Professional Documents
Culture Documents
Material PDF
Material PDF
II - Semester
SI. No Subject Subject Code Page No.
1. Law of Contracts - II TJG 153
2. Property Law Including - Transfer of
Property Act and Easement Act TJH 181
3. Constitutional Law - I TJI 202
4. Family Law - II TJJ 232
5. Clinical Course - I Professional Ethics &
Professional Accounting System ( Intr.) TJK 251
COURSE MATERIALS
Compiled by:
Dr. N. Kayalvizhi M.L., Ph.D.,
Asst. Professor,
Dr. Ambedkar Govt. Law College, Chennai - 600 104
First Compilation : Dec 2012
Second Compilation of Re-edition : Oct 2013
Third Compilation of Re-edition : Oct 2014
Fourth Compilation of Re-edition : Feb 2016
Copyright © Director of Legal Studies, Chennai - 600 010.
For Your Information :
The Registrar,
THE TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY
“Poompozhil”,
5, Dr. D.G.S. Dinakaran Salai,
Chennai - 600 028.
Telephone : (044) 2464 1212, 2464 1919,
Tele - Fax : (044) 2461 7996
Email : registrar.tndalu@gmail.com
: registrar@tndalu.ac.in
Website : http://www.tndalu.ac.in
DIRECTORATE OF LEGAL STUDIES,
Kilpauk, Chennai - 600 010.
Telephone : (044) 2532 1394
Email : dirlegal@tn.gov.in
Website : www.tndls.ac.in
Dr. AMBEDKAR GOVERNMENT LAW COLLEGE, CHENNAI - 600 104.
Telephone : (044) 2534 0907
Email : draglc104@yahoo.com
Website : www.draglc.ac.in
GOVERNMENT LAW COLLEGE, MADURAI - 625 020.
Telephone : (0452) 253 3996
Email : glcmadurai@gmail.com
Website : www.glcmadurai.ac.in
GOVERNMENT LAW COLLEGE, TIRUCHIRAPALLI - 620 023.
Telephone : (0431) 242 0324
Email : glctry@gmail.com
Website : www.glctry.ac.in
GOVERNMENT LAW COLLEGE, COIMBATORE - 641 046.
Telephone : (0422) 242 2454
Email : glccbe@yahoo.com
Website : www.glccbe.ac.in
GOVERNMENT LAW COLLEGE, TIRUNELVELI - 627 011.
Telephone : (0462) 257 8382
Email : glctvl.2010@gmail.com
Website : www.glctvl.ac.in
GOVERNMENT LAW COLLEGE, CHENGALPATTU - 603 001.
Telephone : (044) 2742 9798
Email : Chengalpattulawcollege@gmail.com
Website : www.glccgl.ac.in
GOVERNMENT LAW COLLEGE, VELLORE - 632 006.
Telephone : (0416) 224 1744
Email : law.college.vellore@gmail.com
Website : www.glcvellore.ac.in
4 JURISPRUDENCE
4. There may be many schools of jurisprudence but there are not different kind of
Jurisprudence.
5. He says it is not correct to use English Jurisprudence as Hindu jurisprudence.
6. We are dealing with different systems of law and not different kinds of jurisprudence.
7. He says jurisprudence is a social science which deals with social institutions governed by law
it studies them from the point of view of their legal significance.
Holland
1. Error on particular Jurisprudence.
2. We can classify a material into general and particular but we can’t classify the science hence
the study of particular legal system is not a science.
3. Example Geology of England Geology of India etc.
Lord Bryce “The law of every country is the outcome and result of the economic and social conditions
of that country as well as the expression of its intellectual capacity for dealing with these conditions”.
Savigny “Law grows with the growth and strengthens with the strength of people and its standard
of excellence will generally be found of any given period to be in complete harmony with the prevailing
ideas of the best class of citizens
Progress in the formation of law keep pace with the progress in the knowledge of the people.
Holland
Jurisprudence is the formal science of positive law.
It is a formal or analytical science rather than material science.
He terms the positive law as the general rule of external human action enforced by a sovereign
political authority.
He follows the definition of auction but he adds the term formal which means that which concerns
only the form and not its essence.
