JURISPRUDENCE LAW

3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW

UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
Karnataka State law university 3rd semester 3 Year LLB.

Jurisprudence Law
ANIL KUMAR K T LLB COACH
Most important previous year questions
1. Discuss the value of Jurisprudence.
2. Explain law as Command of Sovereign.
3. Write a note on international law as law.
4. Describe law as system of rules.
5. Discuss the questions of law and fact.
6. State the need for administration of justice and explain the secondary
functions of court of law.
7. Write a note on reformative theory.
8. Write a note on purposes of punishment.
9. Discuss the nature of legislation as a source of law.
10.What is ratio Decidendi? State how it is determined?
11.Write a note on interpretation of enacted law?
12.Explain the kinds of legal rights?
13.Discuss the concept of personality with special reference to the unborn
person?
14.Write a note on corporate personality.
15.Distinction between possession and ownership.
16.Write a note on general system.
17.Explain the theory of strict liability.
18.Write a note on duty of care and solidatory obligation.
19.Uses and purpose of incorporation
20.Discuss the natural law theory? State the criticism the against?
21.Discuss the purpose of criminal justice in the light of various theories of
punishment.
22.Explain the circumstances destroying or weakening the binding force the
precedent?
23.Discuss the functions and purposes of law.
24.A trust is curious instance of duplicate ownership where the powers of
management and rights are separated explain?
25.Explain the nature of obligation and discuss the kinds of obligations?
 26.Explain with the help of illustration the scope of the legal term’s
intention, motive and culpable negligence.
27.Write a note on Subordinate legislation and legal person.
28.Discuss the legal realism? How it is differing from Austin theory of law.
29.What is legal right? Describe the Hohfelds concept of right in wider
sense.
30.Write a note reformative theory of punishment.
31.Explain the idea of ownership? And also, the difference between trust
and beneficial ownership?
32.Write a note on mischief rule.
33.Discuss the legal rights of lower animal, un born and dead person.
34.Discuss negligence and explain different theories of negligence.
35.Write a note on primary and statutory rights.
36.Write a note on law and fact
37.Write a note on vicarious liability.
38.Explain void and voidable agreements
39.Distinguish possession in law from possession in fact
40.Discuss the different sources of obligations?
41.Explain the necessity of administration justice. Distinguish between civil
and criminal administration of justice.
42.Discuss the various kinds of ownership?
43. What are requirements of valid customs?
44.Discuss the possession in law with decided cases.
45.Write a note on privilege and immunity.

BY
ANIL KUMAR K T LLB COACH
1.Discuss the value of Jurisprudence.
Introduction:

Jurisprudence is ‘the Eyes of Law.’ In the human body, the eyes are one of its
most essential parts. Most of the human activities and movements of a man’s
body are possible only through them. Unless a man can see anything correctly,
he can’t do any work properly. Jurisprudence is called the ‘the eye of law’
because jurisprudence functions for law like eyes do for the human body.

Function of Jurisprudence

The core function of jurisprudence is to study the origin of law; From where a
particular law has developed and traces back its origin as to how that law has
contributed towards society. The matters related to birth, marriages, death,
succession, etc., are equally controlled through laws. As a result, jurisprudence
has a lot of applications in civil life.

Nature of Jurisprudence

Jurisprudence, in its nature, is a different subject. It is neither a procedural

subject nor a substantive subject. It is the mainstream of whole law, from
where the different laws originate. It is not a codified law like the Indian Penal
Code, Criminal Procedure Code, or the Constitution. Jurisprudence being an
ever-growing and dynamic subject has no limitation on itself.

Scope of Jurisprudence

According to Justice P.B Mukherjee, “Jurisprudence is both an intellectual and

idealistic abstraction as well as a behavioural study of man in society. It
includes political, social, economic, and cultural ideas. It covers the study of
man concerning to state and society.”

Every jurist or thinker does not construct his research study on the rules
already made but tries to understand their utility after due consideration. This
is the reason jurisprudence has no limited scope and is a developing subject.

Value of Jurisprudence

Many times it is said that jurisprudence being an abstract and theoretical

subject, has no use in the day-to-day world. It only contains theories to study
and adopt with no practical implications. But it is not correct or appropriate to
make such a statement. Its utilities are as under:

1. Salmond attracted everyone’s attention to the fact that jurisprudence has its
inherent interests like other subjects of law. For so long, the research work
done on jurisprudence may have their effect on contemporary socio-political
thought or idea.

2. Jurisprudence also has its practical applicability in one way or the other in
the field of law. It helps advocates in practice to apply and adopt different legal
theories whenever required.

3. It is considered as a secondary or subsidiary subject but has a high value in

educational institutions. Jurisprudence is an essential subject for the study of
law. The logical analysis by jurists of legal concepts and theories broadens the
outlook of advocates and sharpens their sensible technique to look a case
effectively. It helps lawyers overlook their rigidness and formal nature and
trains them to work and focus on social realities.

4. Holland observed, “the ever-renewed complexity of human relations call for

the increasing complexity of legal details, till a merely empirical knowledge of
law becomes impossible.” From this, we can derive that jurisprudence throws
light on the basic ideas and the fundamental principles of law in society. This is
the reason it is considered as “the eye of law.”

5. The study of jurisprudence helps students, interns, and all practicing

advocates in developing the correct thinking and prepares them for an honest
life ahead. The knowledge of law also helps them to face every necessity
related to human affairs boldly and courageously.

6.The study of jurisprudence is not only limited to the development and

evolution of law. The academics who study jurisprudence also make great
contributions to the fields of other social sciences like the political and social
fields. This leads to the overall development of society.

7.The study of jurisprudence also helps uncomplicate some of the concepts and
complexities of the legal world. It makes them more manageable and rational
and thus easier to understand. This can also lead to a more effective practice of
law.

8.We often call jurisprudence the grammar of the law. It will help a lawyer the
basic ideas and reasoning behind the written law. It helps them better
understand the fundamentals of the law and help them figure out the actual rule
of the law.

9.The lawyer and judges can use jurisprudence as a guide to correctly interpret
certain laws that require interpretation. The study of jurisprudence does not
serve only academic purposes. It will help lawyers and other practitioners in the
practical world as well.
10.It sharpens their legal knowledge. Also, it trains the mind to find alternate
routes and channels of thought in case of difficulty. The law can mean more than
one thing, and this exploration is a direct effect of the study of jurisprudence.

2.Explain law as Command of Sovereign.

Law is Command :

According to Austin, the law is the command of the sovereign imposing a duty
which is enforceable by sanction. The study and analysis of positive law are
based upon the law which is strictly applied by political superiors to political
inferiors.

Law as a "rule laid down for the guidance of an intelligent being having power
over him. This can only be accomplished by a determinate person or body,
since an indeterminate body cannot express wishes in the form of commands.

The basic features of Command theory are:

• Command (by political superiors).

• Duty (imposing duty on political inferiors).

• Sanction.

• Sovereignty.

Law is command of sovereign which implies

(a) Duty

(b) Sanction

Being a command, every law properly so called flows from a determinate

source. Whenever a command is expressed or intimated one party signifies a
wish that another shall do or forbear and the latter is obnoxious to an evil
which the former intends to inflict in case the wish be disregarded. The key to
a law properly so called lies in obligation. Every wish with regard to conduct is
favourable to conduct which is desired and unfavourable to the conduct which
is not desired. Such wishes may emanate from directions or from general
opinion, but wishes which are directives are distinguishable in that they render
conduct obligatory. General opinion cannot create obligations. Every Directive
then is a command; the threat of evil is a sanction and the party commanded
and threatened is under an obligation or duty. Duty and sanction are
correlative and fear of sanction is the motive for obligation.

Opening a new era approach -

(1) Austin laid down many of his propositions as deduced from English law as it
was during his time. The credit goes to Austin for opening a new era approach.

(2) Austin was intimate to great thinkers and philosophers of his time like
Benthan and Hill and he wiped out many false notions which had obscured the
true meaning of law and legal terms.

(3) Austin's classification and analysis of the concepts of English law has served
as a guide for better English analytical jurists.

(4) Austin's theory attains the notion of simplicity consistency and clarity of
exposition. Austin's method is described as characteristic of English
jurisprudence.

(5) Austin's theory was widely accepted in English and American jurisprudence.
Later on his theory received increasing attention and respect from the
Continent and Germans.

(6) Later Analytical theories have improved upon Austin's theory and have
given a more practical and logical basis. Jurists like Salmond and Gray have
improved upon it and considerably modified the analytical postivist approach.
The Vienna school of law is the outbreak of Austin's theory.

(7) Even the defects of Austin's theory is the constant source of illumination;
for his error's are often the mis-statement of truths of central importance for
the understanding of law and society.

(8) Austin as a jurist kept himself free from the rival political ideologies of
nationalism and internationalism. Even one of the great critics, Olivecrona, also
acknowledges him as the pioneer of modern positivist approach to law. Thus
Austin made great contribution to jurisprudence.

According to Imperative Theory of Law, there are three major conditions to

be considered as Sovereign. :

1. The power which the Sovereign holds must be unlimited and should be
undividable.
2. The sovereign must be located and should be identifiable.
3. The Sovereign must provide for commands which be considered as Law.
The Sovereign must be cautious in making their laws as they must do so and
these laws should be made in such a way that the people obey them and
follow them. Sovereign as an entity or body carries both judicial and
legislature. Sovereign does not have any physical appearance. It cannot be
touched but can be felt when people obey the rules and follow them. Thus, the
Sovereign is one of the required concepts for the performance of the legal
system in every state and country.

Nature of Imperative Theory of Law

John Austin divided law into two major parts which are:

• Divine Law
• Human Law

He explains that divine laws are laws given by gods to human and human laws
are laws made by humans for humans.

Devine Laws do not have any source about their inheritance and are stated to
be beyond the range for a human to reach which makes them above man-
made laws. Human law is of two types:

• Command of the Sovereign

• Formations through voluntary cooperation or society.

According to Austin law should be a combination of what to do as well as what

not to do. His idea of law should be specific such that people who obey it will
have clarity in the commands. Austin follows the Hobbesian idea of law which
is straight forward that acknowledges when you are good and kills when you
are bad. According to Austin law gives no option and everyone is obliged to
follow it. This statement may be harsh and arbitrary but the meaning is true.
Austin prefers to be strict in law because he feels when people are given
options to discuss what law is it leads to chaos and loss of inner peace. This is
one of the reasons which makes Austin oppose morality.

Austin feels that for the formation of a successful legal system there should be
an authority that would act as the supreme force of the nation and are
accepted to be supreme by the people. When the law comes from such a
supreme force people feel connected and will come forward to obey the law.
They feel the person who acts as the supreme as their representatives and a
linking pin. Though Austin opposes morality we cannot completely avoid it.
Both society and law are not only towards removing the bad but also to bring
in good. Therefore many feel that Imperative Theory of Law is incomplete due
to its rigidity.

Exceptions of Theory of Austin:

Austin says, “every law is a command imposing a duty enforced by a sanction,

however, all the commands are not law”. It is only the general command which
is a law. Austin, though accepts that there are three kinds of laws which are
not commands but may be included within the purview of law by way of
exception. They are:

1. Declaratory/Explanatory laws: They’re not commands because they are

already in existence and are passed only to explain the law which is already
enforced.

2. Law of Repeals: Austin doesn’t treat such laws as commands because

they’re in for the revocation of a command.

3. Law of Imperfect obligations: They’re not treated as commands because

there’s no sanction to them. Austin holds that a command to become law must
be accompanied by duty and sanction for its enforcement.

3.Write a note on international law as law.

THEORIES AS TO THE BASIS OF INTERNATIONAL LAW

There are mainly two theories as to the basis of international law due to
difference in opinion as to where does the international law derive its binding
authority, which are mentioned below:

• NATURALIST THEORY: Most of the jurists of 16th and 17th century were
of the view that the basis of any law is law of nature and international
law being part of law has the same basis and for the same reason is
binding on the states. At a point of time, Natural Law was regarded to be
Divine Law connected with religion, but later this definition changes and
Natural Law was considered to be an ideal law which dictated as to what
is right and wrong behaviour of human. Thus, all States, as members of
universal community, are obliged in order to conserve peace and
security to act always in accordance with the principle that the common
good of mankind is paramount to their individual interest. Thus,
international law was considered to be binding in nature by this school
of thought because its basis was natural law.
In the 18th and 19th century, naturalists faced severe criticism and declined and
led to rise of positivists.

• POSITIVIST THEORY: This school of thought was in vogue in the

19th century and was of the view that people would be bound to obey
law if it was created by appropriate legislative authority or sovereign
irrespective of its being reasonable or unreasonable. According to them,
law must be analysed empirically, irrespective of its ethical elements,
i.e., law must be studied as it exists and law is the command of the
sovereign having sanction. The rules of international law and municipal
law are equally binding, since both are issued by the will of the state,
which is the source of validity of law. Thus, it is the will of State, which
commands obedience and is the basis of international law.
The two above mentioned schools of thoughts are extreme and the true basis
of international law, vests neither solely with natural law nor with will or consent
of the state, rather there are varieties of factors due to which States obey
international law. International law is the necessary concomitant of statehood,
and is binding on states because they are states and with the canons of
international law, the rights and duties of states are defined.

DEVELOPMENT OF INTERNATIONAL LAW

The position occupied by International Law and International Organizations has

varied from time to time. Earlier there was no universal law binding on all the
nation states but now they have to abide by laws. The law was once restricted
to one’s region, slowly and steadily, it included in its arena such laws as would
help in maintaining peace in the neighbouring land. The enactment of
International Law was always essential and will be essential in the time to come
provided amendments take place according to the world scenario. As earlier
none would have imagined that restricting the use of nuclear plants would be
important but now, the scenario is such that if it is not forbidden then nation
states would not think twice to have a nuclear war. International Law has always
acted in the promotion of peace and security, as with the establishment of
International Court of Justice, various nations’ disputes have been resolved, if
there would have been no International Law then the scenario would be such
that the nation states would be waging war even for trivial disputes.
International Law has always been and will be one of the most essential laws,
without which the world could even come to an end.

4.Describe law as system of rules.

Introduction:
It would be appropriate to discuss the views of Dicey, as he is known to be the
main exponent of the concept of rule of law. However the origin of his doctrine
was attributed to Sir Edward Coke. He introduced for the first time that, ‘King
is under God and the Law.’ The firm base of rule of law owes its exposition to
Albert Venn Dicey. Dicey, in his book Law and Constitution in the year 1885
further developed this concept given by Coke. According to Dicey’s theory, rule
of law has three pillars based on the concept that “a government should be
based on principles of law and not of men”, these are-

• Supremacy of Law;
• Equality before the Law; and
• Predominance of Legal spirit.

1. Supremacy of Law
This is the first pillar of Dicey’s concept of rule of law. It means that the law
rules over all people including the persons administering the law. According to
Dicey the absolute supremacy of the law as opposed to the arbitrary power of
the government is what constitutes the rule of law. In other words a man
should only be punished for the distinct breach of law, and not for anything
else. The person cannot be punished by the government merely by its own fiat
but only according to the established law.

Further, Dicey asserted that discretion has no place where there is supremacy
of law. According to him discretion is a link to arbitrariness. Dicey says that
wherever there is discretion, there is room for arbitrariness and discretionary
authority on the part of the government to jeopardize the legal freedom of the
people.

2. Equality before Law

The second important pillar of Dicey’s concept of Rule of Law is Equality before
Law. In other words, every man irrespective of his rank or position is subject to
the ordinary law and jurisdiction of the ordinary court and not to any special
court. According to him special law and special courts is a threat to the
principles of equality. Therefore he is of the view that there should be the
same set of laws for all the people and should be adjudicated by the same civil
courts.

3. Predominance of the legal spirit

 The third pillar of Dicey’s concept of Rule of Law is predominance of legal
spirit. According to Dicey, for the prevalence of the rule of law there should be
an enforcing authority and that authority he found in the courts. He believed
that the courts are the enforcer of the rule of law and hence it should be free
from impartiality and external influence. Independence of the judiciary is
therefore an important pillar for the existence of rule of law. He asserted that
the courts of law and not the written constitution are the ultimate protector of
an individual’s fundamentals.

