to Transfer State Subjects

EVEN IN normal times the center can take over and has control over States power.
Appointment of Governor
States have no constitution
Single system Judiciary
Single citizenship
Financial dependence
A single administration
Financial dependence
Single election commmission
Redistribution of state boundaries
 UNIT IV

The philosophy of the Constitution- Preamble and the Objectives Resolution.

Objectives Resolution

Before the framing of the constitution started, an Objectives Resolution (the resolution that
defined the aims of the Assembly) was moved by Nehru in 1946. This resolution enshrined the
aspirations and values behind the Constitution making. On the basis of the Objectives
Resolution, India’s Constitution gave institutional expression to the fundamental commitments:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute 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 26th day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. ”

Sovereignty
India is a sovereign state in the sense that it is internally supreme and externally independent.
Internally supreme in the sense that the Central government or the Indian Constitution controls
all other states and she is externally independent in the sense that India is not under the control of
any other foreign countries. She is free to conduct external relations with other countries of the
world.
According to preamble, the constitution of India has been pursuance of the solemn resolution of
the people of India to constitute India into a ‘Sovereign Democratic Republic’, and to secure well
defined objects set forth in the preamble. Sovereignty denotes supreme and ultimate power. It
may be real or normal, legal or political, individual or pluralistic. In monarchial orders,
sovereignty was vested in the person of monarchs. But, in republican form of governments,
which mostly prevail in the contemporary world, sovereignty is shifted to the elected
representatives of the people. According to D.D Basu, the word ‘sovereign’ is taken from article
5 of the constitution of Ireland. ‘Sovereign or supreme power is that which is absolute and
uncontrolled within its own sphere’. In the words of Cooley, “A state is sovereign when there
resides within itself supreme and absolute power, acknowledging no superior”. Sovereignty, in
short, means the independent authority of a state. It has two aspects- external and internal.
External sovereignty or sovereignty in international law means the independence of a state of the
will of other states, in her conduct with other states in the comity of nations. Sovereign in its
relation between states and among states signifies independence. The external sovereignty of
India means that it can acquire foreign territory and also cede any part of the Indian territory,
subject to limitations(if any) imposed by the constitution. On the other hand, internal sovereignty
refers to the relationship between the states and the individuals within its territory. Internal
sovereignty relates to internal and domestic affairs, and is divided into four organs, namely, the
executive, the legislature, the judiciary and the administrative. Though India became a sovereign
country on 26 January 1950, having equal status with the other members of the international
community, she decided to remain in the Commonwealth of Nations. Pandit Nehru declared that
India will continue – “her full membership of the Commonwealth of Nations and her acceptance
of the King as the symbol of the free association of the independent nations and as such the Head
of the Commonwealth”. Her membership of the Commonwealth of Nations and that of the
United Nations Organization do not affect her sovereignty to any extent. It is merely a voluntary
association of India and it is open to India to cut off this association at her will, and that it has no
constitutional significance.
Socialist
Before the term was added by the 42nd Amendment in 1976, the Constitution had a socialist
content in the form of certain Directive Principles of State Policy. The term socialist here means
democratic socialism i.e. achievement of socialistic goals through democratic, evolutionary and
non-violent means.Socialist state basically means that wealth is generated socially and should be
shared equally by society through distributive justice.It shall not be concentrated in the hands of
few. Government should regulate the ownership of land and industry to reduce socio-economic
inequalities.
Secular
Secular means that the relationship between the government and the people which is determined
according to constitution and law. By the 42nd Amendment in 1976, the term "Secular" was also
incorporated in the Preamble. There is no difference of religion i.e. all religion are equally
respected and moreover there is no state religion. All the citizens of India are allowed to profess,
practise and propagate any religion. Explaining the meaning of secularism as adopted by India,
Alexander Owics has written, "Secularism is a part of the basic of the Indian Constitution and it
means equal freedom and respect for all religions.
Democratic[
The people of India elect their governments by a system of universal adult franchise; popularly
known as "one man one vote". Every citizen of India, 18 years of age and above and not
otherwise debarred by law, is entitled to vote.The word 'democratic' not only refers to political
but also to social & economic democracy.
'Republic In a republic form of government, the head of the state is an elected person and not a
heredity monarch . This word denotes a government where no one holds a public power as
proprietary right . As opposed to a monarchy, in which the head of state is appointed on
hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an
entity in which the head of state is elected, directly or indirectly, for a fixed tenure.
Justice
India seeks to secure social, economic and political justice for its people.
(i) Social Justice:
Social Justice means the absence of socially privileged classes in the society and no
discrimination against any citizen on grounds of caste, creed, colour, religion, sex or place of
birth. India stands for eliminating all forms of exploitations from the society.
(ii) Economic Justice:
Economic Justice means no discrimination between man and woman on the basis of income,
wealth and economic status. It stands for equitable distribution of wealth, economic equality, end
of monopolistic control over means of production and distribution, decentralisation of economic
resources, and securing of adequate opportunities to all for earning their living.
(iii) Political Justice:
Political Justice means equal, free and fair opportunities to the people for participation in the
political process. It stands for the grant of equal political rights to all the people without any
discrimination. The Constitution of India provides for a liberal democracy in which all the
people have the right and freedom to participate.
Liberty

The idea of Liberty refers to the freedom on the activities of Indian nationals. This establishes
that there are no unreasonable restrictions on Indian citizens in term of what they think, their
manner of expressions and the way they wish to follow up their thoughts in action. This is found
to be an important tool in ensuring democratic framework. However, liberty does not mean
freedom to do anything, and it must be exercised within the constitutional limits.This is second
provision.
Equality
This envisages that no section of the society enjoys special privileges and individuals are
provided with adequate opportunities without any discrimination.All are equal in front of law.
Again, there are three dimensions of Equality - Political, Economic & Civic.
Fraternity
This refers to a feeling of brotherhood and a sense of belonging with the country among its
people. It embraces psychological as well as territorial dimensions of National Integration. It
leaves no room for regionalism, communalism, casteism etc.,which hinders the Unity of the
State.The inclusion of the word "Fraternity" was proposed by Dr. B.R Ambedkar.

The Preamble declares that fraternity has to assure two things—the diginity of the individual
and the unity and integrity of the nation. The word 'integrity' has been added to the Preamble by
the 42nd Constitutional Amendment (1976)...
Amendability
In Berubari Case (1960), The amendability& the Significance of the same came to the force. An
important & very interesting question was raised relating to the powers of the Parliament to cede
Indian territory to a foreign country, as an interpretation of the Article 3. Supreme Court had held
that the power of Parliament to diminish the area of a state as guaranteed in article 3 of the
Constitution does not cover cession of the Indian territory to a foreign country. Hence, Indian
territory can be ceded to a foreign country only by means of amendment of the Constitution
under the Article 368. Consequently, the 9th Constitutional Amendment Act, 1960 was enacted
to transfer the Berubari Union to Bangladesh (erstwhile East Pakistan). Supreme Court also held
the view that Preamble can not be a part of the constitution but later in Kesavananda Bharati
Case (1973), the Supreme Court gave a comprehensive verdict. It said that Preamble is Part of
Constitution and is subject to the amending power of the parliament as any other provisions of
the Constitution, provided the basic structure of the constitution is not destroyed.
It has been clarified by the Supreme Court of India that being a part of Constitution, the
Preamble can be subjected to Constitutional Amendments exercised under article 368, however,
the basic structure cannot be altered.
Forty-second Amendment
The preamble has been amended only once so far. On 18 December 1976, during
the Emergency in India, the Indira Gandhi government pushed through several changes in
the Forty-second Amendment of the constitution. A committee under the chairmanship of Sardar
Swaran Singh recommended that this amendment be enacted after being constituted to study the
question of amending the constitution in the light of past experience. Through this amendment
the words "socialist" and "secular" were added between the words "Sovereign" and "democratic"
and the words "unity of the Nation" were changed to "unity and integrity of the Nation".
 UNIT V

The Union and its territory- Territory of India- 35 th and 36th Amendment- Formation of new
States and alteration of boundaries etc- Procedure for Reorganisation of States- Cession of
Territory.

Part 1 of the Constitution comprising of Articles 1 to 4, provides a self-contained mechanism for

effecting changes in the constitution of states or union territories of the Union of India.

By a simple majority and by ordinary legislative process, Parliament may form a new state or
alter the boundaries, etc. of existing states and thereby change the political map of India.

Article 1 of the Constitution declares that the sovereign democratic Republic of India ‘shall be
the Union of States’. The choice for a strong federation with a strong Centre was made both for
political and administrative reasons although the move to describe the Constitution as federal
failed. The Constituent Assembly accepted the view of the Drafting Committee that describing
the Union as Federation was not necessary The Drafting committee had a purpose in choosing
the word ‘Union’, in preference to the “Federation”. They were of the view that the word
“Union” better expresses the fact that the Union of India is not the outcome of an agreement
among the old provinces with the result that it is not open to any State or a group of States to
secede from the Union or to vary the boundary of their States on their own free will. The
Chairman of the Drafting Committee, Dr. Ambedkar, said:

“ but I can tell you why the Drafting Committee wanted to make it clear that though India was to
be a Federation, the federation was not the result of an agreement by the States to join in the
federation and that the Federation not being the result of an agreement no State has the right to
secede from it. The Federation is a Union because it is indestructible. Though the country and
the people can be divided into different States for the convenience of administration the country
is one integral whole, its people a single people living under a single imperium derived from a
single source. The Americans had to wage civil war to establish that the States have no right to
secession and that their federation was indestructible. The Drafting Committee thought that it
was better to make it clear at the outset rather than to leave it to speculation.”

Article. 1: India – a union of states, its territory

Article. 1(1) declares that “India, that is Bharat, shall be a union of states” and the States and the
territories thereof are specified in the First Schedule. The expression “union” indicates that the
Indian federation is not the result of an agreement between the units it constituted of and that the
component units have no freedom to secede from the union so created. The Constituent
Assembly of India deriving its power from the sovereign people, was unfettered by any previous
commitment in evolving a constitutional pattern suitable to the genius requirements of the Indian
people as a whole.Constitution contemplated changes of the territorial limits of the constituent
States and there was no guarantee about their territorial integrity. Article. 1(3) mentions that
the “territory of India” comprises of:

(a) State territories,

(b) Union territories, and

(c) Such other territories as may be acquired by the Government of India at any time.

There are at present 28 states and 7 union territories in the union of India. No parliamentary
legislation is required to acquire a foreign territory. It is the inherent attribute of a sovereign
State to acquire new territories. Article 1(3)( c), therefore, in including the acquired territory as a
part of the Indian territory, merely states a factual situation and does not confer a power on the
Parliament to acquire a foreign territory.

In N. Masthan Sahib v. Chief Commr., Pondicherry, the apex court held that the expression
‘acquired’ [article. 1 (3)(c)] should be taken to be a reference to ‘acquisition’ as understood in
public international law. If there was any public notification, assertion or declaration by which
the government of India had declared or treated a territory as part and parcel of India, the courts
would be bound to recognize an ‘acquisition’ as having taken place, with the consequence that
the territory would be part of the territory of the union within art. 1 (3) (c). A statement by the
government of India that it did not consider a particular area to have been acquired by it is
binding on the court. It does not matter how the Acquisition has been brought about. It may be
by conquest, it may be by cession following treaty, it may be by occupation of territory hitherto
unoccupied by a recognised ruler,[7] or it may be under the terms of an agreement between two
states[8] or it may be by accretion. After independence the cases of Sikkim, Goa, Daman and
Diu, Dadra and Nagar Haveli and Pondicherry may be given as examples of acquisition.
Article. 2: Admission or establishment of new states

Article. 2 provides: “Parliament may by law admit into the Union, or establish, new states, on
such terms and conditions as it thinks fit.”

Article 2 enables Parliament by Law to admit into the Union or establish new States on such
terms as it thinks fit. It will be noted that there are two powers given to the Parliament by Article
2 namely:

1. The power to admit into Union new States and

2. The power to establish new States.

The first refers to the admission of duly organised political communities and second to the
formation of a State where none existed before. It will be recalled that the territory acquired by
the Union becomes Indian Territory by virtue of clauses 3(c) of Article 1. No Parliamentary
sanction is required for acquisition of territory acquired by the Government of India, though
factually becomes territory of India from the date of its acquisition, the formal or legal
assimilation is brought about only by Parliamentary Legislation made either under this article
when the acquired territory is established as a new State of the Union, or when the acquired
territory is merged into an existing State under Article 3 of the Constitution.” The expression
“admit” refers to the admission of a state already in existence as a ‘state’ i.e. duly organized
political community. The term “establish” refers to the creation of a state where none existed
before.

A new state may be admitted into the union in any of the following ways –

(1) An inferior category such as a union territory, may be raised to the status of full state,

(2) A foreign territory acquired by India may be made a state and admitted into the union,

(3) A territory separated from an existing state reorganized into a full state. However, article. 2
deals with admission, etc. of new states, which may be formed of the foreign territories… article.
2 does not refer to the territories forming part of the existing states (article. 3 provides for that).

Article. 2 confers full discretion on the parliament as to what terms should be imposed on the
new states so admitted into the union. The expression “by law” indicates that a legislative action
on the part of the parliament is required for the admission of a new state. Therefore, the
acquisition of a foreign territory by India automatically makes the said territory a part of the
Indian Territory under article. l(3)(c), but they said territory can be admitted as a ‘state,’ into the
union, by the process of law, enacted by parliament under article. 2.

Article. 3(a): formation of new states

Article. 3(a) empowers the parliament to form new states, by law. It may do so by any of the
following modes –

(1) By separation of territory from any state,

(2) By uniting two or more states,

(3) By uniting parts of states

(4) By uniting any territory to a part of any state.

The scope of this Article should be differentiated from that of the preceding article. Article 2
relates to admission or establishment of new states which are not part of the union, while art. 3
provides for the formation of or changes in the existing states including union territories.

It is important to note that “foreign territories” which become part of India on acquisition may:

(1) Either be admitted into the union;

(2) Constituted into new states under article. 2; or

(3) Merged into an existing state under art. 3(a) or 3(b); or

(4) Formed into a union territory.

The constitution of India does not guarantee the territorial integrity of any state of the union.
Parliament may even cut away the entire area of the state to form a new state. When a new state
is formed by uniting two or more states, the states cannot unite in some matters and not to unite
in respect of other matters.
It may also be noted that there is nothing in the constitution which would entitle a new state,
after its formation or admission into the union, to claim complete equality of status with a state
existing at the commencement of the constitution, or formed thereafter under article. 3.

Article. 3(b) to (e): alteration of areas, boundaries or names of states

The parliament may, by law, (b) increase the area of any state, (c) diminish the area of any state,
(d) alter the boundaries of any state, and (e) alter the name of any state. The parliamentary
legislation is subject to the condition laid down in proviso to art. 3.

proviso to article 3 – “no bill for this purpose shall be introduced in either house of parliament
except on the recommendation of the president, and such a bill has to be referred by the president
to the legislature of that state for expressing its views thereon”.

The state legislature is required to express its view within a specified time period as directed by
the president. He may extend the time so specified. The parliament, however, is not bound to
accept these views. Once the bill has been referred to the concerned state legislatures, and
thereafter duly introduced in parliament, subsequent amendments seeking to make provisions
different from those contained in the original bill at the time of its introduction, are not required
to be referred again to the state legislatures (if the amendments are germane to the subject matter
of the original proposal or are not a direct negation thereof). Also, no fresh recommendation of
the president is necessary for the consideration of the proposed amendment to the bill THE
CONSTITUTION (EIGHTEENTH AMENDMENT) ACT, 1966- This Act adds two
explanations to Article 3, incorporating the decision of the Supreme Court in the Ram Kishore
Sen v. Union of IndiaThis case had clarified that the term ‘State’ in Article 3 includes a ‘Union
Territory’

Explanation 1 to article. 3 – The term “state” in clauses (a) to (e) of article. 3 include a “union
territory”. But the term “state” used in proviso to article. 3 does not include a union territory (the
reason being that the union territories are under the administration of the president himself).

Explanation 2 to article. 3 – The power conferred on parliament by clause (a) of article. 3, to

form a new state, include the power to form a new union territory also.

Article. 4: Supplemental matters

Article. 4(1) directs the parliament, in case it makes a law under article. 2 or 3, to include therein
necessary provisions (supplement, incidental and consequential) for the amendment of first and
fourth schedules of the constitution[. The first schedule specifies the number of states which are
members of the union and their respective territories. The fourth schedule specifies the number
of seats to which each state is entitled to in the council of states.

Article. 4(2) said that laws relatable to article. 2 or 3 do not amount to constitutional amendments
for the purposes of article. 368. Thus, such laws may be passed by the parliament by simple
majority procedure (subject to the requirements laid down by proviso to article. 3) and without
going through the special majority procedure prescribed by article 368.

Cession of territory to a foreign state

The powers given to parliament to reorganize states cannot be availed of by it to cede any Indian
territory to a foreign country.

The term ‘Sikkim’ literally means new palace in the Limbu language. Historically, Sikkim was a
small Buddhist kingdom with close religious and cultural ties to the Tibet. Since 17th century, it
was ruled by its hereditary monarch called Chogyal. From 1886 onwards, it remained a British
Protectorate subject to British Paramountcy, thus its position was like other princely states of
India.
In 1947, when India became independent, a popular vote in Sikkim rejected joining Indian
Union. However, those were the days to rise of communists in China. When China’s People’s
Liberation Army marched into Tibet in 1950, India vociferously protested against this invasion
but was unable to do anything substantial. As China neared its victory in Tibet, Nehru rushed
through a series of defense treaties with Bhutan (August, 1949), Nepal (July, 1950) and Sikkim
(December, 1950). These countries constituted Nehru’s definition of a redrawn security zone.
Throughout 1950s, Nehru tried to demonstrate his serious commitment towards this Himalayan
doctrine. In February 1951, Nehru established the North and North-Eastern Defence Committee
and visited the North-East Frontier Agency (NEFA), Sikkim and Bhutan. In summary, Nehru
offered support to Nepal, Bhutan and Sikkim in case of Chinese invasion.
The treaty signed between India and Sikkim made the kingdom to hand over all of Sikkim’s
external relations to India, allowed the stationing of Indian troops and prohibited the kingdom
from “dealings with any foreign power”.
Thus, this treaty gave Sikkim status of a protectorate with Chogyal as the Monarch. Chogyal
Tashi Namgyal died in 1963 and was succeeded by his son Palden Thondup Namgyal. However,
there was a growing dichotomy among the people and Namgyals. Namgyals wanted full
sovereignty but majority of the people of the state including some local political fronts wanted
removal of monarchy and a democratic set up along with accession to Union of India. This
finally culminated in wide spread agitation against Sikkim Durbar in 1973. These agitations led
to a complete collapse of administration. On 8 May 1973, a historic agreement was signed
between the Chogyal, the Government of India and the political leaders of Sikkim, which
acknowledged the important role of the people in the affairs of Sikkim.
In 1974, the Sikkim Assembly passed a Government of Sikkim Act, 1974, which paved the way
for setting up the first ever responsible government in Sikkim and sought Sikkim’s
representation in the political institutions of India. India also passed the 35th Amendment Act
1974 which inserted a new article 2A {Sikkim to be associated with Union} and a 10th schedule.
But making Sikkim an associate state of the Union would have set wrong precedence in longer
term. Additional anomaly was exclusion of Sikkim MPs from voting in election of President and
Vice-President.
In 1975, the KaziLhendupDorjee (Prime Minister in Sikkim) appealed to the Indian Parliament
for a change in Sikkim’s status so that it could become a state of India. In April that year, the
Indian Army took over the city of Gangtok and disarmed the Palace Guards. Then came a
referendum in 1975 which approved {by around 97% votes} abolition of monarchy and complete
merger of Sikkim with India. This referendum has been a subject of debates, criticism and
conspiracy theories in western, Chinese and communist media, which called it an illegal
annexation.
The referendum was followed by yet another amendment of Indian Constitution as Thirty-sixth
Amendment Act, 1975. The Article 2-A and Xth schedule were repealed and name of Sikkim
was added as a state under first Schedule of the Constitution. With this, Sikkim emerged as
India’s 22nd state on 26th April, 1975. The Sikkim State day is observed on 16th May of every
year because this was the day when the first Chief Minister of Sikkim assumed office.
Current 10th Schedule in Indian Constitution
Since 10th Schedule was omitted in 36th amendment, it was later reinserted by 52nd
Amendment Bill, 1985 as Anti Defection Law.
Special Provisions for Sikkim
Sikkim enjoys Constitutional safeguards under Article 371(F). Safeguards are mentioned under
part XXI-Temporary, transitional and special provisions of the Indian constitution.
China’s stand on Sikkim’s merger
For decades after 1975, China refused to accept Sikkim as an integral part of India, insisting that
the referendum conducted was a farce and merger was actually a forcible annexation by India. It
continued to release maps showing Sikkim as an Independent State.
However, for the first time in 2003, China removed Sikkim from its website of Independent
Asian countries. China was the only country at that point of time that did not recognize Sikkim
as an Indian State. Earlier, China was saying that it would recognize Sikkim as a part of India in
exchange for full Indian recognition of Tibet as a part of China.
India and China had signed a memorandum of understanding to start border trade through Nathu
La Pass in Sikkim and Tibet. India had interpreted Nathu La’s acceptance as the Indian trade
point by China as its approval of recognizing Sikkim as an integral part of India.
 UNIT-VI

CITIZENSHIP

Part II of the Constitution of India (Articles 5-11) deals with the Citizenship of India. Article 5
speaks about citizenship of India at the commencement of the Constitution (Nov 26, 1949).
Article 11 gave powers to the Parliament of India to regulate the right of citizenship by law. Thus
Citizenship Act 1955 was enacted by the Parliament. It is an act to provide for the acquisition
and termination of Indian citizenship and the same acts speaks about citizenship of India after the
commencement of the Constitution.

The major issues in Constituent assembly on citizenship For the constitution assembly, to arrive
at a final draft for Citizenship was one of the most arduous tasks while framing the constitution.
The problem was partition of India on one hand and India being recreated by uniting the princely
states on the other. India’s partition into India and Pakistan caused millions of people cross the
border. The Hindus and Sikhs who were born in Pakistan side came to India and Muslims who
were born in India migrated to Pakistan. Apart from that, there were people who had left their
homeland India and started living abroad and now wanted to come back as the country was a free
nation. The assembly created and destroyed many drafts regarding the citizenship and even the
final draft was amended for more than 100 times before it was finally incorporated in the
Constitution as Part II.

The problem of citizenship was basically as follows: The people who were born and living in
Pakistan and migrated to India were to be provided Indian Citizenship. The people who were
born and living in India and migrated to Pakistan were to be excluded and debarred from Indian
Citizenship. People who migrated to Pakistan in 1947 but returned back to live in India
permanently had to be provided Citizenship. The people who were born in India, but living
abroad but came back, had to be provided citizenship.

Article 5: Citizenship at the commencement of the Constitution

At the commencement of this Constitution, every person who has his domicile in the territory of
India and- who was born in the territory of India; or either of whose parents was born in the
territory of India; or who has been ordinarily resident in the territory of India for not less than
five years immediately preceding such commencement, shall be a citizen of India. Article5 refers
to the Citizenship on January 26, 1950. This article provided that the ordinary resident in the
territory of India since or before January 26, 1945 were deemed to be Indian Citizens. But what
about the people who came from Pakistan after 1947 partition? This is clarified in Article
6. Article 6: Rights of citizenship of certain persons who have migrated to India from
Pakistan

Notwithstanding anything in article 5, a person who has migrated to the territory of India from
the territory now included in Pakistan shall be deemed to be a citizen of India at the
commencement of this Constitution if- he or either of his parents or any of his grand-parents was
born in India as defined in the Government of India Act, 1935 (as originally enacted); and

 in the case where such person has so migrated before the nineteenth day of July, 1948, he
has been ordinarily resident in the territory of India since the date of his migration, or
 in the case where such person has so migrated on or after the nineteenth day of July,
1948, he has been registered as a citizen of India by an officer appointed in that behalf by
the Government of the Dominion of India on an application made by him there for to
such officer before the commencement of this Constitution in the form and manner
prescribed by that Government:

Provided that no person shall be so registered unless he has been resident in the territory of India
for at least six months immediately preceding the date of his application. Article 6 deals with
those persons who migrated to India from Pakistan. India as defined in the Government of India
Act, 1935 means undivided India. These persons were divided into two categories.

Category 1: Those who came before July 19, 1948

Category 2: Those who came after July 19, 1948 Those who came from Pakistan to India before
July 19, 1948 would automatically become Indian Citizens.

Those who came after July 19, 1948 would become Indian Citizens provided they had been
registered in the form and manner as prescribed by the Government of India.

Article 7: Rights of citizenship of certain migrants to Pakistan

Notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947,
migrated from the territory of India to the territory now included in Pakistan shall not be deemed
to be a citizen of India: Provided that nothing in this article shall apply to a person who, after
having so migrated to the territory now included in Pakistan, has returned to the territory of India
under a permit for resettlement or permanent return issued by or under the authority of any law
and every such person shall for the purposes of clause (b) of article 6 be deemed to have
migrated to the territory of India after the nineteenth day of July, 1948. Article 7 deals with those
persons who had migrated to Pakistan but returned to India from Pakistan with intention to live
here permanently. Please note that this article deals with the “permit system”. The permit system
was introduced in July 19, 1948. This system provided that a person who is desiring to return
back to India with an intention to permanently reside was required to get a separate permit.

Article 8: Rights of citizenship of certain persons of Indian origin residing outside

IndiaNotwithstanding anything in article 5, any person who or either of whose parents or any of
whose grand-parents was born in India as defined in the Government of India Act, 1935 (as
originally enacted), and who is ordinarily residing in any country outside India as so defined
shall be deemed to be a citizen of India if he has been registered as a citizen of India by the
diplomatic or consular representative of India in the country where he is for the time being
residing on an application made by him therefor to such diplomatic or consular representative,
whether before or after the commencement of this Constitution, in the form and manner
prescribed by the Government of the Dominion of India or the Government of India.

Article 8 deals with those persons who were living abroad. The article provides that any person
who was born or his parents /grandparents were born in undivided India but living abroad and
wants to return to India would need to be registered at the as Citizen of India by the diplomatic
or consular representative of India in that country.

Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens

No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India

by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign
State. Under article 9 of the constitution, any person who has voluntarily acquired the citizenship
of a foreign country, even if qualified for Indian Citizenship under any of the provisions of the
constitution will not be a Citizen of India.

Plenary Power to parliament: Article 10 & 11

Article 10: Continuance of the rights of citizenship

Every person who is or is deemed to be a citizen of India under any of the foregoing provisions
of this Part shall, subject to the provisions of any law that may be made by Parliament, continue
to be such citizen.

Article 11: Parliament to regulate the right of citizenship by law

Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to
make any provision with respect to the acquisition and termination of citizenship and all other
matters relating to citizenship. The nature of provisions from Article 5 to 9 show that the
objective of the constituent assembly was not to make a permanent law for citizenship. Ours is a
Republic Country and various offices are to be occupied by the persons who are elected by the
citizens.

So, keeping this in view, it was necessary for the Constituent Assembly to make some provisions
which could precisely determine that who is a Citizen of Independent Indian Dominion and who
is not, at the time of the commencement of the constitution. Further, the constituent also gave
plenary power to the parliament of India to deal with the question of nationality. Article 10 and
more precisely Article 11 give the power to the parliament to make law in this connection as and
when it suits to the demands of the circumstances. The power in parliament vested by Article 11
embraced not only acquisition but also the termination or any other matter related to Citizenship.
Using the power vested in parliament by Article 11 of the Constitution of India, a comprehensive
law “The Citizenship Act, 1955” was passed by the parliament. This act has been amended from
time to time to make space for provisions as and when required.

Case No 1: Akbar Khan Vs Union of India AIR 1962 SC 70

This is a case in which a civil suit was filed by the appellant in District Court of Jhabua, Madhya
Pradesh for a declaration that he was a citizen of India. In the pleading it was mentioned that he
was citizen of India at the commencement of the Constitution. He went to Pakistan for temporary
visit. He was forced to take Pakistan Passport against his will to enter into India.

Given the background of the case, defense was taken of the provision of Section 9(2) of the
Citizenship Act, 1955 alleging that civil court’s jurisdiction is barred. The trial court as well as
the MP High Court dismissed the suit as barred. In SLP, the Supreme Court has made the
interpretation of the section in its proper context. As any provision affecting jurisdiction of court
has to be strictly construed, the proper interpretation is that only the matters which is subject to
determination by the Central Government, civil court has no jurisdiction. Only the question
whether, how and when the citizen of India voluntarily acquired citizenship of foreign country,
are subject to determination by the Central Government. The question whether the person is an
Indian citizen or not is within the civil court’s competence. In deciding the suit, if any such issue
comes, then it should be referred to the Central Government for its decision which would be
final.

Case No 2: State of Gujarat Vs Yakub Ibrahim AIR 1974 SC 645

In this case, the Respondent was charged with Foreigners’ Order, 1958 for overstaying in India.
He was there in India on a Pakistani Passport. In the trial court, plea was taken that he was
citizen of India at the commencement of the Constitution. He went to Pakistan and against his
will he had to take Pakistan Passport to enter India.

One of the questions in this case was whether during the material point of time he was a foreign
national. As a corollary to it one issue was whether he lost Indian citizenship. The trial court and
High Court acquitted on the ground that no decision of Central Government was produced by the
prosecutors u/s 9(2) of Citizenship Act, 1955. On SLP by the State, the Supreme Court held that
the prosecution has to be based on the determination of the issue by the Central Government
under Section 9(2). Criminal court has no jurisdiction to determine the same. As no charge can
be framed without the determination, the court can neither convict nor acquit.

Case No 3: Bhagwati Prasad Dixit Vs Rajeev Gandhi AIR 1986 SC 1534

This is an Election Petition in which the election of Rajeev Gandhi from Amethi Parliamentary
Constituency was challenged on various grounds- one of which was that he voluntarily acquired
citizenship of Italy by marrying one Italian National and acquiring property there. The Supreme
Court dealt with the issue by making strict interpretation of the provision of Section 9(2) of the
Act.

There was no dispute that the Respondent was a citizen of India. In the system of law provided
by Section 9, the question of acquision of foreign citizenship has to be decided by the Central
Government. In the absence of such determination, it has to be presumed that the Respondent is a
citizen of India. The High Court acting as a Election Tribunal has only limited power. No power
to determine such question which by law, is conferred on the Central Government, can be made
by the High Court.

Conclusion

The three cases, mentioned above, show how the Section 9 (2) of Citizenship Act, 1955 has
been construed under different situations. The age-old judicial wisdom to construe such
provisions affecting the jurisdiction of courts strictly and only in the context in which it is
enacted is very much visible.
 UNIT-VII

Fundamental Rights – Nature, Scope and importance

India guarantees a set of rights considered essential for protecting human dignity which is known
as Fundamental Rights. The Fundamental Rights, as embedded in the Indian Constitution, ensure
equal and fair treatment of the citizens before the law. The rights that are basic to the
advancement of the human race are called Fundamental Rights. All other rights are derived from
these rights as direct implications or application of their principles. It is an accepted belief among
the philosophers that these rights are nothing but “natural human rights”, which distinguish
between humans and animals and which have been so instrumental in bringing humans from the
stone age to the present age. Among all, the right to life and liberty is considered to be the most
basic.

The history of legally enforceable fundamental rights probably starts from Magna Carta, which
was a list of rights extracted from Kind John by the people of England in 1214 AD. This was
followed by the “Bill of Rights” in 1689 in which Englishmen were given certain civil and
political rights that could not be taken away. Later on the French compiled the “Declaration of
the rights of Man and of the Citizen” after the French Revolution in 1789.

The most important advancement in history of fundamental rights occurred when the USA
incorporated certain fundamental rights in the form on “Bill of Rights” in their constitution by
the way of first 10 amendments. These rights were deemed to be beyond the vagaries of
politics. The protection by the constitution meant that these rights could not be put to vote and
were not dependent on the whims of politicians or of the majority. After this, nearly all
democracies of the world have given a constitutional sanctity to certain inalienable rights
available to their citizens.

Need for Fundamental Rights

1. Rule of Law – These rights are a protection to the citizens against the govt. and are
necessary for having the rule of law and not of a govt. or a person. Since explicitly given
by the constitution to the people, these rights dare not be transgressed by the authority.
The govt. is fully answerable to the courts and is fully required to uphold these rights.
2. First fruits of the freedom struggle – After living in subjugation for such a long time,
people had forgotten what is meant by freedom. These rights give people hope and belief
 that there is no stopping to their growth. They are free from the whims of the rulers. In
that sense, they are first fruits of the lengthy freedom struggle and bring a sense of
satisfaction and fulfillment.
3. Quantification of Freedom – Even citizens in gulf countries or communist countries are
free. Then how is our freedom different from theirs? The list of fundamental rights is a
clear measurement for how free we really are. As an example, every Indian citizen in
free to practice a religion of his choice, but that is not so in the gulf countries. Our right
to speech and expression allows us to freely criticize the govt. but this is not so in China.

The development of constitutionally guaranteed fundamental human rights in India was

inspired by historical examples such as England's Bill of Rights (1689), the United States
Bill of Rights (approved on 17 September 1787, final ratification on 15 December 1791)
and France's Declaration of the Rights of Man (created during the revolution of 1789, and
ratified on 26 August 1789).[2] Under the educational system of British Raj, students were
exposed to ideas of democracy, human rights and European political history. The Indian
student community in England was further inspired by the workings of parliamentary
democracy and Britishers political parties.[3]
4. In 1919, the Rowlatt Act gave extensive powers to the British government and police,
and allowed indefinite arrest and detention of individuals, warrant-less searches and
seizures, restrictions on public gatherings, and intensive censorship of media and
publications. The public opposition to this act eventually led to mass campaigns of non-
violent civil disobedience throughout the country demanding guaranteed civil freedoms,
and limitations on government power. Indians, who were seeking independence and their
own government, were particularly influenced by the independence of Ireland and the
development of the Irish constitution. Also, the directive principles of state policy in Irish
constitution were looked upon by the people of India as an inspiration for the independent
India's government to comprehensively tackle complex social and economic challenges
across a vast, diverse nation and population.
5. In 1928, the Nehru Commission composing of representatives of Indian political parties
proposed constitutional reforms for India that apart from calling for dominion status for
India and elections under universal suffrage, would guarantee rights deemed
fundamental, representation for religious and ethnic minorities, and limit the powers of
the government. In 1931, the Indian National Congress (the largest Indian political party
of the time) adopted resolutions committing itself to the defence of fundamental civil
rights, as well as socio-economic rights such as the minimum wage and the abolition of
untouchability and serfdom.[4]Committing themselves to socialism in 1936, the Congress
leaders took examples from the constitution of the erstwhile USSR, which inspired the
 fundamental duties of citizens as a means of collective patriotic responsibility for national
interests and challenges.
6.
7. Task of developing a constitution for the Constituent Assembly of India, composing of,
undertook the nation elected representatives. Constituent Assembly first met on
December 9, 1946 under the presidency of Dr. Sachidanand later Dr. Rajendra Prasad
was made its President. While members of Congress composed of a large majority,
Congress leaders appointed persons from diverse political backgrounds to responsibilities
of developing the constitution and national laws.[ Notably, Bhimrao Ramji Ambedkar
became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar
Vallabhbhai Patel became chairpersons of committees and sub-committees responsible
for different subjects. A notable development during that period having significant effect
on the Indian constitution took place on 10 December 1948 when the United Nations
General Assembly adopted the Universal Declaration of Human Rights and called upon
all member states to adopt these rights in their respective constitutions.
8. The fundamental rights were included in the First Draft Constitution (February 1948), the
Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26
November 1949) prepared by the Drafting Committee.
9. The fundamental rights have been revised for many reasons. Political groups have
demanded that the right to work, the right to economic assistance in case of
unemployment, old age, and similar rights be enshrined as constitutional guarantees to
address issues of poverty and economic insecurity, though these provisions have been
enshrined in the Directive Principles of state policy.[] The right to freedom and personal
liberty has a number of limiting clauses, and thus have been criticised for failing to check
the sanctioning of powers often deemed "excessive". There is also the provision of
preventive detention and suspension of fundamental rights in times of Emergency. The
provisions of acts like the Maintenance of Internal Security Act (MISA) and the National
Security Act (NSA) are a means of countering the fundamental rights, because they
sanction excessive powers with the aim of fighting internal and cross-border terrorism
and political violence, without safeguards for civil rights. The phrases "security of State",
"public order" and "morality" are of wide implication. People of alternate sexuality are
criminalized in India with prison term up to 10 years. The meaning of phrases like
"reasonable restrictions" and "the interest of public order" have not been explicitly stated
in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to
assemble peaceably and without arms is exercised, but in some cases, the police through
the use of non-fatal methods break up these meetings.
 10. "Freedom of press" has not been included in the right to freedom, which is necessary for
formulating public opinion and to make freedom of expression more
legitimate. Employment of child labour in hazardous job environments has been reduced,
but their employment even in non-hazardous jobs, including their prevalent employment
as domestic help violates the spirit and ideals of the constitution. More than 16.5 million
children are employed and working in India.[ India was ranked 88 out of 159 in 2005,
according to the degree to which corruption is perceived to exist among public officials
and politicians worldwide.] The right to equality in matters regarding public employment
shall not be conferred to overseas citizens of India, according to the Citizenship
(Amendment) Bill, 2003.

Fundamental Rights in India.

Technically speaking, the rights specified in Part III (Art 12 to 35) of the constitution are the
fundamental rights available to the citizens of India. In the case of Menaka Gandhi vs Union of
India AIR 1978, J. Bhagvati has said that these rights represent the values that are cherished by
the people of this country since the vedic ages and are calculated to protect the dignity of
individual and to create conditions in which every human being is able to develop his personality
to the fullest. These rights are necessary for a human being for attaining full social, intellectual,
and spiritual status.

These rights can be grouped into 6 categories –

1. Articles 14-18 Right to Equality – Art. 14 ensures that all citizens are treated equally. It
enshrines the principle of “Equality before law and Equal protection of law”. However,
this brings us to an important question. Should people living in unequal circumstance be
treated equally? In Indian Constitution, the answer is a resounding no. We have adopted
the mantra of “equal treatment under equal circumstances”. This is reflected in Art 15,
which, while prohibits the state from discriminating between the citizens only on the
grounds of Caste, Race, Religion, Sex, and Place of Birth or all of them[ Art 15(1) ], also
allows the state to make special provisions for Women and Children [Art 15(3)] and for
Backward classes [Art 15(4)].

Art. 16 takes the same principle further to employment in govt. jobs.

Art. 17 abolishes untouchability and Art. 18 abolishes various titles such as Rai Bahadur that
used to be given in the British rule.
The cases of Lindsley v Natural Carbonic Gas Co, US SC 1910 and Chiranjit Lal v Union of
India SC AIR 1951 are important cases that illustrate the concept of equal protection of the laws.
In these cases, the SC of both the countries held that all persons similarly circumstanced should
be treated equally. Only like should be treated alike and thus a reasonable classification can be
done. Several cases such as Randhir Singh v Union of India 1982 (Equal pay for equal work)
illustrate the principle of equality.
The SC judgment in Indra Sawhney v Union of India AIR 1993 incorporates the element of
fairness in dealing with inequalities in the society, while balancing the aspirations of the socially
forward classes.

2. Articles 19-22 Right to Freedom – A citizen of India is given freedom of Speech and
Expression, freedom of Assembly, freedom of Association, freedom of Movement,
freedom of Residence, and Freedom of Profession and Occupation through Art. 19.
20 gives protection with respect to conviction of offenses. This includes the principles of
 Ex-post facto law: A person can only be with charged with an offence of an action if the
said action was illegal as per the law of the time when the action was committed.
 Double jeopardy: A person cannot be charged with the same crime if he has already been
produced before the court and a verdict has been pronounced.
 Self- incrimination: A person will not be forced to testify against himself.

Art. 21, which is the most important and diverse of all the rights to freedom, is the Protection of
Life and Personal Liberty. SC in Menaka Gandhi v Union of India AIR 1978 was a landmark
case that gave wide interpretation of this right. In this case the SC held that his right is not only
about having any kind of life but a life of dignity. The freedom is not just physical but mental as
well as spiritual. This encompasses several rights such as right to travel abroad (Satvant Singh v
Ass. Passport Office AIR 1967) and right to pollution free water and air (Subhash Kumar v State
of Bihar AIR 1991). Further, Constitution Amendment Act 86, 2002 makes free and compulsory
education to children under 14 a fundamental right.

Art. 22 gives protection from illegal arrest or detention. It provides that a person must be
informed of the grounds of arrest as soon as possible, be allowed to speak to a lawyer of his
choice, and be produced before a magistrate within 24 hrs. of detention.

3. Art 23-24 Right Against Exploitation – Under Art. 23, the govt. has banned trade in
human beings. This includes flesh trade and forced work or work without pay (begar
system).
24 prohibits children from being employed in factories and hazardous conditions.
 4. Art 25-28 Freedom of Religion – Unlike several countries of the world, we are free to
practice, profess, and propagate any religion under Art. 25. Art. 26 allows us to establish
and maintain institutions for religious and charitable purposes. It also gives the right to
manage our own religious matters. Art. 27 provides tax benefits for promotion of religion
and art. 28 prohibits religious teaching in govt. and govt. aided schools.
5. 29-30 Cultural and Educational Rights – Art. 29 allows any section of citizens living
anywhere in India who have a distinct language, script, or culture, to preserve the
same. Art. 30 allows minorities to establish and maintain educational institutions. To
prevent discrimination, however, art 29(2) prohibits them from discrimination
in admissions only on the grounds of religion, race, caste, language, or any of them.
6. Art 32 Right to Constitutional Remedies – Dr. Ambedkar, the chief architect of our
constitution, has said that Article 32 is the soul of our constitution. All the talk of rights is
useless if there is no recourse against their transgression. Under this article, a citizen is
free to go to the Supreme Court for violation of his rights.

Scope of Fundamental Rights

Widest Possible Interpretation – SC in A K Gopalan v State of Madras AIR 1950 had held that
the various rights given under part III talk about different things and are not be interlinked. This
view, however, has been rightly rejected by the SC in Menaka Gandhi v Union of India AIR
1978 case. In this case, J Bhagvati said that the role of SC should be to interpret these rights in
the widest possible manner and it should not attenuate these rights by being confined to their
narrow definition. All these rights are not mutually exclusive and form an integrated theme of the
constitution. J Beg said that their waters must mix to form a grand flow of unimpeded and
impartial justice. Thus, any law that takes away the life or liberty of a person, must also satisfy
the test of reasonableness under art. 14.
Natural Justice and Due Process

In Menaka Gandhi’s case, SC has held that any law that takes away the life or liberty of a person
under art. 21, must be just, fair, and reasonable. It must satisfy the principle of natural justice,
which is a basic component of fair procedure under Art. 21. While Art 21 does not contain the
“due process” clause of the American Constitution, the effect is the same because natural justice
is a distillate of due process i.e. natural justices can only be delivered through due process.

Expanding the role of writ of Habeas Corpus

The case of Sunil Batra v Delhi Admin AIR 1980 has given tremendous power to the writ of
Habeas Corpus. It allows the judiciary to even enforce the fundamental rights in a prison. Even
prisoners are humans and must be treated with dignity. They cannot be stripped off of their
fundamental rights, thus menial or forced work without pay, solitary confinement, degrading
punishment, is not allowed. This case has also allowed people who are not directly involved but
have any kind of interest to approach the court. The objective is to remove injustice wherever it
is found in the society.

Absoluteness of Fundamental Rights

“Your freedom ends where my freedom starts” is a well-known saying. The constitution gives
you the right to propagate your religion. But does that mean you should force me to hear
religious activities over the loudspeaker? The constitution gives you the freedom of speech and
expression. But does that mean you can publish and sell pornography freely in open market?
These things clearly tell us that no right is absolute. Indian Constitution also takes the same stand
and specifies the limits of these rights. These rights extend only until they do not affect security
of the state, public order, and social decency. The constitution allows reasonable restrictions to
be placed on these rights. SC in A K Gopalan v State of Madras 1950 has also held that
Fundamental Rights are not absolute.
Suspension of Fundamental Rights

Under art 358, freedoms given under art 19 are suspended when the president proclaims
emergency. Further, under art 359, president may suspend the right to move courts for violation
of rights given in part III except art 20 and 21.
Critical Analysis

Indian Constitution was written after a thorough analysis of existing constitution of the world.
The framers of the constitution have incorporated the good things from all the places. As such it
is more fair and consistent than religious books. It is for the foresight of the framers of the
constitution that the country is integrated and has progressed. While the framers had thought
about a lot of things, the one thing that they probably missed was the safeguards against the
degrading morality of politicians.

Purpose of Article 12 and Article 13

In enacting fundamental rights in part III of our Constitution, the founding fathers showed that
they had the will, and they were ready to adopt the means to confer legally enforceable
fundamental rights. First, against whom were the fundamental rights to be enforced? Broadly
speaking, against “the State”, not as ordinary understood but as widely defined by Art. 12.

Secondly, against what activity were fundamental rights enforceable? They were enforceable
against laws and executive actions, which violated fundamental rights. In brief, all laws
contravening and/or violating fundamental rights were declared to be pro tantovoid as defined in
Art. 13.

Article 12 of the Constitution of India

Article 12 is the first Article in Part III of the Constitution of India. It states that:

“Definition in this part, unless the context otherwise requires, the State includes the Government
and Parliament of India and the Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the control of the Government of
India.”

Article 12 gives an extended significance to the term ‘state’. Art 12 clarifies that the term ‘state’
occurring in Art 13(2), or any other provision concerning Fundamental Rights, has an expansive
meaning.

According to Art. 12, the term ‘state’ includes –

1. The Government and Parliament of India;

2. The Government and the Legislature of a State;

 All local authorities; and

1. Other authorities within the territory of India, or under the control of the Central
Government.

It has been pointed out at the outset that the device of guaranteeing fundamental rights by a Bill
of Rights in a written Constitution was to protect the individual from governmental aggression
and not from aggression by another individual,[xi] for which remedies under ordinary law were
sufficient. It was to bind the state itself, the makers of laws, that fundamental rights have their
origin.

Scope of Article 12:

The definition of Article 12 is only for the purpose of application of the provisions contained in
Part III. It cannot be used to interpret any provision outside Part III, e.g., Art. 311.[xiii] Within
the territory of India or under the control of the Government of India is limited in its application
only to Part III and by virtue of Art. 36, to Part IV: it does not extend to other provisions of the
Constitution and hence a juristic entity which may be a ‘State’ for the purpose of Part III and Part
IV would not be so for the purpose of Part XIV or any other provisions of the Constitution.
Hence, even though a body of persons may not constitute ‘State’ within the instant definition, a
writ under Art. 226 may lie against it on the non-constitutional grounds or on ground of
contravention of some provisions of theConstitution outside Part III, e.g., where such body has a
public duty to perform or where it’s acts are supported by the State or public officials.

Definition of State:

Initially, the definition of State was treated as exhaustive and confined to the authorities or those
which could be read ejusdem generis with the authorities mention in the definition of Art. 12
itself. The next stage was reached when the definition of “State” came to be under stood with
reference to remedies available against it. Thus a statutory corporation, with regulations framed
by such corporation pursuant to statutory powers was considered a State, and public duty was
limited to those which were created by statute. The picture that ultimately emerges is that the
tests formulated in Ajay Hasiaare not a rigid set of principles so that, if a body falls within any
one of them, it must, ex hypothesi, be considered to be a State within the meaning of Art. 12. The
question in each case would be – whether in thelight of cumulative facts as established, the body
is financially, functionally and administratively dominated by or under the control of the govt.
Such control must be particular to the body in question and must be pervasive. If this is found,
then the body is a State within Art. 12. On the other hand, when the control is merely regulatory
whether under statute or otherwise, it would not serve to make the body a State. Hence, when the
body is financially, functionally and administratively dominated by or under the control of the
government and such control is particular to the body and is pervasive, then it will be a ‘State’
within Art. 12. If the control is merely regulatory, it will not be a ‘State.’

Thus,the definition of ‘State’ in Art. 12 will include not only the Executive and
Legislativeorgans of the Union and the States, but also local bodies (such as municipal
authorities) as well as ‘other authorities’,[xx] which include the ‘instrumentalities and agencies’
of the State, or bodies or institutions which discharge public functions of a governmental
character, or in other words, it comprises all acts which can be brought within the fold of ‘State
action.’

Definition of Authority:

Literally ‘authority’ means a ‘person’ or a ‘body’ exercising power,[xxiii] or having a legal right
to command and be obeyed.

In Art. 12 “State” has not been defined. It is merely an inclusive definition. It includes all the
authorities within the territory of India or under the control of the Government of India. The
word “or” is disjunction and not conjunctive. The expression “authority” has a definite
connotation. It has different dimensions and, thus, must receive a liberal interpretation.
The term is wide enough to include all bodies created by the statute on which powers are
conferred to carry out governmental or quasi- governmental functions. The word ‘authority’
includes Central and State government.

The word ‘State’ and ‘Authority’ used in Art. 12 remain among “the great generalities of the
Constitution” the concept of which has been and continues to be applied by Courts from time to
time. It thus includes all constitutional and statutory authorities on whom powers are conferred
by law, including even autonomous bodies, and whether or not they are under the control of the
Government or whether or not they may be regarded as agents or delegates of the government.

Definition of Local authorities:- The expression “local authorities’ refers to authorities like
municipalities, district boards, panchayats, improvement trusts, port trusts, mining settlement
boards, etc., Rashid Ahmed v. M.B. Kairana, is one of the earliest instances where a municipal
board was held to be a local authority under Article12.

Other Authorities included under Article 12:

Laying down the propositions in Electricity Board, Rajasthan v. Mohan lal case, the Supreme
Court held that ‘other authorities’ would include all authorities created by the Constitution or
statute on which powers are conferred by law. It was not necessary that the statutory authority
should be engaged in performing government or sovereign functions. In support the court cited,
articles 19(1) (g) and 298 which contemplate engagement of the State in trade or business and
article 46 which requires the State to promote educational and economic interests of the weaker
sections of the people. In these cases ‘other authorities’ would cover bodies created for
thepurpose of performing commercial activities or for promoting the educational and economic
interests of the weaker sections of the people. The court also noted that in the instant case the
Rajasthan Electricity Board had power to give directions, the disobedience of which was
punishable as an offence. This decision in effect overruled earlier decisions holding ‘university’
not to be “the State” within the meaning of article 12. Accordingly, the universities have been
later held to be “the State”.

List of ‘other authorities’ coming under Art. 12:

There is no common feature running through the various bodies,[xxxv] which have been held to
be covered by the expression ‘other authorities’.

The expression refers to –

1. Instrumentalities or agencies of the Government and Government

Departments.[xxxvii] But every instrumentality of Government is not necessarily a
‘Governmental Department’.
2. Every type of public authority, exercising statutory powers,[xxxix] whether such powers
are governmental or quasi-governmental or non-governmental, and whether such
authority is under the control of government or not, and even though it may be engaged
in carrying out some activities in nature of trade or commerce, e.g., A board, a
University, the Chief Justice of High Court, having the power to issue rules, bye-laws or
regulations having the force of law or the power to make statutory appointments; a public
corporation, a government undertaking.
  An authority set under a statutefor the purpose of administering a law enacted by the
legislature, including those vested with a duty to make decisions in order to implement
them.

1. A private body or a company,

2. Society registered under the Societies Registration Act.
3. Corporation set up under the State Financial Corporation Act, 1951.

But a non-statutory body, exercising no statutory powers is not a ‘State’, e.g.,

1. A company.
2. Private bodies having no statutory power, not being supported by a state act.

 A society registered under the Societies Registration Act, unless it can be held that the
society was an instrumentality or agency of the State, orexercises statutory powers to
make rules, bye-laws or regulations having statutory force.

1. An autonomous body, which is controlled by the Government only as to the proper

utilization of its financial grant.

Even a private body or a corporation or an aided private school may however, be included within
the definition of ‘State’ if it acts as an ‘agency’ of the Government.

In determining whether a corporation or a Government company or a private body is an

instrumentality or an agency of the state, the following tests would be applicable:

1. Whether the entire share capital is held by the government.

2. Whether the corporation enjoys the monopoly status conferred by the State.

 Whether the functions of the corporation are the governmental functions or functions
closely related thereto which are basically the responsibilities of a Welfare State.

1. If the department of the Government has been transferred to the corporation.

2. Volume of financial assistance received from the State.
3. The quantum of State control.

 Whether any statutory duties are imposed upon the corporation.

 The character of the corporation may change with respect to its different functions.

In Zee Telefilms case, Supreme Court has further held that since socio-economic policy of
government has changed and the State is distancing itself from commercial activities and
concentrating on governance rather on business, the scope of extending the scope of ‘other
authorities’ is no longer necessary.

Also an authority located outside the territory of India may still come under the definition of
‘State’ under Art. 12 if it is under the control of the Government of India.
Once a body is characterized an ‘authority’ under Art. 12, several significant incidents invariably
follow:

1. The body becomes subject to the discipline of fundamental rights, which means that its
actions and decisions can be challenged with reference to fundamental rights.
2. The body also becomes subject to the discipline of Administrative Law.

The body becomes subject to the writ jurisdiction of Supreme Court under Art. 32 and that of
High Court under Art. 226.

Judiciary is also subject to fundamental rights:

Article 12 does not expressly exclude the judiciary, and though Art. 12 does not expressly
include judiciary, it is submitted that the judiciary, with the legislature and the executive, is
included in the ordinary meaning of ‘State’ as one of the three main departments of a State; and
that the ordinary meaning is not outside the inclusive definition of the ‘State’ given in Art. 12.

D.D. Basu argues that the analogous assumption that a court has the jurisdiction to decide rightly
or wrongly is an obsession following from the English notion about the status and functions of
the Court. But the position must have changed after the adoption of the written Constitution with
a Bill of Rights. The courts, like any other organ of the State, are limited by the mandatory
provisions of the Constitution and they can hardly be allowed to override the fundamental rights
under the shield that they have within there jurisdiction, the right to make an erroneous decision.
The jurisdiction of a Court is limited by the Constitution; it cannot, therefore, have the
jurisdiction to decide contrary to the provisions of the Constitution. Where a decision
contravenes a fundamental right, it is not a case of mere wrong decision. A decision overriding a
constitutional limitation is without jurisdiction and a nullity.

If the decision of a Court is intra vires in the legal sense of being within the jurisdiction
conferred by statute, it may be legally valid; but when it contravenes a fundamental right
guaranteed by a written Constitution, it becomes constitutionally invalid.

A 7-judge bench in the case of Antulayheld that, (a) A judicial order which violates fundamental
right is without jurisdiction and (b) is therefore a nullity; and (c) may be rectified by the Supreme
Court which passed that order, in the exercise of its inherent jurisdiction.

Once we reach a conclusion that a judicial decision, which contravenes a fundamental right, is
without jurisdiction and void, there would remain no other reason why such a void decision of an
inferior court cannot be quashed by a collateral proceeding under Art. 32, apart from appeal.

Recently Supreme Court held that it has power under Art. 136 or under Art. 32 of the
Constitution that if on satisfaction that an earlier judgment has deprived a person of his
fundamental rights of a citizen or rights created under any other statute, can take a different view
notwithstanding the earlier judgment.

Status of a Quasi-Judicial Body:

If a quasi-judicial body acts under an ultra-vires law, or outside its jurisdiction or ignores
mandatory rules and procedures prescribed under relevant law, or infringe the principles of
natural justice and thereby affect the fundamental rights, then its actions can be quashed by
Courts. This stance was further confirmed by the Constitutional Bench in 1990.

Article 13 of the Constitution of India

Article 13 of the Indian Constitution States that:

Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention, be
void

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye-
law, rule, regulation, notification, custom or usages having in the territory of India the force of
law; laws in force includes laws passed or made by Legislature or other competent authority in
the territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or
in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article
368 Right of Equality.
Article 13 is the key provision as it gives the teeth to the fundamental rights and makes them
justiciable. The effect of Article 13 is that Fundamental Rights cannot be infringed by the
government either by enacting a law or through administrative action.

Existing laws inconsistent with the Constitution

This clause provides that all “laws in force” at the commencement of the Constitution which
clash with the exercise of the Fundamental Rights, conferred by Part II of the Constitution shall,
to that extent, be void.A pre constitution law, after the commencement of the Constitution must
conform to the provisions of Part III of the Constitution However, infringement of a fundamental
right cannot be founded on a remote or speculative groundBut this does not make the existing
laws which are inconsistent with the fundamental rights void ab initio.The entire Part III of the
Constitution including Art. 13(1) is prospective. Hence, existing laws which are inconsistent
with any provision of Part III are rendered void only with effect from the commencement of the
Constitution, which for the first time created the Fundamental Rights. The inconsistence referred
to in Art. 13(1), therefore, does not affect transactions past and closed before the commencement
of the Constitution or the enforcementof rights and liabilities that had accrued under the
‘inconsistent laws’ before the commencement of the Constitution

On the other hand, it does not mean that an unconstitutional procedure laid down be a pre-
Constitution Act is to be followed in respect of ‘pending’ proceedings or in respect of new
proceedings instituted with regard to pre-Constitution rights or liabilities. Just as there is no
vested right in any course of procedure, there is no vested liability in matter of procedure in the
absence of any special provision to the contrary.

But if the proceedings had been completed or become final before the commencement of the
Constitution, nothing in the Fundamental Rights Chapter of the Constitution can operate
retrospectively so as to affect those proceedings. For the same reason, it is not possible to
impeach the validity of that part of the proceedings which had taken place under the inconsistent
law, prior to the commencement of the Constitution.

The effect of Art. 13(1) is not to obliterate the inconsistent law from the statute book for all times
or for all purposes or for all people. The effect is that the inconsistent law cannot, since the
commencement of the Constitution stand in the way of exercise of fundamental rights by persons
who are entitled to those rights under the commencement of the Constitution, as regards persons
who have not been given fundamental rights, e.g., aliens.

DOCTRINE OF ECLIPSE

1. It follows, therefore, that if at any subsequent point of time, the inconsistent provision is
amended so as to remove its inconsistency with the fundamental rights, the amended
provision cannot be challenged on the ground that the provision has become dead at the
commencement of the Constitution and cannot be revived by the amendment. All acts
done under the law since the amendment will be valid notwithstanding the fact of
inconsistency before the amendment.It is known as the doctrine of eclipse.
2. For the same reason, if the Constitution itself is amended subsequently, so as to remove
the repugnancy, the impugned law becomes free from all blemishes from the date when
the amendment of the Constitution takes place.