A formal science is one, which describes only the form or the external side of the subject and not
it internal contents.
Salmond:
Jurisprudence as the science of law means civil law or law of the land. Jurisprudence is of 3 kinds.
Expository or systematic jurisprudence deals with the contents of an actual legal system as existing
at any time whether past or present.
Legal history says about the process of historical development which helps us to set forth law as it
ought to be. It deals with the ideas of the legal system and the purpose for which it exists.
Salmond makes distinction as generic Jurisprudence and specific Jurisprudence Generic
Jurisprudence includes the entire body of legal doctrines and specific jurisprudence deals with a particular
department of those doctrines.
He defines Jurisprudence as the science of the first principles of the civil law.
Specific Jurisprudence has three branches
1. Analytical Jurisprudence.
2. Historical Jurisprudence.
3. Ethical Jurisprudence.
Keeton
Jurisprudence the study and systematic arrangement of general principles of law. Jurisprudence
deals with the distinction between public and private laws and considers the contents of the principal
departments of law.
5 JURISPRUDENCE
Pound
Jurisprudence the science of law using the term law in the juridical sense as denoting the body of
principles recognized or enforced by public and regular tribunals in the administration of justice.
Gray
Jurisprudence is the science of law the statement and systematic arrangement of the rules followed
by the courts and principles involved in those rules.
Jurisprudence is the study of fundamental legal principles it is any thought or writing about law and
its relation to other disciplines such as philosophy, psychology, economics etc.
Scope of Jurisprudence
No unanimity of opinion regarding its scope.
However it covers moral and religious precepts but that has created confusion. Credit goes to
Austin who distinguished law from morality and theology.
He also restricted the term to the body of rules set and enforced by the sovereign or supreme law
making authority within the realm.
In the present view its scope includes all the conduct of human order and human conduct in state
and society.
Nature of Law
Natural law
Aristotle is often said to be the father of natural law. Socrates Plato and Aristotle posted the
existence of natural justice or natural right.
Natural law theory asserts that there are laws that are imminent in nature, to which enacted laws
should correspond as closely as possible. This view is frequently summarized by the maxim an unjust
law is not a true law, lex iniusta non est lex, in which ‘unjust’ is defined as contrary to natural law. Natural
law is closely associated with morality and, in historically influential versions, with the intentions of God.
Natural law theory attempts to identify a moral compass to guide the lawmaking power of the state
and to promote ‘the good’. Notions of an objective moral order, external to human legal systems, underlie
natural law. What is right or wrong can vary according to the interests one is focussed upon. Natural law
is sometimes identified with the maxim that “an unjust law is no law at ali”.
Thomas Aquinas was the most important Western medieval legal scholar. Main article: Thomas
Aquinas.
He is the foremost classical proponent of natural theology. Aquinas distinguished four kinds of law.
These are:
1. The eternal law
2. Natural law
3. Human law and
4. Divine law.
Eternal law is the decree of God which governs all creation.
Natural law is the human “participation” in the eternal law and is discovered by reason.
Natural law is based on “first principles”: this is the first precept of the law, that good is to be done
and promoted, and evil is to be avoided. All other precepts of the natural law are based on this The desire
to live and to procreate are counted by Aquinas among those basic (natural) human values on which all
human values are based.
Human law is positive law:
The natural law applied by governments to societies. Divine law is the law as specially revealed in
the scriptures and teachings of the apostles
6 JURISPRUDENCE
Thomes Hobbes
He was an English enlightenment scholar.
Hobbes expresses a view of natural law as a precept, or general rule, found out by reason, by
which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving
the same; and to omit that by which he thinks it may best be preserved. Hobbes was a social contrarian
and believed that the law gained peoples’ tacit consent.
He believed that society was formed from a state of nature to protect people from the state of war
between mankind that exists otherwise. Life is, without an ordered society, “solitary, poor, nasty and
short”.
Legal positivists
Positivism simply means that the law is something that is “positive”: laws are validly made in
accordance with socially accepted rules. The positivist view are Firstly, that laws may seek to enforce
justice, morality, or any other normative end, but their success or failure in doing so does not determine
their validity. Provided a law is properly formed, in accordance with the rules recognized in the society
concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is
nothing more than a set of rules to provide order and governance of society. No legal positivist, however,
argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate
question entirely.