Kinds of rules:-
According to Heart, Rules of Obligation are distinguishable from other rules in
that they are supported by great social pressure because they are felt to be
necessary to maintain society. Our conscience also imposes an obligation.
Having said this he talked about two kinds of rules;
1.Primary rules and
2.Secondary rules
Primary rules:-
Primary Rules are those rules which impose ‘duty’ on a member of society like
criminal laws, tort, etc.
Primary rules are one which tells people to do things, or not to do things.
Primary rules are ‘duty imposing’ rules. They impose certain specific duties on
the citizens of the state to act in a certain manner, or they may be subject to
certain legal sanctions. Hart characterizes primary rules as “basic” rules. They
tell the citizen what one can and cannot do under the law. They lay down
duties. These rules are to do with physical matters.
Secondary rules:-
Secondary rules are one which let people, by doing certain things, introduce
new rules of the first kind, or alter them. They give people (private individuals
or public bodies) power to introduce or vary the first kind of rule. Secondary
rules are not duty-imposing rules. They are what Hart calls power-conferring
rules.
Secondary rules are those rules which confirm ‘powers’ like Contract,
Marriage, Will, Delegated Legislation – power to make law.
In the Indian Constitution, Schedule VII gives a list namely State, Centre , and
Concurrent List, which conferred power to respective organs to make laws.
There is a link between these primary and secondary rules. There is a specific
relationship between these rules which rather systematically comprises a legal
system and legal order.
Secondary rules have been divided into three more types, these are as follows;
1.Rule of Adjudication
2.Rule of Change
3.Rule of Recognition
Rule of Adjudication:-
It mainly represents those rules, which confer a direct power to adjudicate the
matter in dispute, e.g. Article 32, which empower Supreme Court to issue
prerogative writ: Article 131, 132, 134, 133 that empower Supreme Court the
original and Appellate jurisdiction. Article 323A and 323 B empowers tribunals
to adjudicate matters in dispute. All those articles in the Constitution are
power conferring. They enable a court to decide a particular dispute.
Rule of change:-
Law-making power is to be accompanied by modification when a competent
legislative body derived its power to make law should have the power to
change the law. This power is necessary to affect any kind of notification, e.g.
Article 368 gives power to Parliament to amend the Constitution and
procedure thereof. Thus it gives the power to amend the Constitution. This
power includes the power to repeal, remove difficulties. It is equally applicable
to delegated legislation.
Rules of recognition:-
This principle is the most crucial and vital principle of secondary rules. It is that
rule which recognize other rules. The rule of recognition is the criterion of
existence and validity of the rule of legal system.
Hart believes that the rule of recognition is the most important. The rule of
recognition tells us how to identify a law. In the modern system with multiple
sources of law such as a written constitution, legislative enactments, and
judicial precedents, the rules of recognition can be quite complex and require a
hierarchy where some types of rules overrule others Hart holds this out for the
remedy for uncertainty.
Kelson also talked about recognition, i.e. validity and existence of norms are
recognized by the basic form. Here we can see the similarity between the
Heart and Kelson on the point or rule of recognition and Grundnorm. However,
Kelsen basic norm is Sui Generis that have to fulfill the test of minimum
effectiveness but in Heart’s Rule of recognition to a legal system, to effectively
empower, it has to give two minimum tests or to fulfill two conditions. On the
base of which a legal system could effectively be enforced.

5.Discuss the questions of law and fact.

Introduction:
It is commonly said that all questions which arise for consideration in a Court
of justice are of two kinds. They are either question of law or of fact. It has
been found to be very difficult to define the exact difference between law and
fact. Law consists of the abstract rules and facts are the raw materials on the
basis of which the law creates certain rights and duties.

Question Of Law:
According to Salmond, the term question of law is used in three distinct,
thought related senses.
I. Questions Authoritatively Answered By Law:
In first sense, it means a question, which the Court is bound to answer in
accordance with a rule of law. All other questions are questions of fact. It
excludes the right of the Court to answer the question as he thinks fit.
Illustration:
Whether the holder of a cheque has been guilty of unreasonable delay in
giving notice of dishonor is a question of law to be determined in accordance
with certain fixed principles (sec. 138) laid down in the Negotiable Instruments
Act,1881.

II. Interpretation Of Statutory Provision:

In the second sense, it means a question as to what the law is on a particular
point. This arises in cases where a rule of law is ambiguous and requires
determination.
Once the provision has been authoritatively interpreted by the judge, it
becomes a judicial precedent and a settled question of law.

III. Questions To Be Answered By Judges:

In the third sense, all question whose answers given by the judges and not the
jury are questions of law.

Question Of Fact:
The term question of fact is used also two different senses:
I. Wider sense
II. Narrow sense

I. Wider Sense:
In a Wider or general sense, all questions which are not questions of law are
questions of fact.

According to Salmond:
A question of fact means any question
(i) Which is not previously determined by a rule of law.
(ii) Other than question as to what the law is.
(iii) Which is to be answered by the jury and not by the judge.
II. Narrow Sense:
In a narrow sense, question of fact means only those questions which are not
subject to judicial discretion. [Judicial Discretion is the power or right to make
official decisions using reason and judgment to choose from among acceptable
alternatives. It is the Power of a court to act or not to act, as it deems fair
under the circumstances, and as provided under the rules of law. It refers to
the inherent powers of the judge to pass a judgment without interference of
the rules laid in the statues or law books.]

Illustration:
The question as to whether the accused has committed the criminal act with
which he is charged is a question of fact.

Difference Between Question Of Law And Fact in a nutshell:

(i) Relation:
Question of law is purely related with the law.
Question of fact is not related with the law.

(ii)As to Proof:
There is no need to prove question of law.
Question of fact is needed to prove.

(iii)As to conversion:
Question of law cannot be converted into question of fact.
Question of fact may be converted into question of law.

(iv)Duty of Judge:
In a question of law, is the duty of the Court to ascertain the law and decide to
case accordingly.
In a question of fact, it is the duty of the Court to weigh the evidence and then
come to its conclusion.

(v) As to Authoritatively Answered:

Every question which has been authoritatively answered by the law is a
question of law.
Every question which has not been determined before and authoritatively
answered by the law is a question of fact.

(vi) Example:
In case of filing an appeal, delay explained is question of fact. On the other
hand, whether such a fact is entertainable or not is a question of law.
Conclusion:
The sum up, I can say, that all matters and questions which come before a
Court of justice are either of law or fact or judicial discretion. As the legal
system grows, there is a tendency to transform question of fact, into those of
questions of law.

6.State the need for administration of justice and explain the secondary
functions of court of law.

Administration of justice:

The chief function of the judiciary is to apply the law to specific cases or in
settling disputes. When a dispute is brought before the courts it ‘determines
the facts’ involved through evidence presented by the contestants. The law
then proceeds to decide what law is applicable to the case and applies it. If
someone is found guilty of violating the law in the course of the trial, the court
will impose a penalty on the guilty person.

Advantages of Administration of Justice are as follows -

Uniformity and certainty - Legal Justice ensures uniformity and certainty.

Everybody knows what the law is and there is no scope for arbitrary action.
Even Judges have to give decisions according to the declared law of the
Country. As the law is certain, citizens can shape their conduct accordingly.

Impartiality - Another Advantage of Administration of Justice, there is

impartiality in the administration of justice. Judges are required to give their
decisions according to the pre-determined legal principles and the cannot go
beyond them.

The administration of justice properly so called, therefore, involves in every

case two parties, the plaintiff and the defendant, a right claimed or a wrong
complained of by the former as against the latter, a judgment in favour of the
one or the other, and execution of this judgment by the power of the state if
need be. We have now to notice that the administration of justice in a wider
sense includes all the functions of courts of justice, whether they conform to
the foregoing type or not. It is to administer justice in the strict sense that the
tribunals of the state are established, and it is by reference to this essential
purpose that they must be defined. But when once established, they are found
to be useful instruments, by virtue of their constitution, procedure, authority,
or special knowledge, for the fulfilment of other more or less analogous
functions.
Petitions of right
The courts of law exercise, in the first place, the function of adjudicating upon
claims made by subjects against the state itself. If a subject claims that a debt
is due to him from the Crown, or that the Crown has broken a contract with
him, or wrongfully detains his property, he is at liberty to take proceedings by
way of petition of right m a court of law for the determination of his rights in
the matter. The petition is addressed to the Crown itself, but is referred for
consideration to the courts of justice, and these courts will investigate the
claim in due form of law, and pronounce in favour of the petitioner or of the
Crown, just as in an action between two private persons. But this is not the
administration of justice properly so called, for the essential element of
coercive force is lacking. The state is the judge in its own cause, and cannot
exercise constraint against itself. Nevertheless in the wider sense the
administration of justice includes the proceedings in a petition of right, no less
than a criminal prosecution or an action for debt or damages against a private
individual.

Declarations of right
The second form of judicial action which does not conform to the essential
type is that which results, not in any kind of coercive judgment, but merely in a
declaration of right. A litigant may claim the assistance of a court of law, not
because his rights have been violated, but because they are uncertain. What
he desires may be not any remedy against an adversary for the violation of a
right, but an authoritative declaration that the right exists. Such a declaration
may be the ground of subsequent proceedings in which the right, having been
violated, receives enforcement, but in the meantime there is no enforcement
nor any claim to it. Examples of declaratory proceedings are declarations of
legitimacy, declarations of nullity of marriage, advice to trustees or executors
as to their legal powers and duties, and the authoritative interpretation of
wills.

Administrations
A third form of secondary judicial action includes all those cases in which
courts of justice undertake the management and distribution of property.
Examples are the administration of a trust, the liquidation of a company by the
court, and the realisation and distribution of an insolvent estate.

Titles of right
The fourth and last form includes all those cases in which judicial decrees are
employed as the means of creating, transferring, or extinguishing rights.
Instances are a decree of divorce or judicial separation, an adjudication of
bankruptcy, an order of discharge in bankruptcy, a decree of foreclosure
against a mortgagor, an order appointing or removing trustees, a grant of
letters of administration, and vesting or charging orders. In all these cases the
judgment or decree operates, not as the remedy of a wrong, but as the title of
a right.

These secondary forms of judicial action are to be classed under the head of
the civil administration of justice. Here, as in its other uses, the term civil is
merely residuary; civil justice is all that is not criminal.

7.Write a note on reformative theory.

The reformative or the restorative theory of punishment emphasizes on

reformation of the offenders through the method of individualism. According
to this theory, the judge, while awarding punishment, must take into account
various social factors surrounding the offender. These factors include inter
alia the age of the offender, the character of the offender, the crime
committed, and the circumstances under which the crime was committed. The
aim of this theory is rehabilitation of the offender as a law-abiding member of
the society. Thus, punishment is not regarded as an end but only as a means to
the end.

The reformative theory of punishment is primarily used in the cases of juvenile

delinquents, first offenders, and women.

Methods Of Achieving Reformation

There are a variety of methods which can be used to achieve reformation.
These include-

1. Education
2. Therapy
3. Training
4. Parole and Probation
Reformative Theory of Punishment In India

Mahatma Gandhi once stated that an eye for an eye will make the whole world
blind. He advocated the gospel of non-violence and forgiveness. These were
the principles on which India won its independence. Similar principles have
also been incorporated in the legal system of India.

The courts of the country have time and again highlighted the importance of
reformative theory of punishment. In the case of Gulab Singh v. Yuvraj Singh
the Supreme Court refused to enhance the punishment of the offender taking
into account the aim of reform of the Indian Penal System.

There are various legal provisions which indicate the dominance of reform in
the punitive setup of India.

Parole

Parole means the release of an offender temporarily or permanently on the

basis of good behavior of the offender. It is thus, a tool for the prison’s social
rehabilitation. In the case of Budhi v. State of Rajasthan it was held that parole
serves the following three purposes-

1. It serves as a motivation for the offenders to mend their ways and

be released early.
2. It ensures that the family relations of the offender remain intact.
3. It assists the offender to assimilate into the society and adapt to
its folds.
Parole is governed by Prison Act, 1894 and Prisoner Act, 1900. However, each
State has its own guidelines which govern the grant of parole. The Supreme
Court in the case of Home Secretary (Prison) v. H. Nilofer Nisha[8] held that
issuance of remission or release of a prisoner is not a right that has been
conferred on the prisoner but is a privilege that the prisoner can get if he
meets specific requirements.

Probation

Probation means allowing a prisoner of some minor offence to go at large

during good behavior. The person released is placed under the supervision or
guardianship of a probation officer. The duty of such probation officer is to
supervise the probationers assigned to him and to help him secure
employment and to help him reform.

In India, probation is governed by the Probation of Offenders Act, 1958. This

Act provides for the release of first-time offenders who have committed such
offenses which are punishable with imprisonment of less than 2 years, such as
theft (Section 379 of Indian Penal Code) or cheating (Section 420 of Indian
Penal Code). This Act specifically protects those offenders of age of 21 years,
from the sentence, provided the offence is not such that is punishable by life
imprisonment.

Commutation of Sentence

Section 54 and Section 55 of the Indian Penal Code deals with the
commutation of sentences. Section 54 provides for commutation of sentence
in case of death penalty to any other punishment and Section 55 provides for
commutation of sentence in case of life imprisonment to 14 years. Such
commutation can be done by the Appropriate Government (Governor of the
State) without the consent of the offender. The power of the Government is
co-extensive to the power under Section 433 of the Criminal Procedure Code.
Article 72 of the Constitution of India, 1950 also empowers the President to
commute the death sentence of an offender. A Governor is also empowered
under Article 161 of the Constitution of India, 1950 to commute the sentence
of an offender. The difference between Article 161 and Section 54 of the
Indian Penal Code is that in case of Article 161, the Governor has to seek
advice from the Council of Ministers of the State. Furthermore, the power
under Section 54 can be exercised suo moto by the Governor but under Article
161, the power can be exercised only on receipt of a petition regarding the
same.

8.Write a note on purposes of punishment.

Punishment has five recognized
purposes: deterrence, incapacitation, rehabilitation, retribution,
and restitution.

Specific and General Deterrence

Deterrence prevents future crime by frightening the defendant or the public.

The two types of deterrence are specific and general deterrence. Specific
deterrence applies to an individual defendant. When the government punishes
an individual defendant, he or she is theoretically less likely to commit another
crime because of fear of another similar or worse punishment. General
deterrence applies to the public at large. When the public learns of an
individual defendant’s punishment, the public is theoretically less likely to
commit a crime because of fear of the punishment the defendant experienced.
When the public learns, for example, that an individual defendant was severely
punished by a sentence of life in prison or the death penalty, this knowledge
can inspire a deep fear of criminal prosecution.

Incapacitation

Incapacitation prevents future crime by removing the defendant from society.

Examples of incapacitation are incarceration, house arrest, or execution
pursuant to the death penalty.

Rehabilitation

Rehabilitation prevents future crime by altering a defendant’s behavior.

Examples of rehabilitation include educational and vocational programs,
treatment center placement, and counseling. The court can combine
rehabilitation with incarceration or with probation or parole. In some states,
for example, nonviolent drug offenders must participate in rehabilitation in
combination with probation, rather than submitting to incarceration (Ariz. Rev.
Stat., 2010). This lightens the load of jails and prisons while
lowering recidivism, which means reoffending.

Retribution

Retribution prevents future crime by removing the desire

for personal avengement (in the form of assault, battery, and criminal
homicide, for example) against the defendant. When victims or society
discover that the defendant has been adequately punished for a crime, they
achieve a certain satisfaction that our criminal procedure is working
effectively, which enhances faith in law enforcement and our government.

Restitution

Restitution prevents future crime by punishing the defendant financially.

Restitution is when the court orders the criminal defendant to pay the victim
for any harm and resembles a civil litigation damages award. Restitution can be
for physical injuries, loss of property or money, and rarely, emotional distress.
It can also be a fine that covers some of the costs of the criminal prosecution
and punishment.

9.Discuss the nature of legislation as a source of law.

Definition of Legislation

According to Bentham and John Stuart Mill, “Legislation comprises both the
legislative process and the law that emerges from it.” However, the term
“legislation” refers to a specific form of lawmaking, namely the declaration of
legal regulations in statutory form by a competent authority. It refers to the
state legislature’s act of enacting legislation.

Gray said, “Legislation includes formal utterance of the legislative organs of

the society.”

Legislation is the source of law which consists in the declaration of legal rules
by a competent authority. Legislation is the way of making laws in which the
competent authority is responsible for drafting and enacting laws in a specific
state. It is also stated to be a rigorous concept of law making because there is
only one body charged with the task of law-making, and there is little space for
any changes because the laws are codified and airtight, leaving a very small
range of adjustment. It is such a declaration of principles as constitutes, legal
ground for their recognition as law: for the future by the tribunals of the state.
Legislation is regarded as the most important source of law in the prevalent
times. Hence it is considered to be the codified form of law which is
commanded by the sovereign to the common masses, and it becomes a
predicament situation to regard legislation as the authoritative source of law.
Sources of Law

Each country’s judicial structure has its own source of laws, with some giving
higher significance to one source than others. According to the categories, they
rely more on a specific source and prefer that source of law. Some of the major
or primary sources of law are listed below:

Legislation

The legislation comes from the Latin phrase ‘legis’ (guidelines or rules) and
‘latum’ (law) (making). So, legislation can be defined as the process of creating
law; it is created by the legislature of any region or nation and is binding on all.
In India, legislation is recognized as an essential source of legislation. It has a
broad scope and is used to supervise, authorize, empower, endorse, grant,
proclaim, or restrict. The parliament defines the governing body as new acts,
new laws, revocation, and modification of old laws. The process for creating
this is outlined in India’s constitution.