Although a pre-constitutional law is saved in terms of Art. 372 of the Constitution, challenge to
its validity on the touchstone of Arts. 14, 15 and 19 of the Constitution is permissible in
law.[lxxxviii] Validity of a statute may be subject to changes occurring in societal conditions in
domestic as well as in international arena with time

Post-Constitution laws, which are inconsistent, shall be void ab initio:

Art. 13(2) provides that any law made by any legislature or other authority after the
commencement of the Constitution, which contravenes any of the fundamental rights included in
Part III of the Constitution shall, to the extend of the contravention, be void.

As distinguished from Cl. (1), Cl. (2) makes the inconsistent laws void ab initio[xc]and even
convictions made under such unconstitutional laws shall have to be set aside. Anything done
under the unconstitutional law, whether closed, completed or inchoat, will be wholly illegal and
the relief in one shape or another has to be given to the person affected by such unconstitutional
law. Nor it is revived by any subsequent event.

This does not mean that the offending law is wiped out from the statute book altogether. It
remains in operation as regards to persons who are not entitled to the fundamental rights in
question (e.g., a non-citizen in respect of a right guaranteed by Art. 19). Nor does Cl. (2)
authorize the Courts to interfere with the passing of a bill on the ground that it would, when
enacted, be void for contravention of the Constitution. The jurisdiction of the Court arises when
the bill is enacted into law.

DOCTRINE OF SEVERABILITY

It is not the whole Act which would be held invalid by being inconsistent with Part III of the
Constitution but only such provisions of it which are violative of the fundamental rights,
provided that the part which violates the fundamental rights is separable from that which does
not isolate them. But if the valid portion is so closely mixed up with invalid portion that it cannot
be separated without leaving an incomplete or more or less mingled remainder the court will
declare the entire Act void. This process is known as doctrine of severability or reparability.

The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, and held that
the preventive detention minus section 14 was valid as the omission of the Section 14 from the
Act will not change the nature and object of the Act and therefore the rest of the Act will remain
valid and effective. The doctrine was applied in D.S. Nakara v. Union of India, where the Act
remained valid while the invalid portion of it was declared invalid because it was severable from
the rest of the Act. In State of Bombay v. F.N. Balsara, it was held that the provisions of the
Bombay Prohibition Act, 1949 which were declared as void did not affect the validity of the
entire Act and therefore there was no necessity for declaring the entire statute as invalid.

The doctrine of severability has been elaborately considered by the Supreme Court and the
following rules regarding the question of severability has been laid down:[
(1) The intention of the legislature is the determining factor in determining whether the valid
parts of a statute are severable from the invalid parts.
(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated
from the other, then the invalidity of a portion must result in the invalidity of the Act in its
entirety. On the other hand, if they are so distinct and separate that after striking out what is
invalid what remains is itself a complete code independent of the rest, then it will be upheld
notwithstanding that the rest had become unenforceable.
(3) Even when the provisions which are valid, are distinct and separate from those which are
invalid if they form part of a single scheme which is intended to be operative as a whole, then
also the invalidity of a part will result in the failure of the whole.
(4) Likewise when the valid and invalid parts of a Statute are independent and do not form part
of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in
substance different from what it was when it emerged out of legislature, then also it will be
rejected in its entirety.
(5) The severability of the valid and invalid provisions of a Statute does not depend on whether
provisions are enacted in same section or different section, it is not the form but the substance of
the matter that is material and that has to be ascertained on an examination of the Act as a whole
and of the setting of the relevant provisions therein.
(6) If after the invalid portion is expunged from the Statute what remains cannot be enforced
without making alterations and modifications therein, then the whole of it must be struck down
as void as otherwise it will amount to judicial legislation.
(7) In determining the legislative intent on the question of severability, it will be legitimate to
take into account the history of legislation, its object, the title and preamble of it.

Definition of Law:

Art. 13(3)(a) defines ‘law’ very widely by an inclusive definition. It does not expressly include a
law enacted by the legislature, for such an enactment is obviously law. The definition of law
includes: (i) an Ordinance, because it is made in the exercise of the legislative powers of the
executive; (ii) an order, bye-law, rule, regulation and notification having the force of law because
ordinarily they fall in the category of subordinate delegated legislation and are not enacted by the
legislature; (iii) custom or usage having the force of law because they are not enacted law at all.
This extended definition appears to have been given to ‘law’ in order to forestall a possible
contention that law can only mean law enacted by the legislature.[c]

Applicability of Article 13 to a law for amendment of Constitution:

Clause (4) was inserted by the Constitution (24th Amendment) Act, 1971, with effect from 5-11-
1971, to override the view taken by SubhaRao, C.J., for the majority, in GolakNath v. State of
Punjab, that a Constitution Amendment Act, passed according to Art. 368, is a ‘law’ within the
meaning of Art. 13 and would, accordingly, be void if it contravenes a fundamental right. This
amendment was declared void in Minerva Mill’s Case.

Conclusion

The provisions of part III of the Constitution should not be treated as mere legal precepts. They
form part of the conscience of the Constitution. It can safely be assumed that the framers
intended the provisions to be instrumental in spreading a new constitutional culture. If we
exclude the rapidly expanding private sector from the enforcement of these rights, this
constitutional culture will have only a limited and truncated domain for its spread. After having
argued for the enforcement of fundamental rights, it remains to sort out an incidental problem. It
can be persuasively argued that the gist of the relevant fundamental rights can be enforced
against the private sector by ordinary legislation instead of bringing the private sector directly
within the purview of the Constitution. State through Constitution secures fundamental rights,
help achieve ideals given in directive principles and expect citizens to perform certain
fundamental duties. All these cane only be done by the State, through the State and for the State
respectively. Article 12 of the Constitution of India is of greatest importance as it defines what is
State. Further, Article 13 of the Constitution of India specifies which acts of the State are
regulated by the Constitution so that State does not abuse the powers given to it by the
Constitution.Unit- VIII
Fundamental Rights – Nature, Scope and importance

Fundamental Rights in India.

Technically speaking, the rights specified in Part III (Art 12 to 35) of the constitution are the
fundamental rights available to the citizens of India. In the case of Menaka Gandhi vs Union of
India AIR 1978, J. Bhagvati has said that these rights represent the values that are cherished by
the people of this country since the vedic ages and are calculated to protect the dignity of
individual and to create conditions in which every human being is able to develop his personality
to the fullest. These rights are necessary for a human being for attaining full social, intellectual,
and spiritual status.

These rights can be grouped into 6 categories –

ARTICLE 14: EQUALITY BEFORE LAW

“The state shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India.”…………………………………………………. (Art. 14)

Article 14 guarantees to every person the right to equality before the law or the equal protection
of laws. The first expression ‘equality before the Law’ which is taken from English
Common Law, is somewhat a negative concept. It is a declaration of equality of all persons
within the territory of India, implying thereby the absence of any special privilege in favor of any
individual. Every person, whatever be his rank or position, is subject to the jurisdiction of the
ordinary courts. It means no man is above law and that every person, high or low, is subject to
the ordinary law of the land. Prof. Dicey in explaining the concept of legal equality, as operating
in England, said: “With us, every official, from the Prime Minister down to a constable or
collector of taxes, is under the same responsibility for every Act done without any legal
justification as any other citizen.”

The second expression, “equal protection of laws”, which is rather a corollary of the first
expression, and is based on the last clause of the first section of the Fourteenth Amendment
to the American Constitution, directs that equal protection shall be secured to all persons
within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges
without favouritism or discrimination. It is a more positive concept (as it expects a positive
action from the state) implying equality of treatment in the equal circumstances. In other words,
all persons who are in the same circumstances will be governed by the same set of rules. It is a
guarantee of equal treatment. An equal law should be applied with an equal hand to all persons
who are the equals. The rule is that the like should be treated alike and not that unlike should be
treated alike. The same or uniform treatment of unequals is as bad as unequal treatment of
equals It has been said that the equal protection of the law is a pledge of protection or guarantee
of equal laws.

Thus, the two expressions in Article 14 make the concept of equal treatment a binding principle
of State Action. In Sri Srinivasa Theatre v. Govt. of Tamil Nadu the Supreme Court explained
that the two expressions equality before the law and equal protection of law do not mean the
same thing even if there may be much in common between them. Equality before the law is a
dynamic concept having many facets. One facet is that there shall be no privileged person or
class and that none shall be above law. Another facet is the obligation upon the State to bring
about, through the machinery of law, an equal society or, equality before the law can be
predicated meaningfully only in equal society.

Article 14 uses the term ‘any person’, natural or artificial, whether he is a citizen or alien, is
entitled to the protection under the provision.

EQUALITY BEFORE LAW

According to Dr. Jennings, “Equality before the law means that among equals the law should be
equal and should be equally administered, that the like should be treated alike. The right to sue
and be sued, to prosecute and to be prosecuted for the same kind of action should be same for all
citizens of full age and understanding without distinctions of race, religion, wealth, social status
or political influence. In State of West Bengal v. Anwar Ali Sarkar, the Court rightly observed
that the second expression is the corollary of the first and it is difficult to imagine a situation in
which the violation of equal protection of laws will not be the violation of the equality before the
law. Thus, in substance, the two expressions mean one and the same thing.
In Re Special Courts Bill, 1978, Chandrachud, J., observed: “The underlying principle of the
guarantee of Art. 14 was that all persons similarly circumstanced should be treated alike both in
privileges conferred and liabilities imposed.”

Rule of law- the guarantee of equality before the law is an aspect of what Dicey calls the rule of
Law in England. Rule of law requires 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.

Prof. Dicey gave three meanings to Rule of Law, they are –

1. The absence of Arbitrary Power or Supremacy of Law – in other words, a man may be
punished for a breach of law but he can be punished for nothing else. It means the
absolute supremacy of Law as opposed to the arbitrary power of the Government.
2. Equality before the Law – it means subjection of all classes to the ordinary law of the
land administered by ordinary law courts. This means that no one is above law with the
sole exception of the monarch who can do no wrong.
3. The Constitution is the result of the ordinary law of the land – it means that the source
of the right of individuals is not the written Constitution but the rules as defined and
enforced by the Courts.

The first and second aspects apply to the Indian system but the third aspect of the Dicey’s rule of
law does not apply to Indian system as the source of rights of individuals is the Constitution of
India. The Constitution is the supreme Law of the land and all laws passed by the legislature
must be consistent with the provisions of the Constitution

EXCEPTION TO THE RULE OF EQUALITY

Under Art. 359, when the proclamation of emergency is in operation, the enforcement of Art. 14
may be suspended during that period. Art. 361 provides that president and governors shall not be
answerable to any Court for the exercise and performance of the powers and duties of the office.
They also enjoy immunity from criminal and civil proceedings until certain conditions are
fulfilled.

Members of Parliament and of State Legislature are not liable in respect of anything done or said
within the House (Arts. 105 and 194). Foreign Diplomats are immune from the jurisdiction of
Courts. Art. 31 C forms an exception by excluding some laws [for implementing any of the
directive principles specified in Art. 39(b) or (c)] from the purview of Art. 14.

EQUAL PROTECTION OF LAWS

It is a guarantee of equal treatment. An equal law should be applied with an equal hand to all
persons who are the equals. The rule is that the like should be treated alike and not that unlike
should be treated alike. The same or uniform treatment of unequals is as bad as unequal
treatment of equals. It has been said that the equal protection of the law is a pledge of protection
or guarantee of equal laws.

The rule of law imposes a duty upon the state to take special measure to prevent and punish
brutality by police methodology. The Rule of Law embodied in Article 14 is the ‘basic
feature’ of the Indian Constitution and hence it cannot be destroyed even by an amendment of
the Constitution under Article 368 of the Constitution.

ARTICLE 14 PERMITS REASONABLE CLASSIFICATION BUT PROHIBITS CLASS

LEGISLATION

Article 14 does not mean that all laws must be general in character or that the same laws should
apply to all persons or that every law must have universal application, for, all persons are not, by
nature, attainment or circumstances, in the same positions. The State can treat different persons
differently if circumstances justify such treatment. In fact, identical treatment in unequal
circumstances would amount to inequality. The legislature must possess the power to group
persons, objects and transactions with a view to attaining specific aims. So, a reasonable
classification is not permitted but necessary if society is to progress.

By the process of classification, the State had the power of determining who should be regarded
as a class for purposes of legislation and in relation to a law enacted on a particular subject.
Classification meant segregation in classes which had a systematic relation, usually found in
common properties and characteristics. It postulated a rational basis and did not mean herding
together of certain persons and classes arbitrarilyThe class legislation is that which makes an
improper discrimination by conferring particular privileges upon a class of persons arbitrarily
selected. And no reasonable distinction can be found justifying the inclusion of one and
exclusion of other from such privilege. While Art. 14 forbids class legislation, it permits
reasonable classifications of persons, objects, and transactions by the legislature for the purpose
of achieving specific ends. In other words, what Art. 14 prohibits is class legislation and not a
classification for the purpose of the legislation.

TEST OF REASONABLE CLASSIFICATION

Article 14 forbids class legislation; it does not forbid reasonable classification of persons,
objects, and transactions by the Legislature for the purpose of achieving specific ends.
Classification to be reasonable should fulfill the following two tests:

1. It should not be arbitrary, artificial or evasive. It should be based on an intelligible

differentia, some real and substantial distinction, which distinguishes persons or things
grouped together in the class from another left out of it.
2. The differentia adopted as the basis of classification must have a rational or reasonable
nexus with the object sought to be achieved by the statute in question.

In Re Special Courts Bill the Supreme Court has however warned against over-emphasis on
classification. The Court has explained that ‘the doctrine of classification is only a subsidiary
rule evolved by the courts to give practical content to the doctrine of equality, over-emphasis on
the doctrine of classification or anxious or sustained attempt to discover some basis for
classification may gradually and imperceptibly erode the profound potency of the glorious
content of equity enshrined in Art. 14 of the Constitution. The over-emphasis of classification
would inevitably result in the substitution of the doctrine of classification for the doctrine of
equality.

If there are two laws covering a situation, one more drastic than the other, there is the danger of
discrimination if the Administration has the discretion to apply any of these laws in a given case.
Of the two persons placed in a similar situation, one may be dealt with under the drastic law and
the other under the softer law. To minimize any chance of such discrimination, the court insists
that the drastic law should lay down some rational and reasonable principle or policy to regulate
administrative discretion as to its application. If the drastic law fails to do so, then it will be void
under Art. 14.

This proposition was applied by the Supreme Court in Northern India Caterers V. State of
Punjab]. To evict a person from the unauthorized occupation of public premises, a Punjab Act
provided for a Summary procedure. The collector had two choices; he could either himself order
eviction under the special law, or could file an ordinary suit in a court for eviction under the
general law. The Punjab law was declared void under Art. 14 because being a drastic law it laid
down no policy to guide the collector’s choice as to which law to follow in what cases; the
matter was left to his unguided discretion and so there could be discrimination within the same
class inter se, viz., unauthorized occupants of public premises.

In MaganlalChhagganlal V. Greater Municipality], the validity of certain provisions of

Bombay Municipal Corporation Act, which conferred powers on the authorities to initiate special
eviction proceedings against unauthorized occupants of Corporation and government premises
was challenged. Following the N.I. Caterers case, it was argued that the availability of two
procedures, one under the CPC and other under the two Acts of which the former was onerous
and harsher than the latter, the former was hit by Article 14 in the absence of any guidelines as to
which procedure might be adopted. The majority did not agree with the N.I. Caterers case.

Analysing the whole line of cases on the subject he drew a distinction between the statutes which
themselves make a classification and those which authorize the executive to make the
classification. While in the first case the statute will be invalid if it fails to satisfy the
requirements of Article 14 (reasonable classification), in the second case the statute is valid so as
it provides guidance to the executive about the exercise of its discretion in making the
classification. Such guidance need not be provided expressly and specifically in the provisions of
the statute; it may be gathered either from the preamble and other surrounding circumstances and
facts which necessitated the enactment of the statute or from the general object or policy or the
statute gathered from other operative provisions applicable to analogous or of the statue gathered
from other operative provisions applicable to analogous or comparable situations. If such
guidance is missing then only the statute will be invalid. Otherwise only the act of classification
by the executive will be examined. In that case, if the classification fails to satisfy the
requirements of Article 14 it will be ultra vires not only the Constitution but also the statute
under which it is undertaken.

The Court observed that it was inevitable that when a special procedure is prescribed for a
defined class of persons, such as occupiers of municipal or government premises, discretion
which is guided and controlled by the underlying policy and purpose of the legislation has
necessarily to be vested in the administrative authority to select occupiers of municipal or
government premises for bringing them within the operation of the special procedure.

In State of West Bengal V. Anwar Ali Sarkar[, was involved a Bengal law permitting setting
up of special courts for the ‘speedier trial’ of such ‘offence’, or ‘classes of offences’ or ‘cases’,
or ‘classes of cases’, as the State Government might direct by a general or special order. These
courts were to follow a procedure less advantageous to the accused in defending himself than the
procedure followed by the ordinary criminal courts.

The Act was held invalid as it made no reasonable classification, laid down “no yardstick or
measure for the grouping either of persons or of cases or of offenses” so as to distinguish them
from others outside the purviews of the Act. The government had the power to pick out a case of
a person and hand it over to the special tribunal while leaving the case of another person
similarly situated to be tried by the ordinary criminal courts. It gave ‘uncontrolled authority’ to
the executive ‘to discriminate’. The necessity of ‘speedier trial’ was held to be too vague,
uncertain and indefinite criterion to form the basis of a valid and reasonable classification.

On the other hand, in Kathi Ranining Rawat V. Saurashtraa provision practically similar to
the one involved in the Anwar Ali Case, was held valid because the Court found that a policy
was stated in the preamble to the Act and that the government was expected to select such
offences, classes of offences and classes of cases for trial in special courts as were calculated to
affect public safety, maintenance of public order, etc.

Comparing the above two cases, it would appear that the main difference in the terms of the
statutes, which resulted in different judicial verdicts as to their validity, was that the preamble in
the Saurashtra Act was more elaborately worded than that to the Bengal Act. While the term
‘speedier trial’ used in the Bengal Act to set up special courts was held to be indefinite, the
words ‘public safety, etc.’ in the preamble to the Saurashtra Act were held to be more definite
and as giving a guiding principle to control administrative discretion.

In essence, therefore the difference would appear to be more of a drafting nature than of
substance. For sometimes, a new orientation is being given to Art. 14. As has been explained by
Bhagwati, J., in Bachan Singh V. State of Punjab, Rule of law which permeates the entire
fabric of the Indian Constitution excludes arbitrariness. “Whenever we find arbitrariness or
unreasonableness there is the denial of rule of law”. Art. 14 enacts primarily a guarantee against
arbitrariness and inhibits state action, whether legislative or executive, which suffers from the
vice of arbitrariness. “Every state action must be non-arbitrary and reasonable. Otherwise, the
court would strike it down as invalid.”

This new dimension of Art. 14 transcends the classificatory principle. Art. 14 is no longer to be
equated with the principle of classification. It is primarily a guarantee against arbitrariness in
state action and the doctrine of classification has been evolved only as a subsidiary rule for
testing whether a particular state action is arbitrary or not. It a law is arbitrary or irrational it
would fall foul of Art. 14.

A common tendency in modern democracies is to confer a discretionary power on the

government or administrative officers. In order to ensure that discretion is properly exercised, it
is necessary that the statute in question lays down some norms or principles according to which
the administrator has to exercise the discretion. Many a time the statutes do not do this and leave
the administrator free to exercise his power according to his judgment. This creates the danger of
official arbitrariness which is subversive of the doctrine of equality. To mitigate this danger, the
courts have invoked Art. 14. In course of time, Art. 14 has evolved into a very meaningful
guarantee against any action of the Administration which may be arbitrary, discriminatory or
unequal.

In Air India V. NargeshMeerza, a regulation made by Air India International, a statutory

corporation, providing for termination of service of an air hostess on her first pregnancy has been
held to be arbitrary and abhorrent to the notions of a civilized society. The regulation also fixed
the normal age of retirement of air hostess at 35 years but authorized the managing directors to
extend the same to 45 years at his option subject to other conditions being satisfied. The
regulation was held bad as it armed the managing director with uncanalized and unguided
discretion to extend the age of retirement of an air hostess. No guidelines, principles or norms
were laid down subject to which the power was to be exercised. Nor was there any procedural
safeguards available to an air hostess who was denied the extension.

In J. Jayalalitha V. Union of India, Section 3 of the Prevention of Corruption Act, 1988,

empowers the State Government to appoint as many special Judges as may be necessary “for
such case or group of cases” as may be specified in the notification. The validity of this provision
was challenged under the Art. 14 on the grounds that confer unfettered, unguided and absolute
discretion on the Government and is thus capable of leading to abuse of power by the
Government.

The Supreme Court has however upheld the validity of this provision. The court has agreed with
the proposition that conferment of discretionary power on the executive which in the absence of
any policy or guidelines permits it to pick and choose it unconstitutional. But, in the instant case,
the court has ruled that S. 3(1) does not confer unfettered or unguided power because the object
of the Act and S. 3 indicate when and under what circumstances, the power conferred by S. 3 has
to be exercised. The policy can be gathered from the preamble, the provisions of the enactment
and other surrounding circumstances.

One of the objects of the Act is to provide speedy trial for cases of corruption. This is the policy
of the Act and, therefore, while exercising the power under S. 3, the Government shall have to be
guided by the said policy. The Legislature could not have anticipated as to how many special
Judges would be needed in an area. Therefore, the Legislature could not have laid down any
fixed rule or guidelines. It had to leave this matter to the discretion of the State Government as it
would be in a better position to know the requirement. This is why discretion has been conferred
on the State Government to appoint as many special Judges as may be necessary.

The situation where the statute itself does not suffer from any such vice, but the administrative
authority may implement it in a discriminatory manner, or may not follow the policy or principle
laid down in the Act to regulate its discretion. In such a case, the charge of violation of equal
protection may be laid against the Administrative and its action quashed under Art. 14.

Every action of the state must be informed by reason and guided by public interest. Actions
uninformed by reason may be questioned as arbitrary. Whenever there is arbitrariness in state
action, Art. 14 springs to life and judicial review strikes such an action down. Arbitrariness is the
antithesis of Art. 14 Equality and arbitrariness are sworn, enemies. Art. 14 strikes at arbitrariness
in state action and ensures fairness and equity of treatment.

Statute based on a reasonable classification does not become invalid merely because the class to
which it applies consists of only one person. A single body or institute may form a class. A
legislation specifically directed to a named person or body would be valid if, on account of some
special circumstances, or reasons applicable to that person, and not applicable to others, the
single persons could be treated as a class by himself. The Act may, however, be bad if there are
no special circumstances differentiating the person concerned from the rest, or if other having the
same attributes are not covered by the Act.

In Chiranjit Lal Chawdhary V. Union of India], the petitioner approached the Supreme Court
for the protection against the enforcement of a Central Act, the Sholapur Spinning and Weaving
Co. (Emergency Provisions) Act, 1950. The petitioner was an ordinary shareholder of the
Sholapur Spinning and Weaving Co. Ltd. On Account of mismanagement and neglect of the
affairs of the Company, a situation had arisen that brought about the closing down of the mill.
The action of the company prejudicially affected the production of an essential commodity, apart
from causing serious unemployment amongst certain sections of the community. The Central
Government thereupon issued an Ordinance which was later replaced by the above-mentioned
Act. By this Act, the management and administration of the assets of the Company were placed
under the control of the directors appointed by the government. As regards the shareholders, the
Act declared that they could neither appoint a new director not could they take proceedings for
the winding up of the Company. The contention of the petitioner was that the impugned Act
infringed the rule of equal protection of the laws embodied in Article 14 because a single
company and its shareholders were being subjected to disabilities vis-à-vis other companies and
held the legislation validly.

In Ameerunnisa Case,] a dispute between two rival parties regarding succession to the estate of
a deceased Nawab was pending and after several vicissitudes for which the Nizam himself or his
legal advisers were primarily responsible, a report was prepared by the legal advisers of the State
in a particular way which, contrary to the opinion given by an earlier special commission,
negatived the claim of one party, i.e. of two ladies and their children. To give effect to the report,
the Nizam, who at that time exercised the powers of the Hyderabad Legislature, passed an Act,
the Wali-ud-Dowla Succession Act, 1950. By this Act, the claim of the two ladies was dismissed
and the property adjudged to the other party. Obviously, the effect of the Act was that the two
ladies and their children were deprived of the right to enforce their claim in a court of law in
accordance with the Mohammedan Law. They, in fact, were discriminated against the rest of the
community in respect of a valuable right which the law secures to all, namely, the right of free
access to the court.

The discrimination made against the two ladies could only be valid if there were some
reasonable ground for the differentiation made by the law. Two reasons were put in justification
of the classification or differentiation made by the Act. First, that there was an adverse report
against them by the State legal advisers and, second, that the dispute was of a long standing. The
Supreme Court held that neither of these grounds could serve as a reasonable basis for the
differentiation made by the law. As regards the first, the dispute regarding succession to the
estate of the Nawab was a legal dispute, and without determination of the points in issue by a
properly constituted tribunal of law, a legislation based upon the reports of a non-judicial
authority and made applicable to specific individuals, who were deprived thereby of valuable
rights, which were enjoyed by all other persons occupying the same position, did plainly come
within the constitutional inhibition of Article 14.

If the legislature makes the report of the legal adviser as the ground on which it deprives one
specific person of his rights to have his say in a court of law, that law would be arbitrary and
unreasonable. The second ground put in support of the classification was also rejected. The Court
pointed out that the continuance of a dispute even for a long period of time between two sets of
rival claimants to the property of a private person is not a circumstance of such an unusual nature
as would invest a case with special or exceptional features and made it a class by itself justifying
its differentiation from all other cases for succession disputes. Thus there was nothing to
distinguish the dispute between the parties under the Wali-ud-Dowla Act which is not found in
any other dispute between private parties.

In Ram Prasad V. State of Bihar, the two appellants had obtained a settlement of land in Bihar
which at that time was under the management of the Court of Wards on behalf of the disqualified
proprietress. The lands were settled at the prevailing rate or rent but the salami or premium was
fixed at the half of the usual rate as a concession to the appellants who happened to be distant
relations of the proprietress. For some reasons, there was an agitation amongst the tenants of the
locality against the lease held by the appellants. The matter was brought to the notice of the
Congress Working Committee which found the settlement illegal and against the public interest.
The lessees, therefore, were asked to vacate the land which they refused. Thereupon the Bihar
State Legislature passed the impugned Act.

The Act terminated the contract of lease and directed the lessees to quit the land immediately.
The lessees contended the Act was unconstitutional because it denied o them the equal protection
of laws. The Supreme Court accepted the appellants’ contention and held the Act ultra vires the
Bihar Legislature because it appeared that there were numerous persons occupying the same
position as the Alternatively, the dispute being between private parties, it was a matter for
determination by duly constituted courts in accordance with the normal procedure. But what the
legislature had done was to single out the two individuals and denied them the right which every
Indian Citizen possesses to have his rights adjudicated in accordance with the laws. The reasons
given for the extraordinary procedure were indeed remarkable for ‘their disturbing implications’.

It was said that the agitation amongst the tenancy of the locality and opposition on the part of
persons living in the locality against the appellants’ possession of the land had led to the breach
of peace and institution of criminal cases. This could not be a rational basis to discriminate
against the two named individuals. When on the face of a statute there is no classification at all
and no attempt has been made to select any individual or group with reference to any
differentiating attribute peculiar to that individual or group and not possessed by other, this
presumption is of little or no assistance.

These and some other cases seem to establish that except in Charanjit Lal case, the singling out
of the individuals has never been seen with favor, particularly when such singling out has been
done for the purpose of hostile discrimination. As a matter, of course, single person laws are
prima facie violative of Article 14 because they do not make a classification on the basis of some
general or particular characteristics which may be found in any individual or class of individuals
now or in future; rather they make one individual their target excluding every possibility of
bringing any other person within their reach even if that other person also depicts those
characteristics.

Art. 16 takes the same principle further to employment in govt. jobs.

Art. 17 abolishes untouchability and Art. 18 abolishes various titles such as Rai Bahadur that
used to be given in the British rule.

The cases of Lindsley v Natural Carbonic Gas Co, US SC 1910 and Chiranjit Lal v Union of
India SC AIR 1951 are important cases that illustrate the concept of equal protection of the laws.
In these cases, the SC of both the countries held that all persons similarly circumstanced should
be treated equally. Only like should be treated alike and thus a reasonable classification can be
done. Several cases such as Randhir Singh v Union of India 1982 (Equal pay for equal work)
illustrate the principle of equality.
The SC judgment in Indra Sawhney v Union of India AIR 1993 incorporates the element of
fairness in dealing with inequalities in the society, while balancing the aspirations of the socially
forward classes.

2. Articles 19-22 Right to Freedom – A citizen of India is given freedom of Speech and
Expression, freedom of Assembly, freedom of Association, freedom of Movement,
freedom of Residence, and Freedom of Profession and Occupation through Art. 19.
20 gives protection with respect to conviction of offenses. This includes the principles of
 Ex-post facto law: A person can only be with charged with an offence of an action if the
said action was illegal as per the law of the time when the action was committed.
 Double jeopardy: A person cannot be charged with the same crime if he has already been
produced before the court and a verdict has been pronounced.
 Self- incrimination: A person will not be forced to testify against himself.
Right To Freedom In Indian Constitution

The rights to freedom are the most important fundamental rights guaranteed by the constitution
of India. It is the prevalence of these freedoms that make democracy meaningful.

The original constitution as adopted in 1949 guaranteed seven such freedoms. By the 44th
amendment, the right to hold and dispose of property has been removed from the list of
fundamental freedoms in 1978.

Right To Freedom In Indian Constitution

The rights to freedom are the most important fundamental rights guaranteed by the constitution
of India. It is the prevalence of these freedoms that make democracy meaningful.

The original constitution as adopted in 1949 guaranteed seven such freedoms. By the 44th
amendment, the right to hold and dispose of property has been removed from the list of
fundamental freedoms in 1978.

List of Rights to Freedom under Indian Constitution

Art. 19 of the constitution now provides six freedoms, namely :

1. right to freedom of speech and expression,

2. right to assemble peaceably and without arms,
3. right to form associations or unions,
4. right to move freely throughout the territory of India,
5. right to reside and settle in any part of the territory of India,
6. right to practice any profession or to carry on any occupation trade or business.
Each one of these six freedoms is subject to some restrictions. For rights can never be absolute.
Individual rights must be reconciled with the interests of the community. It is logical that equal
rights for all must mean limited rights for any. Hence, the state may impose ‘reasonable
restrictions’ upon the exercise of any of these rights.

Restrictions

Firstly, the state may impose restrictions on the exercise of the right to freedom of speech
and expression on eight grounds. These are:

1. defamation,
2. contempt of court,
3. decency or morality,
4. security of the state,
5. friendly relations with other states,
6. incitement of offence and,
7. sovereignty and
8. integrity of India.

Secondly, the freedom to assemble is subject to two restrictions. The assembly must be
peaceable and the members of assembly must not bear arms. However the Sikhs are allowed to
carry ‘Kirpan’ as part of their religious creed. In the U.S.A. right to bear arms is fundamental
right. In India, this right is denied in the interest of public order.

Thirdly, the right to form associations or unions does not entitle persons to enter into criminal
conspiracy either against individuals, groups or against the state.

Fourthly, the right to move freely or to reside and settle in any part of India, does not cover
trespass into homes or restricted areas. State also may restrict this freedom to protect the
aboriginal tribes.

Finally, the right to practice any profession or to carry on any occupation, trade or
business are also subject to reasonable restrictions. Thus professions or, trade or, business
must not be harmful to the interest of the community. The state may also prescribe qualifications
for particular profession or, technical occupation. The state may itself carry on trade or business
to the exclusion of citizens.

Power of Courts to enforce freedom of citizens of India

Every Indian citizen has the power to move the High Court or the Supreme Court for protecting
and securing his personal freedom. The Courts are empowered to issue writs in the nature of
habeas corpus. The courts can order the presence of detained or imprisoned person and set him
free in case there is no legal justification for his detainment or imprisonment.
Rights to Freedom during National Emergency

The rights to freedom under Article 19 of Indian constitution are suspended during the period of
National Emergency declared by the President of India.

Further, during the period when the National emergency is in operation, the President is
empowered to suspend the right of citizens to move the Supreme Court for the enforcement of
their personal freedom.

Conclusion

Each one of the fundamental freedoms guaranteed by the constitution of India is hedged by many
restrictions. They are not absolute. This led to the criticism that Indian freedom is a myth and not
reality for what has been given with one hand has been taken away with the other.

This criticism is unfair. For fundamental rights can nowhere be absolute. For logically, one can
be absolutely free only when all others are absolute, slaves Individual freedom to be real must be
social and hence must be limited.

There is a difference in the scheme of limitations on fundamental rights in the U.S. constitution
and in the constitution of India. In the U.S.A. the restrictions are not mentioned in the
constitution itself. This is left to judicial interpretations. In India on the other hand, the
restrictions are mentioned in the constitution itself. It is not left to the vagaries of judicial
interpretation.

On the whole fundamental rights everywhere are restricted or, limited. As Mr. Justice Mukherji
observed in A. K. Gopalan vs. State of Madras case” There cannot be any such thing as absolute
or uncontrolled liberty wholly freed from restraints.”

Article 20 has taken care to safeguard the rights of persons accused of crimes. Persons here
means the citizens, non-citizens as well as corporations. Please note that this article can not be
suspended even during an emergency in operation under article 359. Article 20 also constitutes
the limitation on the legislative powers of the Union and State legislatures.
Ex-Post facto Law Article 20 (1) says that no person shall be convicted of any offence except
for violation of a law in force at the time of the commission of the Act charged as an offence, nor
be subjected to a penalty greater than that which might have been inflicted under the law in force
at the time of the commission of the offence. This is called Ex-Post facto Law. It means that
legislature can not make a law which provides for punishment of acts which were committed
prior to the date when itcam into force. This means that a new law can not punish an old act.
Doctrine of Double Jeopardy
Article 20(2) says that no person shall be prosecuted and punished for the same offence more
than once. This is called Doctrine of Double Jeopardy. The objective of this article is to avoid
harassment, which must be caused for successive criminal proceedings, where the person has
committed only one crime. There is a law maxim related to this – nemo debet bis vexari. This
means that no man shall be put twice in peril for the same offence. There are two aspects of
Doctrine of Jeopardy viz. autrefois convict and autrefois acquit. Autrefois convict means that the
person has been previously convicted in respect of the same offence. The autrefois acquit means
that the person has been acquitted on a same charge on which he is being prosecuted. Please note
that Constitution bars double punishment for the same offence. The conviction for such offence
does not bar for subsequent trial and conviction for another offence and it does not matter the
some ingredients of these two offences are common.
Self Incrimination Law
Article 20(3) of the constitution says that no person accused of any offence shall be compelled to
be a witness against himself. This is based upon a legal maxim which means that No man is
bound to accuse himself. The accused is presumed to be innocent till his guilt is proved. It is the
duty of the prosecution to establish his guilt.

Art. 21, which is the most important and diverse of all the rights to freedom, is the Protection of
Life and Personal Liberty. SC in Menaka Gandhi v Union of India AIR 1978 was a landmark
case that gave wide interpretation of this right. In this case the SC held that his right is not only
about having any kind of life but a life of dignity. The freedom is not just physical but mental as
well as spiritual. This encompasses several rights such as right to travel abroad (Satvant Singh v
Ass. Passport Office AIR 1967) and right to pollution free water and air (Subhash Kumar v State
of Bihar AIR 1991). Further, Constitution Amendment Act 86, 2002 makes free and compulsory
education to children under 14 a fundamental right.

Article 21 reads as:

“No person shall be deprived of his life or personal liberty except according to a procedure
established by law.”

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in

a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna
carta protective of life and liberty.

This right has been held to be the heart of the Constitution, the most organic and progressive
provision in our living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by
the “State” as defined in Article 12. Violation of the right by private individuals is not within the
preview of Article 21.

Article 21 secures two rights:

1) Right to life

2) Right to personal liberty

The Article prohibits the deprivation of the above rights except according to a procedure
established by law .Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to
the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI
of the Constitution of Japan, 1946.

Article 21 applies to natural persons. The right is available to every person, citizen or alien.
Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right to
reside and settle in India, as mentioned in Article 19 (1) (e).

MEANING AND CONCEPT OF ‘RIGHT TO LIFE’

‘Everyone has the right to life, liberty and the security of person.’ The right to life is undoubtedly
the most fundamental of all rights. All other rights add quality to the life in question and depend
on the pre-existence of life itself for their operation. As human rights can only attach to living
beings, one might expect the right to life itself to be in some sense primary, since none of the
other rights would have any value or utility without it. There would have been no Fundamental
Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section will
examine the right to life as interpreted and applied by the Supreme Court of India.

Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his
life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of
the Constitution is not merely the physical act of breathing. It does not connote mere animal
existence or continued drudgery through life. It has a much wider meaning which includes right
to live with human dignity, right to livelihood, right to health, right to pollution free air, etc.
Right to life is fundamental to our very existence without which we cannot live as human being
and includes all those aspects of life, which go to make a man’s life meaningful, complete, and
worth living. It is the only article in the Constitution that has received the widest possible
interpretation. Under the canopy of Article 21 so many rights have found shelter, growth and
nourishment. Thus, the bare necessities, minimum and basic requirements that is essential and
unavoidable for a person is the core concept of right to life.

In the case of Kharak Singh v. State of Uttar Pradesh[i], the Supreme Court quoted and held
that:

By the term “life” as here used something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body by amputation of an armour leg or the
pulling out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world.

In Sunil Batra v. Delhi Administration, the Supreme Court reiterated with the approval the
above observations and held that the “right to life” included the right to lead a healthy life so as
to enjoy all faculties of the human body in their prime conditions. It would even include the right
to protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It
includes the right to live in peace, to sleep in peace and the right to repose and health.
Right To Live with Human Dignity

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Art. 21 and
held that the right to live the right to live is not merely a physical right but includes within its
ambit the right to live with human dignity. Elaborating the same view, the Court in Francis
Coralie v. Union Territory of Delhi,observed that:

“The right to live includes the right to live with human dignity and all that goes along with it,
viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head
and facilities for reading writing and expressing oneself in diverse forms, freely moving about
and mixing and mingling with fellow human beings and must include the right to basic
necessities the basic necessities of life and also the right to carry on functions and activities as
constitute the bare minimum expression of human self.”

Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti
Morcha v. Union of India. Characterizing Art. 21 as the heart of fundamental rights, the Court
gave it an expanded interpretation. Bhagwati J. observed:

“It is the fundamental right of everyone in this country… to live with human dignity free from
exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39
and Articles 41 and 42 and at the least, therefore, it must include protection of the health and
strength of workers, men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane conditions of work and maternity
relief. These are the minimum requirements which must exist in order to enable a person to live
with human dignity and no State neither the Central Government nor any State Government-has
the right to take any action which will deprive a person of the enjoyment of these basic
essentials.”

Following the above stated cases, the Supreme Court in Peoples Union for Democratic Rights
v. Union of India, held that non-payment of minimum wages to the workers employed in
various Asiad Projects in Delhi was a denial to them of their right to live with basic human
dignity and violative of Article 21 of the Constitution. Bhagwati J. held that, rights and benefits
conferred on workmen employed by a contractor under various labour laws are clearly intended
to ensure basic human dignity to workmen. He held that the non-implementation by the private
contractors engaged for constructing building for holding Asian Games in Delhi, and non-
enforcement of these laws by the State Authorities of the provisions of these laws was held to be
violative of fundamental right of workers to live with human dignity contained in Art. 21.

In Chandra Raja Kumar v. Police Commissioner Hyderabad,it has been held that the right to
life includes right to life with human dignity and decency and, therefore, holding of beauty
contest is repugnant to dignity or decency of women and offends Article 21 of the Constitution
only if the same is grossly indecent, scurrilous, obscene or intended for blackmailing. The
government is empowered to prohibit the contest as objectionable performance under Section 3
of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956.
In State of Maharashtra v. Chandrabhan, the Court struck down a provision of Bombay Civil
Service Rules, 1959, which provided for payment of only a nominal subsistence allowance of
Re. 1 per month to a suspended Government Servant upon his conviction during the pendency of
his appeal as unconstitutional on the ground that it was violative of Article 21 of the
Constitution.

Right Against Sexual Harassment at Workplace

Art. 21 guarantees right to life right to life with dignity. The court in this context has observed
that:

“The meaning and content of fundamental right guaranteed in the constitution of India are of
sufficient amplitude to encompass all facets of gender equality including prevention of sexual
harassment or abuse.”

Sexual Harassment of women has been held by the Supreme Court to be violative of the most
cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.

In Vishakha v. State of Rajasthan, the Supreme Court has declared sexual harassment of a
working woman at her work as amounting to violation of rights of gender equality and rights to
life and liberty which is clear violation of Articles 14, 15 and 21 of the Constitution. In the
landmark judgment, Supreme Court in the absence of enacted law to provide for effective
enforcement of basic human rights of gender equality and guarantee against sexual harassment
laid down the following guidelines:

1. All employers or persons in charge of work place whether in the public or private sector
should take appropriate steps to prevent sexual harassment. Without prejudice to the
generality of this obligation they should take the following steps:
1. Express prohibition of sexual harassment as defined above at the work place
should be notified, published and circulated in appropriate ways.
2. The Rules/Regulations of Government and Public Sector bodies relating to
conduct and discipline should include rules/regulations prohibiting sexual
harassment and provide for appropriate penalties in such rules against the
offender.
3. As regards private employers steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing
Orders) Act, 1946.
4. Appropriate work conditions should be provided in respect of work, leisure,
health and hygiene to further ensure that there is no hostile environment towards
women at work places and no employee woman should have reasonable grounds
to believe that she is disadvantaged in connection with her employment.
2. Where such conduct amounts to specific offences under I,P,C, or under any other law, the
employer shall initiate appropriate action in accordance with law by making a complaint
with appropriate authority.
3. The victims of Sexual harassment should have the option to seek transfer of perpetrator
or their own transfer.
In Apparel Export Promotion Council v. A.K. Chopra[xi], the Supreme Court reiterated
the Vishakharulingand observed that:

“There is no gainsaying that each incident of sexual harassment, at the place of work, results in
violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two
most precious Fundamental Rights guaranteed by the Constitution of India…. In our opinion,
the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude
to encompass all facets of gender equality, including prevention of sexual harassment and abuse
and the courts are under a constitutional obligation to protect and preserve those fundamental
rights. That sexual harassment of a female at the place of work is incompatible with the dignity
and honour of a female and needs to be eliminated….”

Right Against Rape

Rape has been held to a violation of a person’s fundamental life guaranteed under Art. 21. Right
to life right to live with human dignity. Right to life, would, therefore, include all those aspects
of life that go on to make life meaningful, complete and worth living.

In Bodhisattwa Gautam v. Subhra Chakraborty[xii], the supreme court held that

“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the
entire society. It destroys the entire psychology of a woman and pushed her into deep emotional
crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on
coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore,
the most hated crime. It is a crime against basic human rights and is also violative of the victim’s
most cherished of the fundamental rights, namely, the right to life with human dignity contained
in Art 21”.

Right to Reputation

Reputation is an important part of one’s life. It is one of the finer graces of human civilization
that makes life worth living. The Supreme Court referring to D.F. Marion v. Minnie
Davis[xiii] in Smt. Kiran Bedi v. Committee of Inquiry[xiv] held that “good reputation
was an element of personal security and was protective by the Constitution, equally with the
right to the enjoyment of life, liberty and property. The court affirmed that the right to enjoyment
of life, liberty and property. The court affirmed that the right to enjoyment of private reputation
was of ancient origin and was necessary to human society.”

The same American Decision has also been referred to in the case of State of Maharashtra v.
Public Concern of Governance Trust[xv], where the Court held that good reputation was an
element of personal security and was protected by the constitution, equally with the right to the
enjoyment of life, liberty and property.

It has been held that the right equally covers the reputation of a person during and after his death.
Thus, any wrong action of the state or agencies that sullies the reputation of a virtuous person
would certainly come under the scope of Art. 21.
In State of U.P. v. MohammaadNaim[xvi], succinctly laid down the following tests while
dealing the question of expunction of disgracing remarks against a person or authority whose
conduct comes in consideration before a court of law:

 whether the party whose conduct is in question is before the court or has an opportunity
of explaining or defending himself
 whether there is evidence on record bearing on that conduct justifying the remarks
 whether it is necessary for the decision of the case, as an integral part thereof, to
animadvert on that conduct. It has also been recognized that judicial pronouncements
must be judicial in nature, and should not normally depart from sobriety, moderation and
reserve

In State of Bihar v. Lal Krishna Advani[xvii], a two-member commission of inquiry appointed

to inquire into the communal disturbances in Bhaglapur district on 24th October, 1989, made
some remarks in their report, which impinged upon the reputation of the respondent as a public
man, without affording him an opportunity of being heard. The Apex Court ruled that it was
amply clear that one was entitled to have and preserve one’s reputation and one also had the right
to protect it. The court further said that in case any authority , in discharge of its duties fastened
upon it under the law, transverse into the realm of personal reputation adversely affecting him, it
must provide a chance to him to have his say in the matter. The court observed that the principle
of natural justice made it incumbent upon the authority to give an opportunity to the person,
before any comment was made or opinion was expressed which was likely to prejudicially affect
that person.

Right To Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not include
right to livelihood. In Re Sant Ram[xviii], a case which arose before Maneka Gandhi case,
where the Supreme Court ruled that the right to livelihood would not fall within the expression
“life” in Article 21.The court said curtly:

“The right to livelihood would be included in the freedoms enumerated in Art.19, or even in
Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid of argument that
the word ‘life’ in Art. 21 includes ‘livelihood’ also.”

But then the view underwent a change. With the defining of the word “life” in Article 21 in
broad and expansive manner, the court in Board of Trustees of the Port of Bombay v.
DilipkumarRaghavendranathNandkarni[xix], came to hold that “the right to life” guaranteed
by Article 21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay
Municipal Corporation[xx], popularly known as the “Pavement Dwellers Case” a five judge
bench of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no
person can live without the means of living, that is, the means of Livelihood. That the court in
this case observed that:

“The sweep of right to life conferred by Art.21 is wide and far reaching. It does not mean,
merely that life cannot be extinguished or taken away as, for example, by the imposition and
execution of death sentence, except according to procedure established by law. That is but one
aspect if the right to life. An equally important facet of the right to life is the right to livelihood
because no person can live without the means of livelihood.”

If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the
easiest way of depriving a person of his right to life would be to deprive him of his means of
livelihood to the point of abrogation[xxi].

In the instant case, the court further opined:

“The state may not by affirmative action, be compelled to provide adequate means of livelihood
or work to the citizens. But, any person who is deprived of his right to livelihood except
according to just and fair procedure established by law can challenge the deprivation as
offending the right to life conferred in Article 21.”

Emphasizing upon the close relationship of life and livelihood, the court Stated: “That, which
alone makes it impossible to live, leave aside what makes life livable, must be deemed to be an
integral part of right to life. Deprive a person from his right to livelihood and you shall have
deprived him of his life[xxii].”

Art. 21 does not place an absolute embargo on the deprivation of life or personal liberty and for
that matter on right to livelihood. What Art. 21 insists is that such deprivation ought to be
according to procedure established by law which must be fair, just and reasonable. Therefore
anyone who is deprived of right to livelihood without a just and fair procedure established by law
can challenge such deprivation as being against Art. 21 and get it declared void[xxiii].

In D.T.C. v. D.T.C. Mazdoor Congress[xxiv], a regulation conferring power on the authority to

terminate the services of a permanent and confirm employee by issuing a noticing without
assigning him any reasons and without giving him a hearing has been held to be a wholly
arbitrary and violative of Art. 21.

In M. Paul Anthony v. Bihar Gold Mines Ltd[xxv]., it was held that when a government
servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry
against him, subsistence allowance must be paid to him. The Court has emphasized that a
government servant does not his right to life and other fundamental rights.

However, if a person is deprived of such a right according to procedure established by law which
must be fair, just and reasonable and which is in the larger interest of people, the plea of
deprivation of right to livelihood under Art. 21 is unsustainable. In, Chameli Singh v. State of
Uttar Pradesh[xxvi], it was held by the Hon’ble Supreme Court that when the land of a
landowner was acquired by state in accordance with the procedure laid down in the relevant law
of acquisition the right to livelihood of such a landowner even though adversely affected, his
right to livelihood is not violated. The Court opined that, the state acquires land in exercise of its
power of eminent domain for a public purpose. The landowner is paid compensation in lieu of
land, and therefore, the plea of deprivation of right to livelihood under Art. 21 is unsustainable.
In M. J. Sivani v. State of Karnataka &Ors[xxvii]., the Supreme Court held that right to life
under Article 21 does protect livelihood but added a rider that its deprivation cannot be extended
too far or projected or stretched to the avocation, business or trade injurious to public interest or
has insidious effect on public moral or public order. It was, therefore, held that regulation of
video games or prohibition of some video games of pure chance or mixed chance and skill are
not violative of Article 21 nor is the procedure unreasonable, unfair, or unjust.

HIV Not a Sound ground for Termination

In MX of Bombay Indian Inhabitants v. M/s. ZY[xxviii], it was held that a person tested
positive for HIV could not be rendered “medically unfit” solely on that ground so as to deny him
the employment. The right to life includes the right to livelihood. Therefore, right to livelihood
cannot hang on to the fancies of the individuals in authority. Even though the petitioner might
have been a nuisance to others and conducted themselves either in a disorderly way or
unbecoming on their profession but, that in itself, it is not sufficient for the executive to take
away their source of livelihood by an executive fiat.

Right to Work Not a Fundamental Right under Art.21

In Sodan Singh v. New Delhi Municipal Committee[xxix], the five judge bench of the
Supreme Court distinguished the concept of life and liberty within Art.21 from the right to carry
on any trade or business, a fundamental right conferred by Art. 19(1)(g) and held the right to
carry on trade or business is not included in the concept of life and personal liberty. Article 21 is
not attracted in case of trade and business. The petitioners, hawkers doing business off the
pavement roads in Delhi, had claimed that the refusal by the Municipal authorities to them to
carry on business of their livelihood amounted to violation of their right under Article 21 of the
Constitution. The court opined that while hawkers have a fundamental right under Article 19(1)
(g) to carry on trade or business of their choice; they have no right to do so in a particular place.
They cannot be permitted to carry on their trade on every road in the city. If the road is not wide
enough to be conveniently accommodating the traffic on it, no hawking may be permitted at all,
or may be permitted once a week. Footpaths, streets or roads are public property and are intended
to several general public and are not meant for private use. However, the court said that the
affected persons could apply for relocation and the concerned authorities were to consider the
representation and pass orders thereon. The two rights were too remote to be connected together.
The court distinguished the ruling in in Olga Tellis v. Bombay Municipal
Corporation[xxx] and held that “in that case the petitioners were very poor persons who had
made pavements their homes existing in the midst of filth and squalor and that they had to stay
on the pavements so that they could get odd jobs in city. It was not the case of a business of
selling articles after investing some capital.”

In Secretary, State of Karnataka v. Umadevi, the Court rejected that right to employment at
the present point of time can be included as a fundamental right under Right to Life under Art.
21.
Right to Shelter

In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, the right to shelter
has been held to be a fundamental right which springs from the right to residence secured in
article 19(1)(e) and the right to life guaranteed by article 21. To make the right meaningful to the
poor, the state has to provide facilities and opportunities to build houses.

Upholding the importance of the right to a decent environment and a reasonable accommodation,
in Shantistar Builders v. Narayan KhimalalTotame, the Court held that

“The right to life would take within its sweep the right to food, the right to clothing, the right to
decent environment and a reasonable accommodation to live in. The difference between the need
of an animal and a human being for shelter has to be kept in view. For the animal it is the bare
protection of the body, for a human being it has to be a suitable accommodation, which would
allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at
ensuring fuller development of every child. That would be possible only if the child is in a proper
home. It is not necessary that every citizen must be ensured of living in a well-built comfortable
house but a reasonable home particularly for people in India can even be mud-built thatched
house or a mud-built fireproof accommodation.”

In Chameli Singh v. State of U.P., a Bench of three Judges of Supreme Court had considered
and held that the right to shelter is a fundamental right available to every citizen and it was read
into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter
to make the right to life more meaningful. The Court observed that:

“Shelter for a human being, therefore, is not a mere protection of his life and limb. It is however
where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to
shelter, therefore, includes adequate living space, safe and decent structure, clean and decent
surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities
like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore,
does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary
to enable them to live and develop as a human being.”

Right to Social Security and Protection of Family

Right to life covers within its ambit the right to social security and protection of family .K.
Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash
Chandra Bose, held that right to social and economic justice is a fundamental right under Art.
21. The learned judge explained that right to life and dignity of a person and status without
means, were cosmetic rights. Socio-economic rights were, therefore, basic aspirations for
meaning right to life and that Right to Social Security and Protection of Family were integral
part of right to life.

In N.H.R.C. v. State of Arunachal Pradesh, (Chakmas Case), the supreme court said that the
State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise,
and it cannot permit anybody or group of persons to threaten other person or group of persons.
No State Government worth the name can tolerate such threats by one group of persons to
another group of persons; it is duty bound to protect the threatened group from such assaults and
if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations.

MurlidharDayandeoKesekar v. Vishwanath PandeBarde, it was held that right to economic

empowerment of poor, disadvantaged and oppressed dalits was a fundamental right to make their
right of life and dignity of person meaningful.

In Regional Director, ESI Corporation v. Francis De Costa, the Supreme held that security
against sickness and disablement was a fundamental right under Art. 21 read with Sec. 39(e) of
the Constitution of India.

In L.I.C. of India v. Consumer Education and Research Centre, it was further held that right
to life and livelihood included right to life insurance policies of LIC of India, but that it must be
within the paying capacity and means of the insured.

Right Against Honour Killing

A division bench of Allahabad high court, In Surjit Kumar v. State of U.P., took serious note
on harassment, in ill treatment and killing of a person who was a major, for wanting to get
married to a person of another caste or community, for bringing dishonor to family since inter
caste or inter community marriage was not prohibited in law, the court said that such practice of
“honour killing” was a blot on society. The court, therefore, directed the police to take strong
measures, against those who committed such ‘honour killing’.

Right to Health

In State of Punjab v. M.S. Chawla, it has been held that- the right to life guaranteed under
Article 21 includes within its ambit the right to health and medical care.

The Supreme Court in Vincent v. Union of India, emphasized that a healthy body is the very
foundation of all human activities.Art.47, a directive Principle of State Policy in this regard lays
stress note on improvement of public health and prohibition of drugs injurious to health as one of
primary duties of the state.

In Consumer Education and Research Centre v. Union of India, The Supreme Court laid
down that:

“Social justice which is device to ensure life to be meaningful and livable with human dignity
requires the State to provide to workmen facilities and opportunities to reach at least minimum
standard of health, economic security and civilized living. The health and strength of worker, the
court said, was an important facet of right to life. Denial thereof denudes the workmen the finer
facets of life violating Art. 21.”
Right to Medical Care

In ParmanandaKatara v. Union of India[xlvii], the Supreme Court has very specifically

clarified that preservation of life is of paramount importance. The Apex Court stated that ‘once
life is lost, status quo ante cannot be restored[xlviii].’ It was held that it is the professional
obligation of all doctors (government or private) to extent medical aid to the injured immediately
to preserve life without legal formalities to be complied with the police. Article21 casts the
obligation on the state to preserve life. It is the obligation of those who are in charge of the health
of the community to preserve life so that the innocent may be protected and the guilty may be
punished. No law or state action can intervene to delay and discharge this paramount obligation
of the members of the medical profession. No law or State action can intervene to avoid/delay
the discharge of the paramount obligation cast upon members of the medical profession. The
obligation being total, absolute and paramount, laws of procedure whether in statute or otherwise
which would interfere with the discharge of this obligation cannot be sustained and must,
therefore, give way. The court also observed:

“Art. 21 of the Constitution cast the obligation on the State to preserve life. The patient whether
he be an innocent person or a criminal liable to punishment under the laws of the society, it is
the obligation of those who are in charge of the health of the community to preserve life so that
the innocent may be protected and the guilty may be punished. Social laws do not contemplate
death by negligence to tantamount to legal punishment…. Every doctor whether at a Government
hospital or otherwise has the professional obligation to extend his services with due expertise for
protecting life.”

In another case Paschim Banga Khet Mazdoor Samity v. State of West Bengal, a person
suffering from serious head injuries from a train accident was refused treatment at various
hospitals on the excuse that they lacked the adequate facilities and infrastructure to provide
treatment. In this case, the Supreme Court further developed the right to emergency treatment,
and went on to state that the failure on the part of the Government hospital to provide timely
medical treatment to a person in need of such treatment results in violation of his right to life
guaranteed under Article 21. It acknowledged the limitation of financial resources to give effect
to such a right, but maintained that it was necessary for the State to provide for the resources to
give effect to the entitlement of the people of receiving emergency medical treatment.

It has been reiterated, time and again, that there should be no impediment to providing
emergency medical care. In Pravat Kumar Mukherjee v. Ruby General Hospital & Others, it
was held that a hospital is duty bound to accept accident victims and patients who are in critical
condition and that it cannot refuse treatment on the ground that the victim is not in a position to
pay the fee or meet the expenses or on the ground that there is no close relation of the victim
available who can give consent for medical treatment.

The court has laid stress on a very crucial point, viz., state cannot plead lack of financial
resources to carry out these directions meant to provide adequate medical services to the people.
The state cannot avoid its constitutional obligation to provide adequate medical services to
people on account of financial constraints.
But, in State of Punjab v. Ram LubhayaBagga, the Supreme Court has recognized that
provision of health facilities cannot be unlimited. The court held that it has to be to the extent
finance permits. No country gas unlimited resources to spend on any of its projects.

In Confederation of Ex-servicemen Association v. Union of India, right to get free and timely
legal aid or facilities has been held to be not a fundamental right of ex-servicemen. A policy
decision in formulating contributory scheme for ex-servicemen and asking them to pay one time
contribution does not violate Art. 21 nor is it inconsistent with Part IV of the constitution.

No Right to die

Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to
live or a right to die if a person chooses to end his life? If so, what is the fate of Sec. 309,
I.P.C., 1860, which punishes a person convicted of attempting to commit suicide? There has
been difference of opinion on the justification of this provision to continue on the statute book.

This question came for consideration for first time before the High Court of Bombay in State of
Maharashtra v. Maruti SripatiDubal. In this case the Bombay High Court held that the right
to life guaranteed under Article 21 includes right to die, and the hon’ble High Court struck down
Section 309 of the IPC that provides punishment for attempt to commit suicide by a person as
unconstitutional.