What the law is - is determined by social facts
What obedience the law is owed - is determined by moral considerations.
Hans Kelsen is considered one of the pre-eminent jurists of the 20th century. He is most influential
in Europe, where his notion of a Grundnorm or a “presupposed” ultimate and basic legal norm, still
retains some influence.
It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law
and “simple” law are based. Kelsen’s pure theory of law described the law as being a set of social facts,
which are normatively binding too. Law’s normativity, meaning that we must obey it, derives from a basic
rule which sits outside the law we can alter. It is a rule prescribing the validity of all others.
H. L. A. Hart
H. L. A. Hart, who argued that the law should be understood as a system of social rules.
Hart rejected Kelsen’s views that sanctions were essential to law and that a normative social
phenomenon, like law, cannot be grounded in non-normative social facts.
Hart divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials
to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal
disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be
identified as valid). The “rule of recognition”, a customary practice of the officials (especially judges) that
identifies certain acts and decisions as sources of law.
Legal realism
Oliver Wendell Holmes was a self-defined legal realist.
The law should be understood and determined by the actual practices of courts, law offices, and
police stations, rather than as the rules and doctrines set forth in statutes or learned treatises.
SOURCES OF LAW
1. Legislative.
2. Precedents.
3. Customs.
4. Opinion juris (statutory interpretation and preparatory works).
5. Justice equity and good conscience.
7 JURISPRUDENCE
Sources of law means the origin from which rules of human conduct come into existence and
derive legal force or binding characters. It also refers to the sovereign or the state from which the law
derives its force or validity. Several factors of law have contributed to the development of law. These
factors are regarded as the sources of law.
LEGISLATION
Legislation is that source of law which consist in the declaration of legal rules by a competent
authority. Legislature is the direct source of law. Legislature frames new laws, amends the old laws and
cancels existing laws in all countries. In modern times this is the most important source of law making.
The term legislature means any form of law making. Its scope has now been restricted so a particular
form of law making. It not only creates new rules of law it also sweeps away existing inconvenient rules.
1. Supreme legislation.
2. Subordinate Legislation.
1. Supreme legislation
Supreme legislation is the expression of the legislative will of a supreme authority in a state. It
is supreme because no authority can annual, modify or control it. It proceeds from the sovereign or
supreme legislative power in the state, and which is therefore, incapable of being abrogated by any other
legislative authority.
2. Subordinate legislation
Subordinate legislation is that which proceeds from any authority other than the sovereign legislation
power, and is, therefore, dependent for its existence or validity on some superior or supreme legislative
authority. It comes from a subordinate legislature or any authority and is subject to the repealing or
sanctioning control of a superior legislation. In England all form of legislative activity recognized by law,
other than the power of parliament are subordinated and subject to parliamentary control.
Types of subordinate legislation
The chief forms or types of subordinate legislation are five in number. These are:
1. Colonial legislation
It means legislation by the legislature of the colonies or other dependencies. The parliament can
repeal, alter or supersede any colonial enactment.
2. Executive legislation
Though the main function of the executive is to enforce laws, but in certain cases, the power of
making rules is delegated to the various departments of the government, which is called subordinate
delegated legislation.
3. Judicial legislation
It means rules of procedure made by superior courts for their own guidance under authority
delegated to them for the purpose. In other words the superior courts have the power of making rules for
the regulation of their own procedures.
4. Municipal legislation
Sometimes municipal authorities are provided with the power of establishing special laws for the
districts under their control. They are allowed to make bye-laws for limited purposes within their areas.
These are legislation of local bodies such as municipal or corporations.
5. Autonomous legislation
It is the process of law making by persons not by the state for their own guidance. Legislation
thus made by private persons and the law created may be distinguished as autonomic view. These are
autonomous bodies like municipal councils, universities etc.
8 JURISPRUDENCE
PRECEDENT
Precedent is one of the sources of law. The judgements passed by some of the learned jurists
became another significant source of law. when there is no legislature on particular point which arises in
changing conditions, The judges depend on their own sense of right and wrong and decide the disputes.
such decisions become authority or guide for subsequent cases of a similar nature and they are called
precedents. The dictionary of English law defines a judicial precedent as a judgement or decision of a
court of law cited as an authority for deciding a similar state of fact in the same manner or on the same
principle or by analogy. Precedent is more flexible than legislation and custom. It is always ready to be,
used.