Kinds of legislation

Legislation is broadly classified as a source of law into three different

categories.

Supreme legislation

The supreme legislation is that which has been recognized by the

government’s sovereign power. As a result, some of the state’s organs are
unable to handle or control it. It is thought to be exceptional as well as legally
revolutionary. Its scope is unrestricted in any manner. Similarly, India’s
parliament is transcendent. Regardless of the fact that there are various
established revisions on its purview, it isn’t reliant on any other state
personnel. As a result, the state’s sovereign region cannot be denied, dropped,
or compelled by any other lawful organ of the state.

Subordinate legislation

Subordinate legislation is laws passed by authorities other than the state’s

Supreme Expert. It is created using the forces delegated by the Supreme
Power. The supreme authority is responsible for the origin, provenance, and
continued existence of such regulation. It may be dropped & revoked at any
time due to the strength of the sovereign position, and in this way, it should
provide a method of dealing with sovereign legislation. Subordinate legislation
is scrutinized by the legislature. Subordinate legislations include

• Autonomous Legislation.
• Judicial Legislation,
• Colonial Legislation,
• Municipal Legislation, and
• Executive Legislation.
Delegated legislation:

‘Delegation’ can be described as the act of entrusting an individual with

authority or empowering him to act as a delegate or representative for the
person who has provided him that authority. The term ‘delegated legislation’
refers to the use of authoritative power by a specialist who is lower in rank
than the Legislature or is subordinate to the Legislature. ‘Delegated
legislation,’ also known as ‘assistant legislation,’ is a sanction issued by a
person or organization other than Legislature.

Parliament can authorize another person or entity to make a sanctioning

decision through an Act of Parliament. An Act of Parliament establishes a
particular or specific law and it will generally include an outline of the Act’s
motivation. By delegating legislative authority from Parliament to the
Executive or any subordinate, various individuals or bodies are able to add
finer details to a Parliamentary Act.

Thus, through basic authorization (for example, an Act of Parliament),

Parliament approves others to make laws and regulations through delegated
legislation. An authorized individual must sanction in accordance with the
explanation provided in the Act of The parliament.

Legislation as a Source of law- Historical and Analytical School

1. Thoughts of Analytical Positivist School

Jurists of this School lay stress on legislation as a source of law. They believe
that the only way to make law is through legislation. They are vehemently
opposed to judges having the power to enact laws. They also claim
that customs are just sources of law, not the law itself.
2. Thoughts of Historical School

This school’s jurists were indifferent about legislation. They believe that
making laws through legislative action is impossible. Legislators’ sole purpose
is to collect customs and offer them a better form.

10.What is ratio Decidendi? State how it is determined?

To define the doctrine of Ratio Decidendi, it is a prerequisite to understanding
the doctrine of precedent. In common parlance, the judicial precedent is the
principle expressed in the preceding case. Sir John Salmond opined the same
as ‘A precedent is said to be a judicial decision which contains its principles.
The stated principle which thus forms its authoritative element is called the
ratio decidendi. The concrete decision is thus binding between the parties, but
it is the abstract ratio decidendi which alone has the force of law as regards the
world at large.’ Thus, the term ratio refers to the rule or set of rules used by
the court to settle the arisen dispute. It is the ‘law declared’ in the judgment,
which forms the precedent.

Definitions of precedent:

Jeremy Bentham considered precedents as ‘judge-made laws’. Withal, john

Austin defines the same as ‘judiciary’s law’. Withal, ‘the precedent covers
everything said or done, which furnishes a rule for subsequent practice’,
according to Gray.

Types of Precedent:

1. Persuasive precedent: the precedent majorly relies upon the fact

of the case at hand. It is non-binding in nature and not required to
be followed but convinces the judge to decide accordingly. It is
not a direct source of law, per contra capable of contributing to
the historical precedent.

For example, one high court precedents are persuasive to other high courts,
and foreign judgments are generally persuasive and Section 13 of CPC lays
rules to be satisfied for its enforcement.

2. Binding precedent:
The mandatory precedent to be followed. Such precedents have appertained
on the principle of stare decisis. The Latin term this connotes ‘to stand by that,
which is decided’. The court hierarchy plays a prominent role in its functioning.
For example, the decision of the apex court is binding to the high courts.
Meanwhile, lower courts under high court jurisdiction are bound to their
higher court decisions.

Generally, a bench with two judges constitutes a division bench, whereas,

three or more judges contribute to a full bench that depends on the nature of
the appeal. As per the general principle, the smaller bench is bound by the
decision of the larger bench.

Brief about Ratio Decidendi:

In legal parlance, the ratio Decidendi means ‘reason for the decision’. It is the
requisite rationale to reach the decision, which may not only rely on the law
attached to the case at hand but all other status quo notions and principles.
Comprehensively, the ratio will not include the,

• Case facts
• Application of legislations to settle the dispute, and
• Order or judgment.
The authority of decision qua precedent lies on its ratio Decidendi. Thus, the
confrontation of the legislation alone should take into account regardless of
the dispute in facts. In general, a judicial decision is a composition of three
parts, namely, Ratio Decidendi, Res Judicata, and Obiter Dicta.

Ratio Decidendi: it is not the actual decision, but the necessary measures need
to reach the judgment. Since it is the ratio of decision, the same is binding on
other courts.

Res Judicata: it is the actual decision of the court. Since it is binding on the
parties to the case, they cannot re-litigate the same issue already determined
by the court.

Obiter Dicta: it is the opinion or suggestion, which is not germane to the

current case has expressed by the judge while deciding the same. Generally, it
is not authoritative and not binding.
As far as the judicial precedent is concerned, the reason for the decision is
requisite and not the eventual decision held by the court. Since every single
case has distinct facts, it is unfair to bind on the prior case judgment. But, the
observations and reasons propounded on such a case can be followed.

Finding the ratio of a legal decision is not an easy task to be performed, as the
margin between the Ratio Decidendi and other interpretations of law like
Dictum is sightly obscure. The additional commotion with the very notion of
Ratio Decidendi is that what if a precedent has a lot of observations and ratio.
This not a Res Integra question since if there are multiple reasons, then all the
rations are binding.

Descriptive Ratio Decidendi: it is the reason for the decision from the original
case.

Prescriptive Ratio Decidendi: it describes how the descriptive ratio applies for
a future case as a precedent.

Determination of Ratio Decidendi:

Rules of Ratio Decidendi:

• The ratios should be conclusive and not just a mere attempt of

scrutinizing the fact.
• The core element of the dispute should be analyzed and resolved
through such reasons.
• The reasons should be relevant to the arisen issue.
• The rations should come out of a dispute in law not from the
dispute in facts.
• As already mentioned, all the reasons expressed in a precedent
are binding.
• In a case, when the judges agree to the decision but have different
reasons for the same. Then, the core area of acceptance shall be
focused on.
• The ratio Decidendi can never develop out of the aggregation of
the different components of separate reasons.
Case laws:
The definition of Ratio Decidendi was explicated in the case of Sir George
Jessel in Osborne v. Rowlett as, “The only thing in a Judge’s decision binding as
an authority upon a subsequent Judge is the principle upon which the case was
decided”.

In the Unnikrishnan v. State of Andhra Pradesh case, the primary issue was
about the right to higher education. But the court held that the right to
primary education was a fundamental right under the Indian constitution.
Thus, the declared verdict is upon the dictum observation.

11.Write a note on interpretation of enacted law?

Introduction:

The term interpretation is derived from a Latin term “interpretari” which

means to explain, infer, expound or translate. The process of ascertaining the
actual intended meaning of a written document by giving its words their
ordinary meaning is called interpretation. In other words, interpretation is the
process to ascertain the true meaning of the words written in a legal
document.

What is Statute?

In literal sense, “Statute” means a law that has been formally approved and
written down. In its legal sense, it means an act of a legislature that declares,
prescribes, or commands something. Statutes set forth general propositions of
law that court applies to the specific situations.

Thus following can be listed as Statute: Constitution, Central Acts, State Acts,
Ordinance, Bye Laws, Rules, Regulations, Notifications, Circulars, Instructions,
Directions, Clarifications.

What is meant by Interpretation of Statutes?

Out of the three organs of the State, viz Legislative, Executive and Judiciary,
interpreting the statutes is primarily concerned with Judiciary. Being the
machinery that puts the laws laid down by legislature into use, it becomes
primary function of Judiciary to interpret the statutes and ascertain the correct
meaning of the provisions of the statutes in their true spirit as intended by the
framers.
Salmond defines the interpretation of statutes as “interpretation or
construction is the process by which the courts seek to ascertain the meaning
of the legislation through the medium of the authoritative form in which it is
expressed.”

Scope and need for Interpretation

Statutes enacted are drafted by legal experts, thus leaving little room for
interpretation of the of the language used but the necessity of interpretation
arises when the language is not clear or ambiguous or when multiple views can
be inferred or when the language of the provision gives a different meaning
altogether which defeats the object of the statute.

A Constitutional Bench of Supreme Court in R.S. Nayak v AR Antulay, AIR 1984

SC 684 held that:

“……If words of the Statute are clear and unambiguous, it is the plainest duty of
the Court to give effect to the natural meaning of the words used in the
provision. The question of construction arises only in the event of an ambiguity
or the plain meaning of the words used in the Statute would be self-defeating.”

Following the same principle Supreme Court in Grasim Industries Ltd. V

Collector of Customs, Bombay, (2002)4 SCC 297 observed that:

“where the words are clear and there is no obscurity, and there is no ambiguity
and the intention of the legislature is clearly conveyed, there is no scope for
the Court to take upon itself the task of amending or altering the statutory
provisions.”

The interpretation is required for two basic reasons viz. to ascertain:

1. Legislative Language: Since the Statutes are drafted by Legal experts

using Legislative and technical Language, it can be complicated and
complex for layman to understand it and hence interpretation is
required to simplify and explain the provisions to the layman.
2. Legislative Intent: The Legislative Intent comprises of two-fold aspects
as to:
1. Concept of ‘meaning’, i.e., what the word means;
2. Concept of ‘object’ and ‘purpose’ or ‘spirit’ or the ‘reason’
pervading throughout the Statute.

The interpretation of statutes is needed:

 1. To infer clear and precise meanings where multiple meanings can be
inferred from the language used.
2. To fill the gaps in law: it is impossible for the lawmakers to draft the
law anticipating all the possible scenarios that could arise in future and
this impossibility leads to use of indeterminate language and Courts
from time to time have to interpret such indeterminate language
according to the present scenarios. For example: use of word
“reasonable” in the provisions, Courts interpret and define the word
reasonable now and then according to changing times.
3. To decide the most correct use of language: words may have multiple
meanings and each party in the Court will tend to infer the meaning
which is advantageous to itself, so courts interpret in the most correct
manner and there by establishing its uniform use too and ensuring
uniform impart of justice.

IMPORTANT POINTS TO KEEP IN MIND WHILE INTERPRETATING:

• The Statute must be read as an entire context.

• The intention of the framers of the legislation should be kept in mind.
• Interpretation should be such as to make the Statute meaningful,
effective and workable.
• The process of construing should be literal as well as purposive i.e., one
should shift from literal meaning if it leads to absurdity.

12.Explain the kinds of legal rights?

Kinds of Legal Rights

In simple words, the court of law can enforce legal rights against persons and
also against the government. A legal right is an interest accepted and protected
by law. Also, any debasement of any legal right is punishable by law. Legal rights
affect every citizen. Legal rights are equally available to all the citizens without
the discrimination of caste, creed & sex.

I. Perfect & Imperfect Rights

The perfect right has the following features:

1. It is recognized by law.
 2. It is enforceable by law. So, in the case of breach of this right, a
person may go to court for enforcing this right.
Thus, all fundamental rights, viz. Right to equality, right to religion, etc. are
perfect rights as these are enforceable by law.

The imperfect right has the following features:

1. It is recognized by law.
2. It is not enforceable by law. This means that a person cannot go to
court for the breach of imperfect right.
All the time-bound claims or debts come under the category of imperfect rights.

II. Positive & Negative Rights

The basis of distinguishing right as positive or negative is the nature of correlative
duty it carries with it.

Under Positive rights, the person has to perform some positive duty to fulfill this
right.

Negative rights prevent a person to do some act, that is it corresponds to a

negative duty. Example: Right to life under article 21 of the Indian constitution is
a negative right because it prevents a person to kill another person.

III. Real & Personal Rights

Real right or right in- rem corresponds to the duty imposed upon the people in
general. It is available against the whole world in general. Example: Tort or crime
is a real right.

Personal right or right in-persona is available against a particular person & it

corresponds to duty the duty imposed upon a particular person. Therefore, the
personal right generally arises out of contractual obligation. Example: breach of
contract is a personal right.
IV. Proprietary & Personal Rights
A proprietary right is available with respect to a property that is it relates to the
owner & his assets. The assets must have some monetary value. Example: the
right to ownership of property, Right to patent, Right to goodwill, etc.

A personal right is related to a person’s life i.e. his reputation or standing in the
society. These rights promote a person’s well being in society & have no
economic value. Example: Right to life.

V. Public & Private Rights

The rights which are vested in a person by state or govt. or constitution is called
public rights. Example: Right to vote, Right to use public parks, etc.

Private rights are connected with private individuals or persons. Example: A

contract entered into by two people gives rise to private rights to them.

VI. Inheritable & Uninheritable Rights

Inheritable rights can be passed from one generation to another, i.e. this right
survives even after the death of its owner. Example: A son is a legal heir to the
property of his father after his death.

Uninheritable rights die with the death of its owner. Example: All personal rights
are uninheritable rights.

V. Right in repropria & Right in realiena

A person possesses Right in repropria with respect to his own property. He can
use, dispose of, destroy, modify or exclude others from his property. Thus, this
right gives a person, absolute ownership over the property.

Right in realiena is the right in the property of another person. Example: Right of
way over the neighbor’s field. So, it is not an absolute right.

13.Discuss the concept of personality with special reference to the unborn

person?
The child in the mother’s womb has the same rights as that the child will
possess after the birth. The maxim ‘Nasciturus Pro Jam nato bachelor’ explains
the legal status of the unborn child. The legal fictions regarded the unborn
child as an already born child. The Latin maxim that refers to law protects and
guards the rights of the foetus which can be right related to property, shares of
the undivided family, inheritance etc. It says that the unborn is deemed to
have been born to the extent that his own benefits are concerned. The term
Nasciturus means the one who is about to be born or a conceived foetus. This
concept was first found in Roman laws and after that European and American
law as well in respect of inheritance. In the case of Elliott v. Joicey, it is stated
that the legal fiction is only applied for the benefit of the child who is yet to be
born.
A child that is still in the womb of its mother is still not technically a person. But
by legal fiction, an unborn child is considered already born. i.e. he is granted a
certain legal personality. If the child is born alive he will then enjoy legal status.
Let us look at certain provisions made for the unborn child under the Indian law,

Indian laws dealing with an unborn child

Indian Penal Code, 1860

Section 315 – This section of the IPC states that inflicting prenatal injury on a
child possessing the capability of being born and where such injury affects it
from being born amounts to an offence of child destruction.

Criminal Procedure Code, 1973

Section 416 – This section of the CrPC states that in case any woman who is
sentenced to death is found to be pregnant, an order to postpone the execution
must be passed by the High Court, or if it deems it fit, the execution can be
reduced to life imprisonment.

Transfer of Property Act, 1882

Section 13 – This section of the said Act states that a property can be transferred
for the benefit of an unborn person through the means of trust.
The Indian Succession Act, 1925

Section 114 – This section provides for the creation of prior interest before the
unborn child is made the owner of the corporeal or incorporeal property.
However, no property will be deemed to be vested in the unborn child until he
is born alive as per the Act.

Under Hindu Law, an unborn child is deemed to be a living person for certain
purposes. The rights of an unborn child that is in the womb of its mother are
dealt with by Section 20 of the Hindu Succession Act, 1956. As per Mitakshara
Law, in a Hindu Undivided Family, an unborn child will have an interest in
coparcenary property. Under Mohammedan Law a gift in the name of a person
who does not exist is void.

14.Write a note on corporate personality.

Introduction:
As per the law, a corporation is an artificial person. It has the ability to enjoy
rights, fulfill its duties and hold property in its own name. Hence, the concept of
corporate personality is a singular creation of the law. The best example of this is
the corporate personality of a company under the Companies Act, 2013.

Such a corporation under the law has a legal identity of its own. Such a
corporation is represented by its members and agents. However, unlike a natural
person, these corporations have a perpetual existence.

Such companies and corporations can sue and even be sued upon. Other such
examples of institutes with corporate personalities include banks, universities,
corporate bodies, colleges, an association of persons, etc.