In P. Rathinam v. Union of India, a two judge Division Bench of the Supreme Court, took
cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court
supporting the decision of the High Court of Bombay in Maruti SripatiDubal’s Case held that
the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his
detriment disadvantage or disliking. The court argued that the word life in Art. 21 means right to
live with human dignity and the same does not merely connote continued drudgery. Thus the
court concluded that the right to live of which Art. 21 speaks of can be said to bring in its trail
the right not to live a forced life. The court further emphasized that “attempt to commit suicide is
in realty a cry for held and not for punishment.”

The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian Kaur v. State of
Punjab. The question before the court was that if the principal offence of attempting to commit
suicide is void as being unconstitutional vis-à-vis Art.21, then how abetment can thereof be
punishable under Sec. 306, I.P.C., 1860. It was argued that ‘the right to die’ having been
included in Art.21 (Rathinam ruling), and Sec. 309 having been declared unconstitutional, any
person abetting the commission of suicide by another is merely assisting in the enforcement of
his fundamental right under Art. 21.

The Court overruled the decision of the Division Bench in the above stated case and has put an
end to the controversy and ruled that Art.21 is a provision guaranteeing protection of life and
personal liberty and by no stretch of imagination can extinction of life’ be read to be included in
protection of life. The court observed further:
“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural
termination or extinction of life and, therefore, incompatible and inconsistent with the concept of
right to life”

Euthanasia and Right to Life

Euthanasia is termination of life of person who is terminally ill or in a permanent vegetative

state. In Gian Kaur v. State of Punjab, the Supreme Court has distinguished between
Euthanasia and attempt to commit suicide. The court held that death due to termination of natural
life is certain and imminent and the process of natural death has commenced. These are not cases
of extinguishing life but only of accelerating conclusion of the process of natural death that has
already commenced.

The court further held that, this may fall within the ambit of Right to live with human dignity up
to the end of natural life. This may include the right of a dying man to also die with dignity when
his life is ebbing out. This cannot be equated with the right to die an unnatural death curtailing
the natural span of life.

Sentence of death –Rarest of rare cases

The issue of abolition or retention of capital punishment was dealt with by the law commission
of India. After collecting as much available material as possible and assessing the views
expressed by western scholars, the commission recommended the retention of the capital
punishment in the present state of the country. The commission held the opinion that having
regard to the conditions of India, to the variety of the social upbringing of its inhabitants, to the
disparity in the level of morality and education in the country, to the vastness of its area, to the
diversity of its population and to the paramount need for maintaining law and order in the
country, India could not risk the experiment of abolition of capital punishment.

In Jagmohan v. State of U.P, the Supreme Court had held that death penalty was not violative
of articles 14, 19 and 21.it was said that the judge was to make the choice between death penalty
and imprisonment for life on the basis of circumstances, facts and nature of crime brought on
record during trail. Therefore, the choice of awarding death sentence was done in accordance
with the procedure established by law as required under article 21

But, in RajinderaParsad v. State of U.P., Krishna Iyer J., speaking for the majority, held that
capital punishment would not be justified unless it was shown that the criminal was dangerous to
the society. The learned judge plead for the abolition of death penalty and said that it should
retained only for “white collar crimes”

However, in Bachan Singh v. State of Punjab, the leading case of on the question, a
constitution bench of the supreme court explained that article 21 recognized the right of the state
to deprive a person of his life in accordance with just, fair and reasonable procedure established
by a valid law .It was further held that death penalty for the offence of murder awarded under
section 302 of I.P.C did not violate the basic feature of the constitution.
Right to get Pollution Free Water and Air

In Subhas Kumar v. State of Bihar, it has held that a Public Interest Litigation is maintainable
for insuring enjoyment of pollution free water and air which is included in ‘right to live’ under
Art.21 of the constitution. The court observed:

“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of
enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or
impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art.32
of the Constitution for removing the pollution of water or air which may be detrimental to the
quality of life.”

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free
from the dangers of diseases and infection. Maintenance of health, preservation of the sanitation
and environment have been held to fall within the purview of Article 21 as it adversely affects
the life of the citizens and it amounts to slow poisoning and reducing the life of the citizens
because of the hazards created if not checked.

The following are some of the well-known cases on environment under Article 21:

In M.C. Mehta v. Union of India(1988), the Supreme Court ordered closure of tanneries that
were polluting water.

In M.C. Mehta v. Union of India(1997), the Supreme Court issued several guideline and
directions for the protection of the Taj Mahal, an ancient monument, from environmental
degradation.

In Vellore Citizens Welfare Forum v. Union of India, the Court took cognizance of the
environmental problems being caused by tanneries that were polluting the water resources,
rivers, canals, underground water and agricultural land. The Court issued several directions to
deal with the problem.

In Milk Men Colony Vikas Samiti v. State Of Rajasthan, the Supreme Court held that the
„right to life‟ means clean surrounding which lead to healthy body and mind. It includes right to
freedom from stray cattle and animals in urban areas.

In M.C. Mehta v. Union of India (2006), the Court held that the blatant and large-scale misuse
of residential premises for commercial use in Delhi, violated the right to salubrious sand decent
environment. Taking note of the problem the Court issued directives to the Government on the
same.

In Murli S. Deora v. Union of India, the persons not indulging in smoking cannot be compelled
to or subjected to passive smoking on account of act of smokers. Right to Life under Article 21 is
affected as a non-smoker may become a victim of someone smoking in a public place.
PROCEDURE ESTABLISHED BY LAW

The expression “procedure established by law” has been subject matter of interpretation in a
catena of cases. A survey of these cases reveals that courts in the process of judicial
interpretation have enlarged the scope of the expression. The Supreme Court took the view that
“procedure established by law” in Article 21 means procedure prescribed by law as enacted by
the state and rejected to equate it with the American “due process of law.” But, in Maneka
Gandhi v Union of India the Supreme Court observed that the procedure prescribed by law for
depriving a person of his life and personal liberty must be “right, just and fair” and not
“arbitrary, fanciful and oppressive,” otherwise it would be no procedure at all and the
requirement of Article 21 would not be satisfied. Thus, the “procedure established by law” has
acquired the same significance in India as the “due process of law” clause in America. Justice V.
R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration has said that though “our
Constitution has no due process clause” but after Maneka Gandhi’s case “the consequence is the
same, and as much as such Article 21 may be treated as counterpart of the due process clause in
American Constitution.”

Recently the Supreme Court has dealt with an increasing number of people sentenced to death
for “bride-burning”. In December 1985 the Rajasthan High Court sentenced a man, Jagdish
Kumar, and a woman, Lichma Devi, to death for two separate cases of killing two young woman
by setting them on fire. In an unprecedented move the court ordered both prisoners to be publicly
executed. In a response to a review petition by the Attorney General against this judgment the
Supreme Court in December 1985 stayed the public hangings, observing that “a barbaric crime
does not have to be met with a barbaric penalty.” The Court observed that the execution of death
sentence by public hanging is violation of article 21, which mandates the observance of a just,
fair and reasonable procedure. Thus, an order passed by the High Court of Rajasthan for public
hanging was set aside by the Supreme Court on the ground inter alia, that it was violative of
article 21. In Sher Singh v State of Punjab the Supreme Court held that unjustifiable delay in
execution of death sentence violates art 21.

The Supreme Court has taken the view that this article read as a whole is concerned with the
fullest development of an individual and ensuring his dignity through the rule of law. Every
procedure must seem to be ‘reasonable, fair and just.’ The right to life and personal liberty has
been interpreted widely to include the right to livelihood, health, education, environment and all
those matters that contributed to life with dignity. The test of procedural fairness has been
deemed to be one that is commensurate to protecting such rights. Thus, where workers have been
deemed to have the right to public employment and its concomitant right to livelihood, a hire-fire
clause in favour of the State is not reasonable, fair and just even though the State cannot
affirmatively provide livelihood for all. Under this doctrine the Court will not just examine
whether the procedure itself is reasonable, fair and just, but also whether it has been operated in a
fair, just and reasonable manner. This has meant, for example the right to speedy trial and legal
aid is part of any reasonable, fair and just procedure. The process clause is comprehensive and
applicable in all areas of State action covering civil, criminal and administrative action.

The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v.
Union of India observed that, the fundamental right guaranteed under Article 21 of the
Constitution of India provides that none shall be deprived of his life without due process of law.
The Court observed that smoking in public places is an indirect deprivation of life of non-
smokers without any process of law. Taking into consideration the adverse effect of smoking on
smokers and passive smokers, the Supreme Court directed prohibition of smoking in public
places. It issued directions to the Union of India, State Governments and the Union Territories to
take effective steps to ensure prohibition of smoking in public places such as auditoriums,
hospital buildings, health institutions etc. In this manner the Supreme Court gave a liberal
interpretation to Article 21 of the Constitution and expanded its horizon to include the rights of
non-smokers.

Further, when there is inordinate delay in the investigation – it affects the right of the accused, as
he is kept in tenterhooks and suspense about the outcome of the case. If the investigating
authority pursues the investigation as per the provisions of the Code, there can be no cause of
action. But, if the case is kept alive without any progress in any investigation, then the provisions
of Article 21 are attracted and the right is not only against actual proceedings in court but also
against police investigation. The Supreme Court has widen the scope of ‘procedure established
by law’ and held that merely a procedure has been established by law a person cannot be
deprived of his life and liberty unless the procedure is just, fair and reasonable. It is thus now
well established that the “procedure established by law” to deprive a person of his life and
personal liberty, must be just, fair and reasonable and that it must not be arbitrary, fanciful or
oppressive, that the procedure to be valid must comply with the principles of natural justice.

ARTICLE 21 AND THE EMERGENCY

In A.D.M. Jabalpur v. S. Shukla, Popularly known as habeas corpus case, the supreme court
held that article 21 was the sole repository of the right to life and personal liberty and therefore,
if the right to move any court for the enforcement of that right was suspended by the presidential
order under article 359, the detune would have no locus standi to a writ petition for challenging
the legality of his detention.

Such a wider connotation given to article 359, resulted in the denial of the cherished right to
personal liberty guaranteed to the citizens. Experience established that during emergence of
1975, the fundamental freedom of the people had lost all meanings.

In order that it must not occur again, the constitution act, 1978, amended article 359 to the effect
that during the operation of proclamation of emergency, the remedy for the enforcement of the
fundamental right guaranteed by article 21 would not be suspended under a presidential order.

In view of the 44th amendment, 1978, the observation made in the above cited judgments are left
merely of academic importance.

Art. 22 gives protection from illegal arrest or detention. It provides that a person must be
informed of the grounds of arrest as soon as possible, be allowed to speak to a lawyer of his
choice, and be produced before a magistrate within 24 hrs. of detention.
 Meaning of Article 22
The procedural safeguards against arbitrary arrest and detention, provided in clause (1) and (2) of
Article 22 are that no person who is arrested shall be detained in custody without being
informed, as soon as may be of the grounds for such arrest. No such persons shall be denied the
right to consult, and to be defended by, a lawyer of his choice. And, every person who is arrested
and detained in custody shall be produced before the nearest magistrate within a period of 24-
hours of arrest.

 Article 370 of Indian Constitution

 Features of Indian Constitution
 Article 19 of Indian Constitution
The above safeguards are not available to an enemy, alien or a person arrested or detained under
a law providing for preventive detention. The Constitution, however, imposes certain safeguards
against the abuse of power.

Preventive Detention Law in Article 22

The Article 22 assumes the possibility of law for preventive detention. If there is no such law,
the Executive cannot, of its own responsibility, detain any person in custody. Any law relating to
preventive detention must in order to be valid, satisfy the requirements of clauses (4) to (7) of
this Article.

The Fundamental Rights, guaranteed by clauses (4) to (7) to persons detained under any law for
prevention detention, relate to the maximum period of detention, the provision of an Advisory
Board to consider and report on the sufficiency of the cause for detention, the right to be
informed of the grounds of detention and the right to have the earliest opportunity of making a
representation against the order of detention.

The power of preventive detention is thus hedged in by diverse procedural safeguards to

minimise as much as possible the danger of its misuse. It is for this reason that this Article has
been given a place in the chapter on Fundamental Rights.

Amendments to Article 22
The Preventive Detention Act, 1950 was, passed by the Indian Parliament but it was a temporary
Act, originally passed for one year only. Several times since then the term of the Act was
extended until it expired in 1969.

The revival of anarchist forces led Parliament to enact a new Act, named the Maintenance of
Internal security act (MISA) in 1971, having provisions similar to those of the Preventive
detention Act, 1950. In 1974, Parliament passed the Conservation of Foreign Exchange and
Prevention of Smuggling activities Act (COFEPOSA), aimed at anti-social activities like
smuggling, racketing in foreign exchange and the like. MISA was repealed in 1978 but
COFEPOSA still remains.

The Janata Party Government sought to alleviate the rigours of the procedure for preventive
detention, by effecting changes in Clause (4) and (7) of Article 22 by enacting the Constitution
44th Amendment Act in 1978. Paradoxically, however, before any such notification could be
issued, the Janata Government had its fall and Indira Gandhi returned to power in January, 1980.
So, her government refused to issue such notifications. As a result, the original clauses relating to
Preventive Detention in Art.22 subsist till today.

3. Art 23-24 Right Against Exploitation – Under Art. 23, the govt. has banned trade in
human beings. This includes flesh trade and forced work or work without pay (begar
system).
24 prohibits children from being employed in factories and hazardous conditions
The Right Against Exploitation in the Constitution of India

The Rights against Exploitation is provided under Articles 23 and 24 of the Constitution of
India. Right to personal liberty is never real if some people are exposed to exploitation by others.
Arts. 23 and 24 of the constitution are designed to prevent exploitation of men by men. Thus
rights ensured by these two articles may be considered as complimentary to the individual rights
secured by Arts. 19 and 21 of the constitution.

4. Ever since the dawn of civilization in every society, the stronger exploited the weak.
Slavery was the most prevalent and perhaps the cruelest form of human exploitation. Our
constitution does not explicitly forbid slavery. The scope of Article 23 is far wide. Any
form of exploitation is forbidden. Thus forcing the landless labour to render free service
by the land-owner is unconstitutional. Equally, forcing helpless women into prostitution
is a crime. The intention of the constitution is that whatever a person does must be
voluntary. There must not be any element of coercion involved behind a man’s action.

5. The state however may call upon citizens to render national service in defence of the
country. Thus conscription is not unconstitutional. But in compelling people to render
national service, the state must not discriminate on grounds of race, sex, caste or religion.

6. Article 24 forbids employment of child-labour in factories or in hazardous works.

The art. reads ”No child below the age of fourteen years, shall be employed to work in
any factory or mine or, engaged in any other hazardous employment.”
 7. In an environment of all pervading poverty, children are often forced to seek employment
to earn a living. Employers often find it less costly to engage child labour at a cheap
price. But children so employed do not get opportunities for development. Thus,
employment of child labor is a form of traffic in human beings. Hence it is justifiably –
forbidden. But employment of child labor cannot be effectively checked unless there is
overall improvement of economic conditions of the poorer sections of the society. This
provision of the constitution remains a pious wish even today.

8. .
9. Art 25-28 Freedom of Religion – Unlike several countries of the world, we are free to
practice, profess, and propagate any religion under Art. 25. Art. 26 allows us to establish
and maintain institutions for religious and charitable purposes. It also gives the right to
manage our own religious matters. Art. 27 provides tax benefits for promotion of religion
and art. 28 prohibits religious teaching in govt. and govt. aided schools.

Religious Freedom and Right to Equality in India

One of the rights ensured by the Indian Constitution is the privilege of Freedom of Religion. As a
secular country, each national of India has the privilege to the opportunity of religion, i.e. ideal to
take after any religion. As one can discover such many religions being practiced in India, the
Constitution assurances to each national the freedom to take their preferred religion. As per this
essential right, every citizen has the chance to practice and spread their religion peacefully.
What’s more, if any occurrence of religious narrow mindedness happens in India, it is the
obligation of the Indian government to check these frequencies and take strict activities against
it. The right to freedom of religion is all around depicted in the Articles 25, 26, 27 and 28 of
Indian constitution.

The Indian Constitution guarantees certain fundamental rights which were described in articles
12 to 35, which shape Part III of the Constitution. Among these articles, art., 25 and 26 are the
two key articles ensuring religious freedom.

Articles 14, 15 and 16 of the Constitution of India deal with the right to equality. Article 17 is the
unique arrangement that nullifies “untouchability” and precludes its training in any frame. Right
to equality to correspondence under the steady gaze of the law and equivalent assurance of the
law to all residents regardless of religion, race, sex and place of birth is one of the fundamental
estimations of a secular popularity based State. Article 14 of the Constitution gives the two parts
of uniformity to all people, including outsiders who reside inside the region of India.

There are in the meantime a few arrangements of the Constitution that perceive exemption to the
general rule of equality on different sensible grounds. These are given in conditions (3) and (4)
of article 15 and in clauses (4) and (5) of article 16. Special cases to the general government of
uniformity allowed under condition (4) of article 15 and clause (4) of article 16 would be of
enthusiasm for our thought.

Article 15 of the Constitution accommodates a specific utilization of the general standard of

balance encapsulated in Article 14. Clause (1) of article 15 coordinates the State not to oppress
any resident on the ground just of religion, race, standing sex or place of birth or any of them.
The forbiddance contained in this provision applies to the State in managing nationals. clause (2)
of the article 15 forbids the private individual and in addition the State from causing any
segregation or handicap as to the subject’s entrance to shops, lodgings, and so forth., and all
spots of open excitement and resort. The social and religious effect of this proviso is to be found
with regards to the loathsome history of the alleged ‘untouchable individuals’ who, for quite a
long time before, were liable to social isolation and embarrassment in many parts of the nation.
Likewise, provisos (1) and (2) of article 16 typify the rule of fairness set down in article 14 with
reference to the arrangement and work under the State.

Give us now a chance to investigate and see the basis of the special case conditions to the general
precept of uniformity, which is known as arrangements of “Protective discrimination” or
“compensatory discrimination.” Clause (3) of article 15 gives immunity for women and
youngsters, clause (4) of article 15 gives immunity for some backward classes of Indian citizens
and for Scheduled Castes and Scheduled Tribes for their progression in the field of education.
Essentially, clause (4) of article 16 gives an exemption for any backward class of citizens in the
area of appointment of jobs under the state, on the off chance that they are not satisfactorily
spoken to in such administrations.

The religious freedom of unique individuals of India guaranteed by the Indian constitution by
clause (1) of article 25, which can be interpreted precisely the Constitution makes it clear that the
rights provided in clause (1) of article 25 are subject to “morality”, “public order”, and health
and to the other, Articles of Part III of the Constitution that lays down the fundamental rights.
Clause (2) of article 25 is a “saving clause” for the country so that the religious rights guaranteed
under clause (1) are further subject to any “existing law” or a law which the State deems it fit to
pass that:

(a) controls or lays constraint on any financial, economic, political or other secular activity which
may be linked with religious practices, or,

(b) offers for social welfare and reform or the throwing open of Hindu religious institutions of a
public character to all Hindu sections.

Correspondingly Article 26 is the fundamental article that gives “the corporate freedom” of
religion overseeing the connection between the State and Subject to open request, ethical quality
and well-being each religious group or any area thereof should have the privilege, (a) to set up
and keep up organizations for religious and magnanimous purposes; (b) to deal with its own
particular undertakings in issues of religion; (c) to possess and obtain portable and ardent
property; and (d) to regulate such property as per law. Proviso (b) of article 26 assurances to each
religious category or any segment thereof the privilege to deal with its own issues in issues of
religion and condition (d) gives them the privilege to oversee their property (organizations) as
per laws go by the State. It is clear from the dialect of the conditions (b) and (d) of article 26 that
there is a fundamental distinction between the privilege of a section to deal with its religious
undertakings and its entitlement to deal with its property.

Judicial Perception of the Right to Freedom of Religion

The expression “religion” has not been characterized in the Constitution and it is not helpless of
any unbending definition. The Supreme Court has characterized it in several cases. A religion is
positively a matter of confidence and is not really mystical. Religion has its premise in “an
arrangement of the convictions or conventions which are respected by the individuals who
pronounce that religion as helpful for their profound prosperity”, however, it would not be right
to state that religion is nothing else except for a teaching or conviction. A religion may not just
set out a code of moral principles for its devotees to acknowledge, it may endorse customs and
observances, services and methods of love which are viewed as a fundamental piece of religion
and these structures and observances may degree even to issues of sustenance and dress. Subject
to specific confinements, Article 25 presents a major ideal for everyone, not only to engage such
religious convictions as might be affirmed by his judgment or soul yet, in addition, display his
convictions and thoughts by such unmistakable acts and practices which are authorized by his
religion. Presently what rehearses are secured under the Article is to be chosen by the courts
regarding the convention of a specific religion and incorporate practices viewed by the group as
a feature of its religion. The courts have gone into religious sacred texts to find out the status of a
training in question. In various cases, the courts have remarked upon, clarified a translated the
arrangements of the Constitution on uninformed, non-separation, and religious opportunity. The
choices in the greater part of these cases have been given is the settings of the privileges of
specific religious groups or under spend; laws identifying with such groups. A brief on real
choices takes after.

In India, the need to characterize religion was raised interestingly by Dr.B.R. Ambedkar when
the issue relating to individual law and its connection to religion desired dialog in the Constituent
Assembly. He called attention to: The religious originations in this nation are vast to the point
that they cover each part of life from birth to death. There is nothing which is not a religion and
if the individual law is to be spared I am certain about it that in social issues we will grind to a
halt… There is nothing uncommon in saying that we should endeavor from now on to constrain
the meaning of religion in such a way, to the point that we might not expand it past convictions
and such ceremonies as might be associated with ceremonials which are basically religious. It is
redundant that the kind of laws, for example, laws identifying with occupancy or laws
identifying with progression ought to be represented by religion… I for one don’t comprehend
why religion ought to be given this huge broad ward in order to cover the entire of life and to
keep the governing body from infringing upon that field.

On the supposition of Dr. B.R. Ambedkar, what constitutes a “religion” or ‘matters of religion’ is
to be found out by restricting to religious convictions and ceremonies, which are held as
basically religious in a specific religion, which is under legal audit. The Indian Constitution has
no unequivocal meaning of “religion” or ‘matters of religion’. Under the order of article 32 of
the Constitution, which gives the privilege to protected cures, it is left to the Supreme Court to
settle on the legal importance of such terms. In the mid-1950s of every various case, the Courts
in India had been confronted with the issue of characterizing “religion” as given in article 25 (1)
and ‘matters of religion’ as gave in article 26 (b). The specialist should now continue to analyze
some of those cases, which were bid under the steady gaze of the Supreme Court of India for
legal grouping.

Some landmark cases in the matter of Right to religion under Indian Constitution

1. RatilalPanachand Gandhi v. Territory of Bombay. (Hereafter the Ratilal case)

The Ratilal case, the Supreme Court was by and by engaging settle on the legal use of “religion”
and ‘matters of religion’ as suggested morally justified to exercise of religion ensured under
articles 25 and 26 of the Constitution. The case emerged out of the Bombay Public Trust Act,
1950, go to the Bombay State Legislature. Like the Madras Act of 1951, the question of the
Bombay Act as expressed in its preface was to control and to improve arrangement for the
organization of open religious and beneficent trusts in the State of Bombay.

Section 18 of the Bombay Public Trust Act, 1950, pronounced that it was mandatory upon the
trustee of each open trust to which the Act connected, to make an application for the enrollment
of the trust. Like section 21 of the Madras Act of 1951, Section 37 of the Bombay Act likewise
approved the Charity Commissioner and his subordinate officers to enter and review any
property having a place with an open trust. Section 44 of the Act given that the Charity
Commissioner may be selected by a Court of competent jurisdiction or by the creator of the trust
to go about as a sole trustee of an open trust. Section 74 offered forces to the Court to
select other trustee or trustees and the Court, in the wake of making a request, could name the
Charity Commissioner or whatever other individual as a trustee to top of the opening.

The Manager of a Jain Public Temple and Trustees of Parsi Panchayat Funds and Properties in
Bombay challenged before the Bombay High Court the constitutional validity of the Bombay
Public Trust Act of 1950. It was done on the ground that the provisions of the Bombay Act of
1950 contradicted opportunity hone religion as ensured in article 25 (1) and flexibility to oversee
matters of religion as secured by article 26 (b) of the Constitution. The Bombay High Court
denied the appeal to in the light of sub-provision (c) and (d) of article 26 of the Constitution,
which gives the State expert to authorize the enactment as given in the Bombay Act, Therefore,
the Bombay High Court settled the case for the State on the premise of the definition that the
Court provided for religion in the momentous case. This definition decreased religion to
otherworldly and moral viewpoints just and wiped out mainstream exercises, similar to the
property proprietorship and is related to religious practices, from the assurance ensured in the
Constitution. The Chief Justice, Mr. M.C. Chagla who conveyed the judgment of the Bombay
High Court stated: “Religion” as utilized as a part of expressions. 25 and 26 must be translated in
its strict and etymological sense. Religion is what ties a man with his Creator, however,
Mr. Sommaya for the benefit of his customer (Panachand) says that to the extent Janise
are concerned, they don’t have confidence in a Creator and that qualification would not have any
significant bearing to the Jains. Be that as it may, even where you have a religion which does not
have confidence in a Creator, each religion must trust in a heart and it must have faith
in morality and good statutes. Consequently, whatever ties a man to his own heart and whatever
good and moral standards manage the lives of men, that by itself can constitute religion as
comprehended by the Constitution. A religion may have numerous mainstream exercises, it
might have common viewpoints, yet these common exercises and perspectives don’t constitute
religion as comprehended by the Constitution. There are religions which bring under their own
shroud each human movement. There is nothing which a man can do, regardless of whether in
the method for garments or sustenance or drink, which is not viewed as a religious movement. In
any case, it is ridiculous to recommend that a Constitution for a mainstream State at any point
expected that each human and unremarkable action was to be secured under the pretence of
religion, and it is in this way in deciphering religion in that strict sense that we should approach
articles 25 and 26.

2. Durgah Committee, Ajmer v. Syed Hussain Ali. (Henceforth the Durgah Committee
case)

In the Durgah Committee case, an appeal was made by and by to settle on “the issues of
religion” which is ensured under statement (b) of article 26. The historical backdrop of the
present case is as per the following: In 1955, the Parliament had passed the Durgah Khawaja
Saheb Act, to regulate the Durgah and the blessing of the Durgah Khawaja Moinuddin Christi at
Ajmer. This Durgah, which is a Muslim pioneer focus worked at the tomb of Khawaja
Moinuddin Saheb who is a Christi holy person, has been gone to by both Muslim and Hindu
travelers.

Section 4 and 5 of the Durgah Khawaja Saheb Act of 1955, accommodated the arrangement of a
Durgah Committee by the Central Government to control and deal with the Durgah endowment
According to the terms of Section 4 and 5 of the Act, the individuals from the panel designated
by the Government were to be Hanafi Muslims. Section 15 of the Act set out the direction that
the Committee ought to take after the Muslim guidelines and precepts of the Christi holy person
in performing and leading the setup rituals and functions at the tomb of the Christi holy person.

The Khadims (the traditional caretakers of the tomb) tested the legality of the Act on the ground
that it encroached upon their rights ensured in article 26(b), (c) and (d). Their test prevailing in
the High Court of Rajasthan. In issuing the judgment, the Rajasthan High Court watched that the
arrangements for the arrangement of the Committee individuals were ultra vires to the degree
that the arrangement of the Committee individuals kept away from individuals from the Chisti
arrange who have the confidence in the religious practices and customs related with the Chisti
holy person altar. Different arrangements of the Act influencing the benefits and obligations of
the functionaries of the place of worship were likewise proclaimed violative of articles 19 and 25
of the Constitution.

On appeal, the Supreme Court found that the provisions of the said Act were not violative of the
Constitutional rights ensured to religious groups. The Court watched that the Act managed just
the common practices related with religion, which was not a fundamental or vital piece of
religion. Mr. Equity P.B.

Gajendragadkar who conveyed the consistent judgment of the Court stated: Whilst we are
managing this point it may not be strange by chance to strike a note of alert and watch that all
together that the practices being referred to ought to be dealt with as a piece of religion they
should be viewed by the said religion as its fundamental and vital part; generally even simply
mainstream hones which are not a basic or a necessary piece of religion are well-suited to be
dressed with a religious shape and may make a case for being dealt with as religious practices
inside the importance of article 26. Thus, even practices however religious may have sprung
from just superstitious convictions and may in that sense is superfluous and unessential
accumulations to religion itself. Unless such practices found to constitute a fundamental and
basic piece of a religion their case for the security under Article 26 may be precisely examined;
as such, the insurance must be kept to such religious practices like a basic and a necessary piece
of it and no other.

In conveying the judgment of the moment case, Mr. P. B. Gajendragadkar, J., who represented
the Court, focused on that ‘matters of religion’ secured under article 26 (b) are those
demonstrations which are dealt with as fundamental and essential part by the religion. He
advised that generally things that are not of religious concern can be brought under its ambit such
that religion can be utilized or controlled to true blue superstitious convictions and practices
which may hurt as opposed to empowering human prosperity. This is the purpose behind the
scholarly judge to strike a note of alert to separate ‘matters of religion,’ whose insurance is
ensured by the Constitution of India, from common exercises appended to religious practices.

10.
11. 29-30 Cultural and Educational Rights – Art. 29 allows any section of citizens living
anywhere in India who have a distinct language, script, or culture, to preserve the
same. Art. 30 allows minorities to establish and maintain educational institutions. To
prevent discrimination, however, art 29(2) prohibits them from discrimination
in admissions only on the grounds of religion, race, caste, language, or any of them.
Cultural rights in Indian Constitution
Article 29
Cultural and Educational Rights Under Article 29 & 30 of Indian Constitution
Articles 29 and 30 of Indian Constitution mainly safeguards the rights of minorities in reference
to their culture and education. Before we proceed ahead, I would like to familiarize with some
basicterms.

Minority: The term minority has not been defined anywhere in the Indian Constitutions. In 1928,
the Motilal Nehru report mentioned a desire to protect the rights of minorities, but with no
definition of minorities. Similarly, The Sapru report of 1945 proposed to set up a separate
Minority commission, still not defining the word.

It seems that the members of the constituting assembly left it to the wisdom of the courtsto
decide whether a citizen or a group of citizens fall under the term minority. For the purposes of
these articles, we can say that a minority is a group of people different from the main population
or majority of population on the basis of language or religion.
Article 29 of Indian Constitution: Protection of interests of minorities

India is a country of diverse cultural traditions and religious people residing in different parts of
the nation. The diversity is so broad and spread across such a wide area that naming them in
correspondence to their areas is a hefty task. Most of these cultures are recognized by
our constitution or by the government, but in some remote corners, we can still find tribes or
cultures which have evaded discovery even until now. This Article 29 of Indian Constitution
conserves the rights of minorities in regards to their culture or language or heritage. There are
two clauses here.

Cultural and Educational Rights Under Article 29 and 30 of Indian Constitution

They are explained as follows:

1. The first clause states that people belonging to any community or culture or religion,
however small or remote, have the right to conserve their values. In other words, they cannot be
forced to ditch their cultural heritage and adopt other values. A very general example of such a
problem was observed in medieval times when the Mughal emperors forced majority of the
Hindu population to convert to Islam. Many Hindu temples were demolished and replaced with
either mosques or other monuments that promoted Islam.

Although, this clause might point in the direction of the right of minorities, but it is also
applicable to people belonging to majority too. They too are equally allowed to preserve their
culturethrough the means of an educational institute.

2. The second clause makes it very clear that an educational institute that is run by the state or
even partially aided by the government funds cannot deny admission into that institute based on
caste, religion, language, race or any of these. However, other criteria such as those based on
merit can be employed to shortlist students as per the availability of limited seats. But an
institute run or administered by a minority, can reserve up to 50% of the seatsfor students
belonging to that particular minority community. The state also cannot compel the institutes to
only admit student of the minority community.

As far as the students are concerned, if they belong to a different community, they don’t have the
legal right to freely practice, profess or propagate their culture in the premise of that educational
institute which is run by a minority community.

Moreover, by the first amendment act 1951, a fourth clause was added in Article 15 of Indian
Constitution that gave the state the authority to reserve seats in any institute for the advancement
of backward classes or scheduled classes or scheduled tribes.

Article 30 of Indian Constitution - Right of minorities to establish and administer educational

institutions

Gurdwaras, Churches, Temples, Madarsas etc. are examples of a religious educational institute.
Article 30 of Indian Constitution safeguards the rights to establish such institutes. There are two
clauses in this. They are:

1. According to this clause, any person belonging to a minority can establish an educational
institute. This minority can be based on language or religion. They also have the right to
administer or run these institute as per their satisfaction as long as there is no such law that
prevents them from doing it. This article is also called Charter of Education Rights.

1(a). This is the sub-clause of the first clause which was inserted by the 44th amendment act of
1978 . This sub-clause states that if at a certain point, the government has to acquire any part of
such an educational institute for any reason, then the compensation that is to be given should be
decided in such a way that it doesn’t violate the first clause, that is, it should be enough.

For example, a part of a Madarsa, an Islamic educational institute can be acquired by the
government as long as substantial compensation is provided.

2. Most of the institutes in India at some point have to ask the government for financial aid due
to various reasons. Under this sub-clause, it states that the government cannot discriminate as
which institute to fund on the basis of whether the institute is managed by a minority either based
on religion or language. However, it can consider other such criteria like availability of funds
and the field of study and its benefits.

One issue that rose in the past was if Madarsas can provide computer knowledge in the institutes.
Nowhere in the constitution is it mentioned that any such institutes can provide only religious or
cultural education. Along with these teachings, the institutes can follow regular curriculum as
well. This will help improve the knowledge bank of the students belonging to such minorities
with regards to higher education.

Articles 29 and 30 of Indian Constitution cannot be grouped together, however similar they may
sound. Article 29 deals with the right to conserve the language, script or culture of a community,
whereas Article 30 deals with minorities based on religion and language. Article 29 includes the
right of majorities to conserve their culture whereas article 30 only describes the rights of
minorities.
Article 29 talks about the conservation of one’s culture, script or language which can be achieved
by any means apart from educational institutes whereas Article 30 specifically refers to rights
regarding educational institutes which may or may not work towards the conservation of one’s
culture or language or script.

12.
Art 32 Right to Constitutional Remedies – Dr. Ambedkar, the chief architect of our constitution,
has said that Article 32 is the soul of our constitution. All the talk of rights is useless if there is
no recourse against their transgression. Under this article, a citizen is free to go to the Supreme
Court for violation of his rights. Right To Constitutional Remedies in Indian Constitution

Article 32 of the Indian constitution provides for constitutional remedies against the violation or
transgression of fundamental rights. The fundamental rights are of highest importance to the
individuals. They are basic conditions for the fullest development of personality.

Article 32 which was referred to “as the very soul of the constitution” by Dr. Ambedkar,
provides for constitutional remedies. Clause 2 of Article 32 provides that, “The Supreme Court
shall have the power to issue directions or order or writs including the writs in the nature of
habeas corpus, mandamus, prohibition, Quo warranto and criterion, whichever may be
appropriate for the enforcement of any of the rights conferred by” fundamental rights. The
citizens are given the right to move—the Supreme Court in case of transgression of fundamental
rights. The Supreme Court thus is constituted into a protector and guarantor fundamental rights.
The right to constitutional remedy is itself a fundamental right.

The Constitution of India assured greater protection of individuals rights and afforded lar
ger freedom to the court to look into executive failures. The judiciary has provided various
measures in preserving the liberty and freedom of the people of the
country Each citizen of India has
inherent right to challenge the constitutionality of any executive enactment restrains him
from enjoying his fundamental
rights. By judicial interpretations the fundamental rights, distribution of executive power
s and other constitutional restrictions and limitations were provided a new meaning. The
fundamental object of judicial review is to infuse life in the dry and abstract postulates
of the constitution enabling it to be a living organism so as to satisfy the needs of
the time.

Articles 32and 226 of the Indian Constitution makes provisions for writs in the country.
Under clause (2)of Article 32 the Supreme Court is empowered to issue appropriate direc
tion, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition quowarranto and certiorari for the enforcement of any fundamenta
l rights guaranteed by Art III of the constitution. By this article the Supreme Court has
been constituted as a protector and guarantor of the fundamental rights and
once a citizen has shown that there is infringement of his fundamental right the
court cannot refuse to entertain petitions seeking enforcement of fundamental rights. Arti
 cle 226(1) empowers every High Court, notwithstanding anything in Article
32, throughout the territories in relation to which it exercises jurisdiction to issue any pe
rson or authority, including appropriate cases any government, within those territories dire
ctions, orders or writs including writs in the nature of habeas corpus,
mandamus, quo warranto, prohibition and certiorari for the enforcement of
Fundamental Rights or for any other purpose.

I. Habeas Corpus

The expression “Habeas Corpus” is a Latin term which means ‘to have the body’. If a person is
detained unlawfully, his relatives or friends or any person can move the Court by filing an
application under Article 226 in High Court or under Article 32 in Supreme Court for the writ of
Habeas Corpus.

The main objective of this writ is to provide immediate remedy to person unlawfully detained,
whether in prison or private custody. The detention becomes unlawful if a person who is arrested
is not produced before the magistrate within 24 hours of his arrest. Also the law under which the
person is detained must be lawful, if the law itself is unlawful then the detention is also unlawful.

The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the
Supreme Court in Maneka Gandhi v. Union of India[1] and also by the adoption of forty-fourth
amendment to the Constitution. Since the judicial interpretation of Article 21 has extended the
magnitude of the concept of the personal liberty and the Court introduced the element -of
fairness and justness in the ‘procedure established by law’, now a writ of habeas corpus would
lie if the law depriving a person of his personal liberty is not fair, just and equitable.

II. Mandamus

The word “mandamus” means “the order”. The writ of mandamus is thus an order by a
superior court commanding a person or a public authority (including the Government an
d public corporation) to do or forbear to do something in the; nature of public duty
or in certain cases of a statutory duty.

This writ can be issued when the government denies to itself a jurisdiction which it
undoubtedly has under the law} or
where an authority vested with a power improperly refuses to exercise it. The purpose of
this writ is to restrict the public authorities to work within their powers.

Conditions for the issue of writ of mandamus:-

 The Petitioner must have legal rights .

 A Legal duty must have been imposed on the authority and the performance of the duty should
be necessary. Such duty must be statutory either imposed by the Constitution or by any other
statute or or some rule of common law but should not be contractual. If public authority invested
with discretionary power abuses the power or exceeds it, or act malafide or there is non-
 application of mind by it or irrelevant considerations have been taken into account the writ of
mandamus can be issued.

 An Application for mandamus must have been made in good faith and not for any ulterior
motive. It will not be issued if designed to harass the respondent or with a view to cause personal
grievances.

III. Prohibition

The expression ‘prohibition’ literally means ‘to prohibit’. The Writ of Prohibition is a Judicial
order issued by the Supreme Court or a High Court to an inferior Court or quasi-judicial body
forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a
jurisdiction with which it is not legally vested. Thus, object of the writ is to compel inferior
courts to keep themselves within the limits of their jurisdiction.

Earlier, this writ was used to issue only to judicial and quasi-judicial bodies. But such
requirement is no longer valid. With the expanding dimensions of natural justice and the
requirement of fairness in administrative functions, the rigidity about prohibition has been
liberalized. This writ can now lie to anybody, irrespective of the nature of function exercised by
it, if any of the grounds on which the writ is issued is present.

IV. Certiorari

Certiorari is a writ issued from a superior court to an inferior court or tribunal commanding the
latter to send up the record of a particular case. Literally, Certiorari means to be certified. 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.

V. 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.

Scope of Article 32

Article 32 provides a quick and immediate

remedy for the enforcement of Fundamental Rights. Any person may for the violation
of any of his Fundamental Rights by an administrative action can go straight to the Supr
eme Court,
without being required to undergo the dilatory proceedings from the lower to a higher co
urt as one has to do in any ordinary litigation.
 The Supreme Court has thus been constituted,
as the protector and guarantor of Fundamental Rights. Article 32 is itself of a
Fundamental Rights and cannot therefore , be diluted or
whittled down by legislation, and can be invoked over when a law declares a
particular administrative action as final.

Scope of Article 226 and 227

Writs under Article 226 have to be issued in grave cases where the subordinate tribunal or bodies
or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of
natural justice or refuse to exercise a jurisdiction vested in them, or there is an error apparent on
the face of the record and such act, omission, error, or excess has resulted in manifest
injustice. The High Court in its Writ jurisdiction cannot act as a Court of Appeal against the
orders of the State Governments or Union or other authorities.

Difference Between Article 32 and Article 226

1. The rights guaranteed by Article 32 can only be exercised for the enforcement of fundamental
rights only whereas the rights conferred under Article 226 of the constitution can be exercised
not only for the enforcement of fundamental rights but for ‘any other purpose’. The expression
‘and for any other purpose’ in Article 226 will include the enforcement of ordinary legal right
which do not amount to fundamental rights. Thus the power under Article 226 are wider than
those under Article 32.
2. The order under Article 32 will Supersede the order passed by the High Court under Article 226
of the Constitution previously.

An application under Article 226 may always be made first to Supreme Court since Article 32 is
itself a Fundamental Right. It is Substantive right not a mere procedural right. There is no need
to resort to High Court Before Approaching to the Supreme Court under Article 32.

Case Laws

In the case of Basheshwar Nath v. Commissioner, Income Tax, the court held that, “A large
majority of people are socially poor educationally backward and politically yet not conscious of
their rights, cannot be pitted against the state or the institution or they cannot be put on equal
status with the state or large organisations. The people are requires to be protected from
themselves. It is therefore the duty of the court to protect their rights and interests. Fundamental
rights are therefore transcendental in nature and created and enacted in national and public
interest and therefore they cannot be waived.”

In Daryao v. State of U.P. , it was held that the right to obtain a writ must equally be a
fundamental right when a petitioner presents the case. Thus, it cannot merely be considered as
an individual’s right to move the Supreme Court but it is also the duty and responsibility of the
Supreme Court to protect the fundamental rights.
In Collector of Central Excise v. Dunlop India Ltd, the Supreme Court held that Article 226 is
not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies
are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the
vires of the statute is in question or where private or public wrongs are inextricably linked and
the prevention of public injury and the vindication of public justice require it, that recourse may
be had to Article 226 of the Constitution. A writ will not ordinarily be issued by the Court where
the impugned order, not patently erroneous, is made by an authority within his jurisdiction

Type of Meaning of
Purpose of issue
Writ the word

Habeas You may have To release a person who has been detained
Corpus the body unlawfully whether in prison or in private custody.

To secure the performance of public duties by

Mandamus We Command
lower court, tribunal or public authority.

To quash the order already passed by an inferior

Certiorari To be certified
court, tribunal or quasi judicial authority.

To prohibit an inferior court from continuing the

Prohibition - proceedings in a particular case where it has no
jurisdiction to try.

Quo What is your To restrain a person from holding a public office

Warranto authority? which he is not entitled.

Scope of Fundamental Rights

Widest Possible Interpretation – SC in A K Gopalan v State of Madras AIR 1950 had held that
the various rights given under part III talk about different things and are not be interlinked. This
view, however, has been rightly rejected by the SC in Menaka Gandhi v Union of India AIR
1978 case. In this case, J Bhagvati said that the role of SC should be to interpret these rights in
the widest possible manner and it should not attenuate these rights by being confined to their
narrow definition. All these rights are not mutually exclusive and form an integrated theme of the
constitution. J Beg said that their waters must mix to form a grand flow of unimpeded and
impartial justice. Thus, any law that takes away the life or liberty of a person, must also satisfy
the test of reasonableness under art. 14.
Natural Justice and Due Process

In Menaka Gandhi’s case, SC has held that any law that takes away the life or liberty of a person
under art. 21, must be just, fair, and reasonable. It must satisfy the principle of natural justice,
which is a basic component of fair procedure under Art. 21. While Art 21 does not contain the
“due process” clause of the American Constitution, the effect is the same because natural justice
is a distillate of due process i.e. natural justices can only be delivered through due process.

Expanding the role of writ of Habeas Corpus

The case of Sunil Batra v Delhi Admin AIR 1980 has given tremendous power to the writ of
Habeas Corpus. It allows the judiciary to even enforce the fundamental rights in a prison. Even
prisoners are humans and must be treated with dignity. They cannot be stripped off of their
fundamental rights, thus menial or forced work without pay, solitary confinement, degrading
punishment, is not allowed. This case has also allowed people who are not directly involved but
have any kind of interest to approach the court. The objective is to remove injustice wherever it
is found in the society.

Absoluteness of Fundamental Rights

“Your freedom ends where my freedom starts” is a well-known saying. The constitution gives
you the right to propagate your religion. But does that mean you should force me to hear
religious activities over the loudspeaker? The constitution gives you the freedom of speech and
expression. But does that mean you can publish and sell pornography freely in open market?
These things clearly tell us that no right is absolute. Indian Constitution also takes the same stand
and specifies the limits of these rights. These rights extend only until they do not affect security
of the state, public order, and social decency. The constitution allows reasonable restrictions to
be placed on these rights. SC in A K Gopalan v State of Madras 1950 has also held that
Fundamental Rights are not absolute.
Suspension of Fundamental Rights

Under art 358, freedoms given under art 19 are suspended when the president proclaims
emergency. Further, under art 359, president may suspend the right to move courts for violation
of rights given in part III except art 20 and 21.

Indian Constitution was written after a thorough analysis of existing constitution of the world.
The framers of the constitution have incorporated the good things from all the places. As such it
is more fair and consistent than religious books. It is for the foresight of the framers of the
constitution that the country is integrated and has progressed. While the framers had thought
about a lot of things, the one thing that they probably missed was the safeguards against the
degrading morality of politicians.
 UNIT-IX

Directive Principles of State Policy: Features and Principles

The framers of the constitution provided every state with some guiding principles which are
meant for promoting the ideal of social and economic democracy. These guiding principles have
been named as Directive Principles of State Policy. These directive principles ensure to avoid the
violation of fundamental rights of the citizen of a state. They are meant to establish a ‘welfare
state’. The directive principles are non-justifiable in nature. They cannot be enforced by the court
of law for their violation. However, these directive principles have been declared as the
fundamental principles in the governance of the country and it shall be the duty of the state to
apply these principles in making laws. Hence, they impose a moral responsibility on the state
authorities for their application.

The Directive Principles of State Policy are enumerated from Articles 36 to 51 in Part IV of the
Constitution.
Features of The Directive Principles
1. The term Directive Principles of State Policy signifies the ideals that the State should keep in
mind while making policies and enacting laws. These are the constitutional instructions or
recommendations to the State in legislative, executive and administrative matters. According to
Article 36, the term ‘State’ in Part IV has the same meaning as in Part III dealing with
Fundamental Rights. Therefore, it includes the legislative and executive organs of the central and
state governments, all local authorities and all other public authorities in the country.
2. The Directive Principles resemble the ‘Instrument of Instructions’ enumerated in the
Government of India Act of 1935. According to Dr B. R. Ambedkar, ‘the Directive Principles
are like the instrument of instructions, which were issued to the Governor-General and to the
Governors of the colonies of India by the British Government under the Government of India
Act of 1935. What is called Directive Principles is merely another name for the instrument of
instructions. The only difference is that they are instructions to the legislature and the executive’.
3. The Directive Principles constitute a highly extensive economic, social and political programme
for a modern democratic State. They aim at realising the high ideals of justice, liberty, equality
and fraternity as outlined in the Preamble to the Constitution. They embody the concept of a
‘welfare state’ and not that of a ‘police state’, which existed during the colonial era. In brief, they
seek to establish economic and social democracy in the country.
4. The Directive Principles are non-justiciable in nature, that is, they are not legally enforceable by
the courts for their violation. Therefore, the government (Central, state and local) cannot be
compelled to implement them. Nevertheless, the Constitution (Article 37) itself says that these
principles are fundamental in the governance of the country and it shall be the duty of the State
to apply these principles in making laws.
5. The Directive Principles, though non-justiciable in nature, help the courts in examining and
determining the constitutional validity of a law. The Supreme Court has ruled many a times that
in determining the constitutionality of any law, if a court finds that the law in question seeks to
give effect to a Directive Principle, it may consider such law to be ‘reasonable’ in relation to
Article 14 (equality before law) or Article 19 (six freedoms) and thus save such law from
unconstitutionality.
Classification of The Directive Principles
The classification of Directive Principles of State Policy have not been mentioned in the
constitution of India. On the basis of their direction in various perspectives, we can divide them
into three categories, i.e. socialistic, Gandhian and liberal–intellectual.
Socialistic Principles
These principles reflect the ideology of socialism. They lay down the framework of a democratic
socialist state, aim at providing social and economic justice, and set the path towards welfare
state.

Following Articles state the guidelines of Socialistic Principles of state policy:

 Article 38: To promote the welfare of the people by securing a social order permeated by justice
social, economic and political and to minimise inequalities in income, status, facilities and
opportunities.
 Article 39: To secure
1. the right to adequate means of livelihood for all citizens;
2. the equitable distribution of material resources of the community for the common good;
3. prevention of concentration of wealth and means of production;
4. equal pay for equal work for men and women;
5. preservation of the health and strength of workers and children against forcible abuse; and
6. opportunities for healthy development of children.
 Article 39 A: To promote equal justice and to provide free legal aid to the poor.
 Article 41: To secure the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement.
 Article 42: To make provision for just and humane conditions for work and maternity relief.
 Article 43: To secure a living wage7, a decent standard of life and social and cultural
opportunities for all workers.
 Article 43 A: To take steps to secure the participation of workers in the management of
industries.
 Article 47: To raise the level of nutrition and the standard of living of people and to improve
public health.
Gandhian Principles
These principles are based on Gandhian ideology. They represent the programme of
reconstruction enunciated by Gandhi during the national movement. In order to fulfil the dreams
of Gandhi, some of his ideas were included as Directive Principles.

Following Articles state the guidelines of Gandhian Principles of state policy:

 Article 40: To organise village panchayats and endow them with necessary powers and authority
to enable them to function as units of self-government.
 Article 43: To promote cottage industries on an individual or co-operation basis in rural areas.
 Article 43 B: To promote voluntary formation, autonomous functioning, democratic control and
professional management of co-operative societies.
 Article 46: To promote the educational and economic interests of SCs, STs, and other weaker
sections of the society and to protect them from social injustice and exploitation.
 Article 47: To prohibit the consumption of intoxicating drinks and drugs which are injurious to
health.
 Article 48: To prohibit the slaughter of cows, calves and other milch and draught cattle and to
improve their breeds.
Liberal–Intellectual Principles
The principles counted in this category signify the ideology of liberalism. Following articles state
the guidelines of Liberal–Intellectual Principles of state policy:

 Article 44: To secure for all citizens a uniform civil code throughout the country.
 Article 45: To provide early childhood care and education for all children until they complete
the age of six years.
 Article 48: To organise agriculture and animal husbandry on modern and scientific lines.
 Article 48-A: To protect and improve the environment and to safeguard forests and wild life.
 Article 49: To protect monuments, places and objects of artistic or historic interest which are
declared to be of national importance.
 Article 50: To separate the judiciary from the executive in the public services of the State.
 Article 51: To promote international peace and security and maintain just and honourable
relations between nations; to foster respect for international law and treaty obligations, and to
encourage settlement of international disputes by arbitration.

An important feature of the constitution is the Directive Principles of State Policy. Although the
Directive Principles are asserted to be "fundamental in the governance of the country," they are
not legally enforceable. Instead, they are guidelines for creating a social order characterized by
social, economic, and political justice, liberty, equality, and fraternity as enunciated in the
constitution's preamble.
The Forty-second Amendment, which came into force in January 1977, attempted to raise the
status of the Directive Principles by stating that no law implementing any of the Directive
Principles could be declared unconstitutional on the grounds that it violated any of the
Fundamental Rights. The amendment simultaneously stated that laws prohibiting "antinational
activities" or the formation of "antinational associations" could not be invalidated because they
infringed on any of the Fundamental Rights. It added a new section to the constitution on
"Fundamental Duties" that enjoined citizens "to promote harmony and the spirit of common
brotherhood among all the people of India, transcending religious, linguistic and regional or
sectional diversities." However, the amendment reflected a new emphasis in governing circles on
order and discipline to counteract what some leaders had come to perceive as the excessively
freewheeling style of Indian democracy. After the March 1977 general election ended the control
of the Congress (Congress (R) from 1969) over the executive and legislature for the first time
since independence in 1947, the new Janata-dominated Parliament passed the Forty-third
Amendment (1977) and Forty-fourth Amendment (1978). These amendments revoked the Forty-
second Amendment's provision that Directive Principles take precedence over Fundamental
Rights and also curbed Parliament's power to legislate against "antinational activities."
The Directive Principles of State DPSP are Policy (contained in part IV, articles 36 to 50,) of the
Indian Constitution. Many of the provisions correspond to the provisions of the ICESCR. For
instance, article 43 provides that the state shall endeavor to secure, by suitable legislation or
economic organization or in any other way, to all workers, agricultural, industrial or otherwise,
work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of
leisure and social and cultural opportunities, and in particular the state shall endeavor to promote
cottage industries on an individual or cooperative basis in rural areas. This corresponds more or
less to articles 11 and 15 of the ICESCR. However, some of the ICESCR rights, for instance, the
right to health (art. 12), have been interpreted by the Indian Supreme Court to form part of the
right to life under article 21 of the Constitution, thus making it directly enforceable and
justiciable. As a party to the ICESCR, the Indian legislature has enacted laws giving effect to
some of its treaty obligations and these laws are in turn enforceable in and by the courts.
Article 37 of the Constitution declares that the DPSP "shall not be enforceable by any court, but
the principles therein laid down are nevertheless fundamental in the governance of the country
and it shall be the duty of the state to apply these principles in making laws." It is not a mere
coincidence that the apparent distinction that is drawn by scholars between the ICCPR rights and
ESC rights holds good for the distinction that is drawn in the Indian context between
fundamental rights and DPSP. Thus the bar to justiciability of the DPSP is spelled out in some
sense in the Constitution itself.
It was said by several members in the Constituent Assembly that the directive principles are
superfluous or mere guidelines or pious principles or instructions. They have no binding force on
the State. In his speech Dr. Ambedkar answered.
" The directive principles are like instruments of instructions which were issued to the Governor
in General and Governors of colonies and to those of India by the British Government under the
1935 Act under the Draft Constitution. It is proposed to issue such instructions to the president
and governors. The text of these instruments of the instructions shall be found in scheduled IV to
the Constitution of India. What are called directive principles is that they are instructions to the
Legislature and the Executive. Such a thing is, to my mind, to be welcomed. Wherever there is
grant or power in general terms for peace, order and good government that it is necessary that it
should be accompanied by the instructions regulating its exercise." It was never intended by Dr.
Ambedkar that the Directive Principles had no legal force but had moral effect while educating
members of the Government and the legislature, nor can it be said that the answer referred to
necessarily implied with the Directive Principles had no legal force.

Former Chief Justice of India Shri M.N. Venkatachelaiah, said that professor Bhat examines the
relationship of fundamental rights inter se and the jurisprudential and constitutional foundations
of that interrelationship. The interrelationship is also a necessary implication of constitutionalism
and Rule of Law. It was viewed that professor Bhat, in his elegant analysis, indicates the
';parallel streams'; and 'cross-currents' of fundamental rights and how these rights inform and
enrich each other. This discourse has its familiar ring in the International Human Rights Regime,
and the principles of their universality, indivibility and interdependence Fundamental Rights and
DPSP.
When the tussle for primacy between fundamental rights and DPSP came up before the Supreme
Court in the case of State of Madras v. ChampakamDorairajan (1951) SCR525 first, the
court said, "The directive principles have to conform to and run subsidiary to the chapter on
fundamental rights." Later, in the Fundamental Rights Case (referred to above), the majority
opinions reflected the view that what is fundamental in the governance of the country cannot be
less significant than what is significant in the life of the individual. Another judge constituting
the majority in that case said: "In building up a just social order it is sometimes imperative that
the fundamental rights should be subordinated to directive principles." This view, that the
fundamental rights and DPSP are complementary, "neither part being superior to the other," has
held the field since ( V.R.KrishnaIyer,J. in State of Kerala v. N. M.. Thomas (1976) 2 SCC
310 at para. 134, p. 367).
The DPSP have, through important constitutional amendments, become the benchmark to
insulate legislation enacted to achieve social objectives, as enumerated in some of the DPSP,
from attacks of invalidation by courts. This way, legislation for achieving agrarian reforms, and
specifically for achieving the objectives of articles 39(b) and (c) of the Constitution, has been
immunized from challenge as to its violation of the right to equality (art. 14) and freedoms of
speech, expression, etc. (art. 19). However, even here the court has retained its power of judicial
review to examine if, in fact, the legislation is intended to achieve the objective of articles 39(b)
and (c), and where the legislation is an amendment to the Constitution, whether it violates the
basic structure of the constitution. Likewise, courts have used DPSP to uphold the constitutional
validity of statutes that apparently impose restrictions on the fundamental rights under article 19
(freedoms of speech, expression, association, residence, travel and to carry on a business, trade
or profession), as long as they are stated to achieve the objective of the DPSP.
The DPSP are seen as aids to interpret the Constitution, and more specifically to provide the
basis, scope and extent of the content of a fundamental right.
To quote again from the Fundamental Rights case:
Fundamental rights have themselves no fixed content; most of them are empty vessels into which
each generation must pour its content in the light of its experience. Restrictions, abridgement,
curtailment and even abrogation of these rights in circumstances not visualised by the
constitution makers might become necessary; their claim to supremacy or priority is liable to be
overborne at particular stages in the history ofthe nation by the moral claims embodied in Part
IV ( Chandra Bhavan v. State of Mysore (1970) 2 SCR, note 1, SCC para. 1714, p. 881).
The Maneka Gandhi Case and Thereafter Simultaneously, the judiciary took upon itself the
task of infusing into the constitutional provisions the spirit of social justice. This it did in a series
of cases of which Maneka Gandhi v. Union of India (1978) 1 SCC 248 was a landmark. The
case involved the refusal by the government to grant a passport to the petitioner, which thus
restrained her liberty to travel. In answering the question whether this denial could be sustained
without a predecisional hearing, the court proceeded to explain the scope and content of the right
to life and liberty. In a departure from the earlier view, A.K.Gopalan v. State of Madras 1950
SCR 88 the court asserted the doctrine of substantive due process as integral to the chapter on
fundamental rights and emanating from a collective understanding of the scheme underlying
articles 14 (the right to equality), 19 (the freedoms) and 21 (the right to life). The power the court
has to strike down legislation was thus broadened to include critical examination of the
substantive due process element in statutes. Once the court took a broader view of the scope and
content of the fundamental right to life and liberty, there was no looking back. Article 21 was
interpreted to include a bundle of other incidental and integral rights, many of them in the nature
of ESC rights. In Francis Coralie v. union of India(AIR 1978 SC 597) the court declared:
"The right to life includes the right to live with human dignity and all that goes with it, namely,
the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for
reading, writing and expressing oneself in diverse forms, freely moving about and mixing and
comingling with fellow human beings. The magnitude and components of this right would
depend upon the extent of economic development of the country, but it must, in any view of the
matter, include the bare necessities of life and also the right to carry on such functions and
activities as constitute the bare minimum expression of the human self."
The combined effect of the expanded interpretation of the right to life and the use of PIL as a
tool led the court into areas where there was a crying need for social justice. These were areas
where there was a direct interaction between law and poverty, as in the case of bonded labor and
child labor, and crime and poverty, as in the case of under trials in jails. In reading several of
these concomitant rights of dignity, living conditions, health into the ambit of the right to life, the
court overcame the difficulty of justiciability of these as economic and social rights, which were
hitherto, in their manifestation as DPSP, considered nonenforceable. A brief look at how some of
these ESC rights were dealt with by the court in four specific contexts will help understand the
development of the law in this area.
 UNIT X

FUNDAMENTAL DUTIES
She said, ‘the moral value of fundamental duties would be not to smoother rights but to establish
a democratic balance by making the people conscious of their duties equally as they are
conscious of their rights.’