Precedent is other wise called case law judicial decision judge made law it is the sources of law.
It enjoyed a high authority precedent plays a vital role when law is unwritten English common law
is based on precedent.
Kinds of precedent
1. Authoritative precedents or absolute precedent.
2. Conditional precedent.
3. Persuasive precedents.
1. Authoritative precedents or absolute precedent
Whether judge approve it or not this king of precedent must be followed.
2. Conditional precedents
The judge may disregard either by dissenting or by over ruling it known as conditional precedent.
3. Persuasive precedents
Judges have no obligation to follow can take into consideration. Precedent of other court. Foreign
court.
Theories of precedent
1. Declaratory theory
Declaration of existing law by the judges is known as declaratory theory. Judge only declare the
existing law.
2. Original precedent theory
Law making by the judge known as original precedent theory judge are the law makers the role of
judge is creative particularly when the law is absent.
Principles of precedent
1. Ratio decidendi
Reason for the decision - An authoritative principle of a judicial decision It contains a the principle
of law formulated by a judge it is Essential for the decision of a case. It has force of law and binding on
the courts.
Prof Keeton. Ration decidendi is a principle of law which forms the basis of decision in a particular
case.
Bridges v. hawkeshworth
Customer found money on the floor of a shopping complex both customer and shopkeeper claim
that money.
Court treated shop as a public place and applied rule finder keeper and it favoured the customer.
Here the ratio decidendi is the finder of goods is the keeper principle.
9 JURISPRUDENCE
2. Obiter dictum
Some thing said by the judge, does not have any binding authority. Judge may declare some
general principles relating to law but that may be unnecessary and irrelevant to the issues before him.
Those unnecessary statements of law which lay down a rule is called Obiter dictum.
3. Stare decisis
Means let the decision stand in its rightful place. During 17 th century a progress made in the law
reporting system. Reporting of the decisions of the court Act to stare decisis a principle of the law which
has become settled by a series of decisions is generally binding on the courts and should be followed in
similar cases. It is based on expediency and public policy.
4. Prospective overruling
Reversing the lower court’s decision by supreme court can over rule their own earlier decisions by
another bench of judges consisting of more number of judges than previous one. it is a modern trend
which enables the court to correct its errors without affecting its past transactions.
CUSTOMS
A custom is a rule which in a particular family or in a particular district or in a particular section,
class or tribe, has from long usage obtained the force of law. The dictionary of English law defines
custom as a law not written, which being established by long use and consent of our ancestors has been
and daily is put into practice. Custom as a source of law got recognition since the emergence of savigny
on the horizon of jurisprudence. It is an exemption to the ordinary law of the land, and every custom is
limited in its application.
A study of ancient shows that law-making was not the business of the kings. Law of the country was
to be found in the customs of the people which developed spontaneously according to circumstances.
It was felt that a particular way of doing things was more convenient then others when the same things
was done again and again in a particular way, it is of custom.
According to salmond custom is the legal source of law.
According to Salmond:
“Custom is the embodiment of those principles which have commended themselves to the national
and national conscience as the principles of justice and public utility.”
According to Austin:
Custom is a rule of conduct which the governed observed spontaneously and not in pursuance of
law set by political superior.”
According to Holland:
“Custom is a generally observed course of conduct.”
Kinds of Custom:
Custom are of two kinds:
I. Legal Custom.
II. Conventional Custom.
I. Legal Custom:
According to Salmond, a legal custom is one whose legal authority is absolute, one which in itself
and propria vigore possesses the force of law:
Kinds of legal Custom: (a) General Custom (b) Local Custom
(a) General Custom:
General customs are those which have force of law throughout the territory. The common law of
England is based upon general customs of the realm.
10 JURISPRUDENCE
(b) Local Custom:
The local custom are those which operate have the force of law in a particular locality. The authority
of a local custom is higher than that of general custom.