Theories of Corporate Personality

Now, there are many theories that show and reflect the nature and scope of this
corporate personality as created by law. These theories offer us a theoretical
perspective on the topic allowing us a better understanding. However, in the real
world with practical problems, they are of little use.

No one theory completely captures the essence of corporate personality. So here

we will look at a few of the popular ones,
1] Fiction Theory
As per the fiction theory, a corporation exists only as an outcome of fiction and
metaphor. So the personality that is attached to these corporations is done
purely by legal fiction.

The legal person is created only in the eyes of the law for a specific purpose. The
theory was propounded by Savigny and backed by Salmond and Holland.

2] Concession Theory
This is similar to the fiction theory. However, it states that the legal entity has
been given a corporate personality or a legal existence by the functions of the
State. So as per this theory, only the State can endow legal personalities, not the
law.

3] Realist Theory
As per the realist theory, there is really no distinction between a natural person
and an artificial person. So a corporate entity is as much a person as a natural
person. So the corporation does not owe its existence to the state or the law. It
just exists in reality. This is not a very practical theory as it does not apply in the
real world.

4] Bracket Theory
This is one of the more famous and feasible theories of corporate personality.
The bracket theory is also known as the symbolist theory which states that a
corporation is created only by its members and its agents.

So the people who represent the corporation make up the corporation. The law
only puts a bracket around them for convenience purposes. So we consider these
members and the corporation as one unit.

In the practical world, however, we find that the personality of the corporation is
separate than that of its members and agents

15.Distinction between possession and ownership.

Introduction:
 As per Salmond ownership can be described as the relation between a person and
any said object which forms the subject matter of this said ownership. Ownership
also consists of a complex web of many rights all of which are rights in rem, and
not merely rights against persons.

Ownership Possession

Possession is more the physical control of an

Ownership involves the absolute rights and
object. The possessor has a better claim to the
legitimate claim to an object. It means to own
title of the object than anyone, except the
the object by the owner.
owner himself.

Ownership is the right of the owner against the

world indefinite in point of the user, As per the definitions, it is the continuous
unrestricted in point of disposition or exercise of a claim to exclusively possess and
destroying and unlimited in point of duration use the object/thing.
over a thing

Ownership itself gives the owner the right to However, it does not indicate the right to
possession. ownership.

The transfer of ownership is a technical and Transfer of possession is fairly easier and less
long process and involves conveyance technical.

Ownership is essentially a bundle of rights, all It is not a right, just a prima facie evidence of
rights in rem. ownership
16.Write a note on general system.

General Systems Theory is a name which has come into use to describe a level
of theoretical model-building which lies somewhere between the highly
generalized constructions of pure mathematics and the specific theories of the
specialized disciplines. Mathematics attempts to organize highly general
relationships into a coherent system, a system however which does not have
any necessary connections with the "real" world around us. It studies all
thinkable relationships abstracted from any concrete situation or body of
empirical knowledge. It is not even confined to "quantitative" relationships
narrowly defined - indeed, the developments of a mathematics of quality and
structure is already on the way, even though it is not as far advanced as the
"classical" mathematics of quantity and number. Nevertheless because in a
sense mathematics contains all theories it contains none; it is the language of
theory but it does not give us the content.

At the other extreme we have the separate' disciplines and sciences, with their
separate bodies of theory. Each discipline corresponds to a certain segment of
the empirical world, and each develops theories which have particular
applicability to its own empirical segment. Physics, chemistry, biology,
psychology, sociology, economics and so on all carve out for themselves certain
elements of the experience of man and develop theories and patterns of activity
(research) which yield satisfaction in understanding, and which are appropriate
to their special segments.

Systems theory is an interdisciplinary theory about the nature of complex

systems in nature, society, and science, and is a framework by which one can
investigate and/or describe any group of objects that work together to
produce some result. This could be a single organism, any organization or
society, or any electro-mechanical or informational artifact. As a technical and
general academic area of study it predominantly refers to the science of
systems that resulted from Bertalanffy's General System Theory (GST), among
others, in initiating what became a project of systems research and practice.
Systems theoretical approaches were later appropriated in other fields, such as
in the structural functionalist sociology of Talcott Parsons and Niklas
Luhmann.

17.Explain the theory of strict liability.

Rule of Strict Liability

The strict liability principle is an extremely important concept under the law of
torts. The basis of this principle basically lies in the inherent harm that some
activities can inflict. For example, leaking of poisonous gasses, as it happened in
the Bhopal Gas Tragedy, will attract this rule.

The underlying principle of compensation in torts generally depends on the

extent of precautions a person takes. Hence, if he takes abundant precautions to
prevent some harm, the law may exempt him from paying damages. This
principle, however, does not apply to strict liability.

Under the strict liability rule, the law makes people pay compensation for
damages even if they are not at fault. In other words, people have to pay
compensation to victims even if they took all the necessary precautions. In fact,
permissions allowing such activities often include this principle as a pre-
condition.

Rylands v. Fletcher

The rule of strict liability originates from the famous English case of Rylands v.
Fletcher. According to the facts of this case, the defendant owned a mill and
wanted to improve its water supply. For this purpose, he employed a firm of
reputed engineers to construct a reservoir nearby.

The problem occurred when the reservoir was so full one day that
the water from it started over-flowing. The water flowed with so much force that
it entered the plaintiff’s mine and damaged everything.

The engineers, who were independent contractors of the defendant, were

clearly at fault. This is because they were negligent in constructing the reservoir.
This is exactly what the defendant also said for avoiding his liability.

The court, however, disagreed and explained the strict liability rule. It said that
when somebody keeps something on his property for his benefit, it should not
escape and affect others. In case it so escapes, the owner of that thing must
compensate the victim even if he was not negligent.

Exceptions to Strict Liability

The strict liability rule does not apply in cases involving the following exceptions:

1) Act of God
An act of God is a sudden, direct and irresistible act of nature that nobody can
reasonably prepare for. It can cause damage regardless of how many precautions
one may take. For example, tsunamis, tornadoes, earthquakes, extraordinary
rainfall, etc. are acts of God. Any damage that occurs due to these acts does not
attract strict liability.

2) Wrongful act of a third party

Sometimes, the involvement of third parties may be the cause of damages. For
example, renovation work in one flat may cause some nuisance to another flat.
Here, the tenant affected by the nuisance cannot sue his landlord. He can only
sue the person renovating the other flat.

3) Plaintiff’s own fault

In several instances, the plaintiff may himself be at fault for the damage he
suffers. In such cases, he cannot shift liability on some other person regardless of
how much he suffers.

Rule of Absolute Liability

The Supreme Court applied a stricter version of the rule of strict liability in the
case of MC Mehta v. Union of India (1987). In this case, harmful Oleum gas had
escaped from a factory owned by Shriram Foods & Fertilizer Industries. The gas
had caused a lot of damage to people and industries nearby.

The Supreme Court held that, despite being so stringent, the strict liability rule
was inadequate in modern times. This is because scientific advancements have
made modern industries even more dangerous and hazardous. Hence, the court
laid down the absolute liability rule in this case.

According to the absolute liability rule, no exceptions of strict liability shall apply
in certain cases. Therefore, the people who cause damage will have unlimited
liability to compensate victims adequately. Courts in India have applied this rule
in many cases to create deterrence.
18.Write a note on duty of care and solidatory obligation.

1) Duty Of Care

It is one of the essential conditions of negligence in order to make the person

liable.
It means that every person owes, a duty of care, to another person while
performing an act. Although this duty exists in all acts, but in negligence, the
duty is legal in nature and cannot be illegal or unlawful and also cannot be of
moral, ethical or religious nature.

In the case of Stansbele vs Troman(1948), A decorator was engaged to carry out

decorations in a house. Soon after The decorator left the house without locking
the doors or informing anyone. During his absence, a thief entered the house
and stole some property the value of which the owner of the house claimed
from the decorator. It was held that the decorator was liable as he was negligent
in leaving the house open and failed his duty of care.

Solidary Obligation– where each one of the debtors is bound render, and/or
each creditor has the right to demand from any of the debtors, the entire
compliance with the prestation.

Consequences of Solidary Obligation

1. Passive Solidarity- one of the several debtors can be made liable for the
payment or the performance of the entire obligation. (full payment by any
of the debtor extinguishes the obligation)
2. Active Solidarity- one of the solidary creditors can demand the payment
or performance of the entire obligation from the debtor or any of the
debtors. (There is mutual representation w/ power to exercise the rights
of others in the same manner as their own rights)

Solidary liability cannot be presumed, the law recognizes the existence When
the obligation itself expressly provides for solidarity, for the burden s now
assumed voluntarily by the debtor/s who are supposed to take care of their own
concerns and affairs (Conventional Solidarity); When the law expressly provides
for solidarity for which the law has its own legal reason for the imposition of
solidarity (Legal Solidarity); When the nature of the obligation requires
solidarity (Real Solidarity)
19.Uses and purpose of incorporation

Introduction:

A corporation gives the personal liability protection to its owners, which means
the owners cannot be held personally accountable for corporate liabilities. A
corporation exists separately from the people who created it or who conduct its
operations.

Personal liability protection:

This is the most important reason for incorporating. Shareholders are not
legally liable for the corporation's actions, debts, and obligations. That's
because the corporation is a completely separate entity from its owners.
Perpetuity:
Unlike proprietorship businesses and partnership firms, the existence of a
corporation does not depend on the life of its owners. It continues to exist
until it's legally dissolved or merged into another business.
Ownership transferability:
Transferring the ownership of proprietorship and partnership businesses can
be quite cumbersome. You need to change the title in the property
documents, prepare new deeds, and take several other administrative steps.
However, in case of corporations, the ownership is held in the form of shares.
You can easily transfer the ownership by transferring your shares.
Ability to raise funds:
Incorporation makes it much easier to raise capital for your business. People
prefer to invest in corporations because of limited liability and easy
transferability of shares.
Other benefits:

• Corporations have a well-established body of law and legal precedent,

which serves as a reliable guide to owners and managers.
• Corporations are the ideal structure for public companies.

20.Discuss the natural law theory? State the criticism the against?
Introduction:
Jurisprudence refers to the study of Law. The word ‘jurisprudence’ is a Latin
phrase “juris prudential” which means ‘knowledge of the law‘. Moreover, it
refers to the law that helps us in understanding, creating, application and
enforcement of the law.
In other words, jurisprudence refers to the theories and philosophies of law.
Upon a clear understanding of the theories and philosophies, it becomes easier
to understand our law.

There are 2 broad sub-categories of jurisprudence. However, the first sub-

category is analytic jurisprudence. This area emphasizes the meanings, uses and
application of legal concepts, such as, ‘what is law?’.

Moreover, the 5 basic schools of jurisprudence are as follows:

1. Historical School
2. Natural School or Philosophical School
3. Sociological School
4. Realist School
5. Analytical School

Natural law is the moral theory of jurisprudence and often states that laws
should be on the basis of ethics and morals. This law also states that law should
focus on what is ‘correct’.

In addition, natural law was found by humans on their disposition of reasoning

and choosing between good and bad. Hence, it is said that this law plays a
significant role in establishing moral and ethical standards.

Natural law is a philosophy of law that focuses on the laws of nature.

Moreover, this school of jurisprudence represents the belief that there are laws
common to all societies. This is irrespective of whether they are written down or
can officially enact.
This school of thought tells us that law is both – rational and reasonable.
Moreover, natural law proposes that laws are more of a logical progression from
morals. Therefore, actions that are morally wrong will be against the law. But
also, actions that are morally right can’t truly and justly be against the law.
Natural law exists regardless of what laws are enacted.

Evolution, Growth, and Decline of the Natural Law

The content and purpose of this law have constant variation from time to time
depending on its usage and functions. The functions and purpose of its usage
along with the needs of the time and circumstances play a crucial role. Therefore,
the evolution and growth of natural law have been through variation over a
period of time.

• Ancient Period (Stage 1)

• Medieval Period (Stage 2)
• Renaissance Period (Stage 3)
• Modern Period (Stage 4)

Criticism:

In 18th century the social contract theory saw its decline. Natural law theory
was reflected by the economic and political changes which had taken place in
Europe. These new changes and developments required concrete and political
solutions. The stupendous growth of natural science and new political theories
gave strength to empirical methods and rejected deductive methods. There
were many historians and philosophers who rejected natural theory by saying
that it was just a myth.

Hume showed that the reason understood in the system of natural law was
based on confusion. And neither values nor justice are inherent in nature.
According to Bentham natural law is nothing but a phrase. He criticised natural
law and called it “simple and rhetorical nonsense”. His view regarding the
principle of equality was negative as he said that “Absolute inequality is
absolutely impossible” and absolute liberty is directly repugnant in any kind of
government. Austin was also against natural law theory and according to him it
was ambiguous and misleading. He says that all the natural rights of the
individuals were created and regulated by the state and the state did not
originate in a social contract.

21.Discuss the purpose of criminal justice in the light of various theories of

punishment.

Punishment is the penalty on someone as a result of their wrongdoing.

Crime is against society. Police aid in preventing the crime by arresting the
criminals and forwarding them to court, where they are punished according to
the law. The result of crime is punishment. The main aim of punishment is to
reform the criminals and convert them into good Samaritans (a person who
voluntarily offers help or sympathy in times of trouble) and law-abiding
citizens. According to research, there are several theories of punishment.

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.
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 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.

22.Explain the circumstances destroying or weakening the binding force the

precedent?
Circumstances which Destroy the Binding Force of Judicial Precedents:
Once a decision is overruled by any subsequent ruling, it loses all its binding
authority. But there are certain other circumstances which also destroy or
weaken the binding force of judicial precedent in the partially or totally they
are as follows:-

1) Ignorance of statute:
A precedent is not binding if it be rendered in ignorance of any statute or any
other rule having the force of statute. It is also not binding if the court had the
knowledge of the existence of the statute but it failed to appreciate its
relevance to the matter in hand due to negligence or ignorance.
2) Inconsistency between earlier decision of higher court:
A precedent loses its binding force completely if it is inconsistent with the
decision of a higher court. Thus the court of appeal in “Young V/s. Bristol
Aeroplane Corporation Limited (1944) KB 718 (729)” observed that it is bound
to follow its own previous decisions as well as those of court of co-ordinate
jurisdiction. However the court is bound to refuse to follow a decision of its
own, which do not expressly overruled, cannot, in its opinion, stand with the
decision of the house of lords or if it finds that there is inconsistency between
its earlier decision.
3) Inconsistency between early decision of the court of the same rank:
A court is not bound by its own earlier decisions which are conflicting with
each other the conflict may arise due to inadvertence, ignorance or
forgetfulness in not citing earlier decision before the court. In such a case the
earlier decisions are not binding on the court.
4) Precedent sub silentio:
A decision is said to be sub silentio when the point of law involved in it is not
fully argued or not perceived by the court. The decision in “Gerard vs worth of
Paris limited (1936) 2 ALL ER 905 (CA)” is a good illustration to explain a
Precedent sub silentio. In this case an employee who was discharged by the
defendant company obtained damages for his wrongful dismissal against the
company. He applied for a grainshee order on a bank account of the company
which was in the name of liquidator. The only point argued was priority of
claimant debt and the court of appeal granted the order. The question
whether a grainshee order could be properly made on a account standing in
the name of liquidator was never argued or considered by the court. Therefore
when this very point was argued in a subsequent case before the court of
appeal the court held itself not bound by the previous decisions as the point
was sub silentio in the previous case.
5) Decision of equally divided court:
There may be cases where the judges of the appellate court are equally
divided. In such a case practice is to dismiss the appeal and hold that the
decision appealed against is correctly decided. But this problem does not arise
now a days because benches are always constituted with an even number of
judges. In India, however, where the judges in a Division Bench of a High court
are equally divided, the practice is to refer the case to a third judge who is
decision shall be treated as final unless it is set aside by the Supreme Court.
6) Dissenting judgments:
Most judicial decisions are an unanimous. But at time few judges may write or
even note a dissent in the case in which they disagree with the majority.
However, while judges are free to differ on judicial matter and interpretation
of law in a case in hand but there is always an effort on the part of the majority
to minimise or even eliminate dissent. The dissenting judgment do not in any
way undermine the authority or authenticity of law because they provide
scope to correct errors of law due to blindly following the doctrine of
precedent. For instance, just take the question whether and to what extent
freedom under the constitution should be interpreted to allow ‘live in
relationship’ which has cropped up as a crucial social problem in India in recent
decades. The society copes up, manages and out grows with such problems
but rarely solves it. There is always a scope for dissent when such questions
come up for adjudication before the higher Courts. Judges decide such issue on
basis of their own life experiences and there is always an scope of possibility
that a dissenting note of a particular judge may become a ratio in a case in
future due to overruling of case wherein such dissent was recorded.
7) Erroneous decisions:
The decisions which are founded on misconceived principles or in conflict with
the fundamental principles of law lose their binding force totally.
8) Abrogated decisions:
A decision cease to be binding if statute inconsistent with it is subsequently
enacted. So also it ceases to be binding if it is reversed, overruled or
abrogated. If a decision is wrong or irrational, it may be abrogated by a
subsequent enactment or decision of a higher court.(This is expressed in latin
maxim: “cessante ratione legis cessat ipsa lex”)
9) Affirmation or reversal on a different ground:
When higher court either affirms or reverses the judgment of the lower court
on a ground different from that on which the judgment rests, the original
judgment is not deprived of all the authority but the subsequent court may
take a view that a particular point which the higher court did not touch, is
rightly decided.
23.Discuss the functions and purposes of law.
There are many purposes served by the law. Out of these, the main four are
maintaining order, establishing standards, protecting liberties, and resolving
disputes.
Maintaining Order
This law is considered as an offshoot to establishing the standards. Some
resemblance is necessary for a civilized society. Therefore, the same is reflected
in the law. Furthermore, the law when it is enforced provides consistency with
the society’s guidelines.