The Fundamental Duties of Indian Citizens(Part IV-A) were added as Article 51-A by the 42nd
Amendment, 1976 on the recommendation of Swaran Singh Committee. These duties set in part
IV-A of the Constitution, concern individuals and the nation.

Originally 10 Fundamental Duties , 11th Fundamental Duty was added by 86th Amendment in
2002. At Present we have 11 Fundamental Duties.

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. The idea for Fundamental Duties has been
taken from erstwhile USSR.

The inclusion of Fundamental Duties brought our Constitution in line with article 29 (1) of the
Universal Declaration of Human Rights and with provisions in several modern Constitutions of
other countries.

Justice Varma Committee was constituted in 1998 “to work out a strategy as well as
methodology of operationalizing a countrywide programme for teaching fundamental Duties in
every educational institution as a measure of inservice training”.

Significance:

 They serve as a reminder to the citizens that while enjoying rights they also have some
fundamental duties to follow.
 They serve as a warning against the anti-national and antisocial activities like burning the
national flag, destroying public property and so on.
 They serve as a source of inspiration for the citizens and promote a sense of discipline
and commitment among them. They create a feeling that the citizens are no mere
spectators but active participants in the realisation of national goals.
 The duty as such is not legally enforceable in the Courts; but if the State makes a law to
prohibit any act or conduct in violation of any of the duties, the courts would uphold that
as a reasonable restriction on the relevant fundamental right..
 Though non-justiciable in nature, it still helps the court in examining the constitutional
validity of the law. If the court finds that a law in question seeks to give effect to a
fundamental duty, it may consider such law to be reasonable in relation to Article
14(equality before law) or Article 19 (six freedoms) and thus save such law from
unconstitutionality.
  These duties are in the nature of a code of conduct. Since they are unjusticiable, there is
no legal sanction behind them.

Features of the fundamental duties:

Moral/Civic: Some of the Fundamental duties are moral duties & some are civic duty. E.g. it is
the moral duty to cherish the ideas of freedom struggle but it is the civic duty to respect the
National Flag by saluting it & paying respect towards to it.

Indian way of Life: It is very true that Fundamental Duties have actually been created from the
wide culture present in India & hence it is actually a codification of the Indian way of life.

Difference between Fundamental Right & Fundamental Duties: Fundamental Right applies to
both citizens & foreigners but fundamental duties apply only to citizens.

They are non-justiciable in nature. Fundamental Rights have negative impact on the government.
Fundamental Duties have impact on the Citizens.

Non-justiciable: They are non-justiciable in nature i.e. they can’t be taken to court of law if they
are not followed. They lack legal sanction & direct enforcement. But Parliament can enforce it if
it wants via proper legislation.

Conclusion: These fundamental duties are not mere expressions of pious platitudes. Courts will
certainly take cognizance of laws seeking to give effect to fundamental duties. Finally, the very
fact that these duties figure in the constitution, keeps the door open for the duties to be given
higher constitutional at status in future through constitutional amendments.

It shall be the duty of every citizen of India:

(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the
NationalAnthem;
(b) To cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) To uphold and protect the sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called upon to do so;
(e) To promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;
(f) To value and preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment including forests, lakes, rivers and wild life,
and to have compassion for living creatures;
(h) To develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievement;
(k) Who is a parent or guardian to provide opportunities for education to his child or, as the case
may be, ward between the age of six and fourteen years.
However, the Supreme Court, in Surya vs Union of India (1992) case, ruled that fundamental
duties are not enforceable through judicial remedies by court.

In MC Mehta vs Union of India, the Sucpreme Court has held that under Art 51-A(g) it is the
duty of the Central Government to introduce compulsory teaching of lessons at least for one hour
in a week on protection and improvement of natural environment in all the educational
institutions of the country.

In Chandra Bhawan Boarding vs State of Mysore, the Supreme court made the following
observation prior to the insertion of Article 51-A: “It is a fallacy to think that our Constitution,
there are only rights and no duties. The provisions in Part IV enables the legislature to build a
welfare society and that object may be achieved to the extent the Directive Principles are
implemented by legislation.”

In Vijoy Immanuel vs State of Kerala (1987), the Supreme Court overruled the decision of
Kerala High Court and decided that though to Constitution provides it to be the duty of citizen to
respect the National Anthem, it does not provide that singing of the National Anthem is part of
such respect.

Even a person, while standing during the singing of National Anthem (without himself singing
it) can show respect to the National Anthem.

In AIIMS Student’s Union vs AIIMS, a three-Judge Bench of the Supreme Court made it clear
that fundamental duties, though not enforceable by a writ of the court, yet provide valuable
guidance and aid to interpretation and resolution of constitutional and legal issues.

In Aruna Roy vs Union of India, the validity of National Curriculum Framework for School
Education was challenged on the ground that it was violative of Art. 28 of the Constitution and
anti-secular. It provides imparting of value development education relating to basics of all
religions.

In Mohan Kumar Singhania vs Union of India, a governmental decision to give utmost

importance to the training programme of the Indian Administrative Service selectees was upheld
by deriving support from Article 51-A (i) of the Constitution.

In Rural Litigation and Entitlement Kendra vs State of Uttar Pradesh, a complete ban and closing
of mining operation carried on in Mussoorie hills was held to be sustainable by deriving support
from the fundamental duty as enshrined in Article 51-A (g) of the Constitution.

The Directive Principles have been used to uphold the Constitutional validity of legislations in
case of a conflict with the Fundamental Rights. Article 31C, 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.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.

LATEST IMPORTANT CASE LAWS

Shyam Narayan chouksey v. Union OfIndia-9.1.2018

National Anthem Case

The playing of national anthem in cinema halls were questioned and the Supreme court held
playing is discretionary not mandatory. The theatres are not the appropriate place to test
patriotism. But held if played it is duty to respect it as per Art 51(a)of the constitution.

Shafin Jahan v. Asokan K.M. and others-8.3.2018

Hadiyas marriage case-Love Jihad case

The case had two issues

Faith conversion and inter religious marriage,the Supreme court held that marriage done with
consent of two adults is protected under Art 19 and Art 21 of the Constitution as right to choose
and the rights has two aspects to choose faith and choose partner.

Shakthi Vahini v. Union of India

Supreme court gain reinstated the right to choose life partner is a constitutional right and
permission of family and community not mandatory. Khap panchayat has not right to do Honour
Killing.
Common Cause (A regd. Society) V. Union of India

9.3.2018

Euthanasia Case

Supreme court held right to dignity implies proper process and smooth dying process for
terminally ill and patient in persistent vegetative state and stated they have a right to die as
Fundamental right under Art 21. The case set guidelines and directives.

NavtejSingh Johar v. Union of India

September 2018

The Supreme court held consensual sexual acts between adults in private is not a criminal
offence. The art 14,15 and art 19 protects the right and art 19 gives them right to express
personal orientation. The case decriminalized Sec 377 of IPC as the Fundamental rights were
violated.

Joseph Shine v. Union of India

Adultery case

Previously in Yusuf abdulaziz v. State of Bombay and Sumitra sen v. Union of India

The question of adultery came up to court and to protect the sanctity of marriage the court held
that the section 497 IPC is valid. In this case the court held that as women is not a property sec
497 IPC is invalid as it affects the dignity and equality under fundamental rights. It further held
husband is not a master of wife . the court also held that it shall continue to remain ground of
divorce. In case of spouse commiting suicide due to other doing adultery the accused will be
charged under sec 306 i.e. abatement of suicide.

Indian young Lawyers Association v. State of Kerala

Sabarimala case

The rule 3 b of Kerala Hindu places of public worship act was challenged as the entry of women
of age 10-50 was prohibited. The supreme court held the rule as ultra vires of the constitution
and allowed entry of women.
Justice K.S.PUTTASAMY (retd) and another v. Union of India and others

Privacy AADHAAR CASE

Two issues were raised and in 2017 one issue was addressed and court held right to privacy as
fundamental right . In 2016 the Aadhaar act came , though the act made aadhaar discretionary
but slowly it was made mandatory in all front. The Supreme court held that maximum provision
of the act valid and directed the govt. to secure data. In private bodies and educational institution
Aadhaar was held not to be mandatory.

Swapnil Tripathi v. Supreme court of India

26.9.2018

The court held on transparency in Judicial proceeding in larger public interest to live stream
non-private supreme court proceeding and the court directed Attorney General to make rules
under Art 145 of the Constitution.

Jarnail Singh v. Lakshmi Narain Guptacase

Reservation

The case of reservation came since Indra Sawney v. Union of India wherein reservation in
promotion was held invalid and to revert govt made 77th amendment adding Art 16(4)a making
reservation in promotion valid. In 2002 the Nagaraj v. Union of India and supreme held only to
people below creamy layer and who pass backward test i.e.

no adequate representation

Really backward and

there appointment shall not negativate administrative effect..

In this case it was held that constitution determines status of SC,ST so no further test for them as
to reservation.

Cases 2019-2020

Indian Hotel and Restaurant Association v. State of Maharastra

Blanket ban on Maharastradance bars overturned.

Maharastra prohibition of obscene dance in hotels, restaurant bar rooms and protection of dignity
of women Act 2016 banned the dance bars and several other activities related.

Supreme court held that Maharastra can’t completely ban dance bars and removed the complete
restriction on serving alcohol and relaxed the stringent conditions imposed for getting license.
The court held privacy is a right so rejected the CCTV within bars but held must in entrance. The
court further held that the 1 km area limit prohibition of bars within religious and educational
institution be removed . the right to profession as a fundamental right was reinstated.

Indibility Creative Pvt Ltd (2019)

v. Govt of west Bengal

Justice Chandrachud and J.Hemantgupta held right to free speech can’t be curtailed because of
fear of mob violence. Police are not in a free society,the self-appointed guardians of public
morality. The uniform authority of their force is subject to rule of law. The ban was removed and
compensation of 20 lakhs were granted.

In this case an official ban was imposed on “BHOBHISHYOTER BHOOT” movie by police
authorities citing law and order issues and they coerced the movie screens to withdraw the film.

KantaruRajeevaru v. Indian Young Lawyer Association

Sabarimal Review case- issues of essential religious practices

By 3:2 RajanGogoi, IndumalhotrandKhavilkar for majority held that whether court can interfere
in issue of essential religious practices need to be examined by a larger bench.

J.Chandrachud and J.R.F.Nariman held against as major part of the argument is over and
R.F.Nariman stated – let every person remember that the “holy book” is the Constitution of
India.

B.K.Pavithra and others v. Union of India

Reservation of SC/ST in promotion in Karnataka Act was challenged.

Supreme court held that as per art 16(4) of the constitution the Consequential Seniority to govt.
servants promoted on the basis of reservation is valid and therefore the Karnataka Extension of
consequential seniority to govt. servants promoted on the basis of reservation (to the post in the
Civil Services of the State) Act 2018 is valid . as per M.Nagaraj v. Union of India 2006 held
promotional reservation not mandatory but left to states discretion.
Faheema Shirin v. State of Kerala

Right to internet is a fundamental right as per art 21 of the Indian constitution.

Mukesh Kumar v. State of Uttarakand

The court held promotional reservation is not a fundamental right

Swiss Ribbon v. Union of India

The validity of Insolvency and Bankruptcy Act was challenged but court upheld as it doesn’t
violate Fundamental Rights

Prithviraj Chauhan v. Union of India

2018 amendment to SC/ST act was challenged but held to be valid as protected under
constitution

Hindustan Construction Company v. Union of India

Section 87 of the Arbitration and Conciliation Act was challenged as it violates art 14 court
affirmed and the section was removed.
I YEAR OF 3 YEAR LL.B
SEMESTER - II
EVEN SEMESTER
SUBJECT : FAMILY LAW - II
SUBJECT CODE : TA2D
 SYLLABUS
TA2D - FAMILY LAW - II
Unit - I Inheritance, succession, survivorship and management of Joint Family property and
Marumakkathayam law - Law of Hindu joint family, Legal problems relating to debts and
partition and impact of Modern Legislation - Law of Stridhana and changes brought about by
legislation on Hindu joint Family system - Law of inheritance in Mithakshara and Dayabhaga
Schools and changes brought about by modern legislation. Mohammedan law of inheritance with
special reference to Shia and Sunni Schools - Hindu and Muslim Law of Wills - Relevant
Portions of Indian Succession Act. Dealing with intestate succession of Christians Charitable and
Religious Endowments and Wakfs - Gifts and Preemption.

Unit - II Administration of Estates in Mohammedan Law.

Statutory Materials with Amendments

1. Hindu Inheritance Disabilities Removal Act, 1928.
2. Hindu Law of Inheritance (Amendment) Act, 1929.
3. Hindu Gains of Learning Act, 1930.
4. Hindu Women's Right to Property Act, 1937.
5. Hindu Succession Act, 1956. as amended in 2005.
6. Hindu Succession Act, 1925.
7. The Wakf Act, 1954, as amended in 1995, 2013.
8. The Hindu Married Woman Right to Separate Residence and Maintenance Act, 1946
9. Hindu Succession (TamilNadu Amendment Act,)1989

Books for Reference:

1. Dr.Paras Diwan : Family law
2. Paruk : Indian Succession Act
3. R. Swaroop : Hindu Law Of Succession
4. Mulla : Hindu Law
5. N.R. Raghavachari : Hindu Law
6. Mulla : Mohammedan Law
7. A.A. Fyzee : Outlines of Mohammedan Law
8. K. Sreedhara Variar : Marumakkathayam Law
9. Mitra : Indian Succession Act
 Page 1 of 182

TA2D - FAMILY LAW-II

UNIT-I

 Inheritance
 Succession
 Survivorship and management of joint family property
 Law of Hindu joint family
 Legal problems relating to debts and partition and impact of modern legislation
 Law of Stridhana and changes brought about by legislation on Hindu joint family system
 Law of inheritance Mithaksara and Dayabhaga schools and the changes brought about by
modern legislation.
 Mohammedan law of inheritance with special reference to Shia and Sunni schools .
 Hindu and Muslim law of wills
 relevant portions of Indian Succession Act dealing with intestate succession of Christian
charitable and religious endowments and Wakfs
 Gift and preemption.

UNIT-II

 Administration of a State in Mohammedan law.

 Page 2 of 182

CHAPTER-I

HINDU JOINT FAMILY

Joint family is a fundamental aspect of Hindu Law in which the concept of joint family in
where their common ancestor and his male lineal descendants along with other members such as
wives, daughters, unmarried persons who stay together under one roof of sharing everything in
common in both schools of Mitakshara and Dayabhaga. A joint family or undivided family is an
extended family arrangement prevalent throughout the Indian subcontinent, particularly in India,
consisting of many generations living in the same household, all bound by the common
relationship.

A joint Hindu family headed by a Karta, who is normally the eldest living male member
of the family. Karta has some peculiar rights and obligations under traditional Hindu law and
withholds the powers and duties of joint family.

Historically, for generations India had a prevailing tradition of the Joint Hindu Family or
undivided family. The system is an extended family arrangement prevalent throughout the Indian
subcontinent, particularly in India, consisting of many generations living in the same home, all
bound by the common relationship. A joint family consists of a husband and wife; their sons;
their daughters, and so on up-to generations. Any number of these people may without impacting
the legal existence of the family, be decreased.

A Hindu undivided family or HUF is a legal term related to the Hindu Marriage Act. The
female members are also given the right of share to the property in the HUF. The term finds
reference in the provisions of the Income Tax Act, but the expression is not defined in the act.
There are various aspects of Hindu law relevant for the purpose assessment of income of HUF
with Hindu Succession Act 1956 and Income Tax Act 1961 and wealth in the status of HUF, as
well as the impact of the provisions of Hindu Succession Act 1956 as amended by Hindu
Succession (Amendment) Act 2005 relevant for the purpose of assessment of income and wealth
in the status of HUF under the Income Tax Act 1961.

MITAKSHARA CO-PARCENARY AND ITS MEMBERSHIP

Formation of Co-parcenary-

A Hindu co-parcenary is a much narrower body than the Hindu joint-family. A Hindu
co-parcenary includes only those persons who acquire by birth an interest in the joint-family
property or co-parcenary property. These persons include the sons, son‘s sons and son‘s son‘s
sons of the holder of the joint-family property or co-parcenary property for the time being. The
existence of ancestral property or joint-family property is an essential requirement for the
constitution of co-parcenary.
 Page 3 of 182

In other words, a Hindu co-parcenary includes three generation next to the holder of the
property in unbroken male descendants. The reason for this is that only the lineal male
descendants up to three generation from the holder of the property can offer spiritual services to
deceased ancestors.

If there is a break between the holder of the property and the person claiming to enter the
cp-parcenary, the line being gets extinguished in that direction.

According to Mitakshara Law, no women including holder‘s wife or daughter can be a

member of the cp-parcenary. In the same way, a stranger cannot be a member of the co-
parcenary except where a co-parcener adopt a son in which case the adopted son will become a
co-parcener.

--------------------------------------------------------------------

B1 B2 B3-------1ST Generation

C1 C2 C3--------2nd Generation

----------------------

D1 D2 D3 ------------------------------------------------------------3rd Generation

E1 E2 E3 -------------------------------------------------------------4th Generation

----------------

F1 F2 F3 --------------------------------------------------5th Generation

In this diagram, A is the holder of the property. B1, B2 and B3 are belongs to 1st generation.
C1, C2 and C3 are belongs to 2nd generation. D1. D2 and D3 are belongs to 3rd generation. B1,
B2, B3, C1, C2, C3, D1, D2 and D3 are coparceners because all are belong up to three
generation from the holder of the property. But E1, E2 and E3 are belongs to 4th generation. So
thesepersons are not co-parceners. Because F1, F2 and F3 (5th generation) are not belongs up to
3rd generation, these persons are not co-parceners.
 Page 4 of 182

Nature of the Mitakshara Co-parcenary:-

1. It is not a corporation.

2 Hindu Law does not recognize a co-parcenary as juristic personality capable of holding
property as an entity separate from the members of the family .

3. A Creature of Law- A Hindu co-parcenary is a purely a creature of Law. It cannot be created

by the act of the parties. However a stranger can be admitted as a co-parcener by way of
adoption.

4. No female Member: - Female members cannot be co-parceners. She may be a member of

Hindu joint-family. She has a right of maintenance out of joint-family property. According to
pure Hindu Law, even though the wife has an interest in her husband‘s co-parcenary‘s property,
she is not allowed to be her husband‘s co-parcener. Now this injustice is removed in some States
in India.

Extinction of Co-parcenary-
A co-parcenary cannot said to be comes to an end till the death of the last surviving co-
parcener. A co-parcenary exists even when there is only a single co-parcener. Even on the death
of the sole surviving co-parcener, the co-parcenary cannot be said to come to an end so long as
there is a female member in the Hindu joint-family who is potential and introduce a new male
member by birth or adoption.

Co-Parcenary Within Co-Parcenary-

There is a small co-parcenary within a larger co-parcenary.

---------------------------------------------

B C D --------------------------1st generation

------------- --------------------

B1 B2 B3 ----------D1 D2 -------2nd generation

------ ---- ------------

E1 E2 E3 E4 E5 ---3rd generation

--------------

F1 F2 --4th generation
 Page 5 of 182

In the above illustration, there is co-parcenary upto 3rd generation. So therefore, as

between A, B, C, D, B1, B2, B3, D1, D2, E1, E2, E3, E4 AND E5, there is a larger co-parcenary.

Suppose if D acquires a separate property for himself, it is his own property. It is not
joint-family property. He is entitled to alienate that property in any way as he wishes. Suppose if
he died leaving that property, his son D1and D2 inherit such property. According to Hindu law,
if a person acquires property from his father after his death, it becomes an ancestral property
among his male descendants up to 3rd generation. In regard to such property, D1 and D 2 are the
holder of the property. In regard to D1‘s share of 1/2 property, there is co-parcenary as between
D1, E1 and E2. In regards to D2‘s share of 1/2 property, there is a co-parcenary as between D2,
E3, E4, E5, F1 and F2.

In this illustration, we have seen a larger co-parcenary and also seen two small
coparcenaries within such larger co-parcenary.

Difference between Hindu co-parcenary and English-tenancy are-

1. Hindu co-parcenary is a creature of law and come into existence by birth. Where in joint-
tenancy, it is created by act of the parties by deed or will, but not by descent or way of operate of
law.

2. Hindu co-parcenary consists of only relatives, while English joint-tenancy may be created in
favour of stranger also.

3. A Mitakshara co-parcenary shall not be consists of female members, but a woman can be a
member in English joint-tenancy.

4. A co-parcenary‘s powers of alienation in respect of his share is a restricted one, while that of
an English joint-tenancy is absolute, though he too cannot transfer by will.

5. The quantity of a co-parcenary‘s interest is fluctuating one. By birth in the family, it is

decreased and by death in the family, it is increased. While that of English joint-tenancy, the
interest held by the joint-tenants is fixed and ascertained one, but not fluctuating one.

6. In the case of Hindu co-parcenary, the wife and children have a right to be maintained out of
co-parcenary property, while in English joint-tenancy, the joint-tenant‘s wife and children are
denied to get maintenance from the property.

7. In Hindu co-parcenary, on the death of the last sole surviving co-parcener, the whole property
passes to his own heirs, while on the death of the last surviving joint-tenant, the property
descends in equal shares to the heirs of all the joint tenants.
 Page 6 of 182

Co-Parcenary Within Co-Parcenary-

There is a small co-parcenary within a larger co-parcenary.

---------------------------------------------

B C D --------------------------1st generation

------------- --------------------

B1 B2 B3 ----------D1 D2 -------2nd generation

------ ---- ------------

E1 E2 E3 E4 E5 ---3rd generation

--------------

F1 F2 --4th generation

In the above illustration, there is co-parcenary upto 3rd generation. So therefore, as

between A, B, C, D, B1, B2, B3, D1, D2, E1, E2, E3, E4 AND E5, there is a larger co-parcenary.

Suppose if D acquires a separate property for himself, it is his own property. It is not
joint-family property. He is entitled to alienate that property in any way as he wishes. Suppose if
he died leaving that property, his son D1and D2 inherit such property. According to Hindu law,
if a person acquires property from his father after his death, it becomes an ancestral property
among his male descendants up to 3rd generation. In regard to such property, D1 and D 2 are the
holder of the property. In regard to D1‘s share of 1/2 property, there is co-parcenary as between
D1, E1 and E2. In regards to D2‘s share of 1/2 property, there is a co-parcenary as between D2,
E3, E4, E5, F1 and F2.

In this illustration, we have seen a larger co-parcenary and also seen two small
coparcenaries within such larger co-parcenary.
 Page 7 of 182

CHAPTER-II

KINDS OF PROPERTY UNDER HINDU LAW-

Under Hindu law, property can be classified into two categories, namely-

1. Co-parcenary property

2. Separate property

Co-Parcenary Property-

The co-parcenary property again divisible into two categories, namely-

1. Ancestral property.

2. Joint-family property which is not an ancestral property.

Ancestral Property-

If a male Hindu acquires property from his father or father‘s father or father‘s father‘s father,
it is known as ancestral property with reference to his son or son‘s son or son‘s son‘s son.

Joint-Family Property –

Joint-family property consists of:-

1. Property acquired by all the co-parceners with aid of ancestral property

2. Property acquired by all the member of the joint-family with out aid of ancestral property

3. Property by the individual co-parceners without such aid but treated by them as property of the
whole family. That is, such individual co-parcener thrown his separate property voluntary into
common stock with intention of abandoning all separate claims on it.

4. Accretions to joint family property.

Joint-Property- (English law)

If a grand of property is made in favour of two or more persons without any terms of
severance, it devolves all of them as joint-tenants. Such property is called as Joint-property in
English law.

Difference between Ancestral property, joint-family property and Joint-property:-

 Page 8 of 182

OBSTRUCTED HERITAGE AND UN OBSTRUCTED HERITAGE:-

Due to acquisition of property by a person, the Daya or Heritage is classified into two
categories by Mitakshara Law, namely-

1. Unobstructed Heritage (Apratibandha daya)

2. Obstructed Heritage (Sapratibhanda Daya)

Unobstructed Heritage-

Property in which a person acquires an interest by birth is termed as Unobstructed

Heritage. It is so called because the accrual of the interest in the property in his favour is not
obstructed or implied by the presence or existence of the owner of the property.

Examples of Unobstructed Heritage-

1. Ancestral property

2. Joint-family property or property which is acquired with the aid of an ancestral property.

Obstructed Heritage-

Property in which a person acquires an interest not by birth, but on the death of the
owner of the property for the time being, is termed as obstructed heritage.

It is so called because so long as the owner is alive, he is obstructing the accrual of any
interest in favour of another.

The wealth of the father or the paternal grand father becomes the property of the sons and
grand sons respectively in the right of their being his sons and grand sons and that is an
inheritance not liable to obstruction.

―But property devolves on parents, uncles, brothers, and the rest upon the death of the
owner in default of male issue. There are two impediments to succession. Thus the existence of
the sons and the survival of the owner are the two impediments to the succession and on their
ceasing, the property devolves on the successor in the right of his being uncle or brother. This is
inheritance subject to obstruction‖ - Mitakshara Law.

Difference between Obstructed and Unobstructed Heritage:-

1. The obstructed heritage is a property in which a person acquires a right not by birth, but on the
demise of the last holder.

But the unobstructed heritage is a property in which a person acquires a right in the
property by birth.
 Page 9 of 182

2. The property inherited from paternal ancestor by son or grandson or great grandson is
unobstructed heritage because only three generation from the holder of the property has right to
acquire an interest in the property.

But the property inherited by brothers, nephews, uncles, daughters, parents etc, are
obstructed heritage because they did not take any interest in the property by birth when it
remained in the hands of the last owner and their contingent interest is liable to be defeated by
the birth of a nearer like a son to the last owner.

3. In an unobstructed heritage, a person‘s interest in the property is vested interest. But in

obstructed heritage, a person‘s interest in the property is contingent interest, it is depending upon
the demise of the last owner without leaving any nearer heirs.

4. The interest of the co-heirs in an unobstructed heritage is an indefinite interest with varying
density fluctuating with births or deaths in the family till the shares of the members get
crystallized by a partition among the co-heirs. But the interest of the co-heirs in an unobstructed
heritage is definite and ascertained interest.

5. Unobstructed heritage passes by survivorship, while obstructed heritage passes by inheritance.

If the father has any separate property and it passes to his son by survivorship or
inheritance, the main question raised before us is whether such property is obstructed heritage or
unobstructed heritage?

The Madras High Court held that it passes by inheritance only, while the Bombay High
Court held that the son take it by virtue of his right of survivorship.

According to Dayabhaga Law, the Daya or Heritage is always obstructed and this
division between obstructed and unobstructed heritage is not by Jimutavahana. Under that
system of law, all property devolves only as obstructed heritage.

ANCESTRAL PROPERTY

Ancestral property is a kind of joint-family property. It is an unobstructed heritage. The

term ancestral property does not means property inherited from any ancestors, male or female,
paternal or maternal, nearer or remoter, but it includes only those properties as is inherited by a
male Hindu from his father or father‘s father or father‘s father‘s father.

The various type of ancestral property differ from one another as regards the source
from which such property is acquired, and it may be classified into the following heads:-

1. Property inherited from paternal ancestors

2. Property inherited from maternal grand father

 Page 10 of 182

3. Property inherited from paternal ancestors beyond the third generations

4. Property inherited from collaterals or other persons

5. Property acquired at partition

6. Accretions

7. Acquisition with aid of ancestral property

8. Joint acquisition without aid of ancestral property

Explanation

1. Property inherited from paternal ancestors:-

If male Hindu inherited property from his paternal male ancestors up to third generation
is known as ancestral property. In respect of that property, the son or son‘s son or son‘s son‘s son
of the inheritor acquire an interest of that property by birth.

2. Property inherited from maternal grand father: -

If a male Hindu inherits property from his maternal grand father, the question raised
before us is whether that property is ancestral or separate property? The judicial decisions in
respect of that question are not uniform.

In ―Attar vs. Thaker‖, the Privy-Council held that the property inherit by a male Hindu
from his maternal grand father are not deemed to be ancestral property.

In―Venkayamma vs. Venkataramanayamma‖( (1902) 29 I.A 156), the judicial

Committee held that when the two brothers who were living as members of a joint-family
inherited property from their maternal grand father, such property was joint family property in
hands of the brothers and on the death of any one of them without any male issue, his interest in
property passed by survivorship to his brother and not by inheritance to hid widow.

But in latterly in ―Mohammed Hussain Khan vs Babu Kishya Nandan Sahai‖ ((1908) 35
I.A 206), the Privy-Council held that the property inherit by a male Hindu from his maternal
grand father are not deemed to be ancestral property.

3. Property inherited from paternal ancestors beyond the third generations

If a male Hindu acquired any property from his paternal Ancestors beyond 3rd
generation, it is not ancestral property, but it is a separate property.

4. Property inherited from collaterals or other persons :-

 Page 11 of 182

If a male Hindu acquired property from his brother or sister or daughter or mother or
uncle or any other collaterals, it is not ancestral property, but it is only a separate property.

5. Property acquired at partition:-

i) The share obtained by a co-parcener at a partition of ancestral property or joint family

property continues to retain in the hands of the sharer its character as ancestral property with
reference to his own son, son‘s son and son‘s son‘s son.

ii) If the sharer has no son or son‘s son‘ or son‘ son‘s son at the time of partition, the share of
property allotted to him is his separate property until a son is born to him.

iii) Where at a partition between two branches, a particular property is given to one member of
the branches in lieu of his personal undertaking to discharge the debts of the joint-family, such
property will be his separate property from the date of partition and will not be liable to partition
at the suit of the other members of his branch.

6. Accretions: -

If there is any accretion in the ancestral or joint-family property, it becomes the character
of ancestral property.

7. Acquisition with aid of ancestral property:-

Accumulation of income derived from ancestral property or property acquired with the
sale proceeds of ancestral property or the property acquired with aid of ancestral property are
called as ancestral property.

Where the property is purchased by a sole owner out of the income of ancestral property
before a son is born, such property is called as ancestral property.

According to Mitakshara Law, the general principle is that if there is any detriment to the
ancestral property or joint-family property at the time of acquisition of property, such acquisition
becomes the property of the joint-family. Thus even insurance policy effected by a co-parcener
on his own life, the premia in respect of which are paid out of the fund of joint-family, will be
the joint-family property. But in the absence of such a circumstance, it becomes his separate
property.

8. Joint acquisition without aid of ancestral property:-

The basic principle is that when the property is acquired by a joint family without aid of
ancestral or joint-family property, it becomes the co-parcenary property. The above principle is
applied only where all the members of a joint-family jointly acquired the property. But on the
hand if the property is acquired only some of the members, the presumption is that it is their
separate property.
 Page 12 of 182

9. Property obtained by way of Gift:-

Where a paternal ancestral make a gift or bequeath a legacy in favour of a male Hindu,
the question raised before the High court is whether such property is ancestral property or
separate property. There was considerable diversity of judicial opinion on this subject among
various High courts. However, the Supreme Court held in Arunachala Muthaliyar vs.
Murughanandha, that the gift or legacy made by a paternal ancestral in favour of a male Hindu
was considered as separate property, but not as ancestral property.

SEPARATE PROPERTY

1. Separate property means property owned by a person exclusively and absolutely. Even a
Hindu is a member of a joint-family, he is free to have separate property on his own.

2. Every co-parcener is entitled to acquire property on own and keep it free from the claims of
the other co-parceners.

3. In such property, no other members of the joint-family, not even his male issues, gets any
right by birth.

4. The holder of the separate property has free right to alienate such property either by sale or
mortgage or lease or gift or bequest at his pleasure.

5. The separate property is not liable to be shared among co-parceners at the time of partition

6. The holder of the separate property can deal with the property as he likes and in such manner
which does not permit even his son to enforce partition or interdict any alienation.

7. On the death of the holder of the separate property, the whole property passes to his heirs by
inheritance and not by survivorship to the other co-parceners.

Instances of Separate Property:-

The Separate Property may be considered under the following heads:

1. Property acquired from paternal ancestral other than father or father‘s father or father‘s
father‘s father is said to be separate property in the hands of the inheritor.

2. Property obtained by a co-parcener as his share is his separate property if he has no male issue
at the time of partition until a son is born to him.

3. Property held by a sole surviving co-parcener is called his separate property where there is no
widow competent to adopt a son for her deceased husband.

4. Property acquired from any female ancestral is said to be a separate property.

 Page 13 of 182

5. Ancestral property lost to the family and recovered by a co-parcener without causing any
detriment to or requiring any assistant from joint-family property is said to be a separate property
in the hands of the holder.

6. Property acquired by way of gift or devise from lineal descendants is said to be a separate.

7. Marriage gifts or presents from friends or relatives is said to be a separate.

8. Property granted by the government to a member of a Hindu joint-family is also said to be a

separate property.

9. Property purchased out of the income of the separate property is also known as separate‘

10. Separate earning of a co-parcener is also known as separate property.

11. Gains of Learning of a Co-parcener:-

Gains of learning are also a separate property of the holder. The term Learning signifies
education (whether elementary, technical or scientific, special or general) and training of every
kind which is usually intended to enable a person to pursue any trade or industry or profession or
a vocation in life. Hence in this aspect, the term Gains of Learning signifies all property acquired
out of learning.

DIFFERENCE BETWEEN CO-PARCENARY PROPERTY AND SEPARATE

PROPERTY

1. Devolution of Property:-

Before the passing of the Hindu Succession Act, 1956, on the death of a co-parcener
without any male issue, his undivided interest in the co-parcenary property devolves to surviving
co-parcener by means of survivorship and not by succession. The separate property of a co-
parcener, on the other hand, passes on his death intestate, to his legal heirs by succession and not
by survivorship to the remaining co-parcener.

2. Right by Birth:-

In the case of co-parcenary property, the son or son‘s son or son‘s son‘s son acquire by
birth an interest in the co-parcenary property. But in the case of separate property, the son or
son‘s son or son‘s son‘s son does not acquire by birth an interest in that property.

3. Nature of the interest:-

In the case of co-parcenary property, all the co-parceners have community of interest and
unity of possession and unity of enjoyment over the entire co-parcenary property. On the other
hand, the separate property of a male Hindu belongs to him exclusively and absolutely, even
though he may be a member of a Hindu joint-family.
 Page 14 of 182

4. Alienation by Will:-

Before the passing of the Hindu Succession Act, 1956, no co-parcener could dispose his
undivided interest in the co-parcenary property by way of will, where as separate property could
freely be disposed by will. But after the passing of the Hindu Succession Act, 1956, a male
Hindu is entitled to dispose his undivided interest in the co-parcenary under a will.

5. Alienation by Gift:-

The separate property can be gifted away by the owner to any extent and to any person
without concurrence of any one. Thus, if the owner is the father, he can alienate his separate
property by way of gift to any person, even to stranger also, without concurrence of his son. In
same way, he can gift it to one of his son to the exclusion of the other sons. No co-parcener can,
however alienate his undivided interest in the co-parcenary property by way of gift without
concurrence of the other co-parceners. The only exception to this rule is that a father may make a
gift of small portion of ancestral property within certain limits and under certain circumstances
as the Hindu law permits. Even the Hindu succession Act, 1956, has not made any provision for
alienation of undivided interest of co-parcenary property by way of gift, even though it has been
subject of will. But in the case of separate of a male Hindu, he can make a gift of it without
concurrence of anyone.

6. Alienation by way of Sale or Mortgage:-

Before the passing of the Hindu Succession Act, 1956, no co-parcener can alienate his
undivided interest in the joint-family property by way of sale or mortgage without concurrence
of all other co-parceners. But after the passing of the Hindu Succession Act, 1956, co-parcener
can alienate his undivided interest in the joint-family property by way of sale or mortgage
without concurrence of all other co-parceners. But in the case of separate property, owner of that
property can alienate it by way of sale or mortgage without concurrence of all other co-
parceners.

7. Partition:-

A joint family property is liable to be partition among the co-parceners, where as there
can be no question of partitioning the separate property of a member of Hindu joint family.

INTEREST OF FATHER AND SON IN EACH OTHER IN ANCESTRAL PROPERTY

Under Mitakshara Law, each son upon his birth automatically becomes a co-owner with
his father in respect of ancestral property. So the son‘s right in that property is equal to that of his
father.

The son‘s right in the ancestral property by birth is wholly independent of his father.

The son‘s right in the ancestral property by birth relates back to the date of the conception.
 Page 15 of 182

The son does not derive his right or claim through the father. But the son derive his right
by birth.

Alienation by father of his interest in ancestral property cannot affect the interest of the
son in the ancestral property.( such alienation is permitted by Hindu law)

So long as joint-family status is not disturbed by partition, a son cannot say that he is
entitled to any particular property.

Even though, according to theory of Hindu law, the position of son is equal to that of his
father in ancestral property, the father can enjoy certain special powers in respect of ancestral
property. These powers are:--

1. The father can bind the son‘s interest and alienate ancestral property to pay off his own private
debts provided that such debts had not been incurred by for illegal purpose or immoral purposes.

2. The father can make a gift of small portion of ancestral movable property without the
concurrence of his sons as a gift of affection to his son or daughter or his wife, even to stranger
also.

3. Likewise, the father can make, with reasonable limit, gift of ancestral property without
concurrence of his sons for pious purposes.

4. The father may also enforce a partition among his sons provided that it is an equal partition of
the joint-family property.

5. According to Hindu law, the father is head and manager of the Hindu joint-family and its
property.

6. He is entitled for custody of joint-family property.

Son’s right by Birth and impact of Hindu Succession Act, 1956:-

The Hindu Succession Act, 1956 does not abolish the son‘s right in the ancestral property
by birth. Before passing of this Act, if the father died before partition of ancestral property with
out any male issues, his undivided interest in that property shall devolves to surviving co-
parcener by survivorship. But according to this Act, such undivided interest in the ancestral
property passes by succession in the circumstances set out in section 6 of the Act, like that of
separate property of the deceased Hindu. As a result of such provision in that Act, the sons are
kept separate from each other in respect of what formerly would be joint-family estate. Their
jointness in other respects remain intact and even in respect of this property, their jointness, each
with his male issue, is not affected.
 Page 16 of 182

CHAPTER-III

MANAGEMENT AND ENJOYMENT OF CO-PARCENARY PROPERTY

A. Right‘s of the Co-Parceners

B. Karta of Hindu Joint-Family

Right’s of the Co-Parceners

According to Mitakshara Hindu law, the following are the rights of the Co- Parceners in
respect of Ancestral property and Joint family property.

1. Right by birth

2. Right of survivorship

3. Right to partition

4. Right to joint-possession and enjoyment of co-parcenary property

5. Right to restrain the unauthorized acts

6. Right of alienation

7. Right to account

8. Right to make self-acquisition of property

9. Right to renounce his interest

10. Right to manage the co-parcenary property

11. Right to get maintenance

Right by birth:-

Every co-parcener gets an interest by birth in the co-parcenary property. This, however,
must not be held negative the position that the co-parcenary property may itself come into
existence after the birth of the co-parcener concerned.

For instance, if ―A‖ having a son ―B‖ and a grand son ―C‖ has self acquired property.
That property cannot be said to be the property in which B and C have a right by birth. But the
moment of A‘s death by intestate, that property descent to his son B and C gets intestate init as
co-parcenary property even though the character of co-parcenary property attaches to it long
after C‘s birth.
 Page 17 of 182

Right of survivorship

The devolution of undivided interest of the co-parcenary property of a deceased co-parcener to

surviving co- parceners is called Survivorship under Mitakshara Hindu law.

Before the passing of Hindu Succession Act, 1956, if a co-parcener dies without any male
issue before partition, his undivided interest in the co-parcenary property devolves to surviving
co-parceners and not to his own heirs. If there were any male issues at the time death of a co-
parcener, they would represent completely the rights of the deceased co-parcener in the joint-
family property. A person born into the co-parcenary continuous to be a co-parcener until
partition takes place among the co-parceners.

If a co-parcener is a lunatic at the time of partition, he cannot claim a share at a partition

of joint-family property, but if all co-parceners dies before partition, the lunatic co-parcener
takes entire estate by means of survivorship.

The right of a co-parcener to take the undivided interest of a deceased co-parcener in the
joint-family property by way of survivorship is defeated or arrested either in Act of the Parties or
By Statutory Provisions.

By Statutory Provisions:-

The right of a co-parcener to take the undivided interest of a deceased co-parcener in the
joint-family property by way of survivorship is lost in the following cases by the reason of
statutory provisions:

1. The Special Marriage Act, 1954:-

According to section 19 of Special Marriage Act, 1954, where a Hindu co-parcener

contracted a marriage under Special Marriage Act, 1954, he become severed in status from the
joint-family to which he belongs except where the parties are Hindus. After marriage, if such
male Hindu dies without any male issues, his in the co-parcenary property devolves not to
surviving co-parceners but to his own legal heirs by inheritance.

2. The Hindu Women’s Right to Property Act, 1937:-

According to this Act, where a male Hindu died leaving behind a widow but on male
issue, the widow shall be substituted in his place in regards to his undivided interest in the co-
parcenary property and take such interest and hold it for a women‘s estate or limited and clothed
with a right to demand partition. That is the rule of survivorship is superseded for her benefit.

In Potti Lakshmi Perumallu vs. Krishnavennama, AIR 1965 SC 825, one of the four co-
parceners died in the year 1938. His widow demanded partition in 1950. by that time two other
co-parceners had died. The Supreme Court held that widow was entitled to a half share on
 Page 18 of 182

partition. From this decision, it is clear that the rule of survivorship is operative as between the
other co-parceners only.

Whether the widow is treated as co-parcener according to the Act of 1937? This question
was considered by Supreme Court in Satrughan vs. Sabujpari, A.I.R 1967 S.C 272. A, a member
of Hindu joint-family died in 1937. Then she demanded partition of joint-family property, but
this was not followed by a partition by metes and bound. On her death, her daughter claimed as
reversioner to her father. This was resisted by other co-parceners claiming by survivorship. The
Court held that the daughter was entitled to succeed. During the course of judgment, the learned
Judge points out that the Act of 1937 does not make the widow a co-parcener.

The Act of 1937 effects a statutory substitution of the widow in the place of her husband.
The co-parcenary continues. The widow can demand a partition and make her share definite. If
she does not do so, on her death her interest in the property would merges in the co-parcenary.
Once she demands partition, her share become definite and devolves on her death upon the heir
of her husband. So there in no principle that widow is a co-parcener in her own right. Now this
Act of 1937 has been repealed by the Hindu Succession Act, 1956.

3. under Section 6 of the Hindu Succession Act, 1956:-

Under Section 6 of the Hindu Succession Act, 1956, if a co-parcener died leaving behind
his widow, his share would be deemed to have been portioned immediately prior to his death and
this share devolves to his heirs by inheritance but not to surviving co-parceners as survivorship.

4. Under Section 30 of the Hindu Succession Act, 1956:-

Under Section 30 of the Hindu Succession Act, 1956, if a co-parcener died leaving
behind a will in respect of his undivided interest in the co-parcenary property, such will
supersede the survivorship and the rule of survivorship does not operate and it is defected.

Survivorship under the Hindu Succession (Amendment) Act, 2005:-

According to Sub-section3 of section6 of the Hindu Succession (Amendment) Act, 2005,

where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005,
his undivided interest in the property of a joint Hindu family governed by the Mitakshara law,
shall devolve by testamentary or intestate succession, as the case may be, under this Act and not
by survivorship, and the co-parcenary property shall be deemed to have divided as if a partition
had taken place and,-

 The daughter is allotted the same share as is allotted to a son

 The share of the pre-deceased son or a pre-deceased daughter, as they would have got had
they have been alive at the time of partition, shall be allotted to the surviving child of
such pre-deceased son or of such pre-deceased daughter; and
 Page 19 of 182

 The share of the pre-decease child of a pre-deceased son or a pre-deceased daughter, as

such child would have got had he or she been alive at the time of partition, shall be
allotted to the child of such pre-deceased child of the pre-deceased son or of a pre-
deceased daughter, as the case may be.

3. Right to enforce partition:-

Every adult co-parcener may enforce a partition of the co-parcenary property, in the
State of Maharashtra, a son cannot claim partition without the consent of his father where his
father is joints with his father or brother.

4. Right to joint-possession and enjoyment of co-parcenary property:-

There is a community of interest and unity of possession between all the members of the
joint-family and every co-parcener is entitled to joint possession and enjoyment of the co-
parcenary property. So every co-parcener has got ownership extending over the entire co-
parcenary property conjointly with the rest of other co-parceners.

5. Right to restrain the unauthorized acts:-

Every co-parcener has the right of restraining improper acts on the part of other co-
parceners, where such act causes substantial injury to his right as a member of the family.

6. Right of alienation:-

Prior to the Hindu Succession Act, 1956, no co-parcener could alienate his undivided
interest in the co-parcenary property without concurrence of other co-parceners, except in the
State of Madras, Mathiya Pradesh, Gujarat and Rajasthan where in he alienate his undivided
interest in co-parcenary property for value without concurrence of other co-parceners.

After the passing of the Hindu Succession Act, 1956, a co-parcener can alienate his
undivided interest in the co-parcenary property without concurrence of other co-parceners.

7. Right to account:-

According to Mitakshara Hindu law, a co-parcener has no right to ask for accounts from
the karta as regards his dealing with the co-parcenary property and the income thereof, unless of
course, such co-parcener is suing for partition, in which case, he would have a right to ask
account.

8. Right to make self-acquisition of property-

A co-parcener has right to acquire property on his own and keep such property free from
the claim of other co-parceners. So a co-parcener is free to have self acquired property.
 Page 20 of 182

9. Right to renounce his interest co-parcenary property:-

A co-parcener has right to renounce his undivided interest in the co-parcenary property.
Such renunciation must, however, be in favour of the whole body of co-parceners. If he
renounces in favour of one co-parcener, it will operate for the benefit of the whole body of the
co-parceners.

10. Right to manage the co-parcenary property:-

Generally an individual co-parcener has no right to manage the co-parcenary property.

But the Karta of the joint-family has power to manage the joint-family and its co-parcenary
property.

11. Right to get maintenance:-

Every co-parcener is entitled to be maintained out of the joint-family fund and also his
wife and children are to be maintained out of the joint-family fund.

KARTA OF HINDU JOINT-FAMILY

The managing member of Hindu joint-family is technically called as Karta or Manager of

Hindu joint-family. If a Hindu joint-family has any property, the property and the joint-family is
ordinarily controlled by the father or senior male member of the family. Under Hindu law, such
person is called as karta or manager of joint-family. It is an office that comes by birth.

So long as father is alive and qualified, he is the Karta of Hindu joint-family. In the
absence of father or he is incapable of holding the management or the father relinquish his office,
the senior most male member becomes the Karta of Hindu joint-family. According to Mitakshara
Hindu law, there are certain qualifications for Karta. These are:-

1. He should be a Co-parcener

2. He should attain the age of majority.

3. He should be a sound person.

Therefore under Mitakshara Hindu law, the minor can not act as a karta of the family. If
all the co-parceners are minor, the court appoints a guardian for the whole joint-family property.
Under Mitakshara Hindu law, only co-parcener can act as karta of the Hindu joint-family. If
father died leaving behind his widow and minor co-parceners, his widow can not act as karta
because she is not a co-parcener. It was otherwise held by Nagpur High Court that in the absence
of adult co-parcener after the death of the father, the mother can act as karta, even though, she is
not a co-parcener. But the Madras High Court held otherwise that the mother can not act as karta,
because she is not a co-parcener. This conflict has been resolved by Supreme Court in
―Commissioner of Income Tax vs. Govindram Sugar Mills Ltd, A.I.R 1966, S.C. 24.
 Page 21 of 182

The Supreme Court held that the widow of the karta can not act as karta, because she is not a co-
parcener.

Position of the Karta:-

1. He is not agent of the other member.

2. He is not a trustee for other Co-parceners or members of the joint-family.

3. He is not a partner under the Partnership Act, 1932.

4. His office is more honorable one.

Under Mitakshara law, karta has several powers and duties.

POWERS OF THE KARTA UNDER MITAKSHARA HINDU LAW:-

Under Mitakshara law, karta has the following powers:

1. Power over the income and expenditure of the family.

2. Power of alienation of joint-family property

3. Power to contract

4. Power to contract debt for family purpose

5. Power to contract debt for running family business

6. Power to acknowledge debt

7. Power to discharge the debt

8. Power to refer to arbitration

9. Power to compromise

10. Power to start new business

11. Power to manage the family

12. Power to represent the joint-family in suits and other proceedings

Explanation

1. Power over the income and expenditure of the family:-

Karta has absolute and exclusive power over the income of the property and its
expenditure. If there is any surplus income after expenditure, he is custodian of that surplus
 Page 22 of 182

income. He is not bound to economics or save the income so long as he spends the income for
the purpose of the family, that is for maintenance, education, marriage, stradha and other
religious ceremonious of the co-parceners and of the members of their respective families.

s2. Power of alienation of joint-family property

Generally the Karta of the Hindu joint-family is bound to deal with the joint-family
property as carefully as a person of ordinary prudence would deal with them if it were his own
property.

With concurrence of all adult co-parcener, the karta can alienate the co-parcenary
property. With out concurrence of all adult co-parcener, the karta can not alienate the co-
parcenary property except for legal necessity or benefit of the estate or family

In Hanooman Prasad vs. Mussambet Babooee, 6 M.I A. 393. , the Privy council held that
with out concurrence of all adult co-parcener, the karta could not alienate the co-parcenary
property except for legal necessity or benefit of the estate or family.

The modern formulation of the above are:

1. Legal necessity

2. Benefit of the estate or joint-family

3. Indispensable Duty

1. Legal necessity:-

There is no concrete meaning or definite meaning for the term ‗legal necessity‘. There is
no hard and fast rule about it. It is differing from time to time and place to place and case to case
and circumstances to circumstances. But the followings are some of the examples of legal
necessity.

i.Payment of Government revenue and of debts which are payable out of joint-

family property.

ii. Payment of Government Taxes

iii. The maintenance of co-parceners and members of their families

iv. Marriage expenses of the members of the joint-family.

v. Performance of Sradha, funeral and other religious ceremonious of the joint-

family members.
 Page 23 of 182

vi. Medical expenses of the joint-family members.

vii. Educational expenses of the joint-family members.

viii. Payment of debts incurred for family purposes.

ix. Expenses of necessary litigation in respect of the family.

x. Payment of money under the decree of the court.

2. Benefit of the estate or joint-family:-

There is no concrete meaning or definite meaning for the term ‗Benefit of the estate or
joint-family‘. There is no hard and fast rule about it. It is differing from time to time and place to
place and case to case and circumstances to circumstances.

Generally the Benefit of the estate or joint-family means all the activities done by the
karta in respect of joint-family and its co-parcenary property other than legal necessity. The
followings are some of the examples of the benefit of the estate or joint-family:

I). For obtaining more than its real value.

ii). Property falling into decay

iii). Mortgage made by the karta in order to raise the money for purchasing residential building
and which is used for business also.

iv. Mortgage made by the karta is for repairing and maintaining the residential building.

3. Power to contract: By virtue of his position, the karta has implied authority to enter into any
contracts for the benefit of the joint-family. It binds all the co-parceners.

4. Power to contract debt for family purpose:-

Karta has implied authority to enter into contract of debt for family purpose so as to bind
all the co-parceners to extend only of their interest in the joint-family property.

The separate property of the karta is also liable to discharge the debt contracted by the
karta for family purpose.

The separate property of the individual co-parcener is not liable to discharge the debt
contracted by karta, but if he is a party to the debt or ratify the debt subsequently, his separate
property is also liable to discharge the debt contracted by karta.

5. Power to contract debt for running family business:-

 Page 24 of 182

Karta has implied authority to enter into contract of debt for purpose of running joint-
family business which is already in existence so as to bind all the co-parceners to extend only of
their interest in the joint-family property.

6. Power to acknowledge debt:-

The karta has power to acknowledge a debt or make a part payment of debt so as to
extend the period of limitation. But he can not execute a fresh promissory note or a bond so as to
revive a time barred debt.

7. Power to discharge the debt:-

The karta has power to make a valid discharge of a debt contracted debt due to Hindu
joint-family. It can not be questioned by any co-parceners including minor co-parceners also. So
the minor can not claim the benefit of section 7 of the Limitation Act.

8. Power to refer to arbitration:-

The karta has power to refer to arbitration any matter involving the interest of the joint-
family, its property and other members of the family, including minor also.

9. Power to compromise:-

The karta has absolute power to enter into bonafide compromise for the benefit of the
families. Such compromise binds all the co-parceners including minors also.

The karta has, however, no power to give a valid discharge for debt due to joint-family
or to give up valuable items without any return or consideration, even though he has a right to
settle account with the debtors and to make a reasonable reduction either interest or towards
principal in the interest of the family.

If there is any suit relating to joint-family property and a father and his minor sons are
parties to the suit, and the father himself is the guardian of the minor, his powers are subjected to
the provisions of the order 32 Rule 7 0f the Civil Procedure Code and father can not enter into
any compromise with his son relating to joint-family property without the leave of the court.

10. Power to start new business:

With concurrence of all adult co-parceners, the karta has power to start a new business.
The minor co-parceners are not bound for any liabilities created by karta with regards to joint-
family business.

11. Power to manage the family:-

 Page 25 of 182

Even though all co-parceners has got ownership extended over the entire property
conjointly with others, the management of the joint-family and co-parcenary property always
vests in the hands of the karta.

12. Power to represent the joint-family in suits and other proceedings:-

Karta is the legal representative of the joint-family and its property. So he may represent
the family in the event of a suit by or against a joint-family.

DUTIES AND LIABILITIES OF THE KARTA:-

The followings are some of the main duties and liabilities of the karta in respect of the joint-
family property.

1. Duty to render accounts

2. Duty to realize the debt due to joint-family.

3. Duty to spend reasonably.

4. Duty to start new business with concurrence of all the co-parceners.

5. Duty not to alienate the joint-family property without ―Legal Necessity: or for the ―Benefit of
the Estate‖.

Explanation

1. Duty to render accounts:-

The Karta is duty bound to render accounts to other co-parceners regarding his dealing
with co-parcenary property and its income thereof. But a Karta is not liable to render accounts
regarding his past dealings with the family property unless there is a clear proof of
misappropriation or fraudulent use of family funds or estate by him. He is liable to render
accounts only at the time of partition, and then only for the family property as it exists at the
time. It does not mean that parties are bound to accept the statement of the karta as what property
consisted of and an inquiry should be directed by the court in a manner usually adopted to
discover what in fact the property consisted of at the time of partition. In what manner this
principle can be applied depends, however, on the facts and circumstances of each case.

2. Duty to realize the debt due to joint-family:-

It is the duty of the karta to make all possible efforts to realize the debt due to the joint-
family. The karta has, however, no power to give a valid discharge for debt due to joint-family or
to give up valuable items without any return or consideration, even though he has a right to settle
account with the debtors and to make a reasonable reduction either interest or towards principal
in the interest of the family.
 Page 26 of 182

3. Duty to spend reasonably:-

It is the duty of the karta to spend the income reasonably. According to Mitakshara
Hindu Law, Karta has absolute and exclusive power over the income of the property and its
expenditure. If there is any surplus income after expenditure, he is custodian of that surplus
income. He is not bound to economics or save the income so long as he spends the income for
the purpose of the family, that is for maintenance, education, marriage, stradha and other
religious ceremonious of the co-parceners and of the members of their respective families.

If the karta of the family spend more than what all the co-parceners allowed or approved,
their remedy is to demand partition only, but not challenging the application of the money. If the
karta spend more money for some one and less for others, it also can not be questioned by any
one.

4. Duty to start new business with concurrence of all the co-parceners:-

It is the duty of the karta not starts new business without concurrence of all adult co-
parceners. The karta can not start a new business so as to impose upon the adult co-parceners,
the risk and liabilities of new business except with their consent. The karta can not start a new
business so as to impose upon the minor co-parceners, the risk and liabilities of new business.

5. Duty not to alienate the joint-family property without ―Legal Necessity: or for the ―Benefit of
the Estate‖:-

Generally the Karta of the Hindu joint-family is bound to deal with the joint-family
property as carefully as a person of ordinary prudence would deal with them if it were his own
property.

With concurrence of all adult co-parcener, the karta can alienate the co-parcenary
property. With out concurrence of all adult co-parcener, the karta can not alienate the co-
parcenary property except for legal necessity or benefit of the estate or family

In Hanooman Prasad vs. Mussambet Babooee, 6 M.I A. 393. , the Privy council held that
with out concurrence of all adult co-parcener, the karta could not alienate the co-parcenary
property except for legal necessity or benefit of the estate or family.