II. Conventional Custom:
A Conventional custom is one whose authority is conditional on its acceptance in the agreement
between the parties to be bound by it. There is a process by which conventional usage comes to have
the force of law.
Conditions for a valid custom:
Certain conditions must be satisfied before a court is entitled to incorporate the usages into
contracts.
i) The usage must be so well-established as to be notorious.
ii) The usage must be reasonable.
iii) Usage cannot alter general law of land.
iv) A usage should not nullify or very the express term of the contract.
Requisites of Valid Custom:
Following are the requisites for a valid custom, treated as law.
I. Immemorial :
A Custom to be valid must be proved to be immemorial. According to Blackstone:
“A custom in order that in may be legal and binding, must have been used so long that the memory
of man runneth not to the contrary, so that if anyone can show the beginning of it, it is good custom.”
II. Reasonable:
Another essential of a valid custom is that it must be reasonable. The unreasonableness of custom
must be so great that its enforcement results in greater harm than if there were no custom at all.
According to Prof. Allen: The unreasonableness of custom must be proved and not its
reasonableness.
III. Continuous:
A custom must not continuously observed and if it has not been continuously and uninterruptedly
observed, the presumption is that it existed at all.
IV. Peaceable enjoyment:
The enjoyment of a custom must be a peaceable one.
V. Certainty:
A valid custom must be certain and definite, if there is any ambiguities in it or it keeps change, it is
not a valid custom.
VI. Compulsory Observance:
A custom is valid if its observance is compulsory. An optical observance is ineffective.
According to Blackstone: “A custom that all the inhabitants shall be rated towards the maintenance
of a bridge, will be good, but a custom that every man is to contribute thereto at his own pleasure
is idle and indeed no custom at all.”
Vll. General Or Universal:
The custom must be general or universal. According to custom: “In the absence of unanimity of
opinion, custom becomes powerless or rather dose not exist.”
A valid custom must not be opposed to public policy or the principles of morality.
11 JURISPRUDENCE
IX. Not Opposed With Statute Law:
(A) valid custom must be conflict with the statute law of the country. According to Coke:
“No custom or prescription can take away the force of an Act of parliament.”
(B) According to Blackstone customs must be consistent with each other, one custom cannot be
set up in opposition to another.
Theories of customs
There are two theories regarding the question as to when a question is transformed into law:
(i) Historical theory (ii) Analytical theory
(i) Historical theory:
According to the historical theory, the growth of law does not depend upon the arbitrary will of
any individual. It dose not depend upon any accident. It grows as a result of the intelligence of the
people. Custom is derived form the common consciousness of the people.
According to Puchta: Custom is not only self-sufficient and independent of state imprimatur but is
a condition to all sound legislation.
Criticism:
According to Paton: The growth of most of the customs is not the result of any conscious thought
but of tentative practice.
According to Allen: “All customs cannot be attributed to the common consciousness of the people.
In many cases, customs have arisen on account of the convenience of the ruling class.”
(ii) Analytical theory:
Austin, Holland, and Gray are the advocates of analytical theory.
According to Austin:
Customs is a source of law and not law itself. Customs are not positive laws until their existence is
recognized by the decisions of the Courts.
According to Holland:
Customs are not laws when they arise but they are largely adopted into laws by state recognition.
Criticism:
By Allen:
Custom grows by conduct and it is therefore a mistake to measure its validity solely by the elements
of express sanction, accorded by Courts of law of by other determinate authority.
Reasons for Custom is given the force of law:
Following are the reasons, why custom is given the force of law.
(i) Principles of National Conscience:
Custom is the embodiment of those principles which have commended themselves to the national
conscience as principles of truth, justice and public policy.
According to Salmond:
“Custom is to society what laws is to the state. Each is the expression and realization of the
measure of man, insight and ability, of the principles of right and justice.”
(ii) Expectation of continuance:
Another reason for the binding force of custom is the expectation of its continuance is the future.
Justice demands that this expectation should be fulfilled and not frustrated.
(iii) Observance by a large number of people:
Sometimes a custom is observed by a large number of persons in society and in course of time the
same come to have the force of law.
12 JURISPRUDENCE
(iv) Interests of Society:
Custom rests on the popular conviction that it is in the interests of society. This conviction is so
strong that it dose not found desirable to go against it.