Furthermore, wildlife management laws were passed so that the game can be
conserved and it protects the future generations for years to enjoy.

Establishing Standards
This law is a guideline to the minimum accepted behavior in society. There are
some activities that are a crime for a society to determine it will not tolerate
certain behaviors that may damage or injure the person or their property. For
example, it is a crime to injure a person without any sort of justification. Thus,
doing so can constitute a crime of assault.

Resolving Disputes
Disputes are not avoided in a society that has been comprised of people with
different wants, needs, values, etc. Also, the law provides a formal means to
solve the disputes which are the court system.

Protecting Liberties and Rights

The constitutions and the statutes of India provide for various rights and liberties
in its states. Also, one function of the law is to protect various rights and liberties
from unreasonable or violations intrusions by organizations, persons or
government.

Thus, if someone believes that the freedom of speech has been prohibited by the
government may pursue the remedy by bringing the case in the courts.
Laws fulfill many functions, but four main functions of laws are: –
1. Laws Protect Individual Rights and Freedoms: – The Bill at Rights was
added to the US Constitution to guarantee many important
protections. These laws provide protection to individuals, from other
persons, from organizations and even from the government. The First
Amendment of the Bill of Rights prohibited government law which
would interfere with a person’s right to free speech.
2. The Laws provide a Framework and Rules to Help Settle Disputes
Between Individuals: – The laws create a system where individuals
can bring their dispute to an impartial tactic, such as a judge or jury.
There is also ore legal option where individuals work together to find
a solution, such as by using alternative dispute resolution (ADR).
There are courts at every level, stranded from local to federal. To
decide who should win in a dispute.
3. Without Law there will be no way to Set the Standard: – It is fairly
easy to see why murder and theft are crimes, but laws also provide a
framework for setting other types of standards. Without the Federal
Code of Regulation, it would be difficult for individuals or businesses
to conduct transactions using banks. Federal regulations provide
enforceable rules and protections regarding taxes, commercial
transactions, and employment laws, insurance and other important
areas.
4. Laws Help Societies to Maintain Order: – What will be the situation if
there is no rule of law? You may need to provide your protection as
there will be no police force or army. Disputes are un avoidable in the
life of society and it is the role of the law to settle disputes. Thus,
disagreements that are justiciable will be resolved by law in court or
out of court using alternative dispute settlement mechanisms.
5. Social Change: – A number of scholars agree about the role of law in
modern society as instrument to social change. Law enables us to
have purposive, planned, and directed social change. Flexibility of
law provides some measure of discretion in law to make it adaptable
to social conditions. If law is rigid and unalterable, it may not respond
to changes spontaneously which may lead to resentment and
dissatisfaction among the subjects and may even result into violence
or revolution. Therefore, some amount of flexibility is inevitable in
law

24.A trust is curious instance of duplicate ownership where the powers of

management and rights are separated explain?
The bundle of right of a person over a thing gives him ownership of the thing
and the control so exercised by the person over that thing makes the thing the
property of that person. The concept of ownership is of both legal and social
interest. Not only have court utilized the idea in such a way as to give effect to
views of changing individual and social interest, bur so great are its potentialities
that in recent times it has become the focus of government policy.

Ordinarily, the subject matter of ownership consists of material objects like land,
chattels, etc. the wealth and assets of a person such as interests in the land,
debts due to his shares in a company, patents, copyrights, etc. may also be
subject matter of ownership. Thus intangible rights may also constitute subject
matter of ownership.

Salmond also supported this view that right may also be subject matter of
ownership though a man is said ‘not to own, but to have a right.’

In the Bank Nationalization case 1970, Supreme Court held that property
includes not only tangible things but also intangible things, (Rustom Cavasjee
Cooper v. Union Of India (1970 AIR 564, 1970 SCR (3) 530). Likewise, the
Supreme Court has held privy purses as property within the meaning of Article
19 and 31 of the constitution.

Ownership maybe of various kinds. Broadly, it may be classified under the

following heads:-
(1) Vested and Contingent ownership.
(2) Sole and Co-ownership.
(3) Corporeal and Incorporeal ownership.
(4) Legal and Equitable ownership.
(5) Trust and Beneficial ownership.
(6) Absolute & Limited ownership.

Vested and Contingent Ownership:-

Ownership is either vested or
contingent. It is vested when the entire events essential to vest property in the
owner have happened and the owner’s title is already perfect. Thus if A sells a
house to B for a price settled, the other formalities prescribed by law e.g.,
registration etc. are complied with, B becomes a vested owner of the house. A
vested ownership does not depend upon the fulfillment of any condition but
creates an immediate right through its enjoyment may be postponed to a future
date, there is a transfer of property to A for life than to B, here Bs interest is
vested one because B need not fulfill any condition precedent and his title is
perfect, he is entitled to take possession the moment A dies.
Contingent ownership is conditional. In this, interest in the property is
subjected to certain conditions or conditions. The vesting of the right in such
cases depends upon the happening of such an event or fulfillment of such
conditions. Thus, if the property is transferred to A for life, if B marries C, B’s
interest is such that it cannot take place as soon as A dies because there is a
condition which B is to fulfill viz., that he must marry A. Until B fulfills this
condition is interest is contingent depending upon the fulfillment of the
condition. The condition on which ownership depends may be either a condition
precedent or condition subsequent. A condition precedent is one by the
fulfillment of which a title is completed, a condition subsequent is one on the
fulfillment of which a title already completed is extinguished.”

Corporeal and incorporeal Ownership:-

Corporeal ownership is that the ownership
of a material thing and incorporeal ownership is that the ownership of a right.
Ownership of a shop, land or a machine is corporeal ownership. Ownership of a
patent, copyright, a trademark, right of way, etc. is incorporeal ownership. The
distinction between corporeal and incorporeal ownership depends on the
distinction between corporeal and incorporeal things.
Incorporeal ownership is ownership of intangible objects, which cannot be
perceived and felt by the senses and which are intangible.
Incorporeal ownership includes ownership of intellectual property.

Trust and Beneficial Ownership:-

Trust ownership is an instance of duplicate
ownership. Trust property is a property owned by two persons at the same time.
The relation between the two owners is such one among them is under an
obligation to use his ownership for the benefit of the other. The ownership is
called beneficial ownership. The ownership of a trustee is nominal and not real
but within the eye of the law, the trustee represents his beneficiary.
 Legal and Equitable Ownership:-
This classification of ownership is
recognized in England. This difference between the two of the ownerships has
its origin in the rules of common law and equity.
Originally legal ownership is that which had its origin in the rules of
common law and equitable ownership is that which resulted from the rules of
equity. In many cases, equity recognizes ownership where the law does not
recognize ownership owing to some legal defect.
There is no distinction between legal and equitable estates in India. Under
the Indian Trusts Act, a trustee is the legal owner of the trust property itself.
However, he has the right against the trustees to force them to carry out the
provisions of the trust.

Sole Ownership and Co-ownership:-

Ownership may be either sole or
duplicate. When it is exclusively vested in one person it is called sole ownership.
When it is jointly held by two or more persons at the same time, it is called
duplicate or co-ownership.
The chief instances of duplicate ownership are;
i) Co-ownership;
ii) Trust and beneficial ownership;
iii) Legal and equitable ownership;
iv) Vested and contingent ownership.
Co-ownership that is to say, ownership shared by several persons with
equal or co-ordinate results may be of two kinds, namely:-
a) Joint ownership, and
b) Ownership in-common.

Absolute and limited ownership:-

An absolute owner is the one who is vested all
the rights over a thing to the exclusion of all. When all the rights of ownership,
i.e. possession, enjoyment, and disposal are vested in a person without any
restriction, the ownership called absolute. And limited ownership means when
there are restrictions as to user, duration or disposal.
 For example, before the enactment of the Hindu Succession Act, 1956, a
woman had only limited ownership over the property because she held the
property just for her life and after her death; the property passed on to the last
heir or last holder of the property. Another example of limited ownership in
English law is life tenancy when a property is held only for life.
25.Explain the nature of obligation and discuss the kinds of obligations?
The word originally derives from the Latin term “obligare” which comes from
the root “lig” which suggests being bound, as one is to God for instance in “re-
ligio”.[1]
It is merely a class of duties in the legal sense, including those that are
correlatives of rights in personam.
Salmond defines obligations as the vinculum juris, or bound of legal necessity
which binds together two or more determinate individuals. [2]
According to Savigny, an obligation is “the control over another person, yet not
over his person in all respects, but over a single act of his which must be
conceived of subtracted from his free will and subjected to our will”.
According to Anson, obligation is a kind of control exercised by determinate
persons over certain determinate persons for some specific act or it may also be
called a forbearance which has been valued in terms of money.

Nature:

Obligation in Contracts

The Key Role of Obligation in a contract is that to have a duty of performance

when a contract is done so that certain contract and obligations are performed
the crux of this is that one is liable for breach if he/she has not taken the
initiative to perform the duty now this brings upon the responsibility to certain
level.

To give a much deeper perspective in the theory of doctrine of frustration

Frustration signifies a certain set of circumstances arising after the formation
of the contract, the occurrence of which is due to no fault of either party and
which render performance of the contract by one or both parties physically or
commercially impossible. The court regards these set of circumstances as
releasing the parties from any further obligations. Where the entire
performance of a contract becomes substantially impossible without any fault
on either side, the contract is prima facie dissolved by the doctrine of
frustration. In regard to this Section 37 of the Indian Contract Act provides
parties to dispense with performance also enables them to assign their
contractual obligations.

Obligation in Torts

In Torts the similar concept is applied and therefore the purpose of this to
understand that law in tort there is the remoteness of damages and if failure
to perform one Is obligated to be claimed for damages as an obligation it tries
to force would need to be viewed either as sui generis in nature or as an
occurrence of some sort of non-moral social normativity, it would in any case
bode well to find out if there is an overall good commitment to submit to the
law furthermore the emphasis on obligation means that it often gets
overlooked in jurisprudence (even if not in the philosophy of contract, the
philosophy of torts as it plays a relevant role to provide social harmony and
balance to the subject as its bound by quasi-contract a certain person be
required to conform to an obligation, although he has neither broken any
contract nor committed any tort to further elaborate in the case of. Moses v
Macferlan Jacob issues four promissory notes to Moses who later endorsed
them to Macferlan excluding his personal liability by a written agreement, the
parties are liable thereupon.

Considered from the point of view of their sources, obligations are divisible into
the following four classes:
1. Contractual obligation
2. Delictual obligation
3. Quasi-Contractual obligation
4. Innominate obligation
CONTRACTUAL OBLIGATION
According to Section 2(h) of the Indian Contracts Act, contracts are the
agreements enforceable by law. Contracts typically form an arrangement
between the parties who are legally bound by the terms of the agreement; such
agreements must therefore be enforceable by law and should thus be called
contracts. Under a contract, the contracting parties have the obligation to meet
the obligations they have established on each other. It creates right in personam
between the parties, but carries some exceptions like promise of marriage,
which falls within the law of status. In a contract, in return for the promise made
by the other person, a party agrees to or to abstain from doing something. So,
we may assume that there are rights and duties that they have an obligation to
fulfil on both sides of the contract. In situations where a party is unable to fulfil
its duty or actively refrains from fulfilling its obligations, such a condition results
in a breach of contract and the party suffering from such a breach has the right
to physically enforce the contract. Rights arising out of contract are right in
personam as the remedy available against is the party to the contract who
makes breach of such contracts. Contracts create mutuality of obligations as
both promisor and promise perform their duty and have rights against each
other in a contract.
DELICTUAL OBLIGATION
These are the obligations arising out of tort. Torts is the branch of law that is
deemed to be civil wrong, i.e. civil in nature. Under Torts, damages are
unliquidated (the one wherein the amount of compensation is not pre decided)
as opposed to contracts where damages are inherently liquidated. Tortious
liability arises from the violation of duty against another individual. Dr. Winfield
has defined liability in torts as “tortious liability arises from the breach of duty
primarily fixed by law; this duty is towards persons generally and its breach is
repressible by an action for unliquidated damages”. It means delictual
obligations are the duty of making pecuniary satisfaction for the wrong, i.e. tort
committed by the defendant. Such a duty is established by law and individuals
are allowed to comply with such a duty and if they do not comply with their duty
and cause harm to other individuals, then the person against whom tort is
committed has the right to claim unliquidated damages from the one who didn’t
comply with such duty. A wrongdoer therefore has the duty to pay unliquidated
damages to the person against whom he commits wrong. Unliquidated
damages are not predetermined.
QUASI-CONTRACTUAL OBLIGATION
These are the obligations arising out of contracts. These obligations are
regarded by law as contractual though they are not so in fact. Primordial in
Roman Law such obligations were called obligationes quasi ex contractu,
whereas in English law, they are called quasi-contractual. The contracts which
are created out of the interference of courts but not by the formal agreement
and the parties’ consent are termed as quasi contracts. These are fictional
contracts. Quasi-contractual obligations are very precisely defined with
examples under chapter V of the Indian Contract Act, 1872. The obligation of a
parent towards their child is a well defined illustration of quasi-contracts. The
relationship created on trust is yet another example.
INNOMINATE OBLIGATION
Salmond defines Innominate obligation as residuary class of obligation.
Innominate obligations are those which are not purely contractual, delictual or
quasi contractual. This means they do not have a particular designation or term.
For Instance, trustee ‘s obligation to the beneficiary. A trustee has a fiduciary
obligation with respect to the beneficiary. A trustee is directly responsible for
infringement of the obligation he has on the beneficiary’s property.

26.Explain with the help of illustration the scope of the legal term’s intention,
motive and culpable negligence.

Motive
A motive is a person’s state of mind that inspires him to do an act. It usually
means the purpose of the act’s commission. Motive is generally irrelevant in tort
law, just like intention. Motive leads to intention formation, which is the
ultimate cause. Motive is the ultimate object with which an act is done, while
the immediate purpose is the intention.

The cause that moves individuals to induce a certain action is a motive, in law,
especially criminal law. Typically, the legal system allows motive to be proven to
make plausible reasons for committing a crime for the accused. However,
motive is not essential for a tort action to be maintained. It is not just because
the motive is good that a wrongful act becomes legal. Similarly, due to an
improper, evil motive or malice, a lawful act does not become wrongful.

The decisions of Lord Halsbury and Lord Watson in Bradford Corporation v.

Pickles and Allen V. Flood may be treated as one of the earliest decisions that
settled that motive is irrelevant in tort.

Exceptions to Rule

There are certain categories of tort where the motive may be an essential
element and thus relevant to the determination of liability:

In the case of deceit, malicious prosecution, injurious falsehood and defamation,

where the defense of fair comment or privilege is available. The defense of
qualified privilege shall be accessible only if it has been published in good faith.

In case of conspiracy, interference with the trade or contractual relations.

Intention
A tortious liability may arise if a person causes any injury related to the life,
property, reputation, etc. of the victim. According to tort law, the liability may
be incurred irrespective of whether the injury was intentionally or accidentally
inflicted.

Depending on the intention, a tort can be divided into two broad categories
namely:

1. Intentional Tort
2. Unintentional Tort

a) Intentional Tort

Some action must be taken with a purpose to commit an intentional tort, i.e. an
intention is must to commit an act. It is essential that there is a mental element.

Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (Wash. 1955)

In 1955, a young boy whose name was Brian pulled a chair from underneath
Ruth Garratt as she went to sit down. Ruth fell and broke her hip because of
Brian’s chair-pulling. Ruth filed a lawsuit against the family of Brian claiming to
have acted intentionally, causing her personal injury. Although Brian did not
intend to cause injury, the court found that the act resulted in the hip being
broken and awarded Ruth $11,000 in damages. Brian’s family appealed on the
grounds that children 5 years of age could not be held liable for an intentional
tort. The court ruled that children can be held liable and that the intent element
is in place if the person knew with certainty that the act carries a risk of injury.