According to Vijnaneswara, the joint-family property may be alienate for the following
purposes:

1. Apatkale, i.e., in legal necessity or in time of distress.

2. Kutumbarthe, i.e., for the purpose of joint-family

3. Dharamarthe, i.e., for religious purposes like Sradha, upanayana, marriage etc.
 Page 27 of 182

The modern formulation of the above are:

1. Legal necessity

2. Benefit of the estate or joint-family

3. Indispensable Duty

Legal necessity:-

There is no concrete meaning or definite meaning for the term ‗legal necessity‘. There is
no hard and fast rule about it. It is differing from time to time and place to place and case to case
and circumstances to circumstances. But the followings are some of the examples of legal
necessity.

i. Payment of Government revenue and of debts which are payable out of joint-family
property.

ii. Payment of Government Taxes

iii. The maintenance of co-parceners and members of their families

iv. Marriage expenses of the members of the joint-family.

v. Performance of Sradha, funeral and other religious ceremonious of the joint-

family members.

vi. Medical expenses of the joint-family members.

vii. Educational expenses of the joint-family members.

viii. Payment of debts incurred for family purposes.

ix. Expenses of necessary litigation in respect of the family.

x. Payment of money under the decree of the court.

Benefit of the estate or joint-family:-

There is no concrete meaning or definite meaning for the term ‗Benefit of the estate or
joint-family‘. There is no hard and fast rule about it. It is differing from time to time and place to
place and case to case and circumstances to circumstances.

Generally the Benefit of the estate or joint-family means all the activities done by the
karta in respect of joint-family and its co-parcenary property other than legal necessity. The
followings are some of the examples of the benefit of the estate or joint-family:
 Page 28 of 182

i. For obtaining more than its real value.

ii. Property falling into decay

iii. Mortgage made by the karta in order to raise the money for purchasing residential

building and which is used for business also.

iv. Mortgage made by the karta is for repairing and maintaining the residential

building.
 Page 29 of 182

CHAPTER-IV

HINDU JOINT FAMILY DEBTS UNDER MITAKSHARA LAW:-

―Debt‖ ordinarily means a liquidated or ascertained sum of money as distinguished from

unliquidated damages for breach of contract or breach of torts. Where a decree has been passed
against the father for damages for breach of contract or tort, the judgment debt is a debt.

Generally a Hindu is liable to discharge his own debt, which is contracted by him. But he
is not liable to discharge the debt contracted by another person. Some time, a person is liable to
discharge the debt contracted by another person. In the following circumstances, a person is
liable to discharge the debts contracted by another person:

1. A person is liable to discharge the debts contracted by another person as the agent of the
former person. It is said to be Legal duty.

2. A person is liable to discharge the debts contracted by another person from whom he acquire
or succeed property after his death or during his life time. It is said to be Moral duty.

3. A person is liable to discharge the debts contracted by his father in order to rescue the father
from the sin arising out of non-payment of debts. It is said to be Religious duty.

Who can contract debts?

Under Mitakshara law, the following three persons can contract debts:

1. Karta of the Hindu joint-family

2. Father

3. Individual co-parcener

1. Karta of the Hindu joint-family:-

If the karta contracted debts with concurrence of all the adult co-parceners or without
concurrence of the co-parceners, but for the benefit of the estate or family or legal necessity, the
entire co-parcenary property is liable to discharge the debt contracted by karta.

The separate property of the karta is also liable to discharge the debt contracted by karta
for family purposes.

2. Debt contracted by Father:-

The separate property of the father is liable to discharge his private debt. If the father
contracted debt for his private purpose, not for joint-family purposes, the entire co-parcenary
 Page 30 of 182

property including his son‘s interest in that property is liable to discharge his private debt
provided that such debt had not been incurred for illegal or immoral purposes.

3. Debt contracted by Individual co-parcener:-

Under Hindu law, an individual co-parcener is entitled to borrow money for his own
purpose or family purpose. He may have separate property or he may have an undivided interest
in the co-parcenary property.

If an individual co-parcener contracted debts for his private purposes, whether or not his
undivided interest in the co-parcenary property is divided by partition, his separate property is
always liable to discharge the debt contracted by him, both during his life time or after his death.
His undivided interest in the co-parcenary property is not liable to discharge such debt unless
such interest has been in attached in execution or sold during his life time.

Liability of the property to discharge the debt:-

A person‘s liability to discharge the debt out of the property may be summarized under
following three heads:

1. Liability of separate property

2. Liability of Heritable property

3. Liability of interest in the co-parcenary property.

Explanation

1. Liability of separate property:-

1. It is settled law that a person‘s separate property or absolute property is always liable to be
proceeded against for his personal debts both during his life time and also after his death in
whatsoever manner they have arisen and whatever purposes they had been incurred, whether for
legal or illegal or moral or immoral purposes.

2. If the karta contracted debt for family purpose and the co-parcenary property is not sufficient
to discharge the debt, the separate property of the karta is also liable to discharge the debt
contracted by him for family purpose.

3. If the individual co-parcener is a party to the debt contracted by karta for family purpose or
if he ratify the debt contracted by karta subsequently, the separate property of that individual co-
parcener is also liable to discharge the contracted by karta for family purpose.

2. Liability of Heritable property-

 Page 31 of 182

A person is liable to discharge the debt contracted by another person from whom he
inherit property after his death. Such property is called as heritable property and the person who
inherits property is called as inheritor. Under Mitakshara law, the inheritor is liable to discharge
the debt contracted by the person from whom he inherit property after his death. The Liability of
the inheritor is restricted to the extent of the assets inherited by him. The inheritor is not
personally liable to discharge the debt, even if he is a son or son‘s son of the deceased person. If
he disposed the inherited property without discharging the debts of the deceased person, the
creditor can not follow the property into the hands of the alinee, but the inheritor shall be
personally liable to discharge the debt.

According to section 128 of the Transfer of Property Act, 1882, if a person is said to be a
universal donee, he is liable to discharge the debt contracted by the donor.

According to Indian Succession Act, 1925, the universal legatee is liable to discharge the
contract by testator.

3. Liability of interest in the co-parcenary property:-

If the karta contracted debts with concurrence of all the adult co-parceners or without
concurrence of the co-parceners, but for the benefit of the estate or family or legal necessity, the
entire co-parcenary property is liable to discharge the debt contracted by karta.

If the father contracted debt for his private purpose, not for joint-family purposes, the
entire co-parcenary property including his son‘s interest in that property is liable to discharge his
private debt provided that such debt had not been incurred for illegal or immoral purposes.

If an individual co-parcener contracted debts for his private purposes, his undivided
interest in the co-parcenary property is not liable to discharge such debt unless such interest has
been in attached in execution or sold during his life time.

KINDS OF DEBTS UNDER MITAKSHARA LAW:-

The Hindu law classified the debts into two categories, namely,

 Vyavaharika Debt.
 Avyavaharika Debt.

1. Vyavaharika Debt:-

If the karta contracted debt for family purpose or legal purpose or moral purpose, it is
said to be Vyavaharika Debt.

2. Avyavaharika Debt:-
 Page 32 of 182

If the karta contracted debt not for family purpose, but illegal purpose or immoral
purpose, it is said to be Avyavaharika Debt.

According to Mitakshara law, Avyavaharika Debts are out side the scope of the Doctrine
of Pious obligation. Colebrooke translated Avyavaharika Debts as ―a debt for cause repugnant to
good morals‖. It is now compendiously referred to as a debt for illegal purpose or immoral
purpose. This definition is approved by Privy-Council in ―S.M.Jakati vs. S. M.Bokar‖.

The word Avyavaharika Debts does not cover debts which are illegal or immoral, but
also covers all the debts which the court regards as inequitable or unjust to make the son liable.
So the term Avyavaharika Debts has been translated as being that which is not lawful, or what is
not just, or what is not admissible under the law or under normal conditions.

The followings debts are some of the examples of Avyavaharika Debts:

1. Debt for spirituous liquor.

2. Debts contracted under the influence of lust and wrath.

3. Debts for gambling.

4. Unpaid tolls.

5. Unpaid fines.

6. Debts due for promises without consideration.

7. Debts for being surety for the appearance of another person.

8. Debts for being surety for honesty of another person.

9. Time barred debts.

10. Debt contracted by father or karta for concubine‘s daughter‘s marriage.

11. Debt incurred by the father for the commission of an offence.

12. A decree for damages for malicious prosecution.

13. Debt incurred by a male Hindu for payment of money for adoption.

In ―Sita Ram vs. Harithar‖, the court held that the debt contracted by adopter for giving
consideration to adoptee was held to be Avyavaharika Debt.

In ―State of Rajasthan vs. Mohan Lal‖, Mohan Lal‘s father illegally exported heroine to
other states. He was arrested by the state of Rajasthan and Govt. impose levy for imposing fine.
Father died before payment of fine. So the Govt. takes action against Mohan Lal on the ground
 Page 33 of 182

of Doctrine of Pious obligation. The Court held that the plaintiff was not liable on the ground
that the debt contracted by his father was Avyavaharika Debt.

DOCTRINE OF PIOUS OBLIGATION:-

According to Mitakshara law, if the father contracted debts for family purpose or religious
purpose or his own private purpose but not illegal or immoral purpose, the son is liable to
discharge that debt. The above obligation on the part of the son is technically known as Doctrine
of Pious obligation.

The Doctrine of Pious obligation has been studied in two different categories:

1. Doctrine of Pious obligation before the passing of the Hindu succession

(Amendment) Act, 2005.

2. Doctrine of Pious obligation after the passing of the Hindu succession (Amendment)

Act, 2005.

Doctrine of Pious obligation before the passing of the Hindu succession (Amendment) Act,
2005:-

Prior to Hindu Succession Act, 1956, the son‘s obligation to discharge the father‘s debt is
recognised by Mitakshara law in the following manners:

1. It is well settled under the Mitakshara law that the debts contracted by father as the manager of
the joint-family for legitimate family purposes binds his son, grandson and great grandson to the
extend of their interest in the co-parcenary property.

2. It is well settled under the Mitakshara law that the debts contracted by father for his own
personal benefit binds his son, grandson and great grandson to the extend of their interest in the
co-parcenary property provided that such debts had not been incurred for illegal purpose or
immoral purpose.

3. It is well settled under the Mitakshara law that the son is liable to discharge the debts
contracted by father, even though it had not been incurred for legal necessity or the benefit of the
family provided that the debts are not Avyavaharika debts in order to rescue the father from sin
arising out of non payment of debts.

The doctrine of pious obligation is not affected by the reason of the fact that the father
had contracted debt not for family purpose, but for his private purpose or by the fact that the
father was not the manager of the family at the time when the debt was contracted or the son was
minor at the time when the debt was contracted by father or the is born after the debt contracted
by father.
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Nature and extend of the Doctrine of pious obligation:-

1. The son‘s obligation to discharge the father‘s debt is only limited obligation but not unlimited
obligation. So his obligation is not personal obligation. So the son is liable to discharge the
father‘s debt to extend of his interest in the co-parcenary property. So his separate property is not
liable to discharge the father‘s debt.

2. The son‘s obligation to discharge the father‘s debt is continue so long as the father‘s
obligation is subsists.

3. The son‘s obligation to discharge the father‘s debt does not continue after the debt becomes
barred by period of limitation.

4. The son‘s obligation to discharge the father‘s debt is neither joint nor joint and several with
that of the father in the sense in which those expressions are understood in English language.

5. The son‘s obligation to discharge the father‘s debt is not affected by the reason of the fact that
the son was minor at the time when the debt was contracted by father.

6. The son‘s obligation to discharge the father‘s debt springs into existence for the first time from
the moment the father contracted debt and continue to subsist irrespective of whether the father
is alive or not.

7. If the father contracted debt before partition, it binds his son under pious obligation. But on the
other hand, if the father contracted debt after partition, it does not bind his son.

8. At the time of partition, the partition may make provision for the payment of the father‘s debt
by setting apart a special fund or additional property is given to father in addition to normal share
for discharging the debts, there is no pious obligation for son.

9. At the time of partition, if any particular property is given to one co-parcener in lieu of his
personal undertaking to discharge the debt contracted by father, the rest of the co-parceners has
no obligation to discharge the father‘s debt.

10. Before partition of co-parcenary property, if the creditor filed a suit against the father alone
and obtained decree, such decree binds not only the father‘s interest in the ancestral but also it
binds his son‘s interest in that property.

Creditor’s Remedy under doctrine of pio0us obligation:-

Where a debt is contracted by father for his private uses, but not for family purposes,
naturally, he is the person primarily liable to discharge the debts. So long as father is alive, the
son alone can not be sued in respect of the father‘s debt.
 Page 35 of 182

The doctrine of pious obligation gives the creditor of the father the choice to sue the
father alone or the father as well as son joint together.

If a decree is obtained in a suit against the father alone and subsequently a partition takes
place during the pendency of the execution proceedings, the son is not relieved from his pious
obligation or his share in the ancestral property is not relieved from pious obligation.

Son’s Defence in Doctrine of Pious obligation:-

If the creditor filed a suit against the son for discharge of debts contracted by father, the
son is entitled to defence the suit on the ground that the debt incurred by father is Avyavaharika
debt, that is, it is incurred for illegal or immoral purposes. The burden of proving that the debt
was Avyavaharika or illegal or immoral debt lies upon the son. It is not necessary for the son to
prove that the illegal or immoral purpose was known by the creditors.

Legal effects of the Doctrine of Pious Obligation:-

According to Mitakshara Hindu law, the Doctrine of pious obligation has two folds legal effects.
These are,

1. The Doctrine of pious obligation enables the father to convey or alienate the ancestral property
including his son‘s interest in the property to discharge an antecedent debt incurred by him for
his personal or private purposes provided that the debt had not been incurred for illegal or
immoral purpose.

2. Secondly, the doctrine of pious obligation enables a creditor to proceed, in execution of a

decree obtained by him in respect of father‘s debt, against the entire co-parcenary property
including the son‘s interest in that property.

Debts which are exempted from Doctrine of Pious obligation:-

If the debt incurred by father is Avyavaharika debt, that is, it is incurred for illegal or
immoral purposes, such debt is exempted from Doctrine of Pious obligation.

Doctrine of Pious obligation after the passing of the Hindu succession (Amendment) Act, 2005.

After the commencement of the Hindu Succession (Amendment) Act, 2005, the law
relating to pious obligation is governed by sub-section 4 of the section 6 of Hindu Succession
Act, 1956.

According to sub-section 4 of section 6 of Hindu Succession act, 1956, after the

commencing of the amendment Act, 2005, no court shall recognise any right to proceed against a
son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or
great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son,
grandson or great-grandson to discharge any such debt:
 Page 36 of 182

Provided that in the case of debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section 4 shall affect the right
of any creditor to proceed against the son, grandson or great grandson as the case may be.

Provided that in the case of debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section 4 shall affect any
alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation
shall be enforceable under the rule of pious obligation in the same manner and to the same extent
as it would have been enforceable as if the Hindu succession (Amendment) Act, 2005 had not
been enacted.

ANTECEDENT DEBT

According to Mitakshara hind law, the father of joint-family can sell or mortgage the co-
parcenary including his son‘s interest in that property to discharge his antecedent debt which has
been incurred for his private uses and such alienation binds all the sons provided that

1. The debt was antecedent to the alienation.

2. The debt had not been incurred by father for illegal or immoral purposes.

So the doctrine of pious obligation invest the father with power to alienate the co-
parcenary property including his son‘s interest in that property for discharging his antecedent
debt contracted by him for his personal or private purposes, provided that the debt was neither
illegal nor immoral.

The antecedent signifies a prior indebtedness of the father. That is the father‘s
indebtedness must be antecedent in fact as well as in point of time also.

The two transactions, namely the incurring of the debt and the alienation, must be truly
independent of each other and not from part of the impugned transaction. So the necessary
conditions for antecedent debt are:

1. The debt must be prior in time

2. The debt must be prior in fact.

To constitute an antecedent debt, it is not necessary that the prior creditor and subsequent
alinee must be the same persons. All that necessary is that the two transactions must be different
or dissociated in time as well as in fact.

For example, the father of joint-family borrowed Rs 20,000 from A, the creditor for
private uses. Two years later, the father execute a mortgage of the entire co-parcenary property
in favour of the same creditor in order to secure the money of Rs 20,000 and its interest already
borrowed from A, the creditor and such mortgage binds the entire co-parcenary property
including the son‘s interest in that property.
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Burden of proving immoral or illegal purposes:-

Generally, it is for the alinee to prove that the antecedent debt be exist at the time of
alienation or prove that after due enquiries, be believed in good faith, that it exist. Then the
burden of proof is shifted upon the son to prove that the debt has been contracted by father for
illegal or immoral purpose and the alinee had notice about.

 It is not necessary for the alinee to prove that he made proper enquiry as to purpose of the
debt borrowed by father.
 It is not necessary for the alinee to prove that the money was borrowed for the benefit of
the family.
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CHAPTER-V

FAMILY PARTITION

Partition of property was not favored in the early days of Hindu Social life. A text of the
Smritis declared: ―Land is indivisible among kinsman even to the thousandth degree‖.

The coparcenary property belonging to joint family is managed by the person, called the
manager or the karta of the family. He is the head of the family. With the emergence of the
family, the head of the family controlled its property and the individual members could assert no
right to it. Whatever was acquired by a member the family, whether it was the wife, a slave or a
son, passed under the control of the head of the family.

At a later stage, partition came to be recognized that in any ultimate division of family
property, the acquirer was entitle doubled share. With imparting of a religious basis to secular
matters, it was declared that ―since religious duties are multiplied in separate houses, their
separation was legal and even laudable‖.

However, partition was not possible unless the father was inclined to divide the property.
If the father became old or enfeebled by sickness his consent was not needed. But no partition
could be made so long as the mother was alive and was not passed child bearing. During the
course of time all these restriction gradually disappeared.

In his great work ―Mitakshara‖, Vijnaneswara propounded the Doctrine of the Son‘s Co-
ownership with his father from the movement of his birth in co-parcenary property and the son‘s
right to demand partition of the joint family property at any time. But the doctrine of the son‘s
co-ownership with his father is not admitted in the Bengal school, or Dayabhaga.

In Dayabhaga school, the father has absolute owner of all property, both ancestral
property and self acquired property. Hence in that system a son has no right to demand partition
against his father.

Concept of partition:-

Under the Mitakshara law, partition covers both division of title and division of property
by metes and bounds.

Until a partition takes place, the interest of the coparcener is not a definite interest. It is a
fluctuating interest varying with the member of the co-parceners, in the joint family.

From the moment the partition, the coparcener‘s interest or share became an ascertained
definite share and he ceases to be an undivided coparcener. This was explained by lord west bury
in Appovier vs. Rama Suba Aiyas (ii M. L A .75). In that case, the plaintiff and his five
coparceners divided a part of the joint family properties by metes and bound in 1839. In 1855,
the plaintiff sued for partition ignoring the arrangement of 1834 and claiming that the family was
 Page 39 of 182

till joint and undivided since some of the properties had not been divided by metes and bounds.
The Privy Council pointed out that the family had become divided in 1834 itself and could not be
treated as a joint family, thereafter. The Privy Council observed:

―According to the true notion of an undivided family in Hindu law, no individual member
of the family while it remains undivided, can predict of the joint and undivided property, that he,
that particular member, has a certain definite share.‖ (According to the true notion of an
undivided Mitakshara family, so long as it remains undivided, no individual member can
predicate in respect of the joint family property that he has any definite share therein.)

The right to partition being an incident of the joint ownership of property cannot be
fettered with a condition that it shall be exercised only in a particular manner so as to destroy that
right or to alter the nature of the property from divisible property to indivisible property.

In partition, there is no transfer of interest. Each one of the coparceners has an antecedent
title and full interest in the specific property, which ultimately goes to his share.

Family arrangement and partition:-

1. A family arrangement is concluded with the object of settling a bonafide dispute arising out of
conflicting claims to property. Partition is not necessarily a compromise of conflicting claims.

2. A widow or other limited owner or a manager can enter into a family arrangement with
persons who are not coparceners, where as coparceners alone an effect a partition.

3. A family arrangement can never be a unilateral declaration, where as partition may be affected
by a unilateral declaration.

Agreement not to partition:-

An agreement between coparceners not to partition the co-parcenary property does not
bind even the parties there to, according to the Bombay High court, and any party may,
notwithstanding the agreement, sue the other parties for partition. (Ramalinga vs. Virupakshi).
But on the other hand, the High courts of Calcutta and Allahabad have held that such an
agreement does bind the actual parties, though it cannot bind their heirs or the persons to whom
they transfer their shares.

What property cannot be partitioned

All coparcenary property is liable to partition except the following property

1. Impartible property. It is a property which descends to one number only, either by custom or
under any provision of law or by the terms of its grant.
 Page 40 of 182

2. Property indivisible by nature, such as animals, furniture etc. and the property which cannot be
divided without destroying its intrinsic value. In such a case, the property may be sold and its
value distributed or money compensation may be paid to coparceners other than those to whom it
is given.

3. Family idols and places of worship

4. Separate property of members.

Subject matter of partition

The entire Joint family property, both movable and immovable property is liable to be
partitioned. Generally, the coparcenary property is subject matter of partition. The following four
kinds of properties, which are liable for partition

1. Ancestral property

2. Property acquired with the aid of ancestral property

3. Property acquired by joint exertions of the Co parceners with out aid of ancestral
property.

4. Property thrown into common stock. The bringing of separate property by a Coparcener
into common pool, with the intention of abandoning all separate claims to it.

PARTITION HOW EFFECTED

1. Partition by Father

According to Hindu law, it is competent to a father to make a partition during his life, and
the partition so made by him binds sons, not because the sons are consenting parties to the
arrangement but because it is the result of a power conferred on him, though subject to certain
restrictions imposed in the interest of the family. Therefore during his life time, father may effect
a division of the family property at any time independently of the consent to his sons provided
that he gives his sons equal shares with himself.

Even an unequal partition effected by the father may bind his sons as a family
arrangement if acquiesced in by them -- (Brij Raj vs Sheodan)

Minor sons no doubt can repudiate the arrangement on attaining majority but till then the
arrangement will stand good.

In Deveeracher vs Visweswartaiah A.I.R 1968, the court held that if he has left out of
the partition valuable item of property on the ground that is the separate property of one of the
members, the partition can be impeached as unfair.
 Page 41 of 182

In Nirman vs Fatech, the court held that non-division of the property by metes and
bounds cannot disturb the division in status brought about by the father.

In Briraj vs Sheodam, the court held that the father cannot impose a partition by his will
except with the consent to his sons.

The father‘s power to effect a severance in his joint family both as between himself and
his sons and as between his sons inter se is a inherent right only in the father as a survival of the
patria potestas and is not exercisable by any other ancestor as for instance a grand father with
reference to his grandsons.

In Subbarami Reddi vs Chenchuragava Reddi, that a grand father not being the natural
guardian of the sons of his deceased son, cannot effect a partition between them, but it is
submitted that this reason is not correct since the right to sever the undivided status has nothing
to do with the right to natural guardianship but is based on the peculiar position of the father of
grandfather or great-grandfather in the joint family, as per patter families with distinctive
privileges which have survived the tooth of time just as the incident of pious obligation.

2. Partition by individual volition

A definite and unambiguous indication of intention by one of the coparcener to separate

him from Hindu joint family and to enjoy his share severely will amount to partition under Hindu
law. Once the intention to separate is clearly expressed and intimate to other person it operates as
partition.

The intention to separate may be manifested by a coparcener either by express

declaration or by conduct. A mere declaration to separate from Hindu joint family made by
father to the mother of his minor son would be a sufficient communication of intention and it
operates as partition. This view is held by Supreme Court in ―Raghvamma vs. Chenchamma‖

The communication may be made by serving a notice to other coparcener. But it is not
necessary that it is communicated to all coparcener. Serving notice to managing member of
Hindu joint family is sufficient. In such a type of partition, it comes into effect from the date of
the manifestation of intention to separate.

3. By Suit by a co-parcener

A member of Hindu Joint family is entitled to sue for partition. In that suit, he clearly
indicates his intention to separate.

When a suit is instituted by an adult coparcener, it comes into effect from the date of the
filling suit. The decree may be necessary only for the working out its implication and allotting
definite share.
 Page 42 of 182

When a suit is instituted by a minor coparcener through his next friend, it comes into
effect only from the date of the decree.

4. By Agreement

Since intention is the substratum of partition, an agreement among the members of the
joint family to hold their shares in severally operates as a partition even if it is not accompanied
by a division of property by meter and bounds. Execution of an agreement in writing to hold the
property separately operates as a partition. The agreement to separate may even to be oral. As
observed by the Privy Council in Appovier vs Rama Subha Aiyar, the true test of partition of
property is the intention of the members of the family to become separate owners. Intention
being the real test, it follows that an agreement between members to hold and enjoy the property
in defined shares as separate owners constituted a partition, although there has been no physical
division of the property.

An arrangement for separate enjoyment will not affect a separation of family unless it
completely extinguishes the community of interest in the properties.

A valid agreement to effect a partition is competent notwithstanding the minority as one

or more coparceners and such agreement severs the joint interest and extinguishes the right
flowing from unity of ownership despite the existence of the minor. If, however, the partition is
unfair or prejudicial to the interest of a minor, he may avoid the transaction so far as he is
concerned after attaining majority.

For an agreement to operate as partition the shares should be defined with a view to
immediate separation.

A partition by agreement, if genuine, will sever the joint status even if its underlying
motive was to defect the claims creditors.

An agreement to divide need not be in writing and, even it written, it need not be
registered. But if the writing itself effects a division, registration is essential. An unregistered
partition deed can be looked into establish severance in status.

5. By conversion to another Religion

Conversion of a Hindu coparcener to Christianity or Islam or to any other religion

extinguishes the coparcener ship between him and the other members and he become entitled to
get his share determined as on the date of conversion. But the conversion does not affect the
status to the other member‘s interest.

6. By marriage under special marriage act.

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The marriage of a Hindu coparcener with a non Hindu under the Special Marriage Act
,1954 results in the severance of his joint status vis-à-vis the other coparcener from the date of
such marriage.

7. By Arbitration

A submission by the members of a Hindu joint family to arbitration for effecting a

partition of their shares brings about a disruption their joint status. The submission is tantamount
to an unequivocal expression of an intention to became divided and the fact that an award has not
been made does not efface or nullity the effect of such expression.

8. By Conduct

Separation of a family can be inferred from the conduct of the parties coupled attendant
circumstances. When the members of the family actually divide the joint family property by
metes and bounds and each member is in separate possession and enjoyment of the share allotted
to him, a partition is paid to take place by conduct.

9. By Notice

A partition merely requires an intention to separate, it can, therefore be affected even by a

notice, whether followed by a suite or not.

10. By Will

Partition may be effect by a coparcener making a will containing a clear and unequivocal
intimation to his coparceners of his desire to sever himself from the joint family or containing an
assertion of his right to separate. But the head of a family can not effect a partition by will
amongst the various members of the family inter se.

11. By sale by one coparcener to another

In TamilNadu, Maharashtra and Gujarat, if a coparcener sells his undivided interest in the
coparcenary property, he became a divided member from the rest of the coparceners in respect of
that property.

12. By Renunciation

Separation of coparceners may be effected by a renunciation of his interest by a

coparcener in favour of other coparcener. Such renunciation must be made in favour of all co-
parceners. If it is made in favour of one or some coparceners alone, it operates in favour of whole
body of coparceners. Such renunciation extinguishes his interest alone the coparceners properly.
But in respect of others, the family is jointness.
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SHASTRIC INJUNCTIONS

Every adult coparcener is entitled to demand and sue for partition of the coparcenary at
any time. This is the present law. But the Shastric injunctions are:

1. There should be no partition between father and his sons during the life time of the father
(without his consent)

2. There should be no partition till the mother has passed the child bearing age.

SUIT FOR PARTITION:-

A. who can sue for partition:

Even though every co-parcener is entitled to a share on partition, the right to sue for
partition is enjoyed by the following persons:

1. Adult co-parcener:

Every adult co-parcener can sue for a partition. In Maharashtra and Gujarat, a son is not
entitled to sue for partition against the father without his assent if the father is joints with his
father, brother or other co-parceners. Like that, in Punjab, according to custom, a son can not sue
for partition during the life time of the father.

2. Purchaser of undivided interest of the co-parcenary property:

A purchaser of undivided interest of the co-parcenary property of an individual co-

parcener at a sale in execution of a decree can sue for partition. According to Bombay and
Madras school, a purchaser of undivided interest of the co-parcenary property of an individual
co-parcener can demand partition, even the sale is private one.

3. Guardian on the behalf of minor co-parcener:

In the case of suit for partition by minor co-parcener through next friend, the court will
not pass a decree for partition, unless of course, the partition is likely for the benefit of the minor
or for his interest or protecting him from danger.

B. Who are the defendants to the suit for partition:

In a suit for partition, the plaintiff should implead the following persons as defendants:

1. Head of the joint-family

2. Heads of all branches

3. Females who are entitled a share on partition, viz., the wife, mother and grandmother
 Page 45 of 182

4. Purchaser of undivided interest of the co-parcenary property

5. If the plaintiff himself is a purchaser from a co-parcener, his alienor

C. Son’s right to sue for partition:

In Bombay, the son cannots sue for partition during the life time of the father without his
assent if the father joints with his father or brother. But if the father lives separately, the son can
sue for partition during the life time of the father against the father.

Likewise in Punjab, according to custom, the son cannot sue for partition during the life
time of the father

D. Effect of births and deaths during the pendency of partition suit:

If the adult co-parcener instituted a suit for partition, his share is not diminished by birth
of new co-parcener and also not increased by the death of a co-parcener. His suit for partition
effects a severance of the joint family status. So his share is not diminished by birth of new co-
parcener and also not increased by the death of a co-parcener.

If the minor co-parcener instituted a suit for partition, the position is different.

According to Madras and Bombay High court, the mere institution of suit by minor co-
parcener does not effect a severance of the joint status. So until a decree is passed, his share is
diminished by birth of new co-parcener and also increased by the death of a co-parcener. But on
the other hand if decree is passed in the suit, his share is not diminished by birth of new co-
parcener and also not increased by the death of a co-parcener.

According to Patna High Court, the mere institution of suit by a minor affects a severance
of joint status. So, therefore, his share is not diminished by birth of new co-parcener and also not
increased by the death of a co-parcener.

Who cannot sue for partition?

1. In Maharashtra and Gujarat, a son is not entitled to sue for partition against the father without
his assent if the father is joints with his father, brother or other co-parceners.

2. In Punjab, according to custom, a son cannot sue for partition during the life time of the father.

3. Neither the wife nor the mother nor the grandmother can sue for partition, even though, they
get a share at the time of partition.

4. A suit on the behalf of minor co-parcener will not lie, unless the interest of the minor are
likely to be prejudiced by the property being left in the hands of the other co-parceners.

F. Right of a son begotten and born after partition:

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There are two possibilities arises in cases where a son is begotten and born after partition that is
either the father might have taken his share at partition or may not have taken a share at partition.

Possibility number 1:

If the father has taken or reserved a share for himself at the time of partition, the son
begotten and born after partition is not entitled to reopening the partition, but such son become a
co-parcener with his father in respect of share allotted to father at the partition. In that share, both
father and son begotten and born after partition have equal right. After father‘s death, son
begotten and born after partition will get the father‘s share by survivorship.

With regards to father‘s separate property, prior to the Hindu Succession Act, 1956, son
begotten and born after partition was exclusively entitled to his father‘s separate property. But
after the Passing of the Hindu Succession Act, 1956, the separate property of the father would
devolves to his all heirs including all sons (whether separated or not) and daughters as per
section 8 of that Act.

Possibility number 2:

If the father has not taken or reserved a share for himself at the time of partition, the son
begotten and born after partition is entitled to reopening the partition and gets the estate re-
distributed.

G. Right of a son begotten at the time of partition, but born after partition:

According to Hindu law, the child in the mother‘s womb is treated as child in existence.
So, the ancient texts lay down that if the pregnancy is known, partition should be postponed until
the child is born. If this is not done for any reason, a share equal to a share of a son should be set
aside or reserved and given to the child, if male child is born. In case, the child is female, a
reasonable provision should be made out of such share for her maintenance and her marriage. If
any surplus after allotment of reasonable provision, it should be divided between the co-
parceners. In case, no share is set aside or reserved, the after born son can demand to reopen the
partition. This is the general rule, which is applicable to a partition between a father and sons.

PARTIAL PARTITION

The partition may be either,

1. General partition

2. Partial Partition

Partial Partition may be in respect of property

Partial Partition may also be in respect of a person.

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According to Judicial Committee, it is open to the members of the Hindu joint-family, to

make division and severance of interest in respect of some property while retaining the other
property as the property of joint undivided family.

Partial Partition may be in respect of property

General rule for sue for partition is that there is no partial partition except the following cases:

1. When different portion of joint-family property lie in different jurisdiction.

2. When the portion excluded lies outside India.

3. When the excluded portion is not in the possession of the coparceners.

4. Where the excluded portion is set a part for the maintenance of a widow.

5. Where the excluded portion is in the possession of a usufructuary mortgage

6. Where the excluded portion of a property is impartial estate.

7. Where excluded portion of property is held jointly with third person.

8. Where the excluded portion of property is omitted in earlier partition by mistake or fraud
or accident.

Partial partition as to person:

1. By unilateral declaration:-

If any of the coparcener clearly and unambiguously indicates his intention to separate
from family, it operates as partition only in respect of that person. But for remaining, the family
is joint.

2. By conversion to other religion:-

When a coparcener converted to Muslim, Christian or some other religion, such

conversion operates to sever him of from Hindu joint family and he is said to be separate
member of joint family. But the family is joint in respect of others.

3. By marriage under special marriage act:-

When a member of Hindu joint family married a non-Hindu under special marriage act,
such marriage operates to severe him from Hindu joint family and he take share determined as on
the date of the marriage. Then he is said to be divided member of Hindu Joint family. But the
family is joint in respect of other coparceners.
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RE-OPENING THE PARTITION:

The general rule is that a partition once made cannot be reopened. However, the
followings are exception to this general rule.

o If no share had not been reserved to a son begotten at the time of partition but
born after partition, he can re-open the partition,
o If the father had not taken any share at partition, the son begotten and born after
partition can re-open the partition.
o If the partition so made by the father is prejudice to the interest of minor, he can
reopen the partition.
o A disqualified coparcener can re-open the partition after ceasing the
disqualification.
o Absentee coparcener, on his return, re-opens the partition if no share was allotted
to him or made over his wife or made issues.
o If one of the coparcener has obtained unfair advantages by fraud or mistake or
accident, the partition can reopen.
o If one of the coparcener has obtained a property at the time of partition, which is
not joint-family property, but it is the property of another person, he can re-open
the partition.
o If a divided member adopts a son after partition, he can re-open the partition.
o If any of the joint family property is escaped from partition at the time of partition
by mistake or fraud or accident, the partition can be reopen.
o If the joint family property is not be divided equally among all coparcener.

REUNION OF SEVERANCE STATUS OF JOINTNESS

Reunion is a process by which two or more members to Hindu joint-family, after having
become separate, re unit in such a way as to constitute a joint family.

After partition, if any one of two members joint again though affection with his father,
brother or paternal uncle, it is called reunion.

According to Mitakshara laws, reunion can take place only between a member and his
father, brother or paternal uncle not with others.

Conditions for valid reunion

1. Parties to the reunion among the Hindu family must have been parties to the original
partition.

2. A reunion can take place only between members with his brother, sfather, uncle not with
others.
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3. There can be no reunion unless there is an intention to reunite.

4. It is not a condition precedent to reunion that both the parties must Possess some
properties which belonged to the joint- family before Partition.

5. It is immaterial that one or more of the parties had dissipated his share after partition.

Reunion can be effected by,

1. By oral agreement

2. By written agreement or registration

3. By subsequent conduct of the parties.

Effect of Reunion

1. It is settled that the reunion remits the parties to their original joint status as member of a
Hindu joint-family.

2. In a reunited family, the son, grandson and great-grandson acquire an interest, by birth, on the
joint-family property.

3. After reunion, among the reunite members, survivorship is exists.

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CHAPTER-VI

WOMAN’S ESTATE OR LIMITED ESTATE

The doctrine of limited estate for woman in property acquired by inheritance or partition
under Hindu law is abolished by the Hindu Succession Act, 1956. Under that Act, the property
acquired by a woman in any manner what so ever, is held by her absolutely .Prior to this Act, the
doctrine of limited estate was widely prevalent.

I. Meaning of the term Women‘s Estate- The term woman‘s estate in its larger connotation
means all property which has come to a woman by any means and from any source what so ever,
and includes both property in which she has absolute estate (stridhana) and property in which has
only a limited interest.

2. Narrow sense: The term woman‘s estate is used only in the later sense of property in which
she takes only a limited interest or qualified interest. Such property is either property inherited by
woman or property which has been allotted to her in a partition to her husband‘s family.

The general rule of Hindu Law is that property inherited by a woman from male or
female is taken by her as a qualified owner. But there are two exceptions in this general rule in
Bombay school.

1. Property inherited by a woman born in the gotra of the deceased. (Stridhana)

2. Property inherited by a woman from another woman. (Stridhana)

Except these two circumstances, in all other cases, if a woman acquired property by
inheritance or partition, such property is only a limited estate to such woman. .After her death,
such property goes to her heirs of full owner, whether male or female, from whom it was
inherited.

II.Female hairs having limited estate

According to Dayabhaga, Banaras and Mithila School, the female heirs who acquire women
estate are as follows:-

1. Widow

2. Daughter

3. Mother

4. Father‘s Mother

5. Father‘s father‘s mother

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6. Sister

7. Consanguine sister

8. Son‘s daughter

9. Daughter‘s daughter

10. Brother‘s daughter

11. Sisters daughter

12. Fathers sister

III.Nature of widow’s Estate

The following are the main feature of a widow‘s estate.

1. She is owner of such property except that she cannot sell the corpse of the Property or
mortgage or make it a gift or grand lease thereof for long term or otherwise alternate it
unless it is for legal necessity or the benefit of the estate or with the consent of the next
reversionary.
2. A widow holds the property as the legal representative of the husband. Because of this,
the estate is liable to be attached in execution of the money decree obtained against the
husband.
3. She may institute the suit in respect of her property and she may be sued and the decree
passed against her are binding on her estate and the reversionary. If she is dispossessed
of the property by a 3rd person, she can sue to recover it but if she fails it and allows the
adverse possession, she cannot sue to recover it after 12 years. But the reversioner are
not affected by it, upon her death with in 12 years, they can sue for it.
4. She can sell her life estate in the property or mortgage it or make a gift of it.
5. She is entitled to the whole income and she can spend the whole income for her self. She
is neither bound to maintain her husband‘s family member nor she is bound to perform
their marriage ceremony out of the income of limited estate.
6. She is entitled to manage this property. She must manage like a prudent owner. She must
not commit waste or do any act injury to reversioners

IV.Widow’s Power over Limited Estate

1. Power of Enjoyment

2. Power of Management

3. Power of Representation.

4. Power of alienation
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Explanation

1. Power of Enjoyment

Even though her estate is limited, she is entitled to enjoy the property absolutely. So she
can enjoy the income of the property but not corpus of the property. She is not entitled to make
sale/ mortgage / lease or gift of such property. She has no legal obligation to save the income of
the property. She is not bound to apply the income of the property for the discharge of the
husband‘s debt. She is not bound to apply the income for pious obligation.

She is not bound to accumulate the income of the property. During her husband‘s life,
the wife has no right to get a share in the coparcenary property by way of women‘s estate.

2. Power of Management

She is bound to deal with the property as carefully as the man of ordinary prudence
would deal with them, if it were his own property.

3. Power of Representation:-

1. Since she is the owner of the property, she is entitled to represent it in all transaction
necessary for the management and improvement of the estate.

2. She incurs debts in its management. For the benefit of the estate, she is entitled to enters into
compromise
3. She can sue for recover the property from the trespasser.
4. She defends suits against the estate.
5. She incurs debts in its management.
6. For the benefit of the estate, she is entitled to enters into compromise
7. Power of Alienation
8. A widow has no power to alienate the estate inherited by her from the diseased owner
except following two reasons.

1. Religious purpose 2. She defends suits against the estate.

4. Power of Alienation
A widow has no power to alienate the estate inherited by her from the diseased owner
except following two reasons.
1. Religious purpose
2. Legal necessity
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1. Alienation for Religious act

The Hindu system recognizes two sets of Religious purposes.
1). One is in connection with actual obsequies of the deceased and the periodical
performance of the obsequies rites prescribed in the Hindu religious law which is considered as
essential for the salvation of the soul of the diseased. With reference to this Act, the powers of
the Hindu female are wider than others. If the income of the property is not sufficient to cover
the expenses, she is entitled to sell the whole of it.
For examples,
a. Performance of funeral expenses and Sradha ceremonies of the deceased.
b. Performance of Sradha ceremonies of her husband‘s mother
c. Other religious acts which conduce to the spiritual benefit welfare of her
husband.
d. Payment of debts of the deceased owner.
2). The second kinds of Religious purpose related to acts which, though not essential
obligatory or still pious observant which conduce to the bliss of the deceased soul.
2. Alienation Legal Necessity:
For Legal Necessity, the widow is entitled to alienate the property. The following are
some of the example of the necessity.
1. Cost of taking probate or letter of administration in respect of the estate of
deceased owner.
2. Payment of government revenue.
3. Payment of municipal tax and rates. It is the duty of the widow to pay public
charges out of the income of the estate.
4. Reasonable cost of necessary litigation in preserving the estate (or) defending her
title.
5. Maintenance of herself and other dependent members to whom the deceased
owner was bound to maintain.
6. Marriage expenses of the girls of the deceased family, such as his sister, daughter,
Son‘s daughter, grandson‘s daughter.
7. Preservation of the property & necessary repair there to.
8. Gift by a widow to her daughter and son in law on the occasion of their marriage.
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Surrender by Widow
A Hindu widow can renounce the estate in favour of the nearest reversioners and by a
voluntary act efface herself from the succession as effectively as it she had then died. This
voluntary self-effacement is sometimes referred to as surrender, sometimes as a relinquishment
or abandonment of her rights.
Form of Surrender;-
The surrender may be either oral or in written.
Essentials of Surrender
1. Surrender must be in favour of the nearest reversioner, if only one or the whole body
of such reversioner, if more than one.
2. The surrender must be total, not partial and a partial surrender is invalid even if it is to
the nearest reversioner and absolute as to that part.
3. The surrender must be bonafide surrender and not deceive to divide the estate with the
reversioner.
4. A Surrender effected by a widow in ignorance of her rights and without realizing the
true position of affairs, is not valid in Low.
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CHAPTER-VII
WOMAN’S ESTATE OR LIMITED ESTATE
The doctrine of limited estate for woman in property acquired by inheritance or partition
under Hindu law is abolished by the Hindu Succession Act, 1956. Under that Act, the property
acquired by a woman in any manner what so ever, is held by her absolutely .Prior to this Act,
the doctrine of limited estate was widely prevalent.
The general rule of Hindu Law is that property inherited by a woman from male or
female is taken by her as a qualified owner. But there are two exceptions in this general rule in
Bombay school.
1. Property inherited by a woman born in the gotra of the deceased. (Stridhana)
2. Property inherited by a woman from another woman. (Stridhana)
Except these two circumstances, in all other cases, if a woman acquired property by
inheritance or partition, such property is only a limited estate to such woman. .After her death,
such property goes to her heirs of full owner, whether male or female, from whom it was
inherited.
Female hairs having limited estate
According to Dayabhaga, Banaras and Mithila School, the female heirs who acquire
women estate are as follows:-
1. widow
2. Daughter
3. Mother
4. Father‘s Mother
5. Father‘s father‘s mother
6. Sister
7. Consanguine sister
8. Son‘s daughter
9. Daughter‘s daughter
10. Brother‘s daughter
11. Sisters daughter
12. Fathers sister
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Nature of widow’s Estate

The following are the main feature of a widow‘s estate.
1.She is owner of such property except that she cannot sell the corpse of the property or
mortgage or make it a gift or grand lease thereof for long term or otherwise alternate it unless it
be for legal necessity or the benefit of the estate or with the consent of the next reversionary.
2. A widow holds the property as the legal representative of the husband.
Because of this, the estate is liable to be attached in execution of the money decree obtained
against the husband.
3. She may institute the suit in respect of her property and she may be sued and the
decree passed against her are binding on her estate and the reversioner.
4. If she is dispossessed of the property by a 3rd person, she can sue to recover it but
if she fails it and allows the adverse possession, she cannot sue to recover it
after 12 years. But the reversioner are not affected by it, upon her death with in 12 years,
they can sue for it.
5. She can sell her life estate in the property or mortgage it or make a gift of it.
6.She is entitled to the whole income and she can spend the whole income for her self.
She is neither bound to maintain her husband‘s family member nor she is bound to perform their
marriage ceremony out of the income of limited estate.
7. She is entitled to manage this property. She must manage like a prudent owner.
She must not commit waste or do any act injury to reversioners
Widow’s Power over Limited Estate
1. Power of Enjoyment
2. Power of Management
3. Power of Representation.
4. Power of alienation
Explanation
1. Power of Enjoyment
Even though her estate is limited, she is entitled to enjoy the property absolutely. So she
can enjoy the income of the property but not corpus of the property. She is not entitled to make
sale/ mortgage / lease or gift of such property. She has no legal obligation to save the income of
 Page 57 of 182

the property. She is not bound to apply the income of the property for the discharge of the
husband‘s debt. She is not bound to apply the income for pious obligation.
She is not bound to accumulate the income of the property. During her husband‘s life,
the wife has no right to get a share in the coparcenary property by way of women‘s estate.
2. Power of Management
She is bound to deal with the property as carefully as the man of ordinary prudence
would deal with them, if it were his own property.
3. Power of Representation:-
1. Since she is the owner of the property, she is entitled to represent it in all
transaction necessary for the management and improvement of the estate.
2. She can sue for recover the property from the trespasser.
3. She defends suits against the estate.
1. She incurs debts in its management.
2. For the benefit of the estate, she is entitled to enters into compromise
4.Power of Alienation
A widow has no power to alienate the estate inherited by her from the diseased
owner except following two reasons.
1. Religious purpose
2. Legal necessity
1. Alienation for Religious act
The Hindu system recognizes two sets of Religious purposes.
1). One is in connection with actual obsequies of the deceased and the periodical
performance of the obsequies rites prescribed in the Hindu religious law which is considered as
essential for the salvation of the soul of the diseased. With reference to this Act, the powers of
the Hindu female are wider than others. If the income of the property is not sufficient to cover
the expenses, she is entitled to sell the whole of it.
For examples,
a. Performance of funeral expenses and Sradha ceremonies of the deceased.
b. Performance of Sradha ceremonies of her husband‘s mother
c. Other religious acts which conduce to the spiritual benefit welfare of her
husband.
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d. Payment of debts of the deceased owner.

2). The second kinds of Religious purpose related to acts which, though not essential
obligatory or still pious observant which conduce to the bliss of the deceased soul.

2. Alienation Legal Necessity:

For Legal Necessity, the widow is entitled to alienate the property. The following are
some of the example of the necessity.
1. Cost of taking probate or letter of administration in respect of the estate of
deceased owner.
2. Payment of government revenue.
3. Payment of municipal tax and rates. It is the duty of the widow to pay public charges
out of the income of the estate.
4. Reasonable cost of necessary litigation in preserving the estate (or) defending her
title.
5. Maintenance of herself and other dependent members to whom the deceased
owner was bound to maintain.
6. Marriage expenses of the girls of the deceased family, such as his sister, daughter,
son‘s daughter, grand son‘s daughter.
7. Preservation of the property & necessary repair there to.
8. Gift by a widow to her daughter and son in law on the occasion of their marriage.

Surrender of her rights

A Hindu widow can renounce the estate in favour of the nearest reversioners and by a
voluntary act efface herself from the succession as effectively as it she had then died. This
voluntary self-effacement is sometimes referred to as surrender, sometimes as a relinquishment
or abandonment of her rights.
Form of Surrender;-
The surrender may be either oral or in written.
Essentials of Surrender
1. Surrender must be in favour of the nearest reversioner, if only one or the whole
body of such reversioner, if more than one.
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2. The surrender must be total, not partial and a partial surrender is invalid even if it
is to the nearest reversioner and absolute as to that part.
3. The surrender must be bonafide surrender and not deceive to divide the estate
with the reversioner.
4. A Surrender effected by a widow in ignorance of her rights and without realizing
the true position of affairs, is not valid in Low.
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CHAPTER-VIII
LAW OF SUCCESSION AMONG HINDU
Law of succession have been studies in two different heads, namely,
1. Law of succession prior to the passing of the Hindu Succession Act, 1956.
2. Law of succession according to the Hindu Succession Act, 1956.
1. Law of succession prior to the passing of the Hindu Succession Act, 1956.
Different mode of succession to the property of a Hindu was prevalent in different parts
of the country before the enactment of the Hindu Succession Act, 1956.In the case of joint
family property, there is one mode of succession. In the case of self acquired property, there is
another mode of succession.
1. Joint family property:
In the case of joint family property, if a co-parcener died, his interest in the joint
family property passed on his death to the other co-parceners by way of survivorship.
2. Self-acquired property:
In the case of separate property, the interest of the deceased person passed on his death
to his legal heirs by way of inheritance.
The Mitakshara law recognized both the law of survivorship and law of inheritance, but
the Dayabhaga law recognized only the law on inheritance.
3. In addition to these two modes, another mode of succession is in regards to women‘s
absolutely property. Law of succession to women‘s absolutely property is entirely different
from the law of succession to the property of a male Hindus. Women‘s absolutely property is
otherwise known as Strithana Property which is different from Women‘s Estate.
4. In the state of Kerala, another mode of succession is prevalent which is called as
―Marumakkatayam‖. This system of succession was matriarchal with the woman as the stock of
decent.
5. In regards to impartible estate, special rule of inheritance based on custom or statute
applied to the devolution of such estate.
6. In Punjab, the customary rules of succession is applied for devolution of property.
Female heirs under Mitakshara law:
Limited Estate of Female Hindu:
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If a male Hindu inherits any property whether from male or female, he takes the
property as absolutely. If a female Hindu inherits any property whether from male or female,
she takes the property as limited estate in the heritable property.
Inheritance Never in Abeyance:
On the death of a Hindu, his heir becomes entitled immediately to the property left
by him as intestate. So, therefore, it cannot under any circumstance remain in abeyance in
expectation of the birth of a preferable heir, where such heir was not in existence in mother‘s
womb at the time of the death of the intestate.
On the death of a Hindu, if his estate has vested to nearest heir at the time of his
death, it cannot be divested except either by birth of a preferable heir such as son or daughter
who was in existence in the mother‘s womb at the time of his death or by adoption made by
widow for her husband on the basis of authority given by husband to his wife
Doctrine of Representation:
Where all the heirs (Lineal Descendants) are in the same degree of relationship, the
property of deceased Hindu is distributed to all the heirs as per capita except if the heirs are
son‘s son, daughter‘s son and daughter‘s daughter, the properties are distributed as per stripes.
On the other hand, where all the heirs (Lineal Descendants) are in the different degree of
relationship, the property of deceased Hindu is distributed to all the heirs as per stripes, that is
the principle of representation except if the heirs are son‘s son, daughter‘s son and daughter‘s
daughter who are the same degree of relationship, the properties are distributed as per stripes.

BASIS OR FOUNDATION OF LAW OF SUCCESSION

The foundation of law of succession is derived from the Sastras. In his work, Manu says
that ―He who is the nearest heir from a Sapinda shall take property of the latter, next to him, the
Sakulya, then the spiritual preceptor and then the spiritual disciple‖.
TYPES OF SYSTEM OF INHERITANCE;
There are two types of system of inheritance amongst Hindus, namely,
1. Mitakshara system of inheritance.
2. Dayabhaga system of inheritance.
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Explanation
1. Mitakshara system of inheritance:
Vijnaneswara was the author of Mitakshara School. According to him, Sapinda shall
take the property of the deceased person. According to him, the term Sapinda signifies the
community of blood or community of particles of the same body. Therefore Sapinda
relationship meant the relationship between persons through descent from a common ancestor.
Therefore, the blood relationship or consanguinity formed the basis of inheritance.
2. Dayabhaga system of inheritance.
Jumootavahana was the author of Dayabhaga School. According to him, Sapinda shall
take or inherit the property of the deceased person. According to him, the term Sapinda signifies
the community in and through the offering of funereal obligations. Therefore, propinquity or
proximity is not the basis of inheritance in Dayabhaga law.
Therefore the Dayabhaga adopted the principle of Spiritual benefit to decide the person
for inheritance. But Mitakshara law adopted the principle of blood relationship to decide the
person for inheritance
EXCLUSION FROM SUCCESSION:
Hindu law dealt with certain defects, deformities and diseases as a disqualification of a
person from succeeding property to another. In ancient time, there were five kinds of
disabilities, namely,
1. Physical disabilities
2. Mental disabilities
3. Moral disabilities
4. Religious disabilities
5. Equitable disabilities
Explanation
1. Physical disabilities:
Blindness, deafness and dumbness operated as a bar if the defect was both congenital
and incurable. Therefore, if a person was a blindness or deafness or dumbness from birth, he
was not entitled to inherit property from any deceased person by way of inheritance. Likewise
the loss of limp or organ operated as a bar if it is congenital. Likewise leprosy of a virulent and
incurable type operated as bar. But these physical disabilities were removed by the passing of
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Hindu Inheritance(Removal of Disabilities) Act, 1928. This Act was not retrospective in
operation. This Act was not apply to person who belonged to Dayabhaga school.
2. Mental disabilities;
If the lunacy existed to any person at the time of the opening of succession, he was not
inherited any property by way of succession. But lunacy was a bar if it was absolute. But after
passing of the Hindu Inheritance (Disability Removal) Act, 1928, the mental disability was
removed. After this Act, if a person is lunacy from birth, he is not entitled to inherit any
property. But if the lunacy is not from birth, it is not bar for inheritance.
3. Moral disabilities:
In Dayabhaga law, the unchastity of a woman barred her from succession whatever
was nature of her relationship to the last full owner where such owner was a male.
But in Mitakshara law, the unchastity was a bar only in the case of a widow. If she
is chaste, she get property from male Hindu. Subsequently, if she lives immoral life, such act
does not divest her from losing her property. But if the wife, daughter or other female was
living immoral life, it was not a bar to succeed a property from other male persons.
4. Religious disabilities:
In ancient time, the change of religion and change of caste was a bar to inheritance.
But after the passing of the Caste Disabilities Removal Act, 1850, such disabilities were
removed.
5. Eqitable disabilities:
On the basis of justice, equity and good conscience, the murderer should not succeed
any property from victim person. The heirs of the murderer also were not inheriting property
from the victim person.
The above five disqualifications were personal one. If an heir was disqualified, the
next heir of the deceased person would succeed and acquire the inheritance.