(v) Useful to the law giver:
According to paton:
Custom is useful to the law-giver and codifier is two ways. It provides that material out of which the
law can be fashioned. There is a tendency to adopt the maxim whatever has been authority in the
past is a safe guide for the future.
OWNERSHIP
According to Austin ownership means a right, which avails against everyone who is subject to the
law conferring the right to put thing to user of indefinite nature.
It is right in rem which is available to the owner against the world at large. It includes ownership
over both corporeal and incorporeal things. The former refers to physical objects and the latter refers to
all claims.
According to Hibbert ownership is a comprehensive right in rem. It is a bundle of four rights.
1. Right to use a thing
2. Right to exclude others from using the thing
3. Right to dispose of the thing and
4. Right to destroy the thing
Holland “ownership is a plenary control over a object”.
Salmond the relation between a person and any right that is vested and an object forming the
subject matter of his ownership
Ownership denotes the relation between a person and right that is vested in him. Nothing can be
owned except the right over a thing. In other words a thing cannot be owned but a right over such thing
can be owned. Therefore owning a right is called ownership.
Austin
1. Owner can use in many ways or indefinite in point of user
2. Owner has right of transfer or unrestricted in point of desposition
3. Ownership is permanent or unlimited in point of duration
Modes of acquisition of ownership:
The ownership is acquired in two ways
1. Original mode
2. Derivative mode
1. Original mode:
In this mode the owner acquires the ownership over the owner less objects. They are called res
nullis. Such object belonged to no one. It may be acquired by means of accession, occupation and
specification.
2. Derivative mode:
In this mode the owner acquires the ownership by purchasing from the original or previous owner.
The purchaser becomes the owner. It is merely a transfer of existing ownership but not a relation of the
ownership ex buyer derives ownership from seller.
Kinds of ownership
1. Corporeal and incorporeal ownership
2. Trust and Beneficial ownership
3. Legal and Equitable ownership
13 JURISPRUDENCE
4. Vested and Contingent ownership
5. Sole and co- ownership
6. Absolute and limited ownership
1. Corporeal and incorporeal ownership:
The ownership over a tangible or material object is called corporeal ownership
2. Trust and Beneficial ownership
The ownership of a trustee is called trust ownership
3. Legal and Equitable ownership
The ownership which originated from the rules of common law is called legal ownership. A assigned
a debt to B. A is the legal owner and B becomes an equitable owner.
4. Vested and Contingent ownership:
The ownership which comes into existence immediately is called vested ownership. A transfer
his property to B an unmarried daughter for life and to C, an unborn make child. C’s ownership Is
contingent because C’s birth is uncertain.
5. Sole and Co-ownership
An exclusive ownership of an individual as against the whole world is called sole ownership single
owner. The ownership of two or more persons having interest in the same property or thing is called
co ownership
6. Absolute and limited ownership
The ownership which vests all the rights over a thing to the exclusion of all is called absolute
ownership. Ownership which imposes limitations on user duration or disposal of rights of ownership
is called limited ownership.
POSSESSION
Possession means custody or control. The idea of ownership developed slowly with the growth of
civilization.
According to Salmomd possession establishes the relationship between men and the material
things. It is a mere fact.
According to Pollock possession is a physical control over a thing.
According to Savigny possession is the physical power of exclusion. Protection of possession is a
branch of protection to the person. Freedom of will is the ground for the protection of possession.
According to Ihering possession is de facto exercise of a claim over a thing.
According to Roman law possession is a prima facie evidence of ownership. It supports the title of
ownership. The possessor of a thing is presumed to be the owner. Long enjoyment of a property creates
ownership. This is known as prescription hence possession in nine points in law.
Kinds of Possession
1. Possession in fact
2. Possession in law
1. Possession in fact:
The actual or physical possession of a thing is called Possession in fact. Also known as de facto
possession. It indicates physical control of a person over a thing. There may be a physical relation with
the object and the person. That physical relation or control need not be continuous.
2. Possession in law
Possession which is recognized and protected by law is called Possession in law. It is also know
as de jure possession it is a possession in the eye of law.