Intentional tort includes:

Battery

When physically applying some force to another person’s body in an offensive

manner that causes some harm is called battery.

Assault
When one person’s act creates an apprehension in another person’s mind that
such act is likely or intended to cause such harm.

The difference between battery and assault is, in battery, physical contact is
mandatory while in assault, physical contact is not mandatory as the purpose is
to threaten not to harm.

False Imprisonment

It is the person’s unlawful confinement without his will. It is not necessary to

place a person behind bars, a mere impossibility of escape from a certain area
against the person’s will is sufficient to constitute false imprisonment wrong. It
includes the use of physical force (actual expression of force is not always
required), a physical barrier such as a locked room, invalid use of legal authority.
False arrest is the part of false imprisonment that includes police detention of
the person without legal authority. Malicious prosecution falls under the
category of false imprisonment.

Trespass

It is the intentional, unreasonable invasion of property, land, person or goods.

The unreasonable interference can harass or harm the other person, however
slight it may be. The owner of the property’s legal right is infringed because the
misappropriation or exploitation of his right deprives him of his right to enjoy
the benefit of the property.

b) Unintentional Tort

The defendant causes injury to the plaintiff in the case of unintentional torture,
but without any mala fide intention. It could be called an unexpected accident.
This was inadvertently done by the person who caused the injury because
he/she was not being careful. Such an individual may be described as negligent
or reckless. In the case of unintentional tort, it may be noted that the injury is
caused by the omission of the “duty of care” that a reasonable and prudent man
should have considered.

Wilkinson v. Downton (1897) 2 QB 57

The defendant joked that her husband had encountered an accident and had
been admitted to a hospital. She was shocked by this news and fell seriously ill.
She subsequently sued the defendant for damages under tort. The defendant
claimed he never wanted to harm the plaintiff, but only cut a joke. The court
dismissed his claim, holding him liable. Here, the court observed that mere
intention was not an essential factor in tort. The defendant was aware of the
natural and probable consequences of his act which caused the plaintiff to suffer
damage. He was therefore liable, whether he intended to do so or not.

culpable homicide is a type of unlawful homicide. Laws regarding culpable

homicide are enshrined in the Indian Penal Code 1862 (IPC). According to which,
there are two types of culpable homicides-

Culpable Homicide not amounting to Murder (Section 299 IPC)

It can be simply referred to as culpable homicide, this comes under the purview
of Section 299 of The Indian Penal Code 1862 which states that:

An act done with the intention of causing death or causing such bodily injury
which is likely to cause death or having the knowledge that he can likely by his
act cause death, he’ll be committing the offense of culpable homicide.

Conditions

After bifurcating the definition, we get 3 conditions which have to be fulfilled to

attract Section 299 of the Indian Penal Code these are-

1. The intention of causing death.

2. The intention of causing such bodily injury as is likely to cause death.
3. With the knowledge that he is likely by such an act to cause death.

Illustration

• A not knowing that D has a tumour in his brain, hits him hard on the
head with a cricket bat, with the intention of causing death or with the
knowledge that death is likely to be caused.
• D dies because of the bursting of the tumour.
 • A is liable for culpable homicide not amounting to murder.

Case Law

It was held in the case of Nara Singh Challan v. State of Orissa (1997) that Section
299 of the Indian Penal Code is the genus and Section 300 of the Indian Penal
Code is the species. Hence, there are no independent sections regarding
culpable homicide not amounting to murder it is the part of Section 300 of IPC
which defines Murder.

Herein, the court observed that:

“For deciding the proper punishment which is proportionate to the current

offense, IPC has divided culpable homicide into three degrees. First is the gravest
form which is Murder it is defined under section 300 of IPC, the second is the
culpable homicide of the second degree which is punishable under Section 304
part 1 of IPC and Third is the lowest degree of culpable homicide which is
punishable under Section 304 part 2 of IPC.”

Culpable Homicide amounting to Murder

It can be simply referred to as Murder, this comes under the purview of Section
300 of the Indian Penal Code 1862 which states that:

Culpable homicide is murder, if the act is done with the intention of causing
death or if it is done with the intention of causing such bodily injury as is likely
to cause the death of the person or if the inflicted bodily injury is sufficient
enough in the ordinary course of nature to cause death or if there is knowledge
involved that the act done is so fatal that in all probability it can cause death or
such bodily injury as is likely to cause death and commits such act without any
excuse.

Conditions

After bifurcating the definition, we get 4 conditions which have to be fulfilled to

attract Section 300 of the Indian Penal Code these are-

1. The intention of causing death.

 2. The intention of causing such bodily injury as the offender knows to be
likely to cause the death of the person to whom the harm is caused.
3. With the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death.
4. The person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as
aforesaid.

Illustration

• X knows that Z has a tumour in his brain and he hits him again and again
with a bat on his head with the intention of causing death, and
• Z dies subsequently.
• X is liable for Murder.

27.Write a note on Subordinate legislation and legal person.

Introduction:
Subordinate legislation is a process by which the executive is given powers by
primary legislation to make laws in order to implement and administer the
requirements of that primary legislation. Such law is the law made by a person
or body other than the legislature but with the legislature‟s authority. Article
13(3) of the Indian Constitution includes within the definition of law forms of
subordinate legislation such as order, rule, regulation, notification.

The need for subordinate legislation arises due to:

limited time available for legislation in Parliament due to overburdening,
increasing complexity requiring knowledge and experience of experts.
covering those situations which have not been anticipated by the Parliament.
flexibility in meeting emergency situations.

However, the concept of subordinate legislation faces criticisms on many

grounds including undermining separation of power, legislation by unelected
people, lack of publicity, etc.
Thus, there are various mechanism for scrutiny and control of delegated
legislation. For example:
Parliamentary scrutiny and control: It occurs at various levels such as:
During the debate on the Act, the relevant departmental standing committee
may recommend the scope of delegated legislation.
Statutory motion to discuss rules: After the rules have been tabled, MPs may
move a statutory motion seeking an annulment or modification of the rules.
Question Hour
Committee on Subordinate Legislation: Both the houses have a Standing
Committee on Subordinate Legislation to oversee whether the power
delegated by Parliament to the government is being properly exercised.
Every delegated legislation needs to be laid before the Parliament within a
stipulated time frame.
Public consultation: Some Acts mandatorily require prior publication and
consultation on draft rules while in others the government may exercise its
discretion and invite comments on the draft rule.
Judicial scrutiny and control: Delegated Legislation may be declared invalid on
the grounds of violation of the Constitution of the India or the violation of the
enabling Act.

Legal person

Legal personality is an artificial creation of law. Entities under the law are capable
of being parties to a legal relationship. A natural person is a human being and
legal persons are artificial persons, such as a corporation. Law creates such
corporation and gives certain legal rights and duties of a human being.

A legal personality is what provides a person or organization rights and

responsibilities by the law. Usually, we automatically assume that Humans have a
legal personality. This is so as such legal systems are built for the use of human
beings. These days, the concept of legal personality is frequently a part of
discussions about the rights or legal responsibility of the entities such as
corporations that cannot be defined by a single person.

1.Fiction Theory
This theory says that the personality of a corporation is different from that of its
members. Thus any change in the membership will not affect the existence of
the corporation.
2. Concession Theory
It is concerned with the Sovereignty of a State. It pre-supposes that the
corporation as a legal person has great importance because it is recognized by
the State or the law. According to it, a juristic person is merely a concession or
creation of the state.

3. Group Personality Theory

This theory believes that every collective group has a real mind, a real will and a
real power of action. So, a corporation has a real existence, irrespective of the
fact whether it is recognized by the State or not.

4. The Bracket Theory or the Symbolist Theory

It states that the conception of corporate personality is important and is an
economic device by which we can simplify the task of coordinating legal
relations. Thus, it emphasizes that the law should look behind the entity to
discover the real state of affairs.

5. Purpose Theory or the theory of Zweck Vermogen

It declares that only human beings can be a person and have rights. It also states
that a juristic person is no person at all but merely a subject-less property meant
for a particular purpose. There is ownership but no owner. Thus a juristic person
is not constructed by a group of people but based on some object and purpose.
Only living things can be the subject-matter of rights and duties.

6. Kelsen’s Theory of Legal Personality

According to it, there is no difference between the legal personality of a
company and that of an individual. In the legal sense personality is only a
technical personification of the norms with the assigned rights and duties.

28.Discuss the legal realism? How it is differing from Austin theory of law.
Legal realism is a naturalist philosophy to law. It is of the perspective that
jurisprudence should imitate the natural science methodologies, that is, relying
on empirical evidence. Assumptions must be put to the test by global findings.
Legal realists conclude that legal science can analyze law exclusively through
natural science’s value-free tools, rather than by metaphysical inquiry into the
essence and purpose of the law, which is different and distinct from the law.
Legal realism, in fact, states that the law can not be isolated from its
implementation, and cannot be easily interpreted. This illustrates the
importance of recognizing the considerations present in judicial decision-
making by identifying the essence of law in fields such as legal decisions issued
by judges and their deference or rejection to the previous precedent and the
doctrine to final judgment.
Legal realism is characterized as a type of jurisprudence by its emphasis on the
law as it currently appears in reality, rather than the way it works in the books.
To this end, it addressed mainly the conduct of the judges and the conditions
that behaviour affect judicial decision-making processes. As Karl Llewellyn
states, “Judges stand behind judgements; judges are men; they have human
histories as men.” Therefore, the law did not reside in an abstract domain with
universal laws or values, but rather inseparable from human behaviour and
from the ability with judges to decide the law. To understand legal actors’
decisions and actions, legal realists turned to the ideas of the social sciences to
understand the human relationships and behaviour that culminated in a given
legal result.

Criticism on Realist theory

The Realist theory had witnessed its heyday from the 1920s to the 1940s. Legal
realism was completely replaced in the 1950s by the movement of legal
processes, which considered law as a process of “reasoned elaboration” and
asserted that appeals to “legislative purpose” and some other well-established
legal standards and norms can provide an accurate response to the most-
awaited legal questions. British law thinker HLA Hart, in his 1961 book The
Concept of Law, began with what other academics viewed as a “decisive blow”
to legal rationality, challenging the statistical philosophy of law that OW
Holmes has taken on from other realists. Hart points out that if a statute is
simply a predictor about what courts are about to do, a judge who is
evaluating the legal facts of a dispute before him is actually thinking, “Why am
I supposed to resolve this matter?”

As Hart explains in his theory, that entirely ignores the idea that judges use
legislations/laws to direct their rulings, and not as evidence to determine their
final judgments. Many critics have argued that the realists overstated the
extent to which statute is “riddled” with gaps, ambiguities, and so on. The fact
that most legal issues have simple, clear-cut responses that no lawyer or judge
would dispute is difficult to reconcile with the bold arguments of the realists of
omnipresent legal “indeterminacy.” Many writers, including Ronald Dworkin
and Lon Fuller, disappointed legal realists for their harsh effort to distinguish
law and morality.

29.What is legal right? Describe the Hohfelds concept of right in wider sense.
Introduction:
The Latin term for right is rectus which means ‘correct’. Rights are the essential
conditions for social life that lead to overall development. According to Julious
Stone, a ‘right’ connotes-

1. A claim justifiable in words;

2. An attitude of human beings by some supposed ideal and natural
right of life, equality, property which is by the natural law.
3. The existence of right presupposes the existence of a remedy for
its breach.
In simpler words, it means essential claims recognized by the civilized society
and are enforced by the state. There are various forms of rights like natural
rights, moral rights, legal rights etc.

Legal rights exist under the rules of the legal system. Ordinarily, they are
recognized and protected by the state. Many jurists have defined and analyzed
the concept of legal rights.

According to T.E. Holland defines legal rights means “a capacity residing on

one man of controlling with the assent and assistance of the state the actions
of others. He emphasizes the element of enforcement of legal rights“.

According to John Austin observed that “a party has a right when another or
other is bound or obliged by law to do or to forbear towards or regarding
them’. John Salmond defines it as ‘an interest recognized and protected by a
rule or justice”.

According to Henry Maine observed that “an individual is said to have a legal
right if he by his force or persuasion, can carry out his wishes, other by his acts,
or by influencing the acts of others, he has the ‘right’ to carry out his wishes. It
is on this analogy that ‘right’ is called a ‘legally protected interest“.

Hohfeld’s analysis continues to be a significant contribution to our current

understanding of the nature of rights. A chair at Yale University is named after
Hohfeld to honour his enduring importance. Hohfeld’s theories are still
relevant today, even after a century has passed since his death and traces of
his theories are also evident in the Indian legal justice system.

A primer to Hohfeld’s analysis

A ‘right’, according to Hohfeld, is a legal interest that imposes a correlative
duty. “If X has a right against Y to keep off the latter’s land, the correlative (and
equivalent) is that Y has an obligation toward X to stay off the place”, Hohfeld
says. In the same way that a ‘privilege’ imposes a comparable and correlative
no-right, power imposes a correlative liability and immunity, resulting in
handicap. The contrast between a right and a privilege is particularly important
in this regard.

He points out that the term ‘right’ was frequently used to refer to a variety of
other legal interests such as powers, privileges, and immunities. This issue was
so common that Hohfeld was able to obtain enough court support in his article
to acknowledge it. As a solution, Hohfeld proposes separating rights, privileges,
powers, and immunities, all of which he considers to be separate legal
interests. Surprisingly, he tries to make this distinction based on the legal
duties that these interests place on another organisation. Hohfeld’s definition
methodology is based on the usage of correlatives and opposites.

Because the most fundamental legal relationships are sui generis, attempts at
formal definition are inevitably unsatisfying, if not completely futile. As a
result, the most promising course of action appears to be to display all of the
numerous relations in a scheme of ‘opposites’ and ‘correlatives’, and then to
demonstrate their unique breadth and application in real examples.

Hofeld’s analysis is majorly based on Salmond’s earlier system. According to

Salmond, there are three categories of rights:
 1. Rights in the strict sense, which are defined as interests protected by
the law by imposing its duties with respect to the rights upon other
persons,
2. Liberties are defined as “interests of unrestrained activity”,
3. Powers “when the law actively assists me in making my will effective”.

Rights and duties

Hohfeld did not devote much attention to the relationship between rights and
duties. According to him, the term ‘rights’ is mistakenly applied to something
that may be a privilege, a power, or immunity in some cases, but is not a right
in the strictest sense. The correlative (and equivalent) ‘obligation’ provides a
method for limiting the word ‘right’ to its specific and most appropriate
meaning. Legal rights are always accompanied by legal obligations. This pair of
phrases convey the same legal relationship but from two different
perspectives. Hohfeld used the example of X having a right against Y to keep
off of X’s land. The invariable corollary of this is that Y has a duty to X to keep
off X’s territory. According to Hohfeld, the word ‘claim’ is the most accurate
and adequate synonym for the word ‘right’ in terms of meaning. If necessary,
state coercion is used to enforce a valid right or claim.

Being granted or having a legal right (or a claim, according to Hohfeld) entails
legal protection from other people’s interference or refusal to provide aid or
recompense in connection with a certain action or state of things. A person
who is supposed to refrain from interfering or give aid or remuneration has a
responsibility to do so. A legal position deriving from the imposition of
responsibility on someone else is known as a right or claim.

30.Write a note reformative theory of punishment.

The reformative or the restorative theory of punishment emphasizes on
reformation of the offenders through the method of individualism. According
to this theory, the judge, while awarding punishment, must take into account
various social factors surrounding the offender. These factors include inter
alia the age of the offender, the character of the offender, the crime
committed, and the circumstances under which the crime was committed. The
aim of this theory is rehabilitation of the offender as a law-abiding member of
the society. Thus, punishment is not regarded as an end but only as a means to
the end.
The reformative theory of punishment is primarily used in the cases of juvenile
delinquents, first offenders, and women.

Methods Of Achieving Reformation

There are a variety of methods which can be used to achieve reformation.

These include-

1. Education
2. Therapy
3. Training
4. Parole and Probation
Reformative Theory of Punishment In India

Mahatma Gandhi once stated that an eye for an eye will make the whole world
blind. He advocated the gospel of non-violence and forgiveness. These were
the principles on which India won its independence. Similar principles have
also been incorporated in the legal system of India.

The courts of the country have time and again highlighted the importance of
reformative theory of punishment. In the case of Gulab Singh v. Yuvraj
Singh[6] the Supreme Court refused to enhance the punishment of the
offender taking into account the aim of reform of the Indian Penal System.

There are various legal provisions which indicate the dominance of reform in
the punitive setup of India.