DEVOLUTION OF PROPERTY ACCORDING TO THE MITAKSHARA LAW:

If a male Hindu governed by Mitakshara law died leaving behind property, his property
devolves subject to the following propositions, namely,
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1. If the deceased co-parcener was a member of Hindu undivided joint family at the time
of his death, his interest in the joint family property shall devolves on his surviving co-parceners
by law survivorship.
2. If the deceased co-parcener was jointly to live with joint family at the time of his death
and died leaving self acquired property, it goes to his heirs by way of inheritance, not by way of
survivorship.
3.If the deceased co-parcener was separate to live with joint family at the time of his death
and died leaving self acquired property and interest in the co-parcenary property, all such
property goes to his heirs by way of inheritance, not by way of survivorship.
4. If the deceased co-parcener was sole surviving co-parcener at the time of his death and
died leaving self acquired property and interest in the co-parcenary property, all such property
goes to his heirs by way of inheritance, not by way of survivorship.
The Mitakshara law divides the sapindas or blood relationship into two classes,
namely,
(a). Gotraja sapindas, that is sapindas are in the same Gotra or family of the deceased
(b). Bhinna-Gotra sapindas, that is sapindas are different Gotra or family of the
Deceased and otherwise called as Bandhus.
Gotraja sapindas are further divided into two classes, namely,
1. Sapindas
2. Samanodakas
The classes of heirs as per Mitakshara law are, namely,
1. Sapindas
2. Samanodakas
3. Bandhus.
Explanation
Sapindas:
According to Mitakshara law, the Sapinda heirs of the deceased Hindus are,
i. His 6 male descendants in the male line- total= 6
ii. His 6 male ascendants in the male line and their 6 wives- total= 12
iii. The 6 male descendants in the collateral male line of each of his 6 male
ascendants- total= 36
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iv. His wife, daughter and daughter‘s son-total= 3

Grand total for sapindas are: 6+12+36+3= 57.
Samanodakas:
The sapindas as per Mitakshara law extends to 6th degree beyond the deceased Hindu.
According to Mitakshara law, the Samanodaka heirs of the deceased Hindus are all his agnates
from 7th degree to 13 degree beyond the deceased Hindu. They are 147 in number counting
from 6th degree to 13th degree beyond the deceased Hindu. They are, namely,
I. His 7 male descendants in the male line from 7th to 13th degree- total= 7
II. His 7 male ascendants in the male line from 7th to 13th degree- total= 7
III. The 7 male descendants from 7th degree to 13th degree in the collateral male line of
each of his 6 male ascendants from 1st degree to 6th degree- total= 42
IV. The 13 male descendants from 1st degree to 13th degree in the collateral male line of
each of his 7 male ascendants from 7st degree to 13th degree- total=91
V. Grand total for Samanodakas are: 7+7+42+91= 147

Bandhus:
On the failure of sapindas and Samanodakas, the inheritance passes to Bandhus. The
Mitakshara Hindu law mentions three classes of Bandhus, namely,
1. Atma Bandhus
2. Pitru Bandhus
3. Matru Bandhus
1. Atma Bandhus:- These are,
1. Father‘s sister‘s son
2. Mother‘s sister‘s son
3. Mother‘s brother‘s son
2. Pitru Bandhus
1. Father‘s Father‘s sister‘s son
2. Father‘s Mother‘s sister‘s son
3. Father‘s Mother‘s brother‘s son
3. Matru Bandhus
1. Mother‘s Father‘s sister‘s son
2. Mother‘s Mother‘s sister‘s son
3. Mother‘s Mother‘s brother‘s son
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ORDER OF SUCCESSION IN MITAKSHARA LAW:

Under the Mitakshara law, the Sapindas are succeeding the property of a male deceased
Hindu initially. Failing all sapindas, the inheritance passes to Samanodakas, the nearer line
excluding a remoter kinsman in the same line. On the failure of sapindas and Samanodakas, the
inheritance passes to Bandhus.
Order of succession among Sapindas:
The Sapindas succeed the property of deceased Hindu in the following manner:-
1 to 3 (son, son of predeceased son and son of predeceased son of predeceased son)
The first three places in the line of succession went to the son, son of predeceased son
and son of predeceased son of predeceased son.
A son, son of predeceased son whose father is dead, and son of predeceased son of
predeceased son whose father and grandfather are both dead, succeed simultaneously as a single
heir to the self acquired property of the deceased Hindu with right of survivorship inter se.
After 14th April, 1937, by reason of the Hindu women‘s Right to Property Act, 1937,
the widow of the deceased Hindu inherited the same share as a son along with son. Likewise,
the widow of predeceased son inherited the property of the deceased Hindu in the same share as
a son‘s son and the widow of the predeceased son of predeceased son inherited the property of
the deceased Hindu in the same share as a son‘s son‘s son.
Rules for succession:
1. If the son had become divided from their father prior to his death, they would
succeed the property as tenants-in- common.
2. If the father, at the time of his death, was joint with some and separated from
other sons, those that remained joint would acquire the father‘s interest in the coparcenary
property as well as separate property.
3. The son, grandson and great grandson take the property of the deceased Hindu as
per stripes and not as per capita.
4. Among Brahmins, Kshatriyas and Vaisyas, as between adopted son and aurasa
son born subsequently after adoption, the adopted son took lesser share, the quantum of which
varied from province to province.
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5. An illegitimate son of a Brahmin, Kshatriya and Vaisya are not entitled any share
in inheritance, but they are entitled to maintenance. The illegitimate son of a Sudra, however, is
entitled to a share of the inheritance provided that he is the son of a dasi who is exclusive
keeping of his father at the time of his birth. It was immaterial whether the property was
ancestral or separate property in the hands of the putative father. With legitimate son, widow,
daughter or daughter‘s son of the deceased, the illegitimate son inherited half of what he would
have taken if he had been legitimate. In default of these relations, he inherited the entire
property of the putative father.
Under Dayabhaga law, the illegitimate son of a Sudra by a Brahmin concubine in his
exclusive keeping has the status of a son and takes a half of the share of legitimate son.
1. Widow:
Prior to 14th April, 1937, the widow inherited in default of a son, son‘s son and
son‘s son‘s son and since that date she inherits property along with them. Chastity was a
condition precedent for widow to inherit property. But her husband had condemned it.
Subsequent unchastity after vesting the property did not divest her of the inheritance. Since she
acquired only a limited interest in inheritance, after her death the property passed not to her own
heirs but to the next heirs of her husband.
2. Daughter:
In default of heirs up to the widow, the daughter inherited. Chastity was not a
condition precedent for daughter to inherit property.. Since she acquired only a limited interest
in inheritance, after her death the property passed not to her own heirs but to the next heirs of
her father. In the province of Bombay, the daughter inherited an absolute estate. Among
daughters, the maiden daughter excluded a married daughter. Among married daughter, the
relatively less affluent daughter excluded the high affluent daughter.
3. Daughter‘s son:
In default of heirs up to the daughter, the daughter‘s son inherited though he was a
Bhinna-Gotra sapindas.
4. Mother :
In default of heirs up to the daughter‘s son, the mother inherited. She inherited only a
limited estate. So after her death, the property passed not to her own heirs, but also to the next
heirs of her son.
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5. Father:
In default of heirs up to the mother, then the father came next to the mother in
line of heirs.
6. Brother:
In default of heirs up to the father, brother came next to the father in the line of heirs.
7. Brother‘s son :
In default of heirs up to the brother, brother‘s son came next to the brother in the line of
heirs.
8. Brother‘s son‘s son :
In default of heirs up to the brother‘s son, brother‘s son‘s son came next to the
brother‘s son in the line of heirs.
9. Father‘s mother :
The father‘s mother came next after brother‘s son‘s son.
10. Father‘s father:
Next to the father‘s mother, the father‘s father came in the line of heirs.
After passing the Hindu Law of Inheritance (Amendment) Act, 1929, the following
heirs are inserted in the line of heirs.
11. Son‘s daughter
12. Daughter‘s daughter
13. Sister
14. Sister‘s son
15. Paternal uncle
16. Paternal uncle‘s son
17. Paternal uncle‘s son‘s son
18. Father‘s father‘s mother
19. Father‘s father‘s father
20. Father‘s paternal uncle
21. Father‘s paternal uncle‘s son
22. Father‘s paternal uncle‘s son‘s son
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23. Brother‘s son‘s son‘s son

24. Uncle‘s son‘s son‘s son
Failing all above sapindas, the inheritance passes to Samanodakas, the nearer line
excluding a remoter kinsman in the same line. On the failure of sapindas and Samanodakas, the
inheritance passes to Bandhus.
ESCHEAT:
In default of all the heirs, the property of deceased person escheated to the government.
DAYABHAGA LAW OF INHERITANCE:
As per Dayabhaga law, all heirs were classified in to three classes, these are,
1. Sapinda
2. Sakulyas
3. Samanodakas
Each class contained both agnates and cognates. Sapindas succeed to the inheritance
first, then came the Sakulyas, and after them all, the Samanodakas.

THE HINDU SUCCESSION ACT, 1956

This Act came into force on 17th June, 1956. This Act has made several changes in
the law of succession. This Act has made several changes in the law succession among Hindu.
1. This Act has provided uniform and comprehensive rules of law applicable to all
Hindus throughout India both Mitakshara and Dayabhaga.
2. Prior to this Act, daughter shall not inherit any property from propositus if any
son or son‘s son or son‘s son‘s son is alive at the time of the death of propositus. But now, the
daughter inherits property along with son or son‘s son or son‘s son‘s son.
3. Prior to this Act, if a male Hindu died without male issues, his interest in the co-
parcenary property devolves to surviving co-parcener as survivorship. But after the passing of
the Hindu Succession (Amendment) Act, 2005, If a Hindu dies leaving behind any interest in
the co-parcenary property, such property devolves either testamentary succession or intestate
succession under the Act of 1956.
4. This Act abolished the Hindu women‘s Estate (limited) which is existed prior to
this Act and any property possessed by a female Hindu is to be held by her as her absolute
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property and she is given with full power to that property either to deal with it or dispose it by
will or transfer inter vivos.
5. Prior to this Act, there is no uniform law of succession for Strithana property of a
female Hindu. Now, section 15 of this Act lays down a uniform scheme of succession to the
property of a female Hindu who dies intestate after passing of this Act.
6. Prior to this Act, the co-parcener could not alienate his interest in the co-
parcenary property without concurrence of other co-parceners. Section 30 of this Act abolished
this rules.
7. Prior to this Act, certain defects, deformities and diseases excluded an heir from
inheritance. Section 28 of this Act lays down that no person shall be disqualified from
succeeding to any property of the propositus on the ground of any disease, defect or deformity.
8. Prior to this Act, according to Mitakshara law, co-parcener could not alienate his
undivided interest in the co-parcenary property without concurrence of other co-parceners. Now
this rule abrogated by the Explanation of section 30. So, now a Hindu may be permitted to
dispose his interest in the co-parcenary property either transfer inter vivos or testamentary gift.
9. Prior to this Act, the right of illegitimate issue depended upon the caste to which
the parents belonged. They also varied from school to school. Now, illegitimate kinship is
recognized only with reference to the mother for the purpose of inheritance. This simplifies the
legal position of illegitimate children.

CHANGES BROUGHT ABOUT BY THE HINDU SUCCESSION (AMENDMENT)

ACT, 2005:
The Hindu Succession (Amendment) Act, 2005 brought about radical changes in
Section 6 of this Act along with other changes. These are,
1. Equal Rights of the daughter in the Co-parcenary property.: As per section ^ of
this Act, the daughter of a co-parcener becomes, by birth, a co-parcener in her own right and she
has the same rights and liabilities in the co-parcenary property as that of a son.
2. Abolition of Doctrine of Pious obligation: The old Mitakshara law recognized the
doctrine of pious obligation. Now, after 2005, Section 6 of this Act abolished the doctrine of
obligation.
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3. Right of female Hindu in family dwelling house: Prior to 2005, the female had no
right to claim the dwelling house at the time of inheritance as per section 23 of this Act. Now,
this rule is abolished.
4. As Section 24 of this Act, widow of son or widow of son‘s son or widow of son‘s
son‘s son is not entitled to inherit property if they are remarried at the time of reopening of
inheritance. Now this section 23 is removed from the Act.

APPLICATION OF ACT. (SECTION 2) —

(1) This Act applies—
(a) to any person, who is a Hindu by religion in any of its forms or developments
including a Virashaivas, a Lingayats or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion; and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is
proved that any such person would not have been governed by the Hindu law or by any custom
or usage as part of that law in respect of any of the matters dealt with herein if this Act had not
been passed. Explanation.—The following persons are Hindus, Buddhists, Jainas or Sikhs by
religion, as the case may be:—
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or
Sikh by religion and who is brought up as a member of the tribe, community, group or family to
which such parent belongs or belonged;
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh
religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act
shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article
366 of the Constitution unless the Central Government, by notification in the Official Gazette,
otherwise directs.
(3) The expression ―Hindu‖ in any portion of this Act shall be construed as if it included a
person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies
by virtue of the provisions contained in this section.
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Definitions and interpretation (Section3).—

(1) In this Act, unless the context otherwise requires,—
(a) ―Agnate‖—one person is said to be an ―agnate‖ of another if the two are related by
blood or adoption wholly through males;
(b) ―aliyasantana law‖ means the system of law applicable to persons who, if this Act had
not been passed, would have been governed by the Madras Aliyasantana Act, 1949, or by the
customary Aliyasantana law with respect to the matter for which provision is made in this Act;
(c) ―Cognate‖ — one person is said to be a cognate of another if the two are related by
blood or adoption but not wholly through males;
(d) the expression ―custom‖ and ―usage‖ signify any rule which having been continuously
and uniformly observed for a long time, has obtained the force of law among Hindus in any
local area, tribe, community, group or family: Provided that the rule is certain and not
unreasonable or opposed to public policy; and Provided further that in the case of a rule
applicable only to a family it has not been discontinued by the family;
(e) ―Full blood‖, ―half blood‖ and ―uterine blood‖—
(i) Two persons are said to be related to each other by full blood when they are descended
from a common ancestor by the same wife and by half blood when they are descended from a
common ancestor but; by different wives;
(ii) Two persons are said to be related to each other by uterine blood when they are
descended from a common ancestress but by different husbands;
Explanation.— In this clause ―ancestor‖ includes the father and ―ancestress‖ the mother;
(f) ―Heir‖ means any person, male or female, who is entitled to succeed to the property of
an intestate under this Act;
(g) ―Intestate‖—a person is deemed to die intestate in respect of property of which he or
she has not made a testamentary disposition capable of taking effect;
(h) ―Marumakkatayam law‖ means the system of law applicable to persons—
(a) who, if this Act had not been passed, would have been governed by the Madras
Marumakkatayam Act, 1932 (Madras Act XXII of 1933); the Travancore Nayar Act (II of
1100K); the Travancore Ezhava Act (III of 1100K); the (VII of 1108K) Travancore Nanjinad
Vellala Act (IV of 1101K); the Travancore Kshatriya Act (VII of 1108K); the Travancore
Krishnanvaka Marumakkathayee Act (VII of 1115K); the Cochin Marumakkathayam Act
 Page 73 of 182

(XXXIII of 1113K); or the Cochin Nayar Act (XXIX of 1113K); with respect to the matters for
which provision is made in this Act; or
(b) who belong to any community, the members of which are largely domiciled in the
State of Travancore-Cochin or Madras 1 [as it existed immediately before the 1st November,
1956,] and who, if this Act had not been passed, would have been governed with respect to the
matters for which provision is made in this Act by any system of inheritance in which descent is
traced through the female line;
but does not include the aliyasantana law;
(i) ―Nambudri law‖ means the system of law applicable to persons who, if this Act had not
been passed, would have been governed by the Madras Nambudri Act, 1932 (Madras Act XXI
of 1933); the Cochin Nambudri Act (XVII of 1113); or the Travancore Malayala Brahmin Act
with respect to the matters for which provision is made in this Act;
(j) ―related‖ means related by legitimate kinship: Provided that illegitimate children shall
be deemed to be related to their mothers and to one another, and their legitimate descendants
shall be deemed to be related to them and to one another; and any word expressing relationship
or denoting a relative shall be construed accordingly.
(2) In this Act, unless the context otherwise requires, words importing the masculine
gender shall not be taken to include females.
Act not to apply to certain properties.(Section5) —This Act shall not apply to—
(i) any property succession to which is regulated by the Indian Succession Act, 1925, by
reason of the provisions contained in section 21 of the Special Marriage Act, 1954;
(ii) any estate which descends to a single heir by the terms of any covenant or agreement
entered into by the Ruler of any Indian State with the Government of India or by the terms of
any enactment passed before the commencement of this Act;
(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the
Palace Administration Board by reason of the powers conferred by Proclamation (IX of 1124)
dated 29th June, 1949, promulgated by the Maharaja of Cochin. State amendment
(a) Kerala State has passed an Act for the partition of the valiamma Thampuran
Kovilegam Estate and the Palace Fund: Kerala Act 16 of 1961, sec. 10. ―10. Amendment of the
Hindu Succession Act, 1956.—Clause (iii) of section 5 of the Hindu Succession Act, 1956
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(Central Act 30 of 1956), shall be omitted with effect on and from the date of execution of the
partition deed under section 6.‖
Devolution of interest in coparcenary property (Section 6) . —
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in
a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had
been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that
of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including any partition or testamentary
disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub¬-section (1)
shall be held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law for the time being in force in, as
property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment)
Act, 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law,
shall devolve by testamentary or intestate succession, as the case may be, under this Act and not
by survivorship, and the coparcenary property shall be deemed to have been divided as if a
partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have
got had they been alive at the time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre¬-deceased
daughter, as such child would have got had he or she been alive at the time of the partition, shall
be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased
daughter, as the case may be.
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Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted to him
if a partition of the property had taken place immediately before his death, irrespective of
whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court
shall recognize any right to proceed against a son, grandson or great¬-grandson for the recovery
of any debt due from his father, grandfather or great-grandfather solely on the ground of the
pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any
such debt: Provided that in the case of any debt contracted before the commencement of the
Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall
affect—
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the
case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such
right or alienation shall be enforceable under the rule of pious obligation in the same manner
and to the same extent as it would have been enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been enacted.
Explanation. —For the purposes of clause (a), the expression ―son‖, ―grandson‖ or ―great-
grandson‖ shall be deemed to refer to the son, grandson or great-grandson, as the case may be,
who was born or adopted prior to the commencement of the Hindu Succession (Amendment)
Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected
before the 20th day of December, 2004.
Explanation. —For the purposes of this section ―partition‖ means any partition made by
execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or
partition effected by a decree of a court.

General rules of succession in the case of males.(Section 8). —

The property of a male Hindu dying intestate shall devolve according to the provisions of
this Chapter—
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
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(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 of any of the two classes, then upon the agnates of the
deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.

THE SCHEDULE
HEIRS IN CLASS I AND CLASS II
Class I:
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased
son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-
deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son
of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; son of a pre-
deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-
deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a
pre-deceased daughter of a pre-deceased son].
Class II:
I.Father.
II (1) Son‘s daughter‘s son, (2) son‘s daughter‘s daughter, (3) brother, (4) sister.
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.
IV.(1) Brother‘s son, (2) sister‘s son, (3) brother‘s daughter, (4) sister‘s daughter.
V.Father‘s father; father‘s mother.
VI Father‘s widow; brother‘s widow.
VII. Father‘s brother; father‘s sister.
VIII.Mother‘s father; mother‘s mother.
IX.Mother‘s brother; mother‘s sister.
Explanation.—In this Schedule, references to a brother or sister do not include references
to a brother or sister by uterine blood.
Order of succession among the heirs in the Schedule. (Section 9) . —
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Among the heirs specified in the Schedule, those in class I shall take simultaneously and
to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in
the second entry; those in the second entry shall be preferred to those in the third entry; and so
on in succession.
Distribution of property among heirs in class I of the Schedule (Section 10). —
The property of an intestate shall be divided among the heirs in class I of the Schedule in
accordance with the following rules:—
Rule 1. — The intestate‘s widow, or if there are more widows than one, all the widows
together, shall take one share.
Rule 2. — The surviving sons and daughters and the mother of the intestate shall each take
one share.
Rule 3. — The heirs in the branch of each pre-deceased son or each pre-deceased daughter
of the intestate shall take between them one share.
Rule 4. — The distribution of the share referred to in Rule 3—
(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow
(or widows together) and the surviving sons and daughters gets equal portions; and the branch
of his predeceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the
surviving sons and daughters get equal portions.
Distribution of property among heirs in class II of the Schedule (Section 11) . —
The property of an intestate shall be divided between the heirs specified in any one entry
in class II of the Schedule so that they share equally.
Order of succession among agnates and cognates (Section 12) . —
The order of succession among agnates or cognates, as the case may be, shall be
determined in accordance with the rules of preference laid down hereunder: Rule 1.— Of two
heirs, the one who has fewer or no degrees of ascent is preferred. Rule 2.— Where the number
of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of
descent. Rule 3.— Where neither heirs is entitled to be preferred to the other under Rule 1 or
Rule 2 they take simultaneously.
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Computation of degrees (Section 13). —

1) For the purposes of determining the order of succession among agnates or cognates,
relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent
or degrees of descent or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
(3) Every generation constitutes a degree either ascending or descending.

Property of a female Hindu to be her absolute property (Section 14) . —

(1) 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. Explanation.—In this sub-section, ―property‖ includes both movable and immovable
property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any person, whether a relative or not,
before, at or after her marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any such property held by her as
stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of
gift or under a will or any other instrument or under a decree or order of a civil court or under an
award where the terms of the gift, will or other instrument or the decree, order or award
prescribe a restricted estate in such property.
General rules of succession in the case of female Hindus (Section 15) . —
(1) The property of a female Hindu dying intestate shall devolve according to the rules set
out in section 16,—
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the 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.
(2) Notwithstanding anything contained in sub-section (1),—
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(a) any property inherited by a female Hindu from her father or mother shall devolve, in
the absence of any son or daughter of the deceased (including the children of any pre-deceased
son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified
therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law
shall devolve, in the absence of any son or daughter of the deceased (including the children of
any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the
order specified therein, but upon the heirs of the husband.

The Apex Court in Punithavalli v Ramanlingam AIR 1970 SC 1730 :(1970) 1 SCC
570, held that the right conferred under Section 14 (1) is a clear departure from Hindu law, text
or rules, and the estate taken by a female Hindu is not defeasible by any rule of Hindu Law and
is an absolute ownership. Explanation appended to sub-section (1) of Section 14 enumerates
different methods by which woman may have acquired property or would acquire property and
states that ‗property‘ includes both movable and immovable property acquired by a female
Hindu by inheritance or devise, or at partition, or in lieu of maintenance or arrears of
maintenance, or by gift from any person whether relative or not, before, at or after her marriage,
or by her own skill or exertion, or by purchase or by prescription, or in any other manner
whatsoever, and also such property held by her as stridhana immediately before the
commencement of this Act

In the case of Arunachalathammal v. Ramachandran, it was contended that the different

heirs mentioned in one entry (in this case Entry I of Class II) are subdivisions of that particular
entry and they do not inherit simultaneously but here again there is a question of preference i.e.
the first subdivision inherits and then in its absence, the later. The question arose because there
were, in his case, one brother and five sisters of the intestate and no other heir and the brother
contended that in a brother being in subcategory (3) of entry I, was to be preferred over sister
who was in subcategory (4) of entry I and thus he was entitled to the full property. However the
same was negated and it was held that all heirs in an entry inherit simultaneously and there is no
preference to an heir in a higher subcategory within an entry to an heir in a lower subcategory in
the same entry. Thus we find that the equality is between every individual heir of the intestate
and not between the sub-division in any particular entry. In fact, the court went on to say that
there were no subdivisions in any entry in Class II. They were just roman numerals representing
the heirs in the entry
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Order of succession and manner of distribution among heirs of a female Hindu (Section
16) .
The order of succession among the heirs referred to in section 15 shall be, and the
distribution of the intestates property among those heirs shall take place according to the
following rules, namely:— Rule 1.—Among the heirs specified in sub-section
(1) of section 15, those in one entry shall be preferred to those in any succeeding entry and
those included in the same entry shall take simultaneously.
Rule 2.—If any son or daughter of the intestate had pre-deceased the intestate leaving his
or her own children alive at the time of the intestate‘s death, the children of such son or
daughter shall take between them the share which such son or daughter would have taken if
living at the intestate‘s death.
Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses
(b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order
and according to the same rules as would have applied if the property had been the father‘s or
the mother‘s or the husband‘s as the case may be, and such person had died intestate in respect
thereof immediately after the intestate‘s death.

Special provisions respecting persons governed by Marumakkatayam and aliyasantana

laws (Section 17) . —
The provisions of sections 8, 10, 15 and 23 shall have effect in relation to persons who
would have been governed by the Marumakkatayam law or aliyasantana law if this Act had not
been passed as if—
(i) for sub-clauses (c) and (d) of section 8, the following had been substituted, namely:—
―(c) thirdly, if there is no heir of any of the two classes, then upon his relatives, whether agnates
or cognates.‖;
(ii) for clauses (a) to (e) of sub-section (1) of section 15, the following had been
substituted, namely:— ―(a) firstly, upon the sons and daughters (including the children of any
pre-deceased son or daughter) and the mother;
(b) secondly, upon the father and the husband;
(c) thirdly, upon the heirs of the mother;
(d) fourthly, upon the heirs of the father; and
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(e) lastly, upon the heirs of the husband.‖;

(iii) clause (a) of sub-section (2) of section 15 had been omitted;
(iv) section 23 had been omitted.
Full blood preferred to half blood (Section 18) —Heirs related to an intestate by full
blood shall be preferred to heirs related by half blood, if the nature of the relationship is the
same in every other respect.
Mode of succession of two or more heirs (Section 19) —If two or more heirs succeed
together to the property of an intestate, they shall take the property,—
(a) save as otherwise expressly provided in this Act, per capita and not per stirpes; and
(b) as tenants-in-common and not as joint tenants.
Right of child in womb (Section 20) —A child who was in the womb at the time of the
death of an intestate and who is subsequently born alive shall have the same right to inherit to
the intestate as if he or she had been born before the death of the intestate, and the inheritance
shall be deemed to vest in such a case with effect from the date of the death of the intestate.
Presumption in cases of simultaneous deaths (Section 21) —Where two persons have died
in circumstances rendering it uncertain whether either of them, and if so which, survived the
other then, for all purposes affecting succession to property, it shall be presumed, until the
contrary is proved, that the younger survived the elder.
Preferential right to acquire property in certain cases (Section 22) —
(1) Where, after the commencement of this Act, an interest in any immovable property of
an intestate, or in any business carried on by him or her, whether solely or in conjunction with
others, devolves upon two or more heirs specified in class I of the Schedule, and any one of
such heirs proposes to transfer his or her interest in the property or business, the other heirs shall
have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be
transferred under this section shall, in the absence of any agreement between the parties, be
determined by the court on application being made to it in this behalf, and if any person
proposing to acquire the interest is not willing to acquire it for the consideration so determined,
such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire
any interest under this section, that heir who offers the highest consideration for the transfer
 Page 82 of 182

shall be preferred. Explanation.—In this section, ―court‖ means the court within the limits of
whose jurisdiction the immovable property is situate or the business is carried on, and includes
any other court which the State Government may, by notification in the Official Gazette, specify
in this behalf.
Murderer disqualified (Section 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 in furtherance of the succession to which he or she committed or abetted
the commission of the murder.
Convert’s descendants disqualified (Section 26) —Where, before or after the commencement
of this Act, a Hindu 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.
Succession when heir disqualified (Section 27) —If any person is disqualified from inheriting
any property under this Act, it shall devolve as if such person had died before the intestate.

Disease, defect, etc., not to disqualify (Section 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 this Act, on any other ground whatsoever.

Failure of heirs (Section 29) —If an interstate has left no heir qualified to succeed to his or
her property in accordance with the provisions of this Act, such property shall devolve on the
government; and the government shall take the property subject to all the obligations and
liabilities to which an heir would have been subject.

Testamentary succession (Section 30) — Any Hindu may dispose of by will or other
testamentary disposition any property, which is capable of being so disposed of by him or by
her, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any
other law for the time being in force and applicable to Hindus. Explanation.— The interest of a
male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad,
tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or
 Page 83 of 182

kavaru shall notwithstanding anything contained in this Act or in any other law for the time
being in force, be deemed to be property capable of being disposed of by him or by her within
the meaning of this section.
 Page 84 of 182

CHAPTER-IX
WILLS (VASIYYAT) UNDER MUSLIM LAW

Under Islamic law, a Muslim can dispose of his property by gift, by creating a wakf or by
accessing his testamentary powers i.e., by making a will.

The first kind of gift is called ―Gift- Inter vivos‖.

The second kind of gift is called ―Testamentary Gift‖.

Mohammedan law permits both the kinds of transfer.

According to Muslim law, a Muslim can make a will in favour of anyone only to the extent of
one-third of his total property. If the will is made beyond one-third of the property, the consent
of the legal heirs is mandatory no matter in whose favour the will is made.

Under Muslim personal law, ―a Muslim may be permitted to make a gift of his whole
property during his life time to any person, including his legal heirs‖.

But under Muslim law ―a Muslim may not be permitted to make a gift of his whole property
by way of will. But only legal one-third (1/3) of his property can be bequeathed by will.

The leading authority on the subject of the will is the Hedaya, which was translated from the
original Arabic into Persian by four Maulvis or Mohammedan lawers and from Persian into
English by Charles Hamilton, by the order of the ‗Warren Hasting‘, when he was Governor-
General of India.

The author of Hedaya belongs to Hanabi School. But in Shia Law, Sharaya-ul- Islam is the
leading authority.

Definitions:

(i) A Will is an instrument by which a person makes a disposition of his property to take effect
after his death and which is own nature ambulatory and revocable during his life time.

(ii) According to Fatawa-I-Alamgiri:-

A Will is a conferment of a right of property in a specific thing or in a profit or advantage in

the manner of gratuity to take effect on the death of the testator.

(iii) According to Indian Succession Act,1925, will means the legal declaration of the intention
of the testator with respect to his property, which he desire to be carried into effect after his
death.
 Page 85 of 182

Person capable of making Wills: -

Subject to two limitations, every Mohammedan of sound mind and not being a minor may
dispose of his property by way of will. So there are two elements for will. These are: -

1. Sound Mind

2. Age of Majority

The age of majority as regards any matter other than marriage, divorce, dower and
acknowledgment, is regulated by the Indian Majority Act, 1875. According to section 3 of this
act, when a person attain the age of eighteen years, he shall be deemed to be attain the age of
majority. When the court appoints guardian for person of the minor or property or both, the age
of majority is twenty one years.

Apart from this, one more condition is that the will must be made with free consent of the
testators. If the consent is not free consent that is obtained by means of undue influence, coercion
or fraud etc. it is said to be void-ab-initio.

A will made by a person after he has taken poison, or done any other act towards the
commission of suicide, is not valid under the Shia Law. But on the other hand if the person first
made gift and then afterwards took poison, it was held by the court in MazharHusen vs.
BodhaBibi that the will was valid, though he had contemplated suicide at the time of making the
will.

A Mohammedan execute a will and afterwards converted from Islam to some other religion, it
is said to be void under Maliki Law, but valid under Hanabi Law provides that such gift is lawful
according to the law of religion in which he converted.

A Mohammedan becomes insolvent after execution of will, it is said to be void.

Form of Will: -

For making valid will, there is no particular form. It is absolutely immaterial. So a will may
be made either orally or written.

Writing not necessary: - By the Mohammedan law no writing is required, no particular form is
necessary; even of verbal declaration is not necessary as long as the intention of the testator is
sufficiently ascertained.
 Page 86 of 182

Limitation of making will:-

A Mohammedan testator has observed certain restrictions with respect to the disposal of his
property by way of will. In other words, his testamentary power of disposition is subject to two
limitations.

First Limitation:-

A Mohammedan cannotdispose by way of will to more than one- third of the surplus of his
estate after payment of his funereal expenses and debts.

Bequest in excess of the legal one-third cannot take effect, unless the legal heirs consent
thereto after the death of the testator.

If the bequest exceeds the legal third and the heirs refuse their consent, the bequest abates
rateably.

Second Limitation:-

A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of
the testator. Any single heir may consent so as to bind his own share.

Explanation: - In determining whether a person is or is not an heir, regard is to be had, not to the
time of the execution of the will, but to the time of the testator‘s death.

Illustrations: -

i). A Mohammedan dies leaving him surviving a son, a father and a paternal grand father.
Here the grand father is not an heir and a bequest to him will be valid without the assent of the
son and the father.

ii). A Mohammedan dies leaving him a son, a widow and a grand son of a predeceased son.
The grand son is not an heir and a bequest to him is valid to the extent of one third without the
consent of the son and widow.

iii). A, by his will bequeaths certain property to his father‘s father. Besides the father‘s
father, the testator has a son and father living at the time of the execution of the will. The father
dies in the life time of the testator. The bequest to father‘ father cannot take effect, unless the son
assents to it, for the father being dead, the father‘s father is an heir at the time of A‘s death.

In Khajooroonissa vs. RowshanJehan, a Mohammedan, a Mohammedan bequeathed his

property to one of t\his as his executor upon trust to expend such portion thereof as he may think
proper ―for the testator‘s welfare here after by charity and pilgrimage‖, and to retain the surplus
for his sole and absolute use. The other sons do not consent to the legacy. The court held that the
 Page 87 of 182

bequest is void, for it is ―in reality an attempt to give, under colour of a religious bequest,‖ a
legacy to one of the heirs.

In Fatima Bibee vs. AriffIsmailjee, a Mohammedan had a son and daughter. He bequeathed
three-fourth of his property to son and one-fourth of property to daughter. The court held that if
the daughter does not give consent to the disposition, she is entitled to claim one-third of
property as share of the inheritance.

Nature of the Consent of the heirs:-

The consent given by heirs may be express or implied. The mere silence on the part of the
other heirs does not amount to valid consent.

According to Shia Law:-

1. A bequest to heirs not exceeding one-third of the surplus of property after payment of
funereal expenses and debts is valid even though other heirs refused to give consent thereto.

2. If it exceed one-third, the entire bequest is not valid unless the other heirs give consent
thereto. Such consent may consent may be given either before after the death of the testator.

3. A bequest to only one heir entirely to the entire exclusion the other heirs, the entire
bequest is said to be void.

6. Person in whose favour the bequest is made: -

i) Bequest to non-heirs:- If bequest is made to stranger, it is said to be valid from very beginning
without consent of the heirs provided that it shall not exceed one-third of property. If it exceed
one-third, the bequest is valid up to one-third and remaining part is said to be invalid.

ii). Bequest to heirs: - Where the bequest is made to heirs, it is said to be invalid unless the other
heirs give consent thereto. This point is already discussed.

iii). Bequest to heir and non-heir:- Where by the same will, a bequest is given to a heir and
non-heir, the bequest to heir is invalid unless the other heirs give consent thereto, but the bequest
to non-heir is valid to the extent of one- third of the property.

iv). Bequest to Testator‘s Murderer: - Where the bequest is made to person who cause the death
of the testator whether intentionally or accidentally, it is said to be invalid. The bequest to
murderer is unlawful whether it is made before the mortal wound was inflicted or subsequently.
But if the heirs assent thereto, it is valid according to Abu Haniba and Imam Mohammed, though
not according to Abu Yusuff.

But according to Shia Law: - A legatee who causes the death of the testator is disentitled to take
the legacy only if the death caused intentionally and not by accident. Such a disqualification is
 Page 88 of 182

only personal. A bequest in favour of such a legatee‘s parents, children or any other descendant
or ascendant would be valid.

v). Bequest to unborn person: - A bequest to person not yet in existence at the time of the death
of the testator is void. But a bequest may be made to a child in the womb of the mother provided
that such child must be born with in 6 months from the date of the will under Sunni law, but in
Shia law, he must be born with in 10 months from the date of the will.

Subject matter of the Bequest

The subject matter of the gift is either movable or immovable property or it is ancestral or self-
acquired property. There is no distinction between the kinds of property.

It is not requisite to the validity of a bequest that the thing bequeathed should be in existence at
the time of making the will. It is sufficient if it exist at the time of the testator‘s death.

Therefore a bequest may be made of any property which is capable of being transferred
and which exists at the time of the death of the testator. It need not be in existence at the date of
the will.The main condition is that the testator must be the owner of the property or has power to
transfer it by will.

Void Bequests: - The following gifts are said to be void.

i). Gift of future property:- Like that of the hiba, a bequest of future property is invalid.

ii). Contingent bequest: - Where a bequest is made on happening or non-happening of

specific uncertain events, it is said to be invalid.

iii). Conditional Bequest: - When a legacy is made subject to condition which derogates the
completeness of grand. The condition is void and the legacy is said to be valid. So the legacy is
take effect as no condition is attached.

9. Alternative Bequest: -

An alternative bequest has been held to be valid according to muslin law. When a bequest is
made to one person and if he died before the testator, is for another person, such bequest is called
alternative bequest and it is allowed by Mohammedan Law.

In Advocate-General vs. Jimbabai, a Cutch Memon had no son at the time execution of will.
He bequeathed the residue of his property in effect as follows: ―Should I have a son and if such
son be alive at my death, my executors shall hand over the residue of my property to him. But if
such a son dies in my life time leaving a son, and the later is alive at my death, then my
executors shall hand over the residue to him. But if there be no son or grand son alive at my
death, my executor shall apply the residue to charity‖. The testator died without having ever a
 Page 89 of 182

son. It was held that the gift was not conditioned in futuro, but it was an absolute gift in the
alternative and that the charity was entitled to the residue.

Lapse of Legacy

If the legatee does not survive the testator, the legacy will lapse and form part of the estate of
the testator.

But under Shia Law, in this time, the legacy will pass to the heirs of the legatee unless it is
revoked by the testator. But if the legatee should die without leaving any heir, the legacy would
pass to the heirs of the testator: Baillie

Revocation of the will: -

Because the will is ambulatory in nature and takes into effect after the life time of the
testator, it is revoked during the life time of the testator. A revoked may either expressly or
impliedly.

Express revocation: - A revocation may be either express or implied, if the testator revokes the
bequest in express terms either oral or written.

i). By way of another will or codicil:- If the testator execute another will or codicle by which he
bequeathed the same property to another or he mentioned his intention of the revocation of the
former will, the former will is said to be revoked.

But a subsequent bequest is made to another person in the same will, not in another will, it
does not revoke the will, but the property will be divided between them equally.

ii). By way of writing:- By way of some writing either letter or deed or otherwise, the will may
be revoked by the testator.

iii). By burning: - If the testator burns the will, it will be revoked.

iv). By tearing: - If the will is tearing by testator, the law presumed it is said to be revoked.

Implied revocation: -

A bequest may be revoked by an act which occasions an addition to the subject of the bequest
or an extinction of the proprietary right of the testator.

i). By way of will:- If the testator execute two wills and bequeathed his property to one person in
former will and the same property is bequeathed to another person in the latter will, the latter will
impliedly revoke the former will and the later will alone comes into operate.

ii). By way of an act:- A bequest may be revoked by an act which occasions an addition to the
subject matter of the bequest or an extinction of the proprietary right of the testator.
 Page 90 of 182

Example:-

a). A bequest to piece of land is revoked, if the testator subsequently builds a house upon it.

b). A bequest of gold coin is revoked, if it is converted to chain by the testator.

c). A bequest of property is revoked, if it is sold subsequently by the testator.

Difference between Sunni Law and Shia Law in regards to Will: -

1. Under Sunni law, the bequest in favour of heir is said to invalid unless the other heirs
assent thereto. But under the Shia law, the bequest to heir is valid without the assent of the other
heirs provided that it does not exceed one-third of property.

2. Under Sunni Law, a life estate cannot be created through will, but under Shia law, life
estate can be made through will.

3. Under Sunni Law, a bequest to unborn person is said to be valid provided that he must be
born within 6 months from the date of the will. But under Shia Law, it is valid if he must be born
within 10 months from the date of the will.

4. If the legatee died during the life time of the testator, it invalid under Sunni law, but valid
under Shia law provided that the legatee died leaving behind any surviving heirs. (Lapse)

5. Where a bequest is made in favour a person who causes the death of the testator whether
accidentally or intentionally, it is said to be void under Sunni law, but if the death is caused
intentionally not accidentally, it is valid under Shia law.

Difference between Hiba (Gift) and Will: -

1. Hiba is unqualified transfer of corpus of property made voluntarily with out any
consideration. But will mean the legal declaration of the intention of the testator with respect to
his property which he desire to be carried in to effect after his death.

2. Delivery of possession of property is one of the essential requirements for completion of

hiba. But delivery is not necessary for will at time of execution.

3. Before delivery of possession of property a hiba can be revoked. But after delivery it cannot
be revoked except certain circumstance. But will may be revoked during the life time of the
testator because it ambulatory in nature and take effect after the life time of the testator.

4. The property must be in existence at the time of the date of the execution of the gift, but
in will, it must in existence at the time of the death of the testator, not at the time of the execution
of the will.
 Page 91 of 182

5. For gift, the musha, which is not capable of division, is valid, but musha, which is
capable of division, is invalid unless the property is portioned and delivered by donor to donee.
But it is subject matter of bequest in will.

6. In hiba, the owner of property makes his entire property to donee as gift. But in will, the
testator bequeaths only one-third of his property to legatee.

7. The hiba may be made to any person, even to his heirs also. But in will, bequest cannot
be made in favour of heirs unless the other heirs assent thereto.

15. General principles for will under Mohammedan Law: -

1. Every Mohammedan of sound mind not being a minor may dispose of his property by way of
will.

2. No particular form is required.

3. A bequest to heir is invalid unless the other heirs assent thereto. But under Shia law, a bequest
to heirs not exceeding one-third of the surplus of property after payment of funereal expenses
and debts is valid even though other heirs refused to give consent thereto.

4. A bequest to unborn person is invalid unless he is born within 6 months under Sunni law or
within 10 months under Shia law from the date of the will.

5. A bequest of future property is void.

6. A contingent bequest is also void.

7. Muslim law permit alternative bequest.

8. In respect of conditional bequest, the condition is void, but bequest is valid.

9. A bequest to stranger is valid if it does not exceed one-third of property.

10. A bequest may be revoked either expressly or impliedly or by way of another will or codicil
or writing.

11. The subject matter of property must be in existence at the time of the death of the testator not
at the time of the execution of the will.

12. The legatee must be in existence at the time of the death of the testator, not at the time of the
execution of the will.

13. It is not necessary that the probate or letter of administration should be taken.

14. It is not necessary that an executor of a Mohammedan will be a Mohammedan.

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CHAPTER-X

GIFT-HIBA

A man may lawfully make a gift of his property to another person during his life time. Like that
he may also lawfully permit to make a gift of his property to another person after his death by
will.

o The first kind of gift is called ―Gift- Inter vivos‖.

o The second kind of gift is called ―Testamentary Gift‖.
o Mohammedan law permits both the kinds of transfer.

Under Muslim personal law, ―a Muslim may be permitted to make a gift of his whole property
during his life time to any person, including his legal heirs‖.

But under Muslim law ―a Muslim may not be permitted to make a gift of his whole property
by way of will. But only one third (1/3) of his property can be bequeathed by will‖.

Definition:

I. According to Mulla ―Hiba is an immediate and unqualified transfer of corpus of the property
without any return‖.

II According to Hedaya ―Hiba or gift is an unconditional transfer of property, made voluntarily,

immediately without consideration by one person called donor to another person called donee
and it is accepted by donee or another person on the behalf of donee‖.

The term gift is generic and is applied to a large group of transfer. But the word hiba is a
well-defined legal concept. Hiba is an immediate and un- qualified transfer of corpus of property
without consideration.

According to section 122 of Transfer of Property Act,1872, ― Gift means transfer of

certain existing moveable or immoveable property made voluntary without any consideration by
one person called donor to another person called donee and it is accepted by donee or some other
person on the behalf of donee.‖

Essentials of a Hiba

 The manifestation of the wish to give on the part of the donor,

 Acceptance of the gift, express or implied, by the done and
 Taking of possession of the subject-matter of the gift by the donee, either actually or
constructively.
 Page 93 of 182

I. Declaration:- There should a declaration of gift by the donor. It means that there must be a
clear and unambiguous intention to make a gift by the donor to donee. If there is no real intention
to make a gift, the gift will void.

In ―QamarUddin vs. Hassan Jan‖, a gift of the house was made by 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.

II. Acceptance:-

The gift must be accepted by the donee, if he attain the age of majority and sound mind or
authorized any person to accept the gift. If the donee is minor or unsound, the gift should be
accepted by guardian who acted on the behalf of donee. Such acceptance must be made during
the life time of the donor. If there is no acceptance during the life time of the donor, the gift is
said to be void.

III. Delivery of possession:-

Besides declaration and acceptance, there must be a delivery of possession of property by the
donor to donee for making valid gift.

(a) If the subject matter of the gift is moveable property, the gift is not complete unless it has
been actually delivered by the donor to donee.

(b) If the subject matter of the gift is money, the gift is not complete unless the money has
been transferred to the donee. But the mere entry to account book to the effect that themoney has
been paid to the donee does not itself operate as a completion of the gift. There must be an actual
delivery for completion of gift.

(c) If the subject matter of the gift is immoveable property of which the donor is in
possession, the gift is not complete unless he physically departs from premises with all his
chattels and the donee formally enters into the possession.

Persons capable of making Gift:-

Every Mohammedan of sound mind not being the minor may dispose of his property by way
of gift. So there are two elements for gift. These are:-

1. Sound mind

2. Major.

In the case of majority, the Indian Muslims are governed by Indian Majority Act, 1875.
 Page 94 of 182

Under Muslim Law, it is absolutely immaterial whether the donor is a male or female or married
or unmarried. Hence the female has the same right to make a gift as like that of a male person
and the marriage does not impose any disabilities provided that the subject matter of the gift is
one over which she possesses absolute dominion or right.

3. Beside the donor being a major and sound mind, it is further essential that the donor
should have ownership of the subject matter of the disposition.

4. Ancestral property or separate property:-

Thus actionable and incorporeal rights may form the subject of gifts equally with corporeal
rights. If ownership is transferred, it is known as Hiba. But if enjoyment of property alone is
transferred, it is known as Arreat.

5. Gift with intent to defraud Creditors:-

If a person made a gift with intent to defraud the creditors of the debtors, the gift is voidable
at the option of the creditors. However such intention cannot be inferred from the mere fact that
the donor owed some debts at the time of the gift. The above view is laid down by Madras High
Court in ―Azim-un-nissa vs. Dale‖

6. Extent of Donor‘s power:-

Under the Mohammedan Law, a Gift may be made of the whole of the donor‘s property and it
may be made even to heirs during the life time of the donor. But on the other hand, if it is made
through will, one third of property alone bequeathed to non legal heirs only.

7. Capacity of the Donee:-

A gift may be made to any person. He may be a sound person or unsound person or he may be
a major or minor. If a donee is a major and sound, the subject matter of the gift must be hand
over to him. But if the donee is a minor or unsound, the subject matter of the gift must be hand
over to his legal guardian who acted on the behalf of minor donee. If the gift is hand over to any
other person, it is said to be void.

8. Gift to unborn person:-

Under Mohammedan Law, a gift cannot be made to unborn person .Such gift is said to be
void.

9. Subject matter of the Gift:-

For the purpose of the law of the gift, Mohammedan Law doesn‘t make any distinction between
ancestral or separate property and moveable or immoveable property. Anything over which
dominion or right of property may be exercised, or anything which can be reduced into
 Page 95 of 182

possession or anything 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 matter of the gift
equally with corporeal property.

I. A gift may be made of debt.

II. A gift may be made of negotiable instruments.

III. A gift may be made of Government promissory notes.

IV. A gift may be made of Zamindari rights.

V. A gift may be made of any property let on lease.

VI. A gift may be made of property under attachment.

VII. A gift may be made of a right to receive a specified share in the offerings that may be
made by pilgrims at a shrine.

VIII. A gift may be made by a mortgagor of his equity of redemption.

IX. A gift may be made of property held adversely to donor:- A gift of property in the
possession of a person who claims it adversely to the donor is not valid, unless the donor obtains
and delivers possession thereof to the donee.

In ―Meher Ali vs. Tajudin‖, ―A‖ executes a deed of gift in favour of ―B‖. But ―X‖ is in
possession at the time of made of gift. ―A‖ died without delivering the possession of property.
After it, ―B‖ sues for possession of property against ―X‖ The court held that the gift is not valid
one because of want of delivery of possession of property to donee.

Writing not necessary:-

Writing is not necessary or essential to the validity of a gift either gift of moveable or
immoveable property. In this matter, they are not governed by section 123 of Transfer of
property Act, 1872.

Relinquishment by donor of ownership and dominion:-

It is essential to the validity of a gift that the donor should divest himself completely of all
ownership and dominion over the subject of the gift.

Relinquish of control over the subject is necessary to complete the gift. Mere entries in book of
account to that effect that the property is delivered do not amount to delivery of possession of
property.
 Page 96 of 182

A gift with a reservation of possession of property by the donor during his life time is void. A
gift cannot be implied.

So for making valid gift, it is immaterial whether it is made through registered document or
oral or written document, but the main essential is delivery of possession of property to donee.
Mere admission of delivery of possession in the deed cannot be taken as evidence of delivery of
possession. The delivery may actual or constructive delivery.

Constructive Delivery: -

In ―T. Syed Mohammed vs. AhamedFathumal‖, brother and sister were jointly
inherits property after the death of their ancestor. Sister gifted her share to brother who is already
min possession. Therefore it is not necessary for further delivery of possession. So the court held
that the gift was valid and also held that from the movement of the execution of the deed, the
donee is deemed to be in possession to the exclusion of the donor.

In the following cases, delivery of possession is not necessary, it is presumed in favour of the
donee.

1. Where the donor and donee both reside in the same property:-

No physical departure is necessary in the case of a gift of immoveable property in which the
donor and donee are both residing at the time of the gift. In such a case the gift may be
completed by some overt act by the donor indicating a clean intention on his part to transfer
possession and to divesting himself of all control over the subject of the gift.

―S.M.S SaleemHashmi vs. Syed Abdul‖. The donor is owner of house. But both donor and donee
reside in the same house. The donor executed the deed of gift in favour of the donee and handed
over that deed to donee. The donor gave consent for change the name from donor to donee in
municipal records. The court held that gift is valid and complete.

2. Gift made by husband to wife:-

In the case of a gift of immoveable by a husband to wife, it is not necessary that the husband
departs from the property even temporarily, provided that there is a real and bonafide intention to
make the gift.

3. Gift made by wife to husband:-

In the case of a gift of immoveable by a wife to husband, it is not necessary that the wife depart
from the property even temporarily, provided that there is a real and bonafide intention to make
the gift

4. Gift to a minor by father:-

 Page 97 of 182

If there is a gift of property by father to minor, no delivery of possession is required.

5. Gift made by guardian to ward:-

If there is a gift of property by guardian to his ward, no delivery of possession is required.

6. Gift to Lunatic person-

7. Gift to tenant by land lord:-

A gift of immoveable property which is in the occupation of tenants may be completed by a

request by the donor to the donee to attorn to the donee, or by delivery of the title deed or by
mutation in the Revenue Register. So delivery of possession is not necessary in this case.

8. No delivery is necessary where the property gifted is incapable of physical possession.

9. Adverse possession :-( Property held adversely to the donor)

Where the subject matter of the gift is in the possession of a person holding the property
adversely to the donor, the gift is not valid unless the donor recovers possession, and puts the
donee in possession thereof. Such a gift is valid if the donor does all that he can do to complete
the gift as to put it within the power of the donee to obtain possession. (Mohamed Buksh vs.
HusseiniBibi)

10. Gift by Bailor to bailee:-

Where the subject matter of gift is already in the possession of the donee as bailee, the gift may
be complete by declaration and acceptance, without formal delivery of possession.

11. Delivery of possession in the case of incorporeal property or Actionable Claims:-

If the subject matter of the gift consists of incorporeal property or actionable claims, the gift
may be completed by any act of the donor showing a clear intention on his part to divest himself
his right over the property and confer it upon the donee.

13. Gift through medium of Trust:-

A gift may be made through the medium of a trust. In this case, all the necessary conditions
(three in number) are essential things. But the main differences are that the gift shall be accepted
by trustee and delivery shall be given to the trustee.

According to Mulla, a Mohammedan cannot through medium of a trust settle for the benefit of
persons who are incapable of taking under a gift, nor can he through the medium of trustee
create an estate nor recognized by the law of gifts governing the sect to which he belongs. Thus
neither Sunni law nor a Shia law can make a gift in favour of an unborn person. So he cannot
through the medium of a trust settle the property in favour of an unborn person. Life estate and
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vests remainders are unknown to Muslim Law, but life estates may be construed as an interest in
the usufruct. However, successive life interests may be created both under Sunni law and Shia
law in favour even of unborn persons by means of Wakf. (Mulla‘s Principles of MOHAMEDAN
LAW)

What gift cannot be made:-

(1)Gift in future property: -

A gift cannot be made anything to be performed in future date and cannot be made to take
effect at any future date whether definite or indefinite.

Example:-

1. ‗A‘ makes a gift to ‗B‘ of ―the fruit that may be produced by his palm tree this year.‖ The gift
is void as being a gift of future property.

2. A Mohammedan executes a deed in favour of his wife purporting to give to the wife and her
heirs in perpetuity Rs. 4,000 every year out of his share of the income of certain jagir villages.
The gift is void as being a gift of a portion of the future revenue of the villages: AmulNissa vs.
Mr. Nurudin

In ―Yusuf Ali vs. Collector of Tipparah‖, ‗A‘ execute a deed of gift in favour of ‗B‘
containing the words so long as I live, I shall enjoy and possess the properties, and I shall not sell
or make gift to anyone, but after my death, you will be the owner. The gift is void, for it is not
accompanied by delivery of possession and it is not to operate until after the death of ‗A‘.

(2) Contingent Gift: -

A gift cannot be made to take effect on the happening or non happening of some specific
uncertain events or contingency.

―A gift must not be dependent on anything contingent, as the entrance of Zyed, or the arrival
of Khalid‖: Baillie. In Cassamally vs. Currimbhoy, A gift by a Shia Mohammedan to A for life,
and in the event of the death of A with out leaving male issues, to B, is as regards B a contingent
gift, and therefore void.

(3) Conditional Gift: -

When a gift is made subject to a condition which derogates from the completeness of the
grant, the condition is void , and the gift will take effect as if no conditions were attached to it.
For example, a gift of property with condition that the donee should not sell it to anyone, the gift
is valid, but the condition is void.

(4)Gift to unborn person:-

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If there is a gift of property to any person who is not in existence at the date of the gift, the
gift is not valid. Even when the gift to unborn person is made through a trust, the gift is not valid.
But the only exception is the disposition is made by way of Wakf. So for making a gift the
important thing is the donee must be in existence at the time of making gift

(5) Donor died before acceptance: -

One of the main conditions is that the gift must be accepted by donee during the life time
of the donor. So if the donor died before acceptance, it is said to be void.

(6)Gift Over: -

The Chief court of Outh has held that a gift of property to A and B in equal shares with a
condition that if either of them died without leaving male issue, his share should go to the other,
is valid according to Shia Law. But in ―Nawazish Ali Khan vs. Ali Raza Khan, the court held
that the gift over would be void and both A and B would take absolutely. This view is according
to Sunni Law.

(7) Gift of Musha: -

Musha is an undivided share in property either movable or immovable. There are two type of
Musha. These are:

I. Musha which is capable of division

II. Musha which is incapable of division

I. Musha which is incapable of division: -

Under Muslim Law, a valid gift may be made of a Musha which is not capable of division
or partition.

Example: Use of stair case.

II. Gift of Musha which is capable of division:-

A gift of an undivided share (Musha) in property which is capable of division is irregular

(fasid), but not void (batil). The gift being irregular, and not void, it may be perfected and
rendered valid by subsequent partition and delivery to the donee of the share given to him. If
possession is once taken, the gift is validated.

Exceptions to these Rules:-

A gift of Musha, though it be a share in property capable of division, is valid from the
moment of the gift, even if the share is not divided off and delivered to the donee, in the
following cases:-
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I. Where the gift is made by one co-heir to another:

In ―Kanij Fatima vs. Jai Narain‖, There was a gift of by mother to daughter of two anna shares
in lands, the court held that the daughter having taken joint possession.

In ―MahammedBuksh vs. Hoosseini‖, a Mohammedan female dies leaving a mother, a son and a
daughter as her only heirs. The court held that the mother make a valid gift of her undivided
share in inheritance to the son, or to the daughter or jointly to the son and daughter.

2. Where the gift is of a share in a Zamindari or taluka:

A, B and C are co-shares in a certain Zamindari. Each share is separately assessed by the
Government, and has a separate number in the collector‘s Records, and the proprietors of each
shares is entitled to collect a definite share of rents from the tenants. A make a gift of his share to
Z without a partition of the Zamindari. The gift is said to be valid, for it is not a gift of strictly a
Musha, the share being definite and marked off from the rest of the property: ―Ameerroonnissa
vs. Abadoonnissa‖

3. Where the gift is of a share in Free hold property in a large commercial town:

In, Mt.Nathovs.Hadayat Begum, A, who owns a house in Rangoon, make a gift of a third of
the house to B. The court held that the gift is valid, being the property situated in large
commercial city.

4. Where the gift is of a share in a land company:

Revocation of Gifts:

A gift may be revoked by the donor at any time before delivery of possession. The reason is
that before delivery, there is no completed gift at all.

After delivery, the gift cannot be revoked. Mere declaration on the part of the donor to that
effect to revoke the gift is not enough to revoke the gift. But in the following cases, the gift is
revoked after the delivery of possession.

 By the consent of the donee.

 By the intervention of the court.

But in the following cases, the donor is not entitled to cancel the gift after delivery of possession.

1. Where the gift is made by one spouse to another spouse,

2. Where the donee is related to donor with in the prohibited degree.
3. When the thing given to donee has passed out of the donee‘s possession by way of sale or
gift or otherwise,
4. When the donor is dead,
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5. When the donee is dead,

6. The thing is lost.
7. The thing is increased its value.
8. The thing is changed.
9. The donor received something [Iwaz]

But under the Shia Law,

 A gift to any blood relation is not revocable.

 A gift made by one spouse to another spouse is not revocable.
 A gift may revoked by the mere declaration on the part of the donee without any
proceeding.

KINDS OF GIFT OR HIBA:-

Under Muslim Law, the followings are the kinds of Hiba: -

 Hibaor (Simple gift)

 Hiba-bil-Iawz (gift with exchange)
 Hiba-ba-Shart-ul-Iwaz
 Arreat
 Sadaquah

HIBA or Simple Gift

Gift without consideration is, under Muslim Law, called as Hiba.

Hiba-bil-Iwaz in India (gift with exchange): -

It is distinguished from simple gift by means of consideration. So it in reality a sale and it

has all incidents of sale. Unlike that of Hiba, the delivery of possession is not essential
requirements. An undivided Property (Musha), which is capable of division, may be lawfully
transferred in this type of gift.

There are two essential conditions for making valid gift. These are:

1. Actual payment of consideration by the donee.

2. A bonafide intention on the part of the donor to divest himself in presenti of the property

and to confer upon it the donee.

In respect of consideration, the adequate consideration is not necessary, but whatever the
amount, it must be actual and bonafide
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Case Laws:-

1. MuhammedFaiz vs. GhulumAhamed

A and B, the two Mohammedan brothers, own certain villages which are held by them as tenants
in common. A died leaving his brother B and his widow W. Sometime after A‘s death, B
execute a deed whereby he grants two of the villages to W. Two days after the date of the grant,
but as a part of the same transaction, W execute a writing where by in consideration of the grant
to her of the two villages she gives up her claim to her husband‘s estate in favour of B. The court
held that it is a Hiba-bil- Iwaz and it is valid though possession may not have been delivered.

2. Mohammed Esuph vs. PattamsaAmmal

A Mohammedan executes a deed in favour of his wife whereby he grants certain immovable
property to her in lieu of her dower. But he does not deliver the possession of property o his
wife. The court held that the transaction is nevertheless valid as Hiba-Bil-Iwaz.

3. Sarifuddin vs. Mihiuddin

A Mohammedan lady is the owner of some Musha property, which is capable of division. She
execute a deed whereby she transfer her share in the property by way of gift to her two nephews
in consideration of the nephews paying Rs.900 to her every year for her maintenance. The deed
Provide that if they fails to make the payment regularly, she should be at liberty to recover them
by suit. The deed is duly executed and registered. The court held that the transaction is not a
hiba, but it is a hiba-bil-Iwaz and it is valid though it is a transfer of Musha.

True Hiba-bil-Iwaz: -

In literally, it means a gift for exchange. It is defined by old jurist.

According to them, there are two acts for true hiba-bil-Iwaz,

(1) The Hiba or actual gift

(2) Iwaz or return

So the gift is followed by an independent and uncovenantedIwaz or consideration. That is, an

Iwaz not stipulated for at the time of hiba. But in India, in this type, there is only one act, the
Iwaz or exchange being involved in the contract of gift as its direct consideration. But in true
hiba-bil-Iwaz, the hiba and Iwaz are both governed by law of gifts. So therefore, there must be a
delivery of possession both of hiba and Iwaz, and both are subject to the doctrine of Musha. In
this case, the donor is entitled to revoke the gift after delivery of property, but after delivery of
the Iwaz, it cannot be revoked. In this type, there are two acts of donation between two persons,
each of whom is alternatively the donor one gift and donee of the other.
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Example:-If A, without having any stipulation for any return, makes a gift of a gold chain to B
and deliver it to B. Then, B, without having any promised it, subsequently make a gift of watch
to A saying that it is the Iwaz or return for the gift of chain and deliver the watch to A, the
transaction is true hiba-bil- Iwaz. But if B delivers the watch to A without saying that it is the
return of the gift of chain, it is not a hiba-bil- Iwaz.

If ―A‖ make a gift of ring to ―B‖, saying, ―I have given this to you for so much,‖ it is hiba-bil-
Iwaz in India.

3. Hiba-ba-Shart-Ul-Iwaz: -

Where the gift is made with a stipulation (shart) for return, it is known as Hiba-ba-shart- ul-
Iwaz. Like that of the simple gift (hiba), in the case of hiba-ba- shart-ul-Iwaz, delivery of
possession of property from donor to donee is essential requirements to make a valid gift, and the
gift is revocable like that of hiba. But after delivery of return by donee to donor, it becomes
irrevocable.

4. Arreat: -

In this type, there is no transfer of ownership of property by the donor to donee. So, the grant
of a license to take and enjoy the usufruct of a thing subject to resumable at the option of the
donor.