14 JURISPRUDENCE
Elements of possession
1. Animus possidendi
2. Corpus possessionis
1. Animus Possidendi:
Means intention to possess a thing. It deals with subjective and mental intention to posses a
thing. It deals with subjective and mental element. It denotes a strong desire to possess a thing. Here
the possessor must have strong intention to posses a thing he must have an exclusive claim, Animus
Possidendi need not be a claim or right and need not be a own claim and it need not be specified.
2. Corpus Possessionis
Corpus Possession is means physical possession of a thing it deals with objective element.
According to savigny the actual physical control over a thing is called corpus possessionis. The physical
control gives to an assumption that others will not interfere with it. Possessor must present personally
and physically possess. The possession of a thing extends to accessories too. Possession includes
protection and secrecy of thing
Acquisition of possession
1. By taking
2. By delivery
3. By operation of law
Types of Possession
1. Corporal and incorporeal possession
The possession of a material object is called Corporeal possession. Actual use or control over such
material object is not necessary e.g. possession of car. The Possession of other than a material
object is called incorporeal possession. Actual use and enjoyment of right is necessary.
2. Immediate and Mediate Possession
The direct or primary possession of a material object is called Immediate possession. The possessor
holds thing personally without any intermediary e.g. possession of a car owner.
Indirect or secondary possession of a material object is called Mediate possession the possessor
of a material object is called Mediate possession. The possessor holds the thing on behalf of
another. e.g. possession of a car driver.
3. Representative Possession
The Possession of a thing through an agent or a servant is called Representative Possession. The
representative is not the real possessor e.g. master’s money in the servant’ pocket.
4. Concurrent Possession
Two or more persons may jointly possess a thing at the same time. This Is known as Concurrent
possession e.g. B may have right of way on the A’ land.
5. Derivative Possession
The possession of the holder of a thing is called Derivative possession. He derives title from the
person who entrusts the thing. e.g. a watch repairer. He need not return the watch until the repair
charges are paid.
6. Constructive possession
The possession in law is called constructive possession. It is not an actual possession. It is a
possession in law and not a possession in fact. Possession of keys of a car implies the possession
of car.
7. Adverse possession
The possession against every other person having or claiming to have a right to the possession of
that property is called Adverse possession. It is a possession of a thing without the permission of
its real owner. Lessee possession after expiry of lease period.
15 JURISPRUDENCE
8. Duplicate possession
The possession of a thing by two persons is called Duplicate possession. The possession of one
persons is compatible with the possession of another person. It is possible only when two claims
are not mutually adverse. Possession of co owners.
Distinction between Ownership and Possession
Ownership Possession
1. It is an absolute right 1. It is an evidence of ownership
2. It is de facto exercise of fact 2. It is de jure recognition of claim
3. It is the guarantee of the law 3. It is the guarantee of the fact
4. It is related to a right 4. It is related to a fact
5. It includes possession 5. It does not include ownership
6. It excludes interference 6. It excludes other except owner
7. It developed on possession 7. It is developed with civilization
8. It provides proprietary remedies 8. It provides possessory remedies
9. Its transfer is too technical 9. Its transfer is less technical
LEGAL PERSONALITY
In the common law tradition, only a person could sue or be sued. This was not a problem in the
era before the Industrial Revolution, when the typical business venture was either a sole proprietorship
or partnership the owners were simply liable for the debts of the business. A feature of the corporation,
however, is that the owners/shareholders enjoyed limited liability the owners were not liable for the debts
of the company. Thus, when a corporation breached a contract or broke a law, there was no remedy,
because limited liability protected the owners and the corporation wasn’t a legal person subject to the
law. There was no accountability for corporate wrongdoing.
To resolve the issue, the legal personality of a corporation was established to include five legal
rights
1. The right to a common treasury or chest (including the right to own property),
2. The right to a corporate seal (i.e., the right to make and sign contracts),
3. The right to sue and be sued (to enforce contracts),
4. The right to hire agents (employees) and
5. The right to make by-laws (self-governance).
Legal personality
Legal personality (also artificial personality, juridical personality, and juristic personality also
commonly called as a vehicle) is the characteristic of a non-living entity regarded by law to have the
status of personhood.