31.Explain the idea of ownership? And also, the difference between trust and
beneficial ownership?
Ownership refers to the legal right of an individual, group, corporation or
government to the possession of a thing. The subject of ownership is of two types
material and immaterial things. Material ownership is that which is tangible like
property, land, car, book, etc. Immaterial ownership is that which is intangible like
patent, copyright, trademark, etc.

Kinds of Ownership
Ownership could be classified as follows:

1. Corporeal ownership.
2. Incorporeal ownership.
3. Sole ownership.
4. Co-ownership.
5. Legal ownership.
6. Equitable ownership.
7. Trust and beneficial ownership.
8. Vested ownership.
9. Contingent ownership.
10. Absolute ownership.
11. Limited ownership.

Difference between Trustee and Beneficiary

Definition of Trustee and Beneficiary

– A trustee is defined as an individual or a legal entity responsible for holding

and administering property and assets held within a trust for the benefits of
another individual named as the new owner called a beneficiary. A beneficiary,
on the other hand, is defined as an individual or another legal entity that is
entitled to receive assets, property or other benefits from a trust as prescribed
in the trust agreement.

Role of a Trustee and Beneficiary

– The trustee is a legal owner of the trust assets but the beneficial interest lies
with the beneficiary. A trustee simply acts as the custodian of the property or
assets responsible for handling and administration of all the assets held within
a trust. The beneficiary is someone who has an equitable interest in the
property or assets owned by a trust, rather than being the legal owner of the
trust.

Duties involved with Trustee and Beneficiary

– A trustee is legally entitled to act solely in the interest of the beneficiary and
strictly in accordance with the terms of the trust. The three main duties of a
trustee include administration of the trust, investment of the trust’s assets,
and the distribution of benefits to the beneficiary. The trustee must
understand the beneficiary’s true needs and act accordingly. Beneficiaries
typically do not have any responsibilities but they must fully understand and
respect the terms of the trust agreement, and coordinate well with the trustee
to receive the benefits.

Rights of Trustee and Beneficiary

– So, who has more rights, a beneficiary or a trustee? When it comes to the
rights of a trustee, it comes down to the trust instrument and compliance. A
trustee is essential to the validity of a trust who acts as a legal owner of the
trust whereas a beneficiary has equitable ownership of the trust. The trustee
has the right to be reimbursed for his services and all the expenses incurred by
him towards the interest of the trust; he is the legal owner of the trust so he
has the right to invest the assets while making sure the assets are held in a
well-diversified portfolio, which balances returns against expected risks.

32.Write a note on mischief rule.

Refer Q.no. 17
33.Discuss the legal rights of lower animal, un born and dead person.
Legal Status of an Unborn Child
A child that is still in the womb of its mother is still not technically a person. But
by legal fiction, an unborn child is considered already born. i.e. he is granted a
certain legal personality. If the child is born alive he will then enjoy legal status.
Let us look at certain provisions made for the unborn child under the Indian law,

• As per the Transfer of Property Act, we can transfer property for the
benefit of the unborn child. This is done via a trust.
• As per the Indian Succession Act, we can create an interest in the
name of the unborn child in a property. But the interest of the
property can only be vested after the child is born alive.
• In a HUF as per Mitakshara Law, an unborn child will have an interest
in coparcenary property.
• Criminal Procedure states that if a female inmate sentenced to death
is found to be pregnant, the execution is postponed till the child has
a chance to be born.
Legal Status of a Dead Man
A dead person is no more a legal entity. As soon as a person dies, he becomes
incapable of enjoying rights or performing his duties. So the legal personality of a
person ends with their death.

However, the law does take into account the wishes and desires of the deceased
person. And it also ensures that there is no false harm to the reputation of the
deceased. As per the Indian law,

• Every person has the legal right to a decent burial as per their
religious faith. Any act that amounts to the indignity of the corpse is
punishable by section 297 of the Indian penal code. This also applies
to any homeless person without any family.
• The wishes of a dead person regarding his property must also be
fulfilled. This is done for the benefit of the living who are benefitting
by such wishes or will.
 • The defamation of a dead person is punishable by section 499 of the
Indian Penal Code. This includes anything that harms the reputation
of the person with the intention to hurt family members and close
relatives.
Legal Status of a Drunkard, a Lunatic and a Minor
Now, the legal status of a drunkard, a minor and a lunatic have some special
consideration. These people are all obviously natural persons and all have a legal
identity. However, they are considered incapable to enter into a contract.

As per the law, every person who has attained majority is considered capable of
entering into a contract. This obviously means a minor is incapable of doing so.
Other than that, there are certain persons who are also incapable of entering
into a contract.

So any person who is mentally afflicted (includes lunatics and drunk persons) at
the time of entering into a contract is incapable of doing so.

Legal Status of Animals

Law does not recognise beasts and lower animals as persons because they are
merely things and have no natural or legal rights. Salmond regards them as mere
objects of the legal rights and duties but never the subject of them. The ancient
law had contained provisions regarding punishment to animals if they are found
guilty of homicide. In the modern law, however, holds the master liable for the
wrongs caused by their pets, beasts and animals. The liability so imposed on the
master does not arise out of the principle of Vicarious Liability because of his
implied negligence in not keeping the animal well within control.

Salomon rightly suggests, the duties to words animals are in fact duties to
words the society itself. The society does have an interest in protection and
well-being of the animals.

34.Discuss negligence and explain different theories of negligence.

Meaning :

Negligence is the breach of a duty caused by the omission which a

reasonable man guided by those considerations which ordinarily regulate the
conduct of human affairs would do or doing something which is a prudent and
reasonable man would not do. According to Pollock, it consists of the objective
standard of conduct of a reasonable man.

Definition -

Some of the Important definitions of Negligence are as follows

a) Prof Winfield -

According to professor Winfield Negligence is the breach of a legal duty to

take care, which results in damage, undesired by the defendant to the plaintiff.
b) Baron Alderson-

Negligence is the omission to do something, which a reasonable man

guided upon those considerations, which ordinarily regulate human
affairs, would do or doing something, which a prudent or reasonable man
would not do.
Essentials of negligence
According to Winfield “negligence as a tort is a breach of a legal duty to take
care which results in damage, undesired by defendant to the plaintiff”. In order
to prove negligence, the plaintiff has to prove the following essentials.
1. Duty of care to the plaintiff
2. Breach of that duty
3. Damage to the plaintiff
Duty of care to the plaintiff
Duty of care simply means a legal duty that one owes towards another, legal
duty is completely different from moral, social, or religious duty. For example,
if a man is driving on a busy road there, he is bound by law and it is his legal
duty to drive in such a manner that he should not harm any other person
present on the same road. Similarly, if he is driving on an empty road where
there is no person near him then he has the liberty to drive at whatever speed
he wants and there is no legal duty arising on him.
Breach of that duty
The law says that there must be a breach of duty that the defendant owes
towards the plaintiff. In the same example given above let us say that the
defendant while driving on the busy road knocks down a person named “X” in
this case the defendant is liable for the tort of negligence because he has the
duty and he breached that particular duty that he owed towards the plaintiff
“X”.
Damage to the plaintiff
There must be some damage to the plaintiff by the breach of duty and damage
must not be too remote. Thus, to prove negligence the plaintiff must show
these necessary requirements. In the same example above when the
defendant knocks down “X” while driving he owed the duty of care towards
“X” and he breached that duty and as a result of such breach “X” broke his
right legs which is the damage here. So here all the essentials of negligence are
fulfilled and the court by looking at all the relevant facts will award damage to
“X and the defendant will be held liable for the tort of negligence.

Theories of negligence under the law of torts

Negligence is defined as a civil tort that occurs when a person breaches his
duty of care which he owed towards his neighbor (neighbor here means
anyone who can get affected by his action) and due to which the other person
suffers some legal injury. In simple language, negligence is a person’s
carelessness which ultimately results in the injury or some harm to another. It
is important to note that the injury must be a legal injury.
There are two theories of negligence. These are
1. Subjective theory of negligence
2. Objective theory of negligence
Subjective Theory of Negligence
The subjective theory of negligence is given by Salmond and according to him,
negligence is culpable carelessness. Although negligence is not the same as
thoughtlessness or inadvertence, it is nevertheless essentially an attitude of
indifference. The mental attitude of undue indifference in aspects of one’s
conduct is essential for negligence. An individual may be liable for negligence if
he simply doesn’t want to avoid a particular incident. Also, this view of
Salmond was strongly supported by professor Winfield and he further added
that negligence is merely a state of mind, inadvertence to some duty.
Objective Theory of Negligence
The objective theory of negligence is given by Federick Pollock and according
to him negligence is an objective fact and it is not based on the state of mind
or mens rea as described by Salmond. But he insisted that negligence is a
particular kind of conduct. It is the breach of duty to care and by saying to care
means to take all possible precaution against those actions which can result in
injury or any harm to other.

35.Write a note on primary and statutory rights.

 The primary right is important and is a very basic right. These rights are ipso
facto. These rights are independent in nature. It has a binding force. They are
right in rem. Example: the right to reputation. If these rights are infringed in
such case a person can approach the Courts of Law. A legal remedy is available
against such right in the form of compensation or imposing a penalty or
imprisonment.

Classification of Legal Right

Right in rem and Right in Persona

The right in rem is the right available against society at large. For Example:- a
crime committed under I.P.C because it is a crime committed against the state.

Right in Persona means right that is available against an individual. Example

breach of Contract. When there is a breach of contract, the party who has
performed the act files the suit against the breaching party. Right in Persona is
temporary in nature, which can be converted into right in rem. Right in rem is a
permanent in nature.

Positive Rights and Negative Rights

A positive right is a right when some action needs to be done by the person who
has the corresponding duty. The person on whom the duty lies must perform
some positive acts.

The negative rights are the rights which omit the person from performing certain
acts. Negative rights correspond to negative duty. The person on whom such
duty is imposed is restrained from performing certain acts.

Personal and Proprietary Rights

Personal rights are the right to respect the owner of the right. The personal right
has no economic value and this right is related to personal status or well
being. Example the right to live with dignity, the right to freedom of speech and
expression.
The proprietary right is given in respect of the owner of the property. These
rights are rights which has some monetary value or economic value and
constitute the estate of the person. Example-patent rights, right to land, debt
etc.

Perfect and Imperfect right

Perfect rights are protected and recognized by law and the suit can be instituted
in the court against the wrongdoer for the breach of it. Example: A has taken the
loan from B. B has the duty to pay the loan and A has the perfect right to claim
the loan amount. If B fails to pay then A has the right to file the suit in the court.

Imperfect rights are those rights which are neither recognized nor protected by
law. Example: if the loan becomes time-barred, then he can claim his money
back but it cannot be enforced by law.

Principal and Accessory Rights

The principal right is the most important rights. They are the basic right that is
vested on an individual.

The accessory right is the consequential or incidental right. They are not
important but they are ostensible to basic right.

36.Write a note on law and fact

Refer Q.no.05
37.Write a note on vicarious liability.

Vicarious liability is a liability where the master is liable for the tort of his
servant, principal for his agent, partner for another partner and an employer
for an employee.

The legal maxim Qui Facit per alium Facit per se also applies to the concept of
vicarious liability, which means he who acts for another, acts for himself.
Four important kinds of vicarious liability are:

• Principal-Agent Relationship.

• Partners.

• Master and Servant.

• Employer and Independent Contractor.

Principal-Agent Relationship

An agent is a person who acts on behalf of the principal. Therefore, if an agent

does any wrongful act in the course of his employment, then the master will be
held liable for the acts committed by the agent.

Suppose the agent performs some activity in the absence of the principal,
which favours the principal, even though the principal does not know this act.
In that case, he will still be held responsible as the agent acted for the
principal’s benefit.

Partners

All the partners are liable to the same extent as the guilty partner. In Hamlyn
vs Houston, one of the two partners bribed the plaintiff’s clerk, persuading him
to provide confidential information about his employer’s firm. The court
decided that both partners were responsible for the tort committed by only
one of them.

Master and Servant

Master will be held liable for the tort or wrongful act committed by his servant
during the course of employment. Obviously, the servant will also be held
liable.

A master is liable not only for the acts that the servant has committed but also
for the acts done by him that are not explicitly authorised.

Principal of Respondent Superior will be applicable here, which says, let the
principal be liable.

The master is liable even though the servant acted against the expressed
instructions.

Employer and Independent Contractor

Ordinarily, an employer is not liable for the tort committed by an independent

contractor. But there are certain conditions where even the employer will be
held liable.

• The employer is liable only if he has committed a tort.

• When the employer authorises him to commit a tort.
• In torts of strict liability.
• Negligence of an independent contractor.

Vicarious Liability of State

Even the state has certain liabilities, and now let us study the position of
vicarious liability in India and England.
Position in England

At common law, a crown could not be sued in tort, but as per the Crown
Proceedings Act, 1947, even the crown is liable for the torts committed by its
servants.

Position in India

In India, the state can be held liable under vicarious liability, and it could claim
immunity only if the act committed is a sovereign function.

Conclusion

By reading this law note, we can conclude that vicarious liability is a liability
put on the principal for the act of his agent in the course of employment
because an agent is a person who works on behalf of the principal.

38.Explain void and voidable agreements

Void, valid, and voidable contracts are agreements that can briefly be
described as follows:

• Void: Not an actual contract and is unenforceable

• Valid: Legally binding and enforceable in a court of law
• Voidable: Valid and enforceable but contains a flaw that may make it
void

About Void Contracts

Void contracts are not contracts. In most cases, a void contract misses one or
more essential elements that would make it valid. Because it's not an actual
contract, neither party to it has to do anything to terminate it.
When the contract is created, it may be valid if it meets all required conditions
for validity, such as capacity and free consent. However, an impossibility to act
or a future change in the law, making performance impossible, makes the
contract void, ceasing the enforceability. When a contract is opposed to public
policy, that also ceases enforceability. Neither party can sue for non-
performance.
Features of a void contract include the following:

• It's not legally enforceable.

• It imposes no obligations on the parties.
• It fails to create legal rights.
• It's against the law.
• Neither party shall receive compensation.

Examples of void contracts include the following:

• Contracts with a party who's not mentally or legally competent, such as

someone with a mental illness or a minor
• Contracts that involve illegal actions, such as committing a crime
• Contracts requiring an impossible performance or the occurrence of an
impossible event
• Contracts that are too unfair
• Contracts restraining certain activities, such as the right to work or the
right to choose one's spouse

Using these criteria, a contract to kill is void because its purpose is illegal.

About Voidable Contracts

Voidable contracts have the necessary elements to be enforceable, so they
appear to be valid. However, they also have some kind of flaw that makes it
possible for one or both parties to void it. A voidable contract may start out
being legally binding but become void. It's still considered valid if an injured
party doesn't take action.
Most sales contracts include contingency clauses, making them voidable.
To enforce the legality of a voidable contract, one of the parties has to use its
option to enforce it. Either party has the legal authority to perform or not
perform to the contract. Typically, only one of the parties is bound to the
terms. The party that isn't bound may cancel the contract, making it void.
The primary difference between void and voidable contracts is that a void
contract can't be legally performed, while a voidable agreement can still be
performed, as long as the unbound party doesn't void it prior to performance.
Voidable contracts have the following features.
 • One or both parties has the option to enforce it.
• A party that's been defrauded, coerced, or misled into signing the
contract can object to its validity.
• Either party has the option to revoke consent.
• Contracts entered into using undue influence, fraud, misrepresentation,
or coercion are voidable contracts.

Examples of voidable contracts include the following:

• Contracts involving a minor as one of the parties (minors can walk away
from contracts)
• Contracts that tricked or forced a party into them
• Contracts involving an incapacitated party at the time of signing;
incapacitated includes being drunk, delusional, or insane

Just because someone enters into a contract under duress or fraud doesn't
make it void. It just makes it voidable.
39.Distinguish possession in law from possession in fact
Possession in fact is actual or physical possession. It is physical relation to a
thing. Possession in law means possession in the eye of law. It means a
possession which is recognized and protected by law. There is sometimes a
discrepancy between possession in fact and position in law, although usually
possession exists both in fact and in law in the same person. A person who is
in de facto possession of a thing also comes to have de jure possession.
Possession in fact:
The relation between a person and a thing which he possesses is called
possession in fact or de facto possession. It indicates physical control of a
person over a thing. For instance if a person has caged a parrot, he would be
deemed to have possession of it so long as the parrot is in the cage but as soon
as the parrot escapes from the cage or set free he would lose possession over
it.

Certain points regarding possession in fact must be carefully noted they are:
1) There are certain things over which a person cannot have physical control,
example Sun, moon, stars etc.
2) The physical control over the object need not be continuous. For instance I
possesses my court when I am wearing it, I still have possession of it when I
take it off and hang it on a peg when I go to sleep. The basic idea is that I
should be in a position to resume control over it in normal course whenever I
so desire. In other words, physical control may continue even if a person
relinquishes actual control temporarily.
3) In order to constitute possession in fact, mearly having physical control of a
thing is not enough but it must be accompanied by capacity to exclude other
from the possession of it. However, some jurist not considered this element
necessary for possession.
4) In order to determine the question of acquisition, abandonment or
termination of possession, this distinctive feature is the basic desire of the
person whether he desire to retain possession or not.