5. Sadaqah:-

Unlike that of hiba, a sadaqah is a gift made the object of acquiring some religious merit. Like
that of the hiba, sadaqah is not valid unless it is accompanied by delivery of possession, nor is it
valid if it consists of musha, which is capable of division. Un like that of the hiba, a sadaqah,
once completed by delivery of possession, is not revocable, nor is it invalid if made to two or
more persons all of whom are poor.

Difference between Hiba, Hiba-bil-Iwaz and Hiba-ba- Shart-ul-Iwaz:-

1. By means of consideration: - In Hiba, there is no consideration. But in Hiba-bil-Iwaz,

consideration is given by donee to donor without any stipulation or agreement. But in Hiba-ba-
Shart-ul-Iwaz, there is a consideration by donee to donor by way of stipulation.

2. By means of delivery: - In Hiba and hiba-ba-Shart-ul-Iwaz, delivery is essential. But in Hiba-

bil-Iwaz, delivery is not essential one.

3. By means of Musha: - In Hiba and hiba-ba-Shart-ul-Iwaz, Musha which is incapable division

is subject matter of gift, but Musha which is capable of division is invalid unless it can
subsequently partitioned and deliver it to the donee. But in Hiba-bil-Iwaz it is the subject matter
of gift.
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4. By means of Revocation: - In hiba, it cannot revoked after delivery of possession. But in hiba-
bil-Iwaz and hiba-ba-Shart-ul-Iwaz, it cannot revoke subsequently.

DEATH-BED GIFTS AND ACKNOWLEDGEMENTS (Marz-ul-maut): -

Under Muslim Law, a Mohammedan may be permitted to make a gift during his death illness
or marz-ulmaut provided that it extent not more than one third of his property after payment of
his funeral expenses and debts and not made in favour of his heirs. Marz –ul-maut is a malady
which induces a person an apprehensions of death in the person suffering from illness and which
eventually result in his death. In Fatima Bibeevs.AhmadBaksh, the High Court of Calcutta
pointed out three essentials for valid Marz-ul-maut. These are:

 There must be proximate danger of death, so that there is a preponderance of

apprehension of death.
 There must be some subjective apprehension of death in the mind of the sick person
 There must be some external indicia, chief among which would be inability to attend to
ordinary avocations.

Valid Conditions: -

Under Muslim Law, there are three essentials for making valid Marx-ul-maut.

 Legal declaration on the part of the donor to make a gift of his property to donee.
 Acceptance on the part of the donee
 Delivery of possession of property by donor to donee.

Limitations:

Under Muslim Law there are two limitations for valid Marz-ul-maut. These are,

1. The Marz-ulmaut cannot take effect beyond a third of his estate after payment of funeral
expenses and debts, unless the heirs give their consent after the death of the donor to the excess
taking effect.

2. It cannot take effect, if it is made in favour of an heir unless the other heirs consented thereto
after the death of the donor.

Death-bed acknowledgment of debt: -

An acknowledgment of a debt may be made as well during death illness as ―in health‖. When
the only proof of a debt is an acknowledgment made during Marz-ulmaut or death illness, the
debt must not be paid until after payment of until after payment of debt acknowledged by the
deceased while he was ―in health‖ and of debts proved by other evidence. An acknowledgment
of a debt made during death illness in favour of an heir is no proof at all of the debt, and no
effect can be given to it.
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Registration: - The High Court of Madras, Calcutta, Lahore, Allahabad, Patna and Nagpur have
held that because it is like a sale, where the property is immovable and value is Rs.100 or more,
it must be made only through registered document. But the Bombay High Court otherwise held
that no registration is required since it is gift in nature. s
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CHAPTER-XI

LAW OF WAKF

According to section 2 of the MussalmanWakf validating Act, 1923, ―Wakf means the
permanent dedication by a person professing to Mussalman faith of any property for any purpose
recognized by the Mussalman Law as religious, pious or charitable.‖

According to Abu Haniba, Wakf means the detention of a specific thing in the ownership of
Wakif or appropriator and the devoting its profits ―in charity on the poor or other good objects‖

According to Abu Yusuf and Immam Mohammad, wakf signifies ―the extinction of the
appropriator‘s ownership in the thing dedicated and the detention of the thing in the implied
ownership of god in such a manner that its profit may revert to or be applied for the benefit of
mankind.‖

For the analysis of the above definitions, the followings are the important points of a Wakf-

o Wakf made by Muslim only.

o Wakf means permanent dedication of property, but not temporary.
o Wakf may be created in respect of any property.
o Wakf may be created for any purpose recognized by the Mussalman Law as
religious, pious or charitable.

Essentials of Valid Wakf: -

According to Hanabi Law, the followings are essentials for making valid Wakf,

1. Permanent Dedication

2. Subject matter of wakf

3. Object of Wakf

4. Certainty of object

5. Capacity of Wakif

6. Divest of ownership by wakif to The Almighty, God

Permanent Dedication: -

For making valid wakf under Muslim law is that the dedication must be permanent one.
Therefore, wakf for limited period, for example 20 years or 25 years or 15 years, is said to be
invalid.
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In HabibAsharff vs. Syed WajiHuddin, the wakf is made in writing and contain a condition
that in case of mismanagement, the property should be divided among the heirs of the settler.
The Court held that the wakf is invalid on the want of permanent.

In Rahiman vs. Bagridan, the court held that usufructuary mortgagee cannot make a valid
wakf of his rights over the property because he is not owner and no permanent control over the
property.

Subject matter of wakf: -

According to MussalmanWakf Validating Act, 1913, ―The subject matter wakf may be any
property.‖ Therefore a valid wakf may be made not only for immovable but also made of
movables, such as shares in company, stock, Government promissory note and even money.

Before passing of this Act, the high Court of Madras, Bombay and Calcutta held that the
movable properties are not the subject matter of wakf. But if the movables are attached to the
agricultural land, such movables are treated as subject matter of wakf. But on the other hand, the
Allahabad High Court held that the movables are subject matter of wakf.

So only after passing of the Wakf Act, 1913, the wakf may be made of any property. But the
main important thing in subject matter of wakf is that the property must be belongs to wakif at
the time dedication.

(i). A wakif may be made of land or house or open site

(ii). A wakf may be made of property subject to mortgage or lease.

(iii). A wakf may not be made of the right of usufructuary mortgage.

(iv). Wakf of Musha: -

In regarding Musha, there are two views.

a). According to Abu Yusuf, a musha or an undivided share in property may form the subject
matter of wakf, whether the property be capable of division or not

Exception: - The wakf of musha for burial ground or Mosque is not valid whether the property is
capable of division or not. But if the musha is dedicates to mosque or burial ground which is
already in existence for maintenance, it is valid.

b). According to Imam Mohammed, a musha or an undivided share in property may not form
the subject matter of wakf, whether the property be capable of division or not
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Objects of Wakf: -

According to section 2 of the MussalmanWakf Validating Act, 1923, a wakf may be created
for any purpose which is recognized by Muslim law as religious or pious or charitable.
Generally, the followings are some of the examples for valid objects of wakf: -

i). Mosque and provisions for Imams to conduct worship therein,

ii). Colleges and provisions for professors to teach in colleges,

iii). Distribution of alms to poor persons,

iv). Celebrating the birth of Ali Murtaxa,

v). Repairs of Imambars,

vi). The maintenance of Khanah

vii). Burning lamps in the Mosque

ix). Reading quran in the public place,

x). Maintenance of poor relation and dependants,

xi). Payment of money to Fakirs,

xii). Starting schools and colleges,

xiii). Establishing hostels for students,

xiv). Establishing hospitals for poor persons,

The followings are not valid objects for wakf

i). Objects which are prohibited by Muslim law,

ii). Wakf for establishing temples and church,

iii). The repairs of Wakif‘s secular property,

iv). Payment to lawyers,

v). Wakf for rich persons only,

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Wakf for mixed purposes: -

Where a Wakf is created for mixed purposes some of which are lawful and others are not, it is
valid to the lawful purposes, but invalid as to the rest of the objects, and so much of property as it
is dedicated to invalid objects will revert to the dedicator or his heirs. But where is not
specifically dedicated to an objects which fails, the whole property will be devoted to the valid
object of charity.

Certainty of objects

The object of a wakf must be indicated with reasonable certainty. If the object of wakf is not
mentioned by reasonable certainty, it is said to be invalid wakf. But it is not necessary that the
objects should be named, nor is it necessary, where the objects are specified, to name the sum to
be spent on each object.

Doctrine of cy-press: - Where a clear charitable intention is expressed in the instrument of wakf,
the wakf will not be permitted to fail because the objects, if specified, happen to fail, but the
income will be applied for the benefit of the prior or other objects as nearly as possible to the
objects which failed.

The doctrine of cy-press is not applicable unless the original wakf valid. Where the object of
wakf is uncertain, it is said to be void and it cannot be validated by the application of the doctrine
of cy-press, nor can a wakfalal- aulad which fails and is invalid be turned into a public wakf by
applying the doctrine.

Capacity of the Wakif

According to the MussalmanWakf Validating Act, 1923, ― Every Mohammedan of sound

mind not being a minor may dedicate his property for wakf. So there are three capacities for
wakif. These are: -

1. The dedicator must a Mohammedan

2. He must be a sound person

3. He must not be a minor. In the case of majority for wakf, the Indian muslins are governed
Indian Majority Act, 1875. So it is either 18 years or 21 years as the case may be.

6. Divest of ownership by Wakf to The Almighty, God: -

After the creation of wakf, the dedicator shall divest his ownership of property and vested it to
the God the Almighty. So the ownership is extinguished and it becomes vest to the God, The
Almighty. If he reserved any ownership in the property dedicated, it is not said to be valid.
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Form and Creation of Wakf

There is no particular form for making valid wakf. The main important thing is the intention
of the dedicator to dedicate his property to lawful purposes. A wakf may be made either orally or
in writing. To constitute a valid wakf, it is not necessary to mention the term ―wakf‖. All that
important is the intention of the dedicator. It may be made expressly or some time it can be
inferred.

A Wakf may be created by act inter vivos or by way of will.

Act Inter vivos: - During his life time, if a Mohammedan dedicate his property to wakf through
deed, it is known as Wakf inter vivos. In this time, he may be permitted to dedicate his entire
property to wakf. But during Marz-ul- Maut or death illness, he may be permitted to dedicate not
more than one-third of his property. Once the wakf is created during the life time, it cannot be
revoked subsequently.

Wakf by will: - If a wakf is created through the will, it is called as testamentary wakf. In this
time, it cannot extent one-third of the dedicator‘s property after the payment of funeral expenses
and other debts. If it exceed one-third of property, the excess is said to be invalid unless the heirs
assent thereto.

Completion of Wakf: -

According to Abu Yusuf, a wakf inter vivos is completed by a mere declaration of endowment
by the owner. This view is accepted by Madras, Bombay, Calcutta and Lahore High Court.

According to Imam Mohammad, the wakf inter vivos is not completed by mere declaration
unless besides mere declaration of wakf, the wakif delivered the wakf property to Mutawalli who
was appointed by wakif.

The founder of Wakf may constitute himself the first Mutawalli. The founder and the
Mutawalli being the same person, no transfer of physical possession is necessary, whichever of
the two views is upheld. Nor is it necessary that the property should be transferred from his name
as owner to his name as Mutawalli. Such a transfer is not necessary even in Allahabad view.

Power to alter the beneficiaries and to increase or reduce their shares: -

If the wakif may, at the time of dedication, reserve to himself the power to alter the
beneficiaries either by adding to their number or excluding some beneficiaries, he will be entitled
to alter the beneficiaries. But in the absence of any such reservation, he cannot alter the terms of
the wakf nor can he make a change in the personnel of the Mutawalli.

If the wakif reserve to himself the power to increase or reduce the shares of the beneficiaries,
he will be entitled to increase or decrease their shares. But in the absence of such reservation, he
 Page 111 of 182

cannot increase or decrease the shares of the beneficiaries. But he cannot reduce the shares so as
to withdraw any part of the property from the wakf.

Alter the objects: - After the making a valid wakf, subsequently he cannot alter the objects or
withdrawn the objects.

Contingent Wakf

For valid wakf, it is essential that the appropriation should not be made to depend on a
contingency. If the appropriation of wakf depends upon the contingency, the wakf is said to be
void. If the deed provides that on the happening of certain specific events the property is for
wakf, it is said to be contingent wakf and it is void.

Revocation of the Wakf

If a wakf is created by will, it can be revoked by the wakif at any time during his life time. But
in the case of wakf inter vivos, it cannot be revoked at any time. At the time of creation of non
testamentarywakf, if the wakif reserve any power to revoke the wakf, the wakf is said to invalid.

Reservation of life interest for the benefit of wakif: -

1. Under the Hanabi law, the wakif may provide for his maintenance out of the income of the
wakf property. He may, if he wishes, reserve even the whole income for himself for his life.

2. Under the Hanabi law, the wakif may provide for the payment of his debts out of the income
of property.

After the creation of the wakf, property of the wakf belongs to the God, The Almighty. Even
though the God is treated as legal person, he is not living person. So on the behalf of God, the
property of wakf is managed by some person. The person who managed the wakf property is
known as Mutawalli.

The Mutawalli has no right in the wakf property. The property is not vested in him and he is
not trustee for wakf property. He is merely a superintendent or manager for wakf property. But
he is trustee only of the usufruct. The corpus is tied up but not transferred to him. In other words,
he is not the owner of the property, but is servant of the God. He may be appointed either orally
or in writing. Even though he is appointed by way of writing, it is not necessary that it is
executed through registered document.
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Who may be appointed as Mutawalli

1. The founder of wakf may appoint himself to be the Mutawalli of wakf property.

(or)

2. He appoints his children or descendant to be the Mutawalli of wakf property.

(or)

3. He appoints any other person even female or non-Mohammedan to be the Mutawalli of wakf
property. But if the Mutawalli has to perform religious duty or spiritual functions, it cannot be
performed by female or non-Mohammedan.

3. Capacity for Mutawalli: -

There are two capacities for Mutawalli.

a.) He or She must be a sound person

b.) He or She must attain the age of majority according to Indian Majority Act, 1875.

But the office of Mutawalli is hereditary and the person entitled to succeed the office is minor, or
where the mode of succession to the office is defined in the deed of wakf and the person entitled
to succeed to the office on the death of the first or other Mutawalli to act in his place during his
minority.

4. Appointment of Mutawalli: -

1. The founder of the wakf has power to appoint the first Mutawalli and lay down the scheme
for succession to the office of Mutawalli.

He may nominate his successor by name (or)

He may indicate a class of persons with their qualification from whom the Mutawalli may be
appointed. (or)

He may invest the Mutawalli, for the time being, with power to nominate a successor after his
death or relinquishment of office.

2. If any person, so appointed as Mutawalli dies or refuse to act as a Mutawalli or he is

removed from his office by the court, or the office of Mutawalli otherwise become vacant and
there is no provision in the deed of wakf for the further appointment to the office of Mutawalli, a
new Mutawalli may be appointed as follows: -

(i) The new Mutawalli may be appointed by the founder of the wakf, if he alive,
 Page 113 of 182

(or)

(ii) If the founder is dead, then the executor of the founder, if any,

(or)

(iii) If there is no executor, then the Mutawalli for the time being may appoint a successor on
his death bed (or)

(iv) If no such appoint is made, the court may appoint Mutawalli. In making the appointment,
the court will have regard to the following rules:

a).the court should not disregard the directions of the founder except for the manifest
benefit of the endowment.

b) the court should not appoint a stranger, so long as there is any member of the founder‘s
family in existence qualified to hold the office.

c).where there is a contest between a lineal descendant of the founder and one who is not a
lineal descendant, the court is not bound to appoint the lineal descendant, but has discretion in
the matter, and in the exercise of that discretion appoints the other claimant to be the Mutawalli.

5. Mutawalli may appoint successor on his death bed: -

If founder and his executor are both dead, and there is no provision in the wakfnama for
succession to the office, the Mutawalli for the time being may appoint successor on his death
bed. But he cannot, however, do so while he is in health, as distinguished from death illness.

POWERS OF MUTAWALLI:

1. Power to sell or mortgage: - Without the previous permission of the court, a Mutawalli has
no power to sell or mortgage or exchange the wakf property or any part thereof, unless he is
expressly empowered by the deed of wakf to do so.

In BibiSiddique Fatima vs. Syed Mohammad MahomoodHasan, the court held that ―the use
of the funds of the wakf for acquisition of property in the name of his wife would amount to
breach of trust and the property so acquired would be treated as wakf property‖.

2. Power to grant lease: - A Mutawalli has no power to grand lease of wakf property, if it be
agricultural, for a term exceeding three years, and if non-agricultural, for a term exceeding one
year :-
 Page 114 of 182

i. Unless he has been expressly authorized by the deed to do so.

(Or)

ii. Where he has no such authority, unless he has obtained the leave of the court to do so.
Such leave may be granted even if the founder has expressly prohibited a lease for a longer
term.

In Ramdhani vs. JankiRai, ―the court held that a Mutawalli cannot lease agricultural land
for than three years and other land for than one year without the permission of the wakf board. A
longer lease than one permitted is not void, but voidable at the instance of the Mutawalli or the
beneficiaries and it can be validated by the board even retrospectively.‖

3. Power to borrow money: -

Unless it is authorized by the deed of wakf, a Mutawalli has no power of alienation without
the leave of the court. Without permission of the court, the Mutawalli has no power to borrow
money. If he borrows money without permission of the court, even for carrying out the purpose
of the trust, the creditor has no right to be indemnified out of the trust property. In this respect a
creditor of the Mutawalli is in a worse position than a creditor of the shebait of a Hindu
endowment.

4. Power to fix allowance for officer and servants: - If the allowance if fixed by the wakif, the
Mutawalli has no power to increase the allowance of the officer and servants attached to the
office of the wakf, but the court may in proper case increase such allowance- Ameer Ali.

REMUNERATION OF THE MUTAWALLI:

i. The founder of the wakf may provide for the remuneration of the Mutawalli. Such may be
a fixed sum or it may be a residue of the income of the wakf property after defraying the
expenses necessary for the maintenance of the wakf. (or)

ii. If no provision is made by the founder for remuneration of the Mutawalli, the court may
fix the amount of remuneration of the Mutawalli. Such sum shall not exceed one-tenth of the
income of the wakf property. If the amount fixed by the wakif is small, the court may increase
that allowance, but such allowance shall not exceed the limit of one-tenth of the income of the
wakf property.
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REMOVAL OF MUTAWALLI:

1. After appointment and delivery of possession of property, the founder has no power to
remove the Mutawalli in any case unless he has expressly reserved such power in the deed of
wakf.

2. Even though the founder expressly directed that the Mutawalli should not be removed in
any case, the court may at any time remove the Mutawalli in the following circumstances:-

a). If it is found that the Mutawalli is unfit to the office of the Mutawalli or)

b). On the proof of misfeasance

c). By means of breach of trust by Mutawalli

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CHAPTER-XII

SUCCESSION AND ADMINISTEATION OF ESTATE

The devolution of estate after the death of the person is called as succession. It may be either
intestate succession or testamentary succession.

When a person dies without making a will, his property devolves to his own heirs. This type of
devolution is known as intestate succession. But on the other hand, when a person dies leaving a
will behind himself, his property devolves according to the direction which are specified in the
will. This type of devolution is known as testamentary succession.

Indian Succession Act, 1925 generally dealt with both type of succession. Originally this Act
applicable to Europeans, Parsi, east Indians and natives of India who are not belongs to Hindu,
Muslim and Buddhist. Before 1925, there are two Acts for administration of estate.

1. Indian Succession Act, 1861: - It is applicable to Europeans, Parsi, East Indians and natives of
India other than Hindu, Muslim and Buddhist.

2. The Probate and Administration Act, 1881: - It is applicable to Hindu, Muslim and Buddhist.

But now both Acts have been repealed by the Indian Succession Act, 1925 and their provisions
re-enacted in the Act. In respect of succession of the property of the deceased Mohammedan, the
following points are important one:

1. Administration of estate of a deceased Mohammedan

2. Vesting of the property in the hands of the executor

3. Devolution of inheritance

4. Alienation of the property by heirs before the payment of debts

5. Extent of the liability of the heirs for payment of the debts

6. Distribution of estate

7. Suit by creditors

8. Recovery of debts due to the deceased through court

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ADMINISTRATION OF THE ESTATE OF THE DECEASED MOHAMMEDAN

After the death of the Mohammedan, his estate is to be applied successively in payment of the
followings: -

 His funeral expenses and death bed charges.

 Expenses for obtaining probate and letters of administration or succession certificates.
 Wages due for services rendered to the deceased Mohammedan within three monthsnext
preceding his death by any labourer, artisan or domestic servants.
 Other debts of the deceased according to their respective priorities.
 Legacies not exceeding one-third of what remains after all the above payments have
been made.

After the payment of all the above, if there is any residue, it is to be distributed among the
heirs of the deceased Mohammedan according to the law of sect or school in which he belonged
at the time of his death.

VESTING OF THE PROPERTY IN THE HANDS OF THE ADMINISTRATOR OR

EXECUTOR

After the death of Mohammedan, the executor or administrator of a deceased Mohammedan

is his legal representative for all purposes according to the section 211 of the Indian Succession
Act, 1925 and all the property of the deceased Mohammedan becomes vest in him. All the
property becomes vests in the hands of the executor, if he is appointed by the deceased
Mohammedan, though no probate has been obtained by him. In the absence of such appointment,
the court appoints the administrator for the purpose of administration of the estate of the
deceased Mohammedan.

But since a Mohammedan cannot dispose of by will more than one-third of what remains of
his property after the payment of his funereal expenses, debts, wages due for domestic servants
etc., the remaining two- third will go to the heir unless the heirs assented to the legacies
exceeding one-third. So, the executor is the active trustee for one-third and bare trustee for two-
third of property.

DEVOLUTION OF INHERITANCE:-

Subject to above mentioned points, if a Mohammedan dies as intestate, the whole property of
the deceased Mohammedan becomes devolves to his heirs at the movement of his death. But if
he dies leaving behind a will, two- third of the property becomes devolves to his heirs at the
movement of his death unless the heirs consent thereto.

The devolution of property is not suspended merely because some of the debts of the deceased
Mohammedan being due at the time of his death. But the heirs succeed property subject to
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payment of such debts. The heirs succeed to the estate as tenants-in-common in specific shares,
not as a joint tenancy.

ALLIENATION OF THE PROPERTY BY HEIRS BEFORE THE PAYMENT OF THE

DEBTS

1. If there is any transfer of share of the estate made by heir before payment of debts, the transfer
is valid provided that the transfer must be a confide transfer for consideration and pass a good
title to a confide purchaser for value, notwithstanding any debts that might be due from the
deceased Mohammedan.

2. If there is any sale of the share of the estate of an heir in execution of a decree passed against
him at the suit of his creditor, such sale shall be deemed to be transfer and it will pass a good title
to the purchaser in execution.

3. If the husband died before payment of the mahr and the widow filed a petition against the
heirs for mahr and during the pendency of the suit, the legal heirs sold the property for
consideration and then the court passed a decree in favour of the widow with creation of the
charge over her husband‘ property, the transferee is entitled to take the property subject to charge
created by the court in favour of the widow. But on the other hand, if no charge is created by the
court that is the decree is only a simple money decree, the purchaser is entitled to take the
property absolutely without any charge.

4. When there is any alienation made by one or some of the heirs for consideration, the alienation
is valid to the extent of the share of the heirs who made such alienation.

5. One of the several heirs of the deceased Mohammedan, though he may in possession of the
whole property, has no power to alienate the shares of his co-heirs, not even the purpose of
discharging the debts of the deceased. So, if there is any such alienation, even for the payment of
the debts, it is valid only to the extent of his interest in the property, but it does not bind the
interest of the other heirs.

EXTENT OF THE LIABILITY OF THE HEIRS FOR PAYMENT OF THE DEBTS

Each heir is liable for the debts of the deceased to the extent only of a share of the debts
proportionate to his share of the estate.

In Pirthi Pal Singh vs. Husaini Jan, a Mohammedan, who is indebted a sum of Rs. 3200 to C,
died leaving a widow, a son and two daughters. The heirs divide the estate before the payment of
the debts. The widow take 1/8, each daughter take 7/32 and son take 7/16.

C then files a suit against widow and sons for the whole debt due to him from the deceased
Mohammedan. But the court held that widow is liable to pay only 1/8 x3200 =Rs.800 and the
 Page 119 of 182

son is liable to pay only 7/16 x3200 =Rs.1400 and they are not liable to pay the whole debt due
from deceased person.

DISTRIBUTION OF ESTATE

Since the estate devolves to all heirs from the movement of the death of the deceased, the heirs
are entitled to divide it among themselves at any time after the death of the deceased. The
distributions of the estate among the heirs are not liable to be suspended merely by the reason of
the fact that there is some debt due to the creditor.

SUIT BY CREDITORS

1. If the estate is in the hands of the executor or administrator of the deceased, the creditors of
the deceased should be instituted a suit against such executor or administrator, as the case may
be.

2. If there is no executor or administrator and the property is in hands of the heirs, the creditor is
entitled to institute a suit against such heirs.

3. The creditor is also entitled to institute a suit against property of the deceased Mohammedan.

GENREAL PRINCIPLES FOR INHRITANCE

1. The property of a deceased Mohammedan is to be distributed according to law of sect or

school in which he or she belongs at the time of his death, and not according to law of sect or
school in which he or she belongs at the time of acquisition of property and also not according to
law of sect or school in which the heirs belongs.

For example, if a person acquired property is Hindu and converts to Sunni-muslim and died,
his property devolves only according to law of Sunni not according to Hindu law.

2 .There is no distinction between movable or immovable property and also there is no between
ancestral property or self-acquired property.

3. There is no distinction between male and female heirs. Both are get equal right in the property,
that is absolutely right in the property. But at the same time, male get double and female get
single share in the property.

4. At the movement of the death of the deceased, all his heirs succeed estate as tenants-in-
common, not as joint-tenancy. But at the same time if they agreed, they hold the property as
joint-tenancy.

5. Birth-Right not recognized: - sThe right of an heir apparent or presumptive comes into
existence for the first time on the death of the deceased and until his death no one is entitled to
claim his property as heirs. Until his death the right of an apparent heir are only spes-
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successionis. The chance of a Mohammedan heir- apparent succeeding to an estate cannot be the
subject of a valid transfer or release.

6. Principle of Representation: -Under Sunni law, there is no principle of representation. That is

on the death of an apparent heir presumptive having no right to claim his share in the property of
the propositus as representing the heir.

But under Shia law, initially there is no representation. But in the absence of sons and
daughters, the grand children of son and daughter succeed the property according to principle of
representation.

7. Exclusion from inheritance

1. Under Sunni law, a child in the mother‘s womb is competent to inherit property provided
that it is born alive.

2. Under Sunni law, the illegitimate child is entitled to inherit property only from their
mother alone not from father and if the illegitimate child died, his or her property devolves to
their mother alone not to father. However an illegitimate son cannot inherit property from the
legitimate son of the same mother. But under Shia law, the illegitimate child cannot claim
property from both parents.

3. A step father and mother bear no relation in law to their step-children and there is no
reciprocal right of inheritance between them.

4. Insanity is no impediment to succession.

5. Want of chastity in a widow or a daughter or any woman, is no ground for exclusion from
inheritance.

6. Homicide: - Under Sunni law, a person who caused the death of another, whether
accidentally or intentionally or by mistake or negligence, is debarred from succeeding to the
estate of that other. But under Shia law, if a person caused the death of another by accidentally
not by intentionally, he can succeed property from deceased person.

7. Exclusion of daughter from inheritance by custom: -Where daughters are excluded from
inheritance either by custom or by statute, they should be treated as non-existent, and the shares
of the other heirs should be calculated as they would be in default of daughters.

DEFINITIONS:-

1. ―True Grand father‖ means a male ancestors between whom and the deceased no female
intervenes.
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Thus father‘s father, father‘s father‘s father and his father how highsoever are all true grand
father.

2. ―False Grand father‖ means a male ancestors between whom and the deceased a female
intervenes.

Thus the mother‘s father, mother‘s mother‘s father, mother‘s father‘s father, father‘s mother‘s
father.

3. ―True Grand mother‖ means a female ancestors between whom and the deceased no false
grand father intervenes.

Thus father‘s mothers, father‘s father‘s mother, mother‘s mother, mother‘s mother‘s mother,
are true grand mother.

4. ―False Grand mother‖ means a female ancestors between whom and the deceased a false grand
father intervenes.

Thus the mother‘s father‘s mother and her mother is false grand mother.

5. ―son‘s son how low so ever‖ includes son‘s son, son‘s son‘s son, son‘s son‘sson‘s son ect.

6. ―son‘s daughter how low so ever‖ includes son‘s daughter, son‘s son‘s daughter and the
daughter of a son how low so ever.

7. ―Father‘s father how high so ever‖ includes father‘s father, father‘s father‘s father and father‘s
father how high so ever.

8. ―Mother‘s mother how high so ever‖ includes mother‘s mother, mother‘s mother‘s mother and
mother‘s mother how high so ever.

9. ―Full Blood‖ – Two persons are said to be related to each other by full blood when they are
descended from same father and mother.

10. ―Half Blood or Consanguine Blood‖- Two persons are said to be related to each other by half
blood or consanguine blood when they are descended from same father but different mother.

11. Uterine Blood‖- Two persons are said to be related to each other by uterine blood when they
are descended from same mother but different father.
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CHAPTER-XII

HANAFI LAW OF INHERITANCE

The principal works of authority on the Hanafi law of inheritance are the Sirajiyyah, composed
by ShaikhSirajuddin and the Sarifiiyyah, which is a commentary of the Sirajiyyah written by
Sayyed Sharif.

Three classes of heirs

They are three classes of Heirs under Hanafi law, namely:-

1. ―Sharers‖- Sharers are those heirs who are entitled to a prescribed share of the inheritance.

2. ―Residuaries‖- Residuaries are those heirs who take no prescribed share, but succeed to the
―residue‖ after the claims of the sharers are satisfied.

3. ―Distant Kindred‖- Distant kindred are those relations by blood who are neither Sharers nor
Residuaries.

According law of inheritance, after the payment of funeral expenses, expenses for obtaining
probate, debts, wages due and legacies( not exceeding one third of the above payment has been
made) the first step is to allot their share to Sharers who are entitled to get fixed share. The
second step is to divide the residue, if any, among the Residuaries and if there is no sharer, the
entire estate is divided among the Residuaries. The final step is that if there be neither Sharers
nor Residuaries, the estate is divided among the distant kindred. But there is one case in which
the distant kindred will inherit with the sharer, and that is where the sharer is the wife or husband
of the deceased.

Amongst relations belonging to the same class, the rule of succession is, the nearer relation
excludes the remoter relations. Thus, if the surviving relations be father, father‘s father and
father‘s father‘s father, father alone succeed property to the entire exclusion of others. In the
same manner, if the surviving relations be son and son of predeceased son, son alone succeed
entire property to the entire exclusion of the son of the predeceased son.

DISTRIBUTION OF SHARE AMONG THE SHARERS:

There are twelve sharers, out of which four are male and eight are female. These are,

1. Father

2. True grand father h. h. s

3. Husband
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4. Wife

5. Mother

6. True Grand mother h. h. s

7. Daughter

8. Son‘s daughter h. l. s

9. Uterine brother

10. Uterine sister

11. Full sister

12. Consanguine sister

Categories and Classes of Legal Heirs under the Sunni Muslim Laws

(1) The Principal Classes:

The following three classes of heirs may be termed as principal classes of legal heirs. The heirs
included in any of the following classes are related to the propositus by blood except the husband
and widow who are related through marriage.

(2) Sharers or Quranic Heirs:

Sharers are those heirs who are entitled to get a prescribed share from the heritable property.
The Sharers and their respective shares in the property of a deceased are given in Quran. The
Sharers are, therefore, also called as Quranic heirs.

In the distribution of property, the Sharers get preference over the other class of heirs,
therefore, first of all the respective share is allotted to each Sharer. It may be noted that Sharers
are those heirs whose respective shares are given in Quran; therefore, their shares cannot be
altered by any human effort.

(3) Residuaries or Agnatic Heirs:

Residuaries are those heirs who inherit only the residue of the property after allotment of
respective shares to the Sharers. Obviously, the Residuaries have no specific share of their own.
After giving the property to the Sharers in their fixed shares, if there remains some property that
‗remaining property‘ (residue) is available to the Residuaries.
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The residue may differ from case to case. If there are no Sharers, the whole is inherited by the
Residuaries. Residuary heirs are also termed as Agnatic heirs because they inherit through male
relations.

(4) Distant Kindred or Uterine Heirs:

All those persons who are related to propositus through blood but could not be included
as heirs in the class of Sharers or of Residuaries, are called distant kindred. If a propositus has
neither Sharers nor Residuaries, the properties are inherited by his Distant Kindred. Distant
Kindreds cannot inherit in presence of any Sharer or Residuary. The heirs included in this class
are also termed as uterine heirs.

(B) Subsidiary Classes:

Besides the above-mentioned three classes of heirs, there are four more categories of
legal heirs. The heirs included in any of the following classes are called subsidiary heirs and
inherit only in exceptional cases;

(1) Successor by contract

(2) Acknowledged kinsman

(3) Universal legatee, and

(4) The State (through the process of escheat).

Scheme of Distribution:
In the distribution of property among legal heirs of a Sunni propositus, the following
scheme is followed. First of all, it is ascertained as to who are the Sharers (Quranic heirs) of the
deceased. After ascertaining the Sharers, their respective shares, which are already fixed for
them, is allotted to each of them. If the whole property exhausts after distribution of the shares
among each of them, the process of distribution does not proceed further.

But, if there still remains some property, then the second step is to distribute the
―remaining property‖ (residue) among the Residuaries who constitute Class II of legal heirs.
However, where a propositus has no Sharers at all, the whole property is inherited directly by the
Residuaries. If the propositus has neither any Sharer‘ nor any Residuary then, in the third
instance, the property is distributed among the Distant Kindreds.
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It is to be noted that a Distant Kindred cannot inherit in presence of any heir belonging to
the class of Sharers or Residuaries. Where a propositus has no heir belonging to any of the three
principal classes (although such cases are rare) the property devolves directly upon the
successive subsidiary heirs, one by one in the order of priority.

In other words, if a propositus has no Sharer, Residuary or a Distant Kindred as his heir,
his property is inherited by a successor by contract, if any, and in his absence, by an
acknowledged kinsman, if there be any and, in his absence, too, it is inherited by the universal
legatee if there is such a legatee under any will left by the deceased.

But, if there is none from among the above mentioned classes of heirs, the properties of
the deceased are ultimately inherited by the State. State is the ultimate heir of every propositus.

However, the practical allotment of respective shares to each legal heir is not as simple as
it appears from the scheme of distribution stated above. There are various rules and exceptions
which make the distribution difficult. For instance, there are rules of exclusions under which one
heir (of the same class) may be excluded by the presence of some other heir.

In certain cases, an heir may not be totally excluded but, his share, may be reduced in
presence of some other heir. Moreover, in some cases an heir may inherit in double capacity e.g.
father is a Sharer but, in certain cases he inherits also as a Residuary. In the following lines
attempt has been made to enumerate the heirs of each class, their respective shares and, the rules
relating to the distribution of properties among them.

The Sharers: Class I Heirs:

Sharers or the Quaranic heirs are Class I legal heirs of a propositus. The legal heirs of this
class get preference over heirs of other classes. When the inheritance opens, following facts are
to be ascertained: (1) Who are the heirs of Class I, i.e. who are the Quranic heirs of the
propositus? (2) What is the respective share of such heir or heirs? (3) Whether such heir is
excluded by, or his share is reduced, in presence of any other heir of the same class? (4) Any
other fact which may affect his inheritance. On the basis of these facts, the heritable property is
distributed first of all, among his Sharers.

The Sharers, their respective shares and the conditions under which they inherit, is given
in brief in the list given below. It is to be noted that the relations mentioned in the list are
relations of the propositus e.g. widow means widow of the propositus or, child means child of
the propositus etc.
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Relations by Affinity:
I. Husband:
(i) The husband gets 1/2 if there is no (a) child or, (b) child of son how low soever (hereinafter
called h.l.s.)

(ii) The husband gets 1/4 if there is (a) child, or (b) child of son h. l.s.

That is to say, in the absence of children, the husband‘s share is 1/2 whereas; in the presence of
children his share is 1/4.

II. Widow:
(1) The widow gets 1/4 if there is no (a) child, or (b) child of son h.l.s.

(2) The widow gets 1/8 if she is with (a) child, or (b) child of son h.l.s.

(3) If the propositus had left more than one widowed, all the widows share equally out of the 1/4
or 1/8 share, as the case may be.

Relations by Blood:
III. Father:
(1) Father without (a) child or, (b) child of son h.l.s is treated as Residuary i.e. ceases to be a
Quranic heir and is entitled to get the residue after allotment of shares to other Quranic heirs.

(2) Father together with (a) child, or (b) child of son h.l.s. gets 1/6. In other words, in the absence
of children the father becomes a Residuary whereas in presence of the children his share is 1/6.

IV. True Grandfather:

(1) True grandfather is entitled to inherit only in the absence of father. That is to say, if the
propositus dies leaving behind both, father and a true grandfather, the true grandfather cannot
inherit.

(2) If there is no father, the true grandfather inherits like a father. That is to say, if there is no
father, the true grandfather would become Residuary in the absence of children. But, in presence
of the children a true grandfather gets 1/6.
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V. Mother:
(1) The share of mother is 1/3 in the absence of:

(a) Child, or

(b) Child of a son h.l.s., or

(c) Two full sisters, or

(d) Two full brothers, or

(e) One brother plus one sister, whether full, consanguine or uterine.

In other words, if together with mother there are none of the above-mentioned relations, her
share is 1/3.

(2) The share of mother is 1/6 in the presence of:

(a) Child, or

(b) Child of son h.l.s., or

(c) Two full sisters or

(d) Two full brothers, or

(e) One brother plus one sister whether full, consanguine or uterine.

In other words, if there are any one of the above-mentioned relations from (a) to (e) the share of
mother is reduced to 1/6.

(3) If mother is with father and there is also widow (or husband) the mother gets 1/3 of what
remains after deducting the share of widow (or husband). In this peculiar combination the mother
(without children) does not get 1/3 of the whole property because m that case father‘s share
would become half of mother which is against the general principle that share of a male should
be double the share of female.
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VI. True Grandmother:

(1) The true grand-mother inherits only where she is not excluded by the presence of any of the
relations given below.

(2) If not excluded, the share of true grandmother is 1/6 whether she is one or more than one.
Two or more grandmothers get 1/6 jointly.

(3) A maternal grandmother is excluded from inheritance in the presence of:

(a) Mother, or

(b) A nearer maternal or paternal true grandmother.

(4) A parternal grandmother is excluded from inheritance in the presence of:

(a) Mother, or

(b) Father, or

(c) A nearer true-grandmother whether maternal or paternal.

In other words, a maternal true-grandmother gets her 1/6 share only in the absence of mother and
any nearer grandmother. A paternal true-grandmother gets her 1/6 share only in absence of
mother, father and any nearer true grandmother.

VII. Daughter:
(1) The share of one daughter is 1/2.

(2) If there are two or more daughters, the share is 2/3 to be divided equally among them.

(3) Daughter together with son is treated as agnatic heir i.e. inherits as Residuary.

VIII. Son’s Daughter:

(1) The son‘s daughter inherits only in the absence of:

(a) Two or more daughters, or

(b) Son, or
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(c) Higher son‘s son, or

(d) Two or more higher son‘s daughter.

In other words the son‘s daughter is entirely excluded from inheritance in presence of the above
relations.

(2) In the absence of above relations, the son‘s daughter gets 1/2 if single and, 2/3 if more than
one.

(3) If son‘s daughter is together with one daughter, the share of son‘s daughter is 1/6 whether
such son‘s daughter is single or more. For example, if there is a daughter and two son‘s
daughters, the share of son‘s daughters would be 1/6 which would be divided equally among
them i.e. each son‘s daughter would get 1/12.

(4) Son‘s daughter together with son‘s son is treated as agnatic heir i.e. inherits as Residuary.

IX. Full-Sister:
(1) The share of one full sister is 1/2.

(2) The share of two or more full sisters is 2/3 to be divided equally among them.

(3) If full sister is together with full‘ brother, she becomes an agnatic heir and inherits as
Residuary.

(4) A full sister is excluded from inheritance in the presence of:

(a) Child, or

(b) Child of son h.l.s., or

(c) Father, or

(d) Father‘s father.

X. Consanguine-Sister:
(1) The share of one consanguine sister is 1/2.

(2) The share of two or more consanguine sisters is 2/3 to be divided equally among them.
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(3) With one full-sister, the share of consanguine sister is 1/6 whether single or more.

(4) The consanguine sister is excluded from inheritance in the presence of:

(a) Child, or

(b) Child of son h.l.s., or

(c) Father, or

(d) Father‘s father, or

(e) Two full sisters, or

(f) One full brother.

(5) With consanguine brother, the consanguine sister becomes agnatic heir and inherits as
Residuary.

XI. Uterine-Brother:
(1) The share of one uterine brother is 1/6.

(2) If there are two or more uterine brothers, their share is 1/3 to be equally divided among them.

(3) Uterine brother is excluded from inheritance in the presence of:

(a) Child, or

(b) Child of son h.l.s., or

(c) Father, or

(d) Father‘s father.

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XII. Uterine-Sister:
The share and the conditions under which an uterine sister inherits a property is the same as that
of uterine brother. That is to say:

(1) The share of one uterine sister is 1/6.

(2) If there are two or more uterine sisters their share is 1/3 to be divided equally among them.

(3) Uterine sister is excluded from inheritance in the presence of (a) child, (b) child of a son, (c)
daffier, and (d) father‘s father.

Allotment of Shares:
Illustrations:
(1) A Sunni Muslim dies leaving behind h s (a) father, (b) father‘s father, (c) mother, (d)
mother‘s mother, (e) two daughters and (f) son‘s daughter. The allotment of their respective
shares would be as under:

Father 1/6 (because there is a child, daughter)

Father‘s father excluded by father

Mother 1/6 (because there are children i.e., daughters)

Mother‘s mother excluded by mother two daughters 2/3

Son‘s daughter excluded by two daughters

After allotment of the respective shares to each of them the sum total of the shares is 1/6 + 1/6 +
2/3 = 6/6 =1. Thus, we find that the total property has been exhausted. It is significant to note
that heritable property is taken to be one (i.e. suppose the property is one).

Now the sum total of shares given to the heirs also comes out to be one. Therefore, the property
is neither less nor in excess of the shares. In this case, as the property is exhausted, the
distribution is complete and there is no need of proceeding further.

(2) The propositus leaves behind her (a) husband and (b) father as her legal heirs. The allotment
of the shares to each heir is given below:
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Husband 1/2 (without children)

Father Residuary (without children)

In the absence of children, the father ceases to be a Sharer and becomes a Residuary. Residuaries
get the residue i.e. the property which remains after giving to the Sharers. Thus, the respective
shares of the husband and father are as under:

Husband 1/2

Father 1/2 (1-1/2).

The sum total is 1/2 +1/2=1 and the property exhausts.

(3) A Sunni Muslim dies leaving behind the (a) mother, (b) two sisters and (c) father. Their
respective shares are given as under:

Mother 1/6 (because there are two sisters).

Father Residuary (without children).

Two sisters (excluded by father).

In this illustration, it is to be noted that the mother‘s share is reduced to 1/6 in the presence of
two sisters. Secondly, as there are no children (child or, child of son h.l.s.) of the propositus, the
father is treated as Residuary.

Thirdly, the two sisters themselves have been excluded from inheritance in the presence of
father. Thus, mother as a Sharer gets 1/6. After giving to mother, the remaining property is 5/6
(1-1/6). This 5/6 residue goes to father. Accordingly, the shares are:

Mother 1/6

Father 5/6 (residue)

Two sisters Nil / 6/6

As the property exhausts, the distribution is closed.

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(4) If the only heirs of a propositus are mother and father, the allotment of their shares is as
under:

Mother 1/3 (because there is no child)

Father 2/3 (residue, because in the absence of child the father is a Residuary).

The sum total is 1/3 plus 2/3 i.e. unity, that is to say, the property exhausts.

(5) A Sunni Muslim dies leaving behind (a) mother, (b) father (c) brother and (d) Sister. The
respective shares may be allotted as under:

Mother 1/6 (because there is one brother plus one sister)

Father Residuary (because there are no children)

Brother excluded by father Sister excluded by father.

Here, we notice that mother does not get her normal share 1/3 because there is one brother and
one sister. In presence of a brother plus a sister, her share is reduced to 1/6. Secondly, without
children (of the propositus) the father becomes Residuary. Thirdly, a brother and sister (whether
the brother or sisters are full or, consanguine or uterine) are excluded in the presence of father.
Therefore finally the respective shares are:

Mother 1/6

Father 5/6(1-1/6)

Brother Nil Excluded from inheritance.

Sister Nil

6/6=1; that is to say, the property exhausts.

(6) A Sunni Muslim dies leaving behind her (a) husband (b) mother and (c) father. The shares of
each of them are:

Husband 1/2 (because there are no children)

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Mother 1/3 of what remains after giving to husband Father Residuary (because there are no
children)

This is a peculiar case. In the absence of children, normally the share of the mother is 1/3. But, if
the mother is together with father, and there is also the husband (or wife) she gets 1/3 of what
remains after giving to the husband (or wife) she gets 1/3 of whole. Thus the share of mother is
1/3 of (1-1/2) i.e. 1/3 of 1/2. Thus in this case mother‘s share is 1/6.

In the absence of children the father becomes Residuary and therefore gets 1—(1/2+1/6) or 1/3
which remains after giving to the Quranic heirs (husband and mother). It is to be noted that
reason behind this peculiar rule is that if mother gets her normal share 1/3 then the residue for the
father would be only 1/6. This will be against the general rule that share of a male is double the
share of a female. Accordingly, the final distribution of shares in this case is as under:

Husband 1/2

Mother 1/6 (1/3 of 1/2)

Father 1/3 (as Residuary)

The sum total of the shares is 1/2 plus 1/6 plus l/3=6/6=l and the property exhausts.

(7) It may be noted that only the father (with husband or wife) reduces the share of a mother. The
father‘s father does not reduce her share. In the following illustration, the father‘s father being a
Residuary gets only that much property which is available after allotting the shares of widow and
mother. Thus, the father‘s father gets l-(l/4+l/3) = 5/12. Finally, the shares of each of them may
be given as under:

Widow 1/4 (without children)

Mother 1/3 (without children)

Father‘s father 5/12 (Residuary)

The sum total of their shares is 1/4+1/3+5/12=12/12=1. That is to say, the property exhausts.
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(8) A (Sunni propositus dies leaving behind the (a) father (b) father‘s mother (paternal
grandmother) and (c) mother‘s mother (maternal grandmother). The respective position of each
of the legal heir may be given as under:

Father Residuary

Father‘s mother Excluded by father,

Mother‘s mother 1/6 (Quranic heir)

It may be noted that the father‘s mother is paternal true grand-mother and is excluded by the
mother. But mother‘s mother being a maternal grandmother, may be excluded only by any nearer
true grandmother (paternal or maternal). As there is no nearer grandmother, the mother‘s mother
is not excluded from inheritance and gets her share of 1/6. Accordingly, the respective shares
are:

Father 5/6 (Residuary)

Father‘s mother excluded by father

Mother‘s mother 1/6 (Quranic heir)

Here, if the heirs were father, father‘s mother and mother‘s mother‘s mother, the father would
have taken the whole as Residuary because father‘s mother is excluded by father and mother‘s
mother‘s mother is excluded by father‘s mother (a near grandmother).

(9) A Sunni Muslim dies leaving behind (a) father (b) mother (c) daughter and (d) son‘s
daughter. The allotment of their respective shares is given below:

Father 1/6

Mother 1/6

Daughter 1/2

Son‘s daughter 1/6

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In this illustration, all the heirs are Shares or the Quranic heirs. Together with children (i.e.
daughter and son‘s daughter) the shares of father and mother is 1/6 each. The share of single
daughter is 1/2. The son‘s daughter gets 1/6 in presence of one daughter. Had there been two
daughters, the son‘s daughter would have been excluded.

However, in presence of a daughter the share of son‘s daughter is reduced to 1/6 whether, single
or more. Thus, in this illustration, if there had been four son‘s daughters the 1/6 share was to be
inherited by them collectively and the 1/6 had to be divided equally among all the four son‘s
daughters each getting 1/24.

(10) The heirs of a Sunni propositus are (a) father, (b) mother (c) son‘s daughter and, (d) son‘s
son‘s daughter. Allotment of their respective share is given below:

Father 1/6

Mother 1/6

Son‘s daughter 1/2

Son‘s Son‘s daughter 1/6

It may be noted that in the absence of daughter, the allotment of shares between son‘s daughter
and son‘s son‘s daughter is the same as between a daughter and son‘s daughter. Therefore, there
being only one son‘s daughter, the son‘s son‘s daughter is not excluded but her share is only 1/6.

Had there been two or more sons‘ son‘s daughters their shares would have been the same (1/6) to
be divided equally among them. Moreover, had there been two son‘s daughters, the son‘s son‘s
daughter would have been entirely excluded from inheritance.

(11) The heirs of a Sunni propositus are (a) two full sisters and, (b) two uterine sisters. Allotment
of their shares is as under:

Two full sisters 2/3 (each taking 1/2 of 2/3)

Two uterine sisters 1/3 (each taking 1/2 of 1/3)

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It is to be noted that the same shares are available also to consanguine sister and uterine brother.
Therefore, if the heirs are (a) two consanguine sisters and (b) two uterine brothers, the shares are
the same.

Two consanguine sisters 2/3 (each taking 1/2 of 2/3)

Two uterine brothers 1/3 (each taking 1/2 of 1/3)

(12) A Sunni Muslim dies leaving behind (a) mother (b) three full sisters (c) a consanguine sister
and (d) a uterine sister (or, a uterine brother). The respective shares of these legal heirs are:

Mother 1/6 (Because there is more than one full sister)

Three full sisters 2/3 (each taking 1/3 of 2/3)

Consanguine sister Excluded by two or more full sisters.

Uterine sister

(Or, uterine brother) 1/6

It is significant to note that in all the illustrations given above, the sum total of the shares comes
out to be unity. This means that after allotment of shares to the Sharers, the property exhausts;
the property is neither in excess nor falls short of the number of shares.

After adding all the shares, if the fraction is say x/y then, the numerator (x) denotes the number
of shares whereas, the denominator (y) denoted the fractions or pieces of the property. If x
becomes equal to v, then it means that number of piece of property is exactly the same as the
number of shares. The result is that the sum total of the respective shares becomes unity.

But, these illustrations have been specially arranged to make the sum total unity and may be said
to be the simplest cases in distribution of shares among the heirs. In most of the cases we may
find that after allotment of the shares the sum total is either more than unity or is less than unity.

That is to say, there may be cases where either the snare is in excess of property or, the property
is in excess of the shares. In such a circumstance, the doctrine of increase or the doctrine of
return, as the case may be, is applied for distribution of property in order to make the sum total
(of shares) unity.
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Doctrine of Increase (Aul):

After allotment of the respective shares to Sharers, if the sum total exceeds unity, the doctrine of
increase (Aul) is applied. As discussed in the preceding lines, in the fraction of the aggregate of
shares, the numerator denotes total number of shares and the denominator denotes the pieces of
heritable property.

For example, if the aggregate of the shares is 13/12 then, 13 represents the number of shares and
12 represents fragments or pieces of the property. In this case, therefore, the number of shares
exceeds the number of fragments of property. In other words, the fragments or pieces of the
property are less than the number of shares.

In the distribution of shares among legal heirs, two things must be taken into account; firstly, the
sum total must come out to be unity and, secondly, the respective shares of the Sharers cannot be
changed because they are specified in Quran. Therefore, for making the aggregate unity without
changing the respective shares, the fragments of property is increased by adopting the following
method:

Keeping the numerator intact, the denominator is increased in such a manner that the
denominator (i.e. total number of fragments of property) becomes equal to the numerator (total
number of shares). Thus, instead of altering the respective shares which are of divine origin, the
pieces of heritable property are enhanced. By this process the aggregate of the shares is made
unity.

This signifies that the property (presumed to be one) exhausts without affecting the shares. For
example, if the aggregate is 13/12, we find that denominator is short of one (piece) therefore, by
adding one to denominator (12+1) it becomes 13 i.e. equal to the numerator. Similarly, if the
aggregate is 15/13 we have to add two to the denominator (13+2) to make it equal to numerator.

Shia Law:
Under the Shia law, as discussed in detail in the following pages, the excess share is directly
deducted from the share of (a) daughter or (b) full sister.

Illustrations:
(1) A Sunni propositus dies leaving her (a) husband, and (b) two full sisters. The normal shares
are:

Husband 1/2 (Sharer)

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Two full sisters 2/3 (Sharer)

Here, the sum total of the shares is not unity, it is (1/2 x 2/3) = 7/6 which is greater than unity.
Thus the aggregate of the shares of husband and two full sisters may be given as under:

3+4

1/2+2/3 = Z =7/6 6

Or, 3/6+4/6= 7/6

By applying the doctrine of increase, we add one to the denominator so that it becomes (6+1) =
7. Thus, we have increased the number of fragments of property without altering the shares.
Now, taking this increased denominator (i.e. 7) as the common denominator, we may allot the
respective shares.

Husband 3/7

Two full sisters 4/7

7/7

Shia Law:
Under the Shia law the excess share (1/6) is deducted from the share of two sisters. Thus the
share of the two sisters becomes 2/3—1/6 or 4/6—1/6= 3/6. Accordingly, the respective shares
under Shia law are:

Husband 3/6

Two full sisters 3/6

6/6=1

Note: (1)

It may be noted that although the principle is that the Quranic shares cannot be altered by any
human effort and in the application of this doctrine apparently the shares have not been affected
 Page 140 of 182

but, if we examine it minutely, we find that the quantum of property which each heir has to get
as Quranic Sharer is reduced.

However, the ratio or the proportion in which they normally get the shares and which they now
got after application of the doctrine remains the same. It is therefore submitted that by applying
the doctrine of increase, although in principle the shares remain unchanged yet, in practice the
quantum of their share is reduced. In the following illustrations, the new shares (after application
of the doctrine) are given as shares reduced to, which indicate the shares with the enhanced
denominator.
(2) A Sunni Muslim dies leaving behind her (a) husband (b) two full sisters and (c) mother. The
allotment of their shares is given below:
Husband 1/2

Two full sisters 2/3

Mother 1/6

The sum total of their shares is 1/2 x 2/3 x 1/6 = 8/6. Accordingly, the doctrine of Aul is to be
applied. First of all, let us make a common denominator of all the fractional shares:
Husband 1/2 or 3/6

Two full sisters 2/3 or 4/6

Mother 1/6

8/6

Now, for applying the doctrine of increase we have to enhance the denominator by two (6 + 2 =
8). This enhanced denominator is made the common denominator of the shares. Thus, finally the
respective shares are:

Husband 1/2 or 3/6 reduced to 3/8

Two full sisters 2/3 or 4/6 reduced to 4/8

Mother 1/6 or 1/6 reduced to 1/8

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The answer is therefore, that final shares of (a) husband (b) two full sisters and (c) mother are
3/8, 4/8 and 1/8 respectively.

(3) If the heirs of a Sunni propositus are (a) husband (b) mother (c) two daughters, the shares of
each of them are as under:
Husband 1/4 (in presence of daughters)

Mother 1/6 (in presence of daughters)

Two daughters 2/3 (collectively).

As the aggregate of their shares is 13/12, the doctrine of increase is to be applied by enhancing
the denominator to 13 and making common denominator of the respective shares:

Husband 1/4 or 3/12 reduced to 3/13

Mother 1/6 or 2/12 reduced to 2/13

Two daughters 2/3 or 8/12 reduced to 8/13 (each taking 8/26).

(4) The heirs of a Sunni propositus are (a) husband (b) mother (c) daughter and (d) son‘s
daughter. The legal heirs are Sharers or Class I heirs and the sum total of their shares is more
than unity. The doctrine of increase is applicable:
Husband 1 /4 or 3/12 reduced to 3/13

Mother 1/6 or 2/12 reduced to 2/13

Daughter 1/2 or 6/12 reduced to 6/13

Son‘s daughter 1/6 or 2/12 reduced to 2/13

13/12 13/13 = 1

(5) The heirs of a Sunni Muslim are his (a) widow (b) two full sisters and, (c) two uterine sisters.
The heirs are Sharers and the sum total of their shares is more than unity:
Widow 1/4 or, 3/12 reduced to 3/15

Two full sisters 2/3 or, 8/12 reduced to 8/15

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Two uterine sisters 1/3 or, 4/12 reduced to 4/15

15/15= 1

(6) The heirs of a Sunni propositus are (a) husband (b) father (c) mother and (d) three daughters.
All the legal heirs are Sharers and the sum total of their shares is more than one, therefore, the
doctrine of increase is applicable:
1/4 or 3/12 reduced to 3/15 1/6 or 2/12 reduced to 2/15 1/6 or 2/12 reduced to 2/15 2/3 or 8/12
reduced to 8/15

15/15= 1

(7) A Sunni Muslim dies leaving behind (a) widow (b) two full sisters (c) two uterine sisters and,
(d) mother. The allotment of their shares, after application of the doctrine of increase, is as
under:
1/4 or 3/12 reduced to 3/17 2/3 or 8/12 reduced to 8/17 1/3 or 4/12 reduced to 4/17 1/6 or 2/12
reduced to 2/17

17/17= 1.

(8) A Sunni propositus dies leaving his (a) widow (b) father (c) mother and (d) two daughters.
The allotment of their shares, after application of the doctrine of increase, is given below:
Widow 1/8 or 3/24 reduced to 3/27

Father 1/6 or 4/24 reduced to 4/27

Mother 1/6 or 4/24 reduced to 4/27

Two daughters 2/3 or 16/24 reduced to 16/27

27/27 = 1

Doctrine of Return (Radd):

Where the sum total of shares is less than unity, the doctrine of return is applicable. As discussed
earlier, in the fraction of the sum total of shares, the numerator represents as the‘ total number of
shares and denominator denotes the number of pieces of property.
 Page 143 of 182

Therefore, where the sum total of all the shares comes out to be less than unity, it implies that
number of shares is less than the number of fragments of property. For example, if the sum total
of shares is 5/12 this means that shares are 5 whereas the pieces of heritable property are 12.

This situation indicates that after allotting the respective shares to the Sharers there still remains
some (fragments of) property and there are no Residuary or other heirs to get this residue. In
such cases the doctrine of return (Radd) is applied under which the excess property is returned
back and is added to the respective shares of the legal heirs, in proportion of their own shares.
According to Mulla:

―If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the
residue reverts to the sharers in proportion to their shares. This right of reverted is technically
called ‗Return‘ or Radd.‘

The residue is added to the shares of the respective Sharers according to following rules:

(1) The residue is added to the shares of each heir in proportion of their own share. Thus, in the
above example where the sum total was 5/12 the residue is (1 – 5/12) i.e. 7/12. This 7/12 is to be
added to the share of say, father and sisters in proportion of their own shares i.e. in the ratio of
1/6 and 1/2 respectively.

(2) The husband and widow do not participate in return. If, among the legal heirs of a propositus,
there is a husband or widow the surplus is not added to their shares. That is to say, the residue
returns to all the heirs (in proportion of their own shares) except the husband or widow.
However, if widow (or husband) is the sole surviving heir of a Sunni Muslim, she inherits the
whole property.

For example, if widow is the sole surviving heir of a deceased, the widow gets 1/4 as Sharer and
would also get the remaining 3/4 in return (Radd). In such cases the surplus 3/4 is not escheated
to the Government. Similarly, this rule may be applicable if husband is the only heir of a
propositus.

Shia law:
Under the Shia law, besides husband or widow, in some exceptional cases, the mother and
uterine brother and sister also do not participate in return.

The Method:
 Page 144 of 182

The method of adding the surplus property among heirs (except husband or widow) in proportion
to their own shares is given below:

(a) First of all the respective Quranic shares are allotted to all the Sharers.

(b) If there is a husband or widow among the heirs, his (or her) share is left apart. That is to say,
this share remains unaffected from further calculations.

(c) Out of one property (as the heritable property is always supposed to be one) the share of
husband or widow, as the case may‘ be, is deducted. In this manner, after giving the share of
husband (or widow) the ‗remaining heritable property‘ is obtained.

(d) Now, the proportion or ratio of the respective shares of remaining heirs is calculated. For
example, if the remaining heris are a daughter and mother, their Quranic shares are 1/2 and 1/6
respectively. The ratio of these shares is 1/2: 1/6. Thus, the ratio of the daughter‘s and mother‘s
share is 3:1. In other words, if property is 4, daughter‘s share is 3/4, and mother‘s share is 1/4.

(e) Now, ‗the remaining heritable property‘ is divided among the heirs (accepting husband or
widow) in the ratio of 3:1. For instance, after deducting the Quranic share of say widow (1/8) the
remaining heritable property is (1-1/8) = 7/8. This is distributed among the daughter and mother
in the ratio of 3:1. Accordingly, the shares of the daughter and mother are 3/4 of 7/8 and 1/4 of
7/8 respectively.

It is significant to note that by application of the doctrine of return, the quantum of the share of
each heir (except husband or widow) is increased. However, this increase or addition is in the
same proportion as is the ratio of their own shares.

Illustrations:
(1) A Sunni Muslim dies leaving her (a) husband and (b) mother. Their shares may be calculated
as under:

Husband 1/2 (Sharer)

Mother 1/3 (Sharer)

The sum total of their shares is 1/2 + 1/3 = 5/6, whereas, the property to be distributed is one.
Thus, there is a surplus property. The surplus property is (1-5/6) i.e. 1/6. This surplus property
would return back to the heirs.
 Page 145 of 182

But, husband (or widow) does not get the surplus. Here, we find that excepting husband the only
surviving heir is the mother. Therefore, this surplus would be added to the share of mother. Thus,
the share of mother is 1/3 + 1/6 = 1/2. In this manner, finally the shares of husband and mother
are:

Husband 1/2 (Sharer)

Mother 1/2 (1/3 as Sharer + 1/6 in return)

(2) The surviving heirs of a Sunni Muslim are (a) husband and (b) daughter. The allotment of
their normal shares is as under;

Husband 1/4 (Sharer)

Mother 1/2 (Sharer)

Total of their shares is 1/4 + 1/2 = 3/4. Thus, we find that out of one property, there still remains
a surplus of 1/4. As the husband cannot participate in return this surplus goes to daughter and her
share in the property is now 1/2 + 1/4 = 3/4. Finally, the shares are:

Husband 1/4 (Sharer)

Daughter 3/4 (1/2 as Sharer + 1/4 in return)

(3) The surviving heirs-of a Sunni Muslim are (a) husband (b) mother and (c) daughter. In
calculating the shares of each of them, first of all we may allot the normal shares:

Husband 1/4 (with child)

Mother 1/6 (with child)

Daughter 1/2 (single)

11/12

Thus the property has not been exhausted and there still remains (1-11/12) i.e. 1/12, property to
be distributed among the heirs. The doctrine of return (Radd) is to be applied in the following
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manner. As the husband does not participate in return, his share (1/4) is left apart. The property
to be distributed is one and after excluding husband‘s share we have 3/4 property.

If this 3/4 is distributed among the remaining heirs (i.e. mother and daughters) in the ratio of
their initial shares, they would automatically get a share in which the surplus 1/12 is already
included. The ratio of mother and daughter‘s share is 1/6: 1/2 i.e. 1: 3.

In other words, the mother‘s share is 1/4 and daughter‘s share is 3/4. But, after deducting the
husband‘s share, we have 3/4 to be distributed among rest of the heirs. Therefore, the mother‘s
share is now 1/4 of 3/4 and the daughter‘s share is 3/4 of 3/4. Finally, the respective shares of
each if the given heirs are:

Husband 1/4 (not participating in return)

Mother 1/4 of 3/4 = 3/16

Daughter 3/4 of 3/4 = 9/16

For the sake of uniformity in the denominator, the husband‘s share 1/4 may also be changed to
4/16. Now the shares of husband, mother and daughter are 4/16, 3/16 and 9/16 respectively.

(4) The surviving heirs of a propositus are (a) widow (b) mother and (c) daughter.

The shares of each of them may be calculated in the following manner:

Widow 1/8

Mother 1/6

Daughter 1/2

19/24

Thus, the doctrine of return is to be applied, leaving apart the widow‘s share (1/8) there remains
7/8 property. If 7/8 is distributed among mother and daughter in the ratio of their own shares
(1/6: 1/2) then the mother‘s and daughter‘s share would automatically be increased and the
surplus is included in their respective shares. The ratio of the shares of mother and daughter
being 1: 3 the shares of each of them are as under:
 Page 147 of 182

Widow 1/8 = 4/32

Mother 1/6 increased to (1/4 of 7/8) or 7/32

Daughter 1/2 increased to (3/4 of 7/8) or 21/32

We find that after application of the doctrine of return the respective shares of the widow, mother
and daughter come out to be 4/32, 7/32 and 21/32 the, sum total of which is unity. This also
indicates that the calculation is mathematically correct.

(5) A Sunni Muslim dies leaving his (a) widow (b) mother (c) uterine sister and (d) uterine
brother. Thus normal shares of each of them may be given as under:

Widow 1/4 (without children)

Mother 1/6 (because there is one uterine brother + one uterine sister).

Uterine sister 1/6 (single)

Uterine brother 1/6 (single)

9/12

The sum total of normal shares is less than unity which indicates that there remains a surplus
property; therefore, the doctrine of return is to be applied. Leaving apart 1/4 share of the widow
who does not participate in return‘ we get 3/4 property which is to be distributed among mother,
uterine brother and the uterine sister.

The ratio of the normal shares of mother, uterine sister and uterine brother is 1/6: 1/6: 1/6 i.e. 1:
1: 1. In other words, according to this ratio any property is to be divided equally among them.
Thus if the property is one, each would get 1/3.

But the property which is available for distribution among mother, uterine brother and uterine
sister is 3/4. Accordingly, after application of the doctrine of return, the respective shares are:

Widow 1/4 or 3/12

Mother 1/6 increased to (1/3 of 3/4) = 3/12

 Page 148 of 182

Uterine sister 1/6 increased to (1/3 of 3/4) = 3/12

Uterine brother 1/6 increased to (1/3 of 3/4) =3/12

12/12

(6) The surviving heirs of a Sunni Muslim are (a) widow, (b) mother and (c) two son‘s
daughters. Their respective Quranic shares are as under:

Widow 1/8 (with children)

Mother 1/6 (with children)

Two son‘s daughters 2/3 (collectively)

23/24

As the sum total of normal shares is less than unity, the doctrine of return is to be applied.
Keeping apart the widow‘s share (1/8) there remains 7/8 property which is to be divided among
mother and the two son‘s daughters in the ratio of 1/6: 2/3. The ratio of mother and son‘s
daughter‘s share may be calculated as under:

1/6 + 2/3 or 1/6 + 4У6 = 5/6

This means that if the property is 5 the mother and the two son‘s daughters would get 1/5 and
4/5, respectively. But, after deducting widow‘s share (1/8) we have 7/8 property which is to be
distributed among mother and son‘s daughters. Thus, after the application of the doctrine, finally
the shares are:

Widow 1/8 or 5/40

Mother 1/5 of 7/8 = 7/40

Two son‘s daughter 4/5 of 7/8 = 28/40

40/40 = 1

(7) A Sunni Muslim dies leaving (a) widow, (b) full sister and (c) consanguine sisters. Their
normal Quranic shares are as under:
 Page 149 of 182

Widow 1/4

Full sister 1/2

Consanguine sister 1/6

11/12

The sum total is less than unity; therefore, the doctrine of return is applied. Widow 1/4 or 4/16

Full sister 1/2 increased to (3/4 of 3/4) =9/16

Consanguine sister 1/6 increased to (1/4 of 3/4) = 3/16

It may be noted that in the above mentioned illustrations among the heirs, one heir is either
husband or widow of the propositus. As the husband and widow do not participate in return, their
shares have been left apart and the remaining property has been distributed among the other heirs
in the ratio of their initial shares. In the following illustrations, there is neither husband nor
widow among the surviving heirs of the propositus.

(8) A Sunni Muslim dies leaving (a) mother; (b) daughter and (c) son‘s daughter as the surviving
heirs. Let us allot their respective normal shares.

Mother 1/6

Daughter 1/2

Son‘s daughter 1/6

5/6

As the sum total is less than unity, the doctrine of Return is to be applied. Now, in this
illustration, there is neither husband nor widow. Therefore, none of the heir has to be kept apart
for purposes of return; all the heirs would get the surplus (1/6) property.

This means that if we distribute the whole property (i.e. 1) among all the heirs in the ratio of 1/6:
1/2: 1/6 the whole property would be exhausted and there would be an automatic increase in the
share of each heir. For calculating the ratio of the shares, the following method is adopted:
 Page 150 of 182

1/6 + 1/2 + 1/6 or 1/6 + 3/6 + 1/6 = 5/6

Now, making the sum of numerators (i.e. 5) as the common denominator we find that if the
property is 5 the mother‘s share would be 1/5, and the daughter‘s share would be 3/5 and the
son‘s daughter‘s share would be 1/5. As the property to be distributed among them is one, the
respective shares are as under:

Mother 1/5 of 1 = 1/5

Daughter 3/5 of 1 = 3/5

Son‘s daughter 1/5 of 1 = 1/5

5/5

(9) Mother, full sister and uterine brother are the legal heirs of a Sunni propositus. The allotment
of their Quranic shares is given below:

Mother 1/6 (because there is one brother + one sister)

Full sister 1/2

Uterine brother 1/6

5/6.

(10) The only surviving heris of a Sunni Muslim are (a) mother and (b) a son‘s daughter. Their
normal shares are:

Mother 1/6

Son‘s daughter 1/2

4/6

As the sum total is less than unity, the doctrine of return is to be applied. The ratio of the shares
may be calculated as under:

1/6 + 1/2 or 1/6 = 3/6 = 4/6

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Accordingly, the ratio of the shares of mother and son‘s daughter is 1: 3 or 1/4 and 3/4,
respectively. As the property is one, the final shares, after application of the doctrine of return,
are given, below:

Mother 1/4 of 1 = 1/4

Son‘s daughter 3/4 of 1 = 3/4

4/4 = 1

(11) A Sunni Muslim dies leaving behind (a) full sister, (b) a consanguine sister and (c) a uterine
sister. The shares may be allotted as under:

Full sister 1/2

Consanguine sister 1/6 Uterine sister 1/6

5/6

The sum total of shares being less than unity, doctrine of return is applicable. The ratio of the
shares of each heir is 1/2: 1/6: 1/6 or 3/6: 1/6: 1/6. The total of numerators is 3+l+l=5. Taking 5
as the common denominator, the ratio is 3: 1: 1 or 3/5, 1/5, 1/5. As, all the heirs are participating
in return the whole (i.e., 1) property may be distributed among these heirs in the above ratio.
Finally, the respective shares come out to be:

Full sister 3/5 of 1 = 3/5

Consanguine sister 1/5 of 1 = 1/5 uterine sister 1/5 of 1 = 1/5 =5/5

(12) The surviving heirs of a Sunni Muslim are (a) father‘s mother, (b) mother‘s mother and (c)
two daughters:
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The Residuaries: Class II Heirs:

The Residuaries constitute Class II of the heirs of a Sunni propositus. Where a propositus has no
Sharer at all, the whole property is inherited by the Residuaries. Secondly, if there are Sharers
but after giving the property to them, there remains a residue and among heirs there are also the
residuaries, the residue is distributed among such Residuaries.

It may be noted that in certain combinations the Sharers themselves are treated as Residuaries
e.g., daughter with son, sister together with brother. A father without children (of the propositus)
is treated as Residuary. It is significant to note that residuary heirs have no fixed share.

Their shares depend upon the amount of property left as residue which may vary from case to
case. The Residuaries may be from among the descendants, ascendants or collaterals. A list of
Residuaries and rules relating to their inheritance is given below:

Descendants:
1. Son:
(i) When there is no daughter, the son takes the entire residue.

(ii) When the son is together with a daughter, the son gets double the share of daughter.

2. Son’s son h.l.s:

(i) Nearer son‘s son excludes the remoter,

(ii) Two or more sons‘s sons inherit equally,

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(iii) Son‘s daughter together with son‘s son becomes Residuary but the son‘s son gets double the
share of Son‘s daughter.

Ascendants:
3. Father:
As a Residuary, the father gets the entire residue.

4. True Grandfather:
A true grandfather also takes the entire, residue but a nearer true grandfather excludes the
remotor.

Collaterals: Descendants of Father:

5. Full Brother:
(i) If there is no full sister, the full brother inherits the entire residue.

(ii) If there is also a full sister, the full brother inherits with her but his share is double the share
of a sister.

6. Full Sister:
In the absence of full brother and other Residuaries enumerated in the preceding lines from(l) to
(4), the full sister is treated as Residuary provided there is (1) daughter(s) or (2) son‘s daughter
h.l.s. or (3) one daughter and a son‘s daughter h.l.s.

7. Consanguine Brother:
A consanguine brother inherits together with consanguine sister but the share of consanguine
brother is double the share of consanguine sister.

8. Consanguine sister:
In the absence of consanguine brother and any of the Residuaries given above from

(1) to (6) the consanguine sister is treated as Residuary and takes the residue provided there is (1)
daughter(s) or (2) son‘s daughter(s) h.l.s. or (3) one daughter and a son‘s daughter(s) h.l.s.
 Page 154 of 182

9. Full Brother’s sons:

10. Consanguine Brother‘s son In default of the abovementioned

11. Full Brother‘s Son‘s son Residuaries they take entire residue

12. Consanguine Brother‘s Son‘s son in order of priority.

Collaterals: Descendants of T.G. F:

13. Full paternal uncle

14. Consanguine paternal uncle

15. Full paternal uncle‘s son

16. Consanguine paternal uncle‘s son

17. Full paternal uncle‘s son‘s son

18. Consanguine paternal uncle‘s son‘s son Distribution of property among Residuaries

Where Residuaries are the only legal heirs of a propositus the whole property is distributed
among them. If all the Residuaries are males, the property is divided among them equally. But, if
the Residuaries include also females, the property is divided in such a manner that share of a
male is double the share of a female.

Where, among the legal heirs of a propositus there are Sharers and Residuaries both, the whole
property is not given to the Residuaries. In such circumstance the specific shares of the Sharers
are allotted first and, the remaining property is distributed among the Residuaries. The
distribution of property among Residuaries may be understood with the help of following
illustrations.

(1) A Sunni Muslim dies leaving a son and a daughter. Here, we find that daughter is a Sharer
but because she is together with son, she is treated as Residuary. As there are no other heirs, the
whole property is to be given to the son and the daughter.

But it is to be given to them in such a manner that share of a son is double the share of daughter.
In other words, the ratio of the share of son (male) and daughter (female) is to be 2: 1. That is to
say 2/3 and 1/3. Thus, the respective shares of the son and daughter are:
 Page 155 of 182

Son 2/3 of 1 = 2/3

Daughter 1/3 of 1 = 1/3

3/3

(2) The only heirs of a Sunni Muslim are (a) two sons and (b) three daughters. For determining
the ratio of males and females, following simple formula may be applied.

(Number of males) x 2 + (Number of females) = X

Now, making X as the denominator and number of males and the number of females as the
numerators, the shares of males and females may be obtained.

Thus, in the present illustration.

2 (i.e. number of males) x 2 + 3 (i.e. number of females) or, 4 + 3 = 7 accordingly, the shares are

Two sons All (share of each son being All x 1/2 = 2/7)

Three daughters 3/7 (share of each daughter being 3/7 x 1/3 = 1/7)

(3) The only heirs of a Sunni propositus are (a) Son‘s son and (b) son‘s daughter. In this case,
although son‘s daughter is a Sharer but she is together with son‘s son, therefore, she is treated as
Residuary.

No. of male x 2 + No. of females = 3 Son‘s son 2/3

Son‘s daughter 1/3

(4) A Sunni Muslim dies leaving her (a) husband, (b) mother, (c) son, and (d) daughter. In this
case, we find that heirs of the deceased include Sharers as well as Residuaries. Their normal
shares are given below:

Husband 1/4 (Sharer)

Mother 1/6 (Sharer)

Son
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Residuaries

Daughter

After giving the property to husband and mother, there remains some residue which is 1 – (1/4 +
1/6) = 7/12. This 7/12 residue is to be distributed between son and daughter in the ratio of 2: 1.
That is to say the son and daughter would get 2/3 and 1/3, respectively if property is 3. But, here
the residue is only 7/12. Therefore, in this residue, the son and daughter would get (2/3 of 7/12)
and (1/3 of 7/12), respectively. Finally, the shares of the legal heirs are as under:

Husband 1/4 or, 9/36

Mother 1/6 or, 6/36

Son (2/3 of 7/12) = 14/36

Daughter (1/3 of 7/12) = 7/36

(5) The only heirs of a Sunni propositus are (a) mother and (b) father. Their respective shares
are:

Mother 1/3 (Sharer)

Father _ 2/3 (Residuary without children)

(6) Where the only heirs are (a) daughter and (b) father, the shares are :

Daughter 1/2 (Sharer)

Father 1/6 (Sharer) + 1/3 (Residuary)

Here, we find that daughter and father both are Sharers and as such get their definite Quranic
shares 1/2 and 1/6 respectively. But, there still remains a residue of 1/3. This 1/3 is given to
father as Residuary. As is evident from this illustration, a father inherits in double capacity when
he is together with daughter or son‘s daughter.

(7) However, where the father is together with son or son‘s son, he inherits only as Residuary. In
such cases he does not inherit in double capacity.
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Father 1/6 (Sharer)

Son (or son‘s son) 5/6 (Residuary)

(8) The heirs of a Sunni propositus are (a) husband, (b) mother, (c) brother, and (d) sister. Here,
except brother, all the heirs are Sharers. But, sister together with brother is treated as Residuary.
Therefore, after allotting the shares of husband and mother, the residuary (1/3) is divided among
the brother and sister in a ratio of 2: 1.

Husband 1/2 (Sharer, without children)

Mother 1/6 (Sharer, with one brother + one sister)

Brother 2/3 of 1/3 = 2/9

Residuary Sister 1/3 of 1/3 = 1/9

For uniformity, we may have a common denominator and the respective shares may be given as
under:

Husband 1 /2 or 9/18

Mother 1/6 or 3/18

Brother ‗2/9 or 4/18

Sister 1/9 or 2/18

18/18= 1

(9) The heirs of a Sunni propositus are (a) widow, (b) mother and (c) paternal uncle. Here,
widow and mother are Sharers but paternal uncle is a Residuary. Therefore the residue goes to
him:

Widow 1/4 (Sharer)

Mother 1/3 (Sharer)

Paternal uncle 1 – (1/4 + 1/3) = 5/12 (Residuary)

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(10) The heirs of a Sunni propositus are (a) full sister, (b) consanguine sister, (c) mother and (d)
brother‘s son. Here, the first three heirs are the Sharers but the last one is a Residuary.

Full sister 1/2

Consanguine sister 1/6 Mother 1/6

Brother‘s son 1 – (1/2 + 1/6 + 1/6) = 1/6 (Residue)

The Distant Kindreds:

Class III Heirs:
In the absence of Sharers and Residuaries, the properties devolve upon the Distant Kindreds or
the Uterine Heirs of the propositus. However, there is an exception to this general rule. Where
the only heirs are the husband (or widow) and the Distant Kindreds, the Distant Kindreds get the
residue after allotment of share to husband (or widow).

In other words, normally the Distant Kindreds are excluded by Sharers and Residuaries but in the
exceptional, situation; the Distant Kindreds are entitled to inherit together with a Sharer husband
(or widow).

Classification of Distant Kindreds

The Distant Kindreds are classified into four classes, given below in the order of priority:

Class I.

Descendants of the propositus other than Sharers and Residuaries. In this class following
relations are included:

(i) Daughter‘s children and their descendants.

(ii) Children of son‘s daughter h.l.s. and their descendants.

Class II.

Ascendants of the parents of propositus other than Sharers and Residuaries. This class comprises
of:
 Page 159 of 182

(i) False grandfather h.h.s.

(ii) False grandmother h.h.s.

Class III. Descendants of the parents of propositus other than Sharers and Residuaries. This class
of Distant Kindreds consists of:

(i) Full brother‘s daughter and her descendants.

(ii) Consanguine brother‘s daughter and her descendants.

(iii) Uterine brother‘s children and their descendants.

(iv) Daughters of full brother‘s son‘s h.l.s. and their descendants.

(v) Daughters of consanguine brother‘s son‘s h.l.s. and their descendants.

(vi) Sister‘s (full, consanguine or uterine) children and their descendants.

Class IV. Descendants of ascendants h.h.s. other than Residuaries. This class includes
descendants of immediate grandparents (true or false) and the descendant of remoter ancestor‘s
h.h.s. (true or false).

The descendants of immediate grandparents are given below:

(i) Full paternal uncles‘ daughter and their descendants.

(ii) Consanguine paternal uncle‘s daughters and their descendants.

(iii) Uterine paternal uncles and their children and their descendants.

(iv) Daughters of full paternal uncle‘s son‘s h.l.s. and their descendants.

(v) Daughters of consanguine paternal uncle‘s son‘s h.l.s. and their descendants.

(vi) Paternal aunts (full, consanguine or uterine) and their children and descendants.

(vii) Maternal uncles and aunts and their children and their descendants.
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After these Distant Kindreds, follow the descendants of remoter ancestors how high soever (true
or false).

Distribution of property among Distant Kindreds

As discussed earlier, the Distant Kindreds, or the uterine heirs, have been included in four
classes. Class I excludes Class II, Class II excludes Class III and Class III excludes Class IV.
Within a particular class or group of Distant Kindreds, the distribution of property is according to
following principles:

Class I: Descendants:
In this class, the order of priority is:

(i) Daughter‘s children.

(ii) Son‘s daughter‘s children.

(iii) Daughter‘s grandchildren, and

(iv) Son‘s son‘s daughter‘s children and the remoter heirs.

It is to be noted that heirs of a group are entitled to inherit strictly according to the order of
succession given above. That is to say, relations in (ii) above may inherit only in absence of
relations in (i) and so on. Allotment of the shares among Distant Kindreds of this class
(descendants) is made in accordance with the following rules:

Rule (1):
Where the intermediate ancestor of the claimants are of similar sex, the property is divided
among them as per capita subject to the general rule that share of a male is double the share of
female. For example, if the Distant Kindreds are (a) daughter‘s son (b) daughter‘s daughter, the
sex of intermediate ancestor of both of them is the same.

But, as the claimants themselves differ in sex, therefore, the property is distributed among the
male and female claimants in the ratio of 2: 1.
 Page 161 of 182

Similarly, where the Distant Kindreds are (a) daughter‘s son‘s son and (b) daughter‘s son‘s
daughter, the estate would devolve as under:

Here the intermediate ancestor of the claimants is son. The property is to be divided between the
claimants in the ratio of 2: 1 as they differ in sex.

Rule (2):
Where the intermediate ancestor of the claimant (distant kindred) differs in sex, the property is
distributed according to following rules:

(a) When there are two Distant Kindreds one claiming through one line and the other claiming
through another line then, the following method is applied. Beginning from propositus, one has
to stop at the first line of descent in which the sexes of intermrediate ancestors is different.

At this stage, the shares are allotted to these ancestors. Now, the same shares descend to the
claimants. For example, the Distant Kindreds are (a) daughter‘s son‘s daughter and (b)
daughter‘s daughter‘s son.
 Page 162 of 182

Here, we find that ancestors differ in their sex in the second line. At this stage we have to divide
the property among son and daughter in the ratio of 2: 1. Now, the descendant of son would get
son‘s share and the descendant of daughter would get her share. Thus, the daughter‘s son‘s
daughter would get 2/3 and daughter‘s son would get 1/3.

(b) When there are three or more Distant Kindreds claiming through different line of descent, the
rule is to stop at the stage where the sexes of the intermediate ancestor differ and to assign the
shares to male and female ancestors in the ratio of 2: 1; but unlike (a) above the individual share
of each ancestor does not descend to his or her descendants.

The collective share of all the male ancestors will be divided among all the descendants claiming
through them, and the collective share of all the female ancestors will be divided among their
descendants. This rule may be illustrated by the following example. A Muslim dies leaving (a)
daughter‘s son‘s daughter (b) daughter‘s daughter‘s son and (c) daughter‘s daughter‘s daughter.

Here, the ancestors differ in sexes in the second line of descent. In this line we find one male and
two females. Applying the general rule that share of a male is double the share of a female, we
may distribute the property at this stage. Thus we find that shares of the ancestors of this line are
as under:
 Page 163 of 182

Now, we find that in the II line of descent, the son (i.e. daughter‘s son) stands alone, therefore
his share (1/2) descends to his daughter (i.e. daughter‘s son‘s daughter). Again, we find that the
collective share of two daughters is 1/2. This property is to be divided among the son (daughter‘s
daughter‘s son) and the daughter (daughter‘s daughter‘s daughter) in the ratio of 2: 1. Thus,
finally the shares are:

Daughter‘s son‘s daughter 1/2 or 3/6

Daughter‘s daughter‘s son 2/3 of 1/2 = 2/6

Daughter‘s daughter‘s daughter 1/3 of 1/2 = 1/6

Class II: Ascendants:

In the absence of Distant Kindreds of Class I, the estate devolves upon Class II of the Distant
Kindreds which consists of the ascendants of the propositus. The property is distributed among
the Distant Kindreds of this group in the following order of succession:

(i) Mother‘s father.

(ii) Father‘s mother‘s father and monther‘s mother‘s father in the ratio of 2: 1.

(iii) Mother‘s father‘s father and mother‘s mother‘s father in the ratio of 2: 1.

The property among the above mentioned relations is distributed in accordance with the
following rules:

Rule (1):
The heir who is nearer in degree excludes the remoter heir.

Rule (2):
Among the claimants of the same degree, those connected with the propositus through sharers
are preferred over those who are connected through Distant Kindreds.

Rule (3):
Where the claimants belong to the paternal as well as to maternal side, 2/3 is assigned to the
paternal side and 1/3 to the maternal side. Thereafter, the share assigned to the paternal side (2/3)
is divided among the ancestors of the father and the share assigned to the maternal side (1/3) is
divided among the ancestors of the mother.
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Class III: Collaterals: Descendants of Parents:

The descendants of brothers and sisters, who are neither Sharers nor Residuaries, are included in
Class III of the Distant Kindreds. In the devolution of estate among the heirs of this class,
following rules are applicable:

Rule (1):
The nearer in degree excludes the remoter. For example, the children of the brothers and sisters
being nearer in degree exclude the grand children of such brothers and sisters

Rule (2):
Where the claimants belong to the same degree of relationship, the children of Residuaries are
preferred to the children of Distant Kindreds. Thus, a brother‘s son‘s daughter (i.e. child of the
Residuary, brother‘s son) is preferred to sister‘s daughter‘s son (i.e. child of a distant
kinswoman, sister‘s daughter).

Rule (3):
Among the claimants of the same degree of relationship [who are not excluded under Rule (2)
above], the descendants of full brother exclude the descendants of consanguine brothers and
sisters.

However, the descendants of full sisters do not exclude the descendants of consanguine brothers
and sisters and get the residue. The descendant of full or consanguine sisters also does not
exclude the descendants of the uterine brothers and sisters. They inherit simultaneously.

Class IV: Collaterals: Descendants of Ascendant h.h.s:

This category of Distant Kindreds consists of uncles (or aunts) and the descendants of the uncle
and aunts. It may be noted that practically the cases relating to the devolution of estate among the
Distant Kindreds of this class are rare.

A detailed account of the rules of distribution of estate among the heirs of this category has,
therefore, been avoided. However, a curious student may find full treatment of the rules of
distribution of estate among the heirs of this complicated class of Distant Kindreds in authorities
like Mulla, Tyabji and Wilson.
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CHAPTER - XIV

SHIA LAW OF INHERITANCE

The most authoritative text book of the Shia law of inheritance is Sharaya-ul- Islam.

Division of heirs:-

The Shia law divides the heirs into two groups, namely,

1. Heirs by affinity, that is by marriage (husband and wife)

2. Heirs by consanguinity, that is by blood relations.

Heirs by affinity:-

The husband and wife are comes under this group. They never exclude from inheritance, but he
or she inherits together with nearest heirs by consanguinity. The husband takes1/4 or 1/2 as the
case may be and wife takes 1/8 or 1/4 as the case may be (see on the table of sharers).

Heirs by consanguinity:-

Heirs by consanguinity are divided into three classes and then each class is divided into two
sections. These are:-

I. (1) Parents;

(2) Children and their lineal descendantsh.l.s.

II. (1) Grand parentsh.h.s. (True as well as false)

(2) Brothers and sisters and their descendantsh.l.s

III (1) Paternal uncles and aunt of the deceased and of his parents and of his grand

parentsh.h.s and their descendants h.l.s

(2) Maternal uncle and aunt of the deceased and of his parents and of his grand

parents h.h.s and their descendants.

Of these three classes of heirs, the first class exclude the second class from inheritance and the
second class exclude the third class from inheritance. But at the same time the two sections in
each class inherit together. In each section the nearer in degree exclude the remoter in degree in
that section.

For the purpose of determining the share of heirs, the Shia law divides the heirs into two
classes, namely
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1. Sharers

2. Residuaries. There is no Distant kindred like that of the Sunni law.

The sharers are nine in numbers. The descendants of the sharers are also Sharers.

All heirs other than sharers are Residuaries. The descendants of Residuaries are Residuaries.
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CHAPTER-XV

CHRISTIAN LAW OF INHERITANCE OR INTESTATE SUCCESSION

Chapter II of the Indian Succession Act, 1925 deals with intestate succession and this
chapter apply to Europeans and Indian Christians only. Sections 31 to 49 of this Act are deals
with rules which lay down the schemes for allotment of shares of the next of kin of the deceased
in cases of intestacy.

General principles of Intestate Succession

1. Under section 31, this chapter shall not apply to Parsi.

2. Under section 32, for devolution of property, the property of an intestate devolves upon the
wife or husband as the case may be, or upon those who are of the kindred of the deceased, in the
order and according to the rules, which are specified in the chapter II of the part V of this Act.

The chapter II of the part V of the Indian succession Act, 1925 deals with the following
types of devolutions

1. Rules of Devolution of property for widow (section 33)

2. Rules of Devolution of property for Lineal Descendants (section 33and 34 to 40 )

3. Rules of Devolution of property for Father (section 41 and 42)

4. Rules of Devolution of property for Mother, Sisters or brothers and children of

deceased brothers or sisters (section 41 and 43 to 47)

5. Rules of devolution of property for other kindred other than above (sec. 48, 49)

RULES OF DEVOLUTION OF PROPERTY FOR WIDOW (SECTION 33)

The following are the rules for distribution of estate to widow after the death of her husband.

(i). Where the intestate has left his widow along with lineal descendants, one- third of property
shall belongs to his widow and the remaining two- third shall go to his lineal descendants
according to the rules specified in chapter II.

(ii). Where the intestate has left a widow but no lineal descendants, and but he has left kindred,
one-half of his property shall belongs his widow, and the remaining one-half go to kindred in the
order and rules specified in chapter II.
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(iii). Where the intestate has left widow only, but no lineal descendants and no kindred, the
whole of his estate shall belongs to his widow,

Special Provision for Christian Wife Other than Indian Christian (section 33A): -

(i). Under section 33A, where the intestate has left a widow, but no lineal descendants and
the net value of his property does not exceed Rs. 5000 , the whole of his property shall belong to
the widow.

(ii). Where the net value of the property exceeds the sum of Rs 5,000, the widow shall be
entitled to five thousand rupees there of and shall have a charge upon the whole of such property
for such sum of Rs 5,000, with interest at 4% per annum until payment .

(iii). The widow‘s right shall be in addition and without prejudice to her interest and share in
the residue of the estate after payment of Rs 5,000.

(iv). The residue of the estate after payment of Rs 5,000, shall be distributed according to
rules.

(v). The net value of the property shall be ascertained by deducting the following payment
from gross value of the property.

 Debt
 Funeral expenses.
 Administration expenses of the intestate.
 Other lawful liabilities and charges.

WIDOWER: - It a female Christian dies left her husband, the husband has the same right in her
property as the widow has in respect of her husband‘s property. (Section 35)

RULES OF DEVOLUTION OF PROPERTY FOR LINEAL DESCENDANTS

(i). Under section 33, where the intestate has left widow and lineal descendants, the lineal
descendants succeed two third of the property and one third to widow.

(ii). Under section 37, where the intestate has left surviving him a child or children, but no
remote lineal descendant through predeceased child, the property shall becomes to his surviving
child , if there is only one or the property shall be equally distributed among his surviving
children. (child not denotes illegitimate child)

(iii). Under section 38, where the intestate has not left surviving any child, but has left
grand child or grand children and no remote lineal descendants through predeceased grand child,
the property shall belong to his surviving grand child, if there is only one, or, the property shall
be equally distributed among his surviving grand children if there are two or more grand
children.
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(iv). Under section 39, where the intestate has left no child or grand child, but has left great
grand child or great grand children, but no remote lineal descendants through predeceased great
grand children, the property shall belong to his surviving great –grand child, if there is only one,
or the property shall be equally distributed among surviving great grand children if there are two
or more great grand children.

(v). Where the intestate left no child, grand child or great grand child but left remote lineal
descendants, in the same degree, the above rules also applies.

(vi). If the intestate has left lineal descendants, who do not all stand in the same degree of the
kindred to him, the property shall be distributed according to principles of the representation –
(section 40)

Illustrations: -

(i). A had three children, John Mary and Henry; John died leaving four children. And Mary
died leaving one and Henry alone survived the father. On the death of the A, one-third of his
property is allotted to Henry, and one-third to John‘s four children, and the remaining one-third
to Mary‘s one child.

(ii). A left no child, but left eight grand children and two children of a deceased grand children.
The property is divided into nine parts, one of which is allotted to each grandchildren and the
remaining one-ninth is equally divided between the two great grandchildren.

(iii). A has three children, John, Mary and Henry. John dies leaving four children and one of the
Johns‘s children dies leaving two children. Mary dies leaving one child. A afterwards dies
intestate. One-third is divided into four parts, one of which is allotted to each of John‘s three
surviving children, and the remaining part is equally divided between John‘s two grand children.

(iv). A has two children, John and Mary. John dies before his father, leaving his wife pregnant.
Then A dies leaving Mary surviving him, and in due time a child of John is born. A‘s property is
to be equally divided between Mary and the posthumous child.

RULES OF DEVOLUTION OF PROPERTY FOR FATHER

(i).Where the intestate has left widow and kindred but does not left any lineal descendants, one
half of his property shall belong to his widow and the other half shall belong to kindred. (Section
33)

(ii).Under section 42, where the intestate has left widow and father but no lineal
descendants, one half of his property belongs to father.

(iii).Under section 42, where the intestate has left father only but no widow or lineal
descendants, the whole of his property belongs to father.
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RULES OF DEVOLUTION OF PROPERTY FOR MOTHER, SISTERS OR

BROTHERS AND CHILDREN OF DECEASED BRORHER OR SISTER

Mother, sister or brother and children of deceased brother or sister inherit property
only in the absence of father and lineal descendants.

(i). Where the intestate has left widow and mother, but no father and Lineal descendants, one
half of the property shall belongs to mother.

(ii). Where the intestate has left mother only but no father, no widow or no lineal descendants,
whole of his estate shall belongs to mother.

(iii). Where the intestates has left widow, mother, brothers and sisters, but no lineal
descendants and father, the half of the property shall equally belongs to mother , sisters and
brothers .

(iv). Where the intestate has left mother, brothers and sisters but no widow, lineal descendant
and father , the whole property shall belongs equally to mother, sisters and brothers.

(v).Where the intestate has left widow, mother, brothers, sisters and children of deceased
brothers or sisters, the half of the estate shall divided equally among the mother, brothers, sisters
and living children of deceased brothers or sisters .The children of each deceased brothers or
sisters take equal shares of the property which have taken by their parent if living at the time of
the death of the intestate.

(vi).Where the intestate has left mother, brothers, sisters and children of deceased brothers or
sisters, the whole of his property shall be divided equally among mother, brothers, sisters and
children of deceased brothers or sisters. The children of the each predeceased brothers or sisters
take equal share of the property which would have taken by their parent if living at the time of
the death of the intestate.

(vii). Where the intestate has left widow, brothers or sisters, but no others, half of the estate
shall belongs to widow, brothers and sisters equally.

(viii). Where the intestate has left brothers or sisters but no others, whole of the property
belong to the brothers or sisters equally.

(ix). Where the intestate has left widow, brothers, sisters and children of deceased brothers or
sisters, the half of the estate shall divided equally among the brother, sister and living children of
deceased brothers or sisters. The children of each deceased brother or sister take equal shares of
the property which have taken by their parent if living at the time of the death of the intestate.

(x). Where the intestate has left brother, sister and children of brother or sister, the whole of the
property shall be equally divided among brothers, sisters and children of brothers or sisters. The
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children of brothers and sisters take equal shares of the property which have taken by their parent
if living at the time of the death of the intestate.

(xi). Where the intestate has left widow and children of brothers or sisters, the half of the
property shall be divided among the children of brothers or sisters according to the principle of
the representation.

(xii). Where the intestate has left children of brothers or sisters, the whole of the property
divided among them according to the principle of the representation.

DEVOLUTION OF PROPERTY TO OTHER KINDREDs

Section 48 deals with devolution of property to other kindreds. This section runs as follows:-

Where the intestate has left no lineal descendants no parents, no brothers, no sisters, his
property shall be divided equally among those of his relatives who are in the nearest degree of
kindred to him.

Illustrations:-

(1). A, the intestate, has left a grand-father, and a grand-mother and no other relative standing in
the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled
to the property in equal shares, exclusive of any uncle or aunt of the intestate, uncles and aunts
being only in the third degree.

(2). A, the intestate has left a great-grandfather, or a great-grandmother, and uncles and aunts,
and no other relative standing in the same or nearer degree of kindred to him. All of these being
in the third degree will take equal shares.

(3). A, the intestate, has left a great-grandfather, and uncle and a nephew, but no relative
standing in the same or nearer degree of kindred to him. All of these being in the third degree
will take equal shares.

(4). Ten children of one brother or sister of the intestate, and one child of another brother or
sister of the intestate, constitute the class of the relative of the nearest degree or kindred to him.
They will each take one-eleventh of the property.

Children‘s advancements not brought into hotchpots:-

Where a distribute share in the property of a person who has died intestate is claimed by a child,
or any descendant of a child of such person, no money or other property which the intestate may,
during his life, have paid, given or settled to, or for the advancement of, the child by whom or
whose descendant the claim is made shall be taken into account in estimating much distributive
share.
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CHAPTER - XVI

LAW OF PRE-EMPTION :-( Shuffa)

The right of per-emption or Shuffa is a right which the owner of an immovable property
possesses to acquire by purchase of another immovable property which had been sold to another
person. It is a right of institution and not of re-purchase. The object of this right is that the right
to maintain privacy and prevent strangers to come in neighbor or in a family.

In GovindDayal vs. InayatUllah, Mohammad. J. has defined it ―as a right which the
owner of certain immovable property possessed as such for the quite enjoyment of that
immovable property to obtain in substitution for the buyer‘s proprietary possession of certain
other immovable property, not his own, on such terms as those on which such latter immovable
property is sold to another person.

Example of pre-emption

‗A‘ is the owner of ―X‖ property and ‗B‘ is the owner of an adjacent property ―Y‖. Neither
A nor B can in certain circumstances sell their property to stranger in preference to the right of
the other to acquire it by purchase. In such a case, if A sells it to C, and B claims the right of
being the in preference to C, then B is said to have exercised this right of pre-emption, and will
be entitled to do so on his paying the price for which is was sold to C.

From the example, it will be seen that the right of pre–emption is not a right of re purchase
either from the vendor or from the vendee but it is simply right of substitution entitling B, by
reason of his being the owner of the adjacent property, to stand in the shoes of C, and claim the
right to be the purchaser. That being so, the Bombay High Court has recently held that the right
of pre-emption is an incident to property and not a right of re purchase, as if had held formerly.

Application of the right of pre-emption

The Mohammedan law of pre-emption is applied by the courts in India to Mohammedan as a

matter of justice, equity and good-conscience except in the Madras Presidency where the right of
pre-emption is not recognized it unless by local custom as in Malabar.

The main reason given by the Madras High court in the earliest case on the subject for
refusing to recognize the right is that the law of pre-emption upon the liberty to transfer property,
and is therefore opposed to Justice, Equity and Good-conscience. The right of pre-emption in
that case was claimed on the ground of vicinage- Ibrahim vs. Muni Mir Udin.

Ground for Justification;-

Mr. Kashi Prasad Saxena in his book on ―Muslim Law as administered in India and Pakistan‖
gives the following grounds of justification for the right of pre-emption:
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1. The hardship and inconvenience of a joint owner would be greater than those of a stranger
vendee, and in having him as his participator; it may happen that he may be required to abandon
his property.

2. The democratic conception underlying the Muslin Law of inheritance tends disintegrates the
family property and the law of pre-emption considerably mitigates the evil.

3. Sharaya-ul-Islam has allowed this right, as division would cause loss and damage.

4. The Hedaya has given recognition to the right of pre-emption to prevent apprehended

Inconveniences.

5. It prevents the vexation arising from a disagreeable neighbour.

Right of pre-emption by virtue of a contract

The right of pre-emption may be created by a contract between the shares in a village and in
constructing the terms of such a contract, the court will effect to the intention of parties. In the
absence of a contract to the contrary, a contract for pre-emption will be governed by Hanabi
Law, and all formalities are to be observed before a valid claim for pre-emption is made.

A Mohammedan vendor may agree with a Hindu purchaser that the Mohammedan law of pre-
emption applying between vendor and co-sharer also a Mohammedan should be applicable to the
purchaser. Where such a contract is entered into, and the vendor informs his co-sharer about it,
and the co-sharer makes the demands as required by law, he is entitled to pre-emption against the
purchaser, though may be a Hindu.

Persons claiming the right of pre-emption

1. Under the Sunni Law, the right of pre-emption can be claimed by the following three
categories of persons:

1. A co-sharer in the property [ shafi-i-sharik]

2. A participator in immunities and appendages, such as a right of way or a

right to discharge water [shafi-i-khalit]

3. Owner of adjourning immovable property [shafei-i-jar], but not their tenants

nor person in possession of such property without any lawful title

The first class exclude the second and the second class exclude the third class, but when there is
two or more pre-emptor belonging to the same class, they are entitled to equal share of the
property in respect of which the right is claimed.
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Exception to the law of pre-emption

1. The right of pre-emption on the third ground, viz, that of vicinage does not extend to estate of
large magnitude, such as villages and zamindars, but is confide houses, gardens and a small piece
of land. The right, however, may be claimed by a co-sharer.

2. Under Shia Law, the right of pre-emption is restricted only to co-sharers and that also where
their number is two. It does not recognize the right on the ground vicinage or on the ground of
participants in appendages.

3. Under Shafei Law, the right of pre-emption is restricted only to co-sharers.

Whether buyer, pre-emptor and vendor be Muslims

According to Allahabad and Patna High Court, it is not necessary that the buyer should be a
Muslim. According to Calcutta and High courts, the buyer must be a Muslim. All the High
Courts are, however, agreed that the seller and the pre-emptor should both be Muslims. If both
the vendor and pre-emptor belong to the Sunni school, the law of that school applies the law of
vendee being immaterial. According to Allahabad High Court when one of them is a Shia, the
Shia law will prevail. According to Calcutta High Court the law of the pre-emptor prevails in
case the vendor and the pre-emptor do not belong to the Sunni school of Muslim law.

Necessary formalities

The right of pre-emption arises only when the pre-emptor, on hearing of the transfer, makes the
following demands in the order given below:-

1. Talab-i-mawasibat or immediate demand (literally means demands by jumping) by which

he should declare his intention to assert the right immediately on receiving the information of
sale. Therefore the right of pre-emption must be asserted with the utmost promptitude. A delay
of twelve hours was held in an Allahabad case to be too long.

2. Talab-i-ishaad or demand with invocation of witnesses .When the right mentioned above
has been asserted, the pre-emptor should, with the least practicable delay, affirm his intention
either in the presence of the buyer or the seller or on the premises which is the object of sale, in
the presence of witness specifically called to bear witness to the demand being made. Reference
must be made to the demand already made, that is, to the talab-i-mawasibat.

3. Talab-i-tamilk or demand of possession by the person claiming pre-emption by which

he finally enforces his claim by a regular suit within the period prescribed, vide Indian
Limitation.(Sch.1, Art. 10)

Under the Shia law the distinction between talab-i-mawasibat and talab-i- ishaad is not
recognised; all that is necessary is that the pre-emptor should prefer his claim.
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Application of pre-emption.

1. If both the vendor and the pre-emptor are Sunnis, the Sunni law governs the rights of the
parties, and where both the parties are Shias, the right is determined by the Shia law.

2. If the vendor is a Sunni and the pre-emptor is a Shia, the right of pre-emption is governed
by the Shia law according to Allahabad and Hyderabad High court.

3. If the vendor is a Shia and the pre-emptor is a Sunni, then according to Allahabad and
Hyderabad High Courts, the right of pre-emption is governed If a Sunni
claims pre-emption on the ground that he is a sharer in appendages, he cannot oust a vendee who
is in the same position whether that vendee is Shia, Sunni or Hindu (9A.J.R.769).

There is no warrant for saying that the Shia law of pre-emption is a dead letter. In case of a sale
of property by a Shia to Hindu, a Sunni brought a suit to pre-empt, basing his title on prevailing
custom and Mohammedan law. It was found that a custom of pre-emption did not exist. It was
held that the Shia law of pre-emption was applicable and the Sunni had right to pre-empt. (Pir
khan v, faiyaz (1914)36 all 488), but according to Calcutta High court, it is governed by the
Sunni law (Jog deb v, Mohamed (1905) 32.

Difference between Sunni law and Shia law of pre-emption

1. There are three classes of pre-emptor according to Sunni law, viz., co-sharer in the
property, participator in immunities and appendages and the owner of adjourning immovable
property (vicinage). But the Shia law does not recognize the right of pre- emption on the ground
of participation in appendages and on the ground of vicinage. So it recognizes only the co-
sharer‘s pre-emption.

2. Under the Sunni law, the right of pre-emption is extinguished if the pre-emptor Dies
before obtaining decree. But according to Shia law, it is heritable and the heirs of the deceased
pre-emptor can proceed with the suit.

3. Under Sunni law, where the vendee has made any improvement after the sale, the pre-
emptor has option of taking them on payment of price, but under Shia law, the option lies first
with the vendee to remove them.

4. Under the Sunni law, the pre-emptor is entitled to any reduction in sale price of the
property if made by the vendor after the completion of the contract, but according to Shia law,
the pre-emptor has to take the property at the contract price.
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CHAPTER-XVII
Will under the Indian Succession Act 1925

The Indian Succession Act 1925

A Will is a document which ensures that your wishes with respect to your assets and property are
followed after your death.

There often arise problems and complications when a person dies without a Will. Yet we put off
making a Will, not realizing the predicament we put our family in, after our death. It's a little
effort that goes a long way. You will find the answers to the questions you may have had on
making your Will, registering it and other relevant information.

Definitions:
A Will is defined as "the legal declaration of the intention of the testator, with respect to his
property, which he desires to be carried into effect after his death." In other words, a Will or a
Testament means a document made by person whereby he disposes of his property, but such
disposal comes into effect only after the death of the testator.

Codicil
is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and
is deemed to be a part of the Will.

Executor
is the legal representative for all purposes of a deceased person (testator) and all the property of a
testator vests in him.

Legatee/Beneficiary
is a person who inherits the property under a Will.

Probate
is a copy of the Will, certified under the seal of a competent Court.

Testator
is a person making a Will and executing it

Essential Characteristics

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e. in
conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the
person making the Will.
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Death of the Testator: The declaration as regards the disposal of the property must be intended
to take effect after his death.

Revocability: The essence of every Will is that it is revocable during the lifetime of the testator.
People capable of making Wills are, Every person who is

 not a minor
 of sound mind
 free from fraud, coercion or undue influence

Forms and Formalities:

Form of a Will
There is no prescribed form of a Will. In order for it to be effective, it needs to be properly
signed and attested. The Will must be initialed by the testator at the end of every page and next
to any correction and alteration.

Language of a Will: A Will can be written in any language and no technical words need to be
used in a Will, however the words used should be clear and unambiguous so that the intention of
the testator is reflected in his Will.

Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A Will,
therefore, need not be made on stamp paper.

Attestation: A Will must be attested by two witnesses who must witness the testator executing
the Will. The witnesses should sign in the presence of each other and in the presence of the
testator.

Under Parsi and Christian law, a witness cannot be an executor or legatee. However, according
to Hindu Law, a witness can be a legatee. A Muslim is not required to have his Will attested if it
is in writing.

Registration: The registration of a document provides evidence that the proper parties had
appeared before the registering officers and the latter had attested the same after ascertaining
their identity. In India, the registration of Wills is not compulsory even if it relates to
immoveable property. The non-registration of a Will does not lead to any inference against the
genuineness of a Will. In other words, registration therefore does not give any special sanctity to
the Will though registration of the Will by the testator himself evidences the genuineness of the
Will.

Whether registered or not, a Will must be proved as duly and validly executed, as required by the
Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the Registrar
and therefore cannot be tampered with, destroyed, mutilated or stolen
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Procedure for Registration: A Will is to be registered with the registrar/sub-registrar with a

nominal registration fee. The testator must be personally present at the registrar's office along
with witnesses.

Revocation and Amendment: A Will can be revoked, changed or altered by the testator at any
time when he is competent to dispose of his property. A person can revoke, change or alter his
Will by executing a new Will, revoking the earlier Will, registering the new Will (if the old Will
is registered), destroying the old Will or by making a codicil. On the marriage of a Parsi or a
Christian testator, his/her Will stands revoked, this however does not apply to Hindus, Sikhs,
Jains and Buddhists.

Codicil:
A codicil is an instrument made in relation to a Will, explaining, altering or adding to its
dispositions and is deemed to be a part of the Will. A codicil has to be executed and attested like
a Will. A codicil is similar to a Will and is governed by the same rules as a Will.

Probate and Letters of Administration

Probate: A probate means a copy of the Will, certified under the seal of a competent Court with
a grant of administration of the estate to the executor of the testator. It is the official evidence of
an executor's authority. A probate is mandatory when the Will is executed by a Hindu, Christian
or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated
in Mumbai, Calcutta or Chennai.

Effect of grant of probates : A probate granted by a competent court is conclusive evidence of

the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a
proceeding to revoke the probate. However, it only establishes the legal character of the executor
and in no way decides the title or even the existence of the property devised. The grant of the
probate decides only the genuineness of the Will and the executors right to represent the estate.

 The grant of a probate is conclusive evidence of the testamentary capacity of the person
who made the Will.
 A probate is conclusive as to the genuineness of the Will and appointment of the
executors.
 Once a probate is granted, no suit will lie for a declaration that the testator was of
unsound mind.
 Probate is conclusive as to the representative title of the executor.

To whom probates can be granted: Under the Indian Succession Act, 1925, a probate can be
granted only to an executor appointed under a Will. However, it cannot be granted to a minor, a
person of unsound mind, or to association of individuals, unless it is a company that satisfies the
conditions stipulated by the government.
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When a probate can be granted: A probate cannot be granted until the expiration of seven days
from the date of the testator's death.

Letters of Administration: In the event a person dies intestate or a Will does not name any
executor, an application can be filed in the courts of law for grant of probate.

To whom Letter of Administratincan be granted: Under the Indian Succession Act, 1925, a
LoA can be granted to any person entitled to the whole or any part of the estate of the deceased
person. However, it cannot be granted to a minor, a person of unsound mind, or to association of
individuals, unless it is a company that satisfies the conditions stipulated by the government.

When can a Letterr of Administration can be granted: A LoA cannot be granted till the
expiration of fourteen days from the date of the testator's death.

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e. in
conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the
person making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be intended
to take effect after his death.

Revocability: The essence of every Will is that it is revocable during the lifetime of the testator.
People capable of making Wills are, every person who is:

 not a minor
 of sound mind
 free from fraud, coercion or undue influence

Executors:
An executor is a person who is appointed by a testator to execute his Will. In other words, an
executor is duty bound to distribute the assets of the testator as per the provisions of his Will. A
probate of a Will is granted only to an executor appointed by the Will.

Who can be an Executor: All persons capable of executing Wills can be executors. Even a
minor can be appointed an executor of a Will, but a probate cannot be granted to the minor until
he attains majority. A testator can appoint one or more executors. The appointment of an
executor may be absolute or for a limited purpose or limited time. An executor as such does not
derive any benefit under the Will, unless specifically provided for. However, as an executor has
vast powers and the property vests in the executor until it is finally distributed to the legatees, it
is therefore advisable to appoint a responsible and accountable person/institution such as a bank
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as an executor. The Executor is primarily appointed to manage the estate of the deceased for the
benefit of the beneficiaries/legatees under the Will.

Legal status of the Executor: The executor is the legal representative for all purposes of a
deceased person and all the property of the testator vests in him until the property is distributed
as per the provisions of the Will. The executor is entitled to represent the testator in any legal
action (not including criminal or defamatory proceedings). For example, an executor can sue for
recovery of the testator?s debts. It is only the legal estate of the deceased that vests in the
executor and the vesting is not of beneficial interest. The property vests in the executor only for
the purpose of representation and administration

Duties of an Executor:
 To ascertain the assets of the deceased person
 To pay testamentary and funeral expenses.
 To collect the debts and assets of the deceased.
 To pay the debts of the deceased.
 To apply for a Probate, whenever necessary.

According to the Indian succession Act there are basically two types of wills.

 Privileged Wills and

 Unprivileged Wills

Privileged Wills

Privileged will are the wills made by a soldier employed in an expedition or actual
warfare, or an airman so employed or engaged or a mariner at sea. Persons such employed
cannot be expected to have the resources and time for completing all the formalities required for
validation of the will, therefore they have been excused from such legal requirements and given
the privilege of making simpler wills.

Execution of privileged will

Privileged wills may be in writing, or may make by words of mouth.

The execution of privileged wills shall govern by the following rules:–

 The wills should be written wholly by the testator, with his own handwriting. In such
case it need not be signed or attested.
 It may write wholly or in part by another person, and signed by the testator. In such case
it need not attested.
 If the instrument purporting as wills written wholly or in part by another person and not
signed by the testator. The instrument shall deem as testators will, if shown that it was
written by the testator‘s directions or that he recognized it as his will.
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 If it appears on the face of the instrument that the execution of it in the manner intended
by the testator was not completed, the instrument shall not, by reason of that
circumstance, may invalid, provided that his non-execution of it can reasonably ascribed
to some cause other than the abandonment of the testamentary intentions expressed in the
instrument.

Unprivileged Wills

All other kinds of wills, which are not privilege wills are called unprivileged wills. These are the
wills that need or require certain conditions to be fulfilled for a valid will. These are the wills
commonly made by the peoples.

Execution of unprivileged will

 Testator shall sign or affix his mark to the will, or signed by other person in his presence
and according to his direction.
 The signature or mark of the testator, or the person signing for him, shall place that it
shall appear as it intended to give effect to the writing as a will.
 The will shall attested by two or more witnesses. Each of two seen the testator sign or
affix his mark to will or seen other person sign the will.
 The signing of the will should bein the presence of the testator and by the direction of the
testator,
 or has received from the testator a personal acknowledgment of his signature or mark,or
of the signature of such other person; andhence, each of the witnesses shall sign the will
in the presence of the testator.
 It shall not be necessary that more than one witness be present at the same time.

Registration of will

Registration of a wills may not be necessary. It is although a convenience for the law, but it does
not affect the wills as such. It is advisable to register the wills with the registrar where the
registrar then becomes the legal guardian of the wills, the document then becoming strong
evidence in law for the validity of the wills.

Succession Certificate

Succession certificate is a sanctioning document that sanctions the right to inherit debt
and securities to the legal heirs of the deceased who died intestate. This right to inherit is
sanctioned when the beneficiaries apply to a civil court of competent jurisdiction. In other words,
a succession certificate gives legal recognition to the right of legal heirs to inherit the estate of
the deceased. According to section 370[12] of the Act, it is pretty clear that Succession
Certificate cannot be granted pertaining to any debt or security to which the rights are required to
be established by Probate or Letter of Administration.
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Succession Certificate is not required in case of compensation sanctioned for an employee's

death in the course of his duty. The Ho‘nble Supreme Court has discussed the status conferred
upon the grantee of a Succession Certificate in BanarsiDass Versus TeekuDutta (Mrs) and
another.
 II YEAR OF 3 YEAR LL.B
SEMESTER - III
ODD SEMESTER

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SUBJECT : CONSTITUTIONAL LAW- II
SUBJECT CODE : TA3A

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