Possession in law
Possession in law is also termed as ‘de jure’ possession it has already been
stated that law protect possession for two obvious reason namely ;
I) By confirming certain legal right on the possessor;
II) By analysing the person who interfere with the possession of a person or by
making him pay damages to the possessor.

Whenever a person bring a suit for possession the first thing that the court
ascertain is whether the plaintiff was formerly in real position of the thing is
dispute. It is true that in most of the cases actual or factual position testifies
legal position yet there are many situation when a person does not have
position in law although he is in actual position of the object.
In the legal sense, possession is used as a relative term. The law is generally
not concerned with the question as to what has the legal best title, but it is
considered as to which of the parties before it has a better title.

40.Discuss the different sources of obligations?

Important Definitions of Obligation -

According to According to Sir John Salmond" An obligation, therefore, may

be defined as a proprietary right in personam or a duty which corresponds to
such a right." Obligations are all in one class of duties, namely those which are
co-relatives of rights in personam.

According to Holland, An obligation as its entomology denotes is a tie by

one person is bound to perform some act for the benefit of another. In some
cases, the two parties agree thus to be bound together; in other cases as they
are bound without their consent.

According to Savigny an obligation is the control over another person, yet

not over his person in all respects (in which case his personality would be
destroyed), but over single acts of his which must be conceived of subtracted
from his free will and subjected to our will

Sources of Obligation -

There are four sources of an obligation which are as follows -

(1) Contractual obligation (obligations arising from contract) -

Contractual obligations are those which are created by contracts or

agreements. These obligations create rights in personam between the parties.
The rights so created are generally proprietary rights. Sometimes a contract
creates rights which are not proprietary though they are in personam.

(2) Delictual Obligation (obligations arising from tort) -

Delictual obligations arises from tortious liability. According to Salmond, "

A Tort may be defined as a civil wrong for which the remedy is an action for
damages and which is not solely a breach of contract or the breach of Trust or
other merely equitable obligations. Delictual obligations are those in which a
sum of money to be paid as compensation for a tort

(3) Quasi-contractual obligations (obligations arising from quasi-contract) -

The term "Quasi" is a Latin word which, which means "as if" or
"similarly". Quasi-contract is not a real contract entered into by the parties
intentionally. It resembles a contract, in which law imposes an obligation on a
person to perform an obligation on the ground of equity. Quasi-contract is
based on the principle of equity that "A person shall not be allowed to enrich
himself unjustly at the expense of another".In other words, A person should
not receive or accept any benefit unjustly. If so, he has an obligation it back to
the right owner. Such obligations is called Quasi-contractual obligation.

Example - "X" leaves his Bag at Y's house by mistake. "Y" has Quasi-contract
obligation to return it to "X"

(4) Innominate obligation -

 Innominate obligations- Innomited obligations are all the obligations
which are other than those falling under the heads of contractual obligation,
delictual obligations and Quasi-contractual obligation.

Examples - Obligations of trustees towards their beneficiaries

41.Explain the necessity of administration justice. Distinguish between civil

and criminal administration of justice.
Refer Q.no.06 for necessity of administration justice.
There has been considerable difference of opinion amongst jurists regarding the
difference between civil justice and criminal justice.

1. The object of civil proceedings is to enforce rights, while the object of

criminal proceedings is to punish the wrongs.
2. Civil liability is mostly remedial, criminal liability is on the whole, penal.

Note: It should be taken into consideration that, certainly, punishment features

more in criminal proceedings than in civil proceedings, but punishment is not
always present in criminal proceedings, nor always in absent in civil proceedings.

3. In criminal case, the accused person is on trial for the offence, and the
question is whether such a person is guilty or not. In a civil case, on the
other hand, the Court frames issues as to whether the civil rights of a
person are violated and if so, whether he is entitled to any relief.
4. While a criminal proceeding determines the guilt or the innocence of a
person, a civil proceeding determines the rights and liabilities of the
parties to the suit.
5. Crimes are more harmful in their consequence than civil wrongs.
6. It is said that crimes injure the public at large, whereas, civil wrongs injure
private individuals.

Note: The distinction between civil justice and criminal justice cannot always be
maintained because some acts may be considered both as crimes and also civil
wrongs. Thus, defamation is both a tort (civil wrong) as well as a crime. Further,
it is not always true that crimes are more harmful than civil wrongs, as for
instance, the negligence of a contractor (civil wrong) which results in widespread
loss of life and property may entail more harmful consequences than, say, a
simple assault or a petty theft (which are crimes).
 7. In a crime, that State constitutes itself a party to the proceedings, whereas
in civil proceedings, private individuals are the litigants before the Court

Note: The distinction is also not always maintainable, as there are some crimes
where private individuals can be parties and some civil wrongs where the State
is the litigant.

Conclusion:

The difference between criminal justice and civil justice cannot be considered in
terms of natural acts or the physical consequences of the act. The distinction lies
in the differences in the legal consequences. Civil proceedings, if successful,
result in a judgement for damages, or a judgement for payment of a debt or
penalty, or in an injunction, or a decree for restitution or specific performance,
or in an order for the delivery of possession of land or any other form of relief
known distinctively as civil. On the other hand, criminal proceedings, if
successful, result in one or a number of punishments, ranging from to hanging
to fine, or any other outcome known to belong distinctively to criminal law. In
other words, civil justice is administered according to one set of forms, in one
set of courts and criminal justice according to another set of forms, in a different
set of courts.

42.Discuss the various kinds of ownership?

Ownership could be classified as follows:

1. Corporeal ownership.
2. Incorporeal ownership.
3. Sole ownership.
4. Co-ownership.
5. Legal ownership.
6. Equitable ownership.
7. Trust and beneficial ownership.
8. Vested ownership.
9. Contingent ownership.
10. Absolute ownership.
 11. Limited ownership.
1.Corporeal ownership:
Corporeal ownership is of that object which is tangible in nature. Example: Land,
goods, etc.

2. Incorporeal ownership:
Incorporeal ownership is that which is intangible in nature. Example: Copyright,
reputation and etc.

3. Sole ownership:
When a property is owned by only one legal owner it is called sole ownership.
Example: A person owns a car.

4. Co-ownership:
When a property is owned by two or more legal owners it is called co-ownership
or joint ownership. Example: Partnership of business between three partners.

5. Legal ownership:
It is the legal claim or title to an asset or property. Therefore, a person who has
legal ownership on a property can transfer it to the ownership to another party.
Example: a lender who has lent money for a property is the legal owner of that
property.

6. Equitable ownership:
We do not consider equitable ownership as true ownership because it is only the
benefit of the property that the buyer will use and enjoy. Example: If MR. X is the
legal owner of a property and MR.Y is the equitable owner. Then MR.X is not
entitled to the use and enjoyment of the property whereas, MR.Y doesn’t own
the property but has the right to use and enjoy it, something which MR.X cannot
do.

7. Trust and beneficial ownership:

Legal and beneficial ownership belongs to an entity who has the specific property
right “use and Title” in equity. But the property belongs to some other person.
Example: If MR. John’s property is transferred to trustees to hold it for the
benefit of the beneficiaries. It is not MR. John’s trust that owns the land or shares
but the trustees of MR. John’s who owns it. So their names would be used as the
trust and beneficiaries.

8. Vested ownership:
According to law vested ownership has the complete and full ownership on the
property. Example: Two people sharing ownership of a property. If one dies the
other gets the gain of vested ownership of the property.

9. Contingent ownership:
In Contingent ownership, the owner does not have the full claim to the property,
but he can claim it on the fulfillment of some conditions. These conditions are of
two types namely condition precedent and condition subsequent. Condition
Precedent is where on the fulfillment of it the title is completed. Condition
subsequent is whenever on the fulfillment of it the title already completed is
extinguished.

10. Absolute Ownership:

Absolute ownership is a free transferable and inheritable property a person can
have as his actual right. Example: The mortgage of some property by its owner.

11. Limited Ownership:

Limited ownership is the ownership that is not absolute or perfect. Where the
owner enjoys the right to use and enjoy the property for a limited period of time
as long as some other person is alive.

43.What are requirements of valid customs?

A general custom must satisfy certain conditions if it is to be a source of law . It

must be reasonable . It must be generally followed and accepted as binding . It
must have existed from immemorial times. It must not conflict with the
common law of the Country.

Requisites of a Valid Custom

1 Reasonable

A custom must be reasonable. Its authority is not absolute, but

conditional on certain measure of conformity with the prevailing view of
usefulness, justice and public policy. It is reasonable if found to be in
consonance with reason and its origin and continuance are capable of being
explained. Thus, the 'sati pratha' could not take the place of a legal Custom
due to its being repugnant to the logical sense of justice and goodness in man.
A custom of burying or cremating the dead bodies of the people of the locality
on an abandoned land is not unreasonable. It is however, not necessary that
in order to be reasonable, a custom must fulfill the test of absolute rectitude
and wisdom. The true rule is, observes Salmond that a custom in order to be
deprived of legal efficacy must be so obviously and seriously repugnant to right
and reason, that to enforce it as law would do more mischief than that which
result from the overturning of the expectations and arrangements based on its
presumed continuance and legal validity.

2 Conformity with statue law -

No custom or prescription can take away the force of an Act of

Parliament. Statutory law is Supreme and no length of desuetude can affect its
efficacy. The custom in order to be a source of law must not, therefore,
conflict with statute law.

3 Observance as of right

It must have been observed as of right. Mere practice of a voluntarily

nature would not make a custom valid. It must have been followed openly not
stealthily, and without the necessity for the recourse to force. To use the
expression of Salmond, there must be opinio necessitatis , that is, the
conviction on the part of those who use a custom that it is obligatory ands not
merely optional. Jessel , M.R. Observed that if the disturbance or interruption
of an alleged custom has existed for any considerable period, a strong
presumption arises that there never was any such custom at all.

4 Certainty

A custom must be certain and the court must Satisfied by Clear and
unambiguous proof that the custom exists as a matte of fact or legal
presumption of fact. A custom, however ancient, must not be indefinite and
uncertain, and as Willes C.J. observed in Broadbent vs. Wilkes(1742)
Willes,360. " a custom custom must be certain because, if it be not certain it
cannot be proved to have been time out of mind, for how can anything be said
to have been time out of mind when it is not certain what is ?

5 Consistency

Further, Custom must be consistence with each other that these may operate
as a source of law. A custom to be valid must be such that , in the opinion of a
trained lawyer, it is consistent, with those general principles which, quite apart
from particular rules or maxims,lie at the root of our legal system.

6 Immemorial antiquity

Recent and modern custom custom is of no account. It must have

been observed for such a long time that " the memory of man runneth not to
contrary ". In other words, it must be immemorial antiquity, i.e., its origin is so
ancient that to living man can testify its beginning.

7 Continuity :

Only that custom is valid which has been continuously observed without
any interruption from time immemorial . If a custom has not been followed
continuously and uninterruptedly for a long time, the presumption is that it
never be exist.

8) Must be a peaceable one

The enjoyment of a custom must be a peaceable one. If that is not

so, consent is presumed to be wanting in it.

9) Must not be opposed to Public Policy :

A valid custom must not be opposed to public policy or the principles

of morality .

10 Must be General or Universal

The custom must be general or universal . According to Carter "

Custom is effectual only when it is universal or nearly so. In the absence of
unanimity of opinion, custom becomes powerless, or rather does not exist.

44.Discuss the possession in law with decided cases.

According to Salmond, in the whole range of legal theory, there is no
conception more difficult than that of Possession. Possession is the most basic
relation between man and a thing. Possession is an evidence of ownership.

Meaning:

"Possession" literary means physical control over a thing or an object. It

expresses the closest relation of fact that can exist between a thing and the
person, who possess it. In law, possession means it includes not only physical
control over a thing but also an intention to exercise that physical control.
Example: A has an article in his hand. In other words, he is in possession of that
article. The person who is in possession is called a 'Possessor'. In human life,
consumption of material things is very essential and it would be Impossible
without the position of the material things. Therefore the concept of
possession is of utmost practical importance in human life.

Definition:

The concept of possession is though basic and essential in human life,

it is a difficult to define. There is no fixed or precise definition of possession
because it is legal as well as factual concept. Supreme Court in Superintendent
Remembrancer Legal Affairs vs Anil Kumar, AIR 1980 SC 52, held that it is
impossible to work out a completely logical and precise definition of
Possession uniformly applicable to all situation in the context of all the
statutes.

It is very difficult to define the term Possession. Some Jurists have given
different definitions.

John Salmond:
Salmond defines Possession as, "possession is the continuing exercise
of a claim to the Exclusive use of an object."

Savigny:
Savigny defines Possession as, "intention coupled with physical
power to exclude others from the use of material object.
Salmond criticized Savingy's definition and ground that Savingy
committed an error by including the element of physical power in his
definition.

Elements of Possession

From the above definition we could see in that possession has two
essentials -

1) Actual power over the object possessed. i.e. corpus possessionis and

2) Intention of the possessor to exclude any interference from others.

i.e. animus possidendi.

Categories of Possession: Possession is divided into two categories.

a) Possession in fact and

b) Possession in law.

Possession in fact is actual or physical possession. It is physical relation to

a thing. Possession in law means possession in the eye of law. It means a
possession which is recognized and protected by law. There is sometimes a
discrepancy between possession in fact and position in law, although usually
possession exists both in fact and in law in the same person. A person who is
in de facto possession of a thing also comes to have de jure possession.

Relevant case law:

a) Elves v. Brigg Gas Co. 1886 Chancery Division.

Fact:
In this case the plaintiff was the owner of the land. He gave his land to
defendant Company on lease for the purpose of excavation and erection of gas
works thereon. During the course of excavation one of the man of the
defendants Company found a pre-historic boat buried 6 feet below the
surface.

Issue:
Issue before the Court was whether the boat belonged to the landlord
or lessee.
Held:
J. Chitty observed that the landlord was entitled to the boat against the
Company though it was discovered by the Company. It was observed that it
was immaterial that the landlord was not aware of the existence of the boat.
He was in possession of the ground not merely of the surface. Hence
everything that lay beneath the surface down to the center of the earth
consequently in possession of the boat. It did not matter that the plaintiff was
not aware of the existence of the boat.

b) South Staffordshire Waterworks Co. V. Sharman, 1896.

Fact:
In the instant case Plaintiff Company appointed defendant servant to
clean out a pond upon their land and in doing so he found certain gold ring at
the bottom of it. Dispute arose between plaintiff Company and the defendant
servant as to the possession of the gold ring.

Issue:
To whom the Gold ring belong?

Held:
The plaintiff Company was in first possession of the gold ring and is not
the defendant, who acquired no title to them. It was observed that the
possession of land carries with it in general possession of everything which is
attached to or under the land.

Conclusion:

Possession is the most basic relation between man and a thing.

Possession is prima facie a proof or an evidence of ownership there is no fixed
or precise definition of possession because it is legal as well factual concept.
The four essentials of possession are subject matter of possession, physical
control, intention and knowledge. Possession is nine points in law and law
provides remedies to person having possession.

45.Write a note on privilege and immunity.

Immunity refers to the state of not being able to have one’s rights altered by
another. A lack of power to change legal entitlements is defined as a disability.
The basic difference between powers and immunities is the same as the
general contrast between rights and privileges. A right is an affirmative claim
against someone else, whereas a privilege is someone’s exemption from
someone else’s right claim. Similarly, power is someone’s affirmative control
over a specific jural relation about another, whereas immunity is someone’s
independence from another’s legal power or control over some jural relations.

For example, if A enjoys immunity against B, B is limited in his or her ability to

exercise powers relating to the immunity’s covered entitlements. Immunity
rights are a common occurrence in constitutional texts. As a result, if the
people are guaranteed freedom of speech by the Constitution, the legislature
cannot wield any power in this regard. While the legislature is disabled, the
people have immunity rights to freedom of speech.

The term liberty is preferred by the majority of future jurists over the phrase
privilege. These two terms occupy the same structural position in Hohfeld’s
theory, notwithstanding Hohfeld’s preference for the term privilege. Privileges
are permissions to act in a given way without being held liable for the harm
caused to others who, at the same time, are unable to ask the authorities to
intervene. “To the degree that the defendants have privileges, the plaintiffs
have no rights”, Hohfeld said. There can’t be a conflict between rights (claims)
and privilege. The correlation of this legal relationship demonstrates that the
person against whom liberty is asserted has no right to the conduct to which
liberty pertains. This does not, however, rule out the possibility of him
interfering with the action.

BY

ANIL KUMAR K T LLB COACH