A legal person has a legal name and has rights, protections, privileges, responsibilities, and liabilities
under law, just as natural persons (humans). The concept of a legal person is a fundamental legal fiction.
Legal personality allows one or more natural persons to act as a single entity (a composite person)
for legal purposes. Legal personality allows that composite to be considered under law separately from
its individual members or shareholders. They may sue and be sued, enter contracts, incur debt, and own
property. Entities with legal personality may also be subjected to certain legal obligations, such as the
payment of taxes. An entity with legal personality may shield its shareholders from personal liability.
The concept of legal personality is not absolute. “Piercing the corporate veil” refers to looking at the
individual natural persons acting as agents involved in a corporate action or decision; this may result in
16 JURISPRUDENCE
a legal decision in which the rights or duties of a corporation are treated as the rights or liabilities of that
corporation’s shareholders or directors. Generally, legal persons do not have all of the same rights - such
as the right to freedom of speech - that natural persons have.
Types of legal persons
1. Cooperatives
A corporation sole is a corporation constituted by a single member, such as The Crown in the
Commonwealth realms.
2. Corporation
A corporation aggregate is a corporation constituted by more than one member. Municipal
corporations (municipalities) are “creatures of statute.” Other organizations may be created
by statute as legal persons. business association that carries on an industrial enterprise, are
usually corporations, although some companies may take forms other than a corporation, such
as associations, partnership, unions, joint stock companies, trusts, and funds. Limited liability
companies are unincorporated associations having certain characteristics of both a corporation
and a partnership or sole proprietorship.
3. Sovereign states are legal persons.
4. International legal systems
Various organizations possess legal personality. These include intergovernmental organizations
(e.g. U.N)
5. Temples
Temples, in some legal systems, have separate legal personality.
Not all organizations have legal personality. For example, the board of directors of a corporation,
legislature, or governmental agency typically are not legal persons in that they have no ability to
exercise legal rights independent of the corporation or political body which they are a part of.
There are limitations to the legal recognition of legal persons. Legal entities cannot marry, they
usually cannot vote or hold public office and in most jurisdictions there are certain positions which
they cannot occupy. The extent to which a legal entity can commit a crime varies from country to
country. Certain countries prohibit a legal entity from holding human rights; other countries permit
artificial persons to enjoy certain protections from the state that are traditionally described as human
rights.
Special rules apply to legal persons in relation to the law of defamation. Defamation is the area of
law in which a person’s reputation has been unlawfully damaged. This is considered an ill in itself
in regard to natural person, but a legal person is required to show actual or likely monetary loss
before a suit for defamation will succeed.
Theories of corporate personality
There are five theories which explains the nature of corporate personality
1. Fiction theory
2. Realistic theory
3. Concession theory
4. Bracket theory
5. Purpose theory
17 JURISPRUDENCE
ADMINISTRATION OF JUSTICE
Punishment according to dictionary- involves the infliction of pain or forfeiture, it is infliction of
penalty. chastisement or castigation by the judicial arm of the state. If the sole purpose behind punishment
is to cause physical pain to the wrongdoer, it serves little purpose. However, if punishment is such as
leads him to realize the gravity of the offence committed by him, and to repent at once for it, it may be
said to have achieved its desired effect.
There are many theories of concerning the justification of punishment. It is clear that the philosophy
of punishment will affect the actual standards of liability laid down by the law.
The ends of criminal justice are four in number, and in respect of the purpose so served by it,
punishment may be distinguished as
1 . Deterrents
2. Preventive
3. Reformative
4. Retributive.
1. Deterrent theory:
Punishment is before all things deterrent and the chief end of the law of crime is to make the evil-
doer an example and warning to all who are like minded with him. According to this theory, offences
are result of a conflict between the interests of the wrong-doer and those of society. The aim of
punishment is to dissolve the conflict of interests by making every offence. This theory has been
criticized on the ground that it is ineffective in cases where crime is committed under severe mental
stress. In such cases to punish the wrongdoer to deter him is meaningless.
2. Preventive theory:
Punishment is, preventive or disabling. Its primary and general purpose being to deter by fear,
its secondary and special purpose is wherever possible and expedient, to prevent a repetition by
wrongdoer by the disablement of the offender. The most effective mode of disablement is the death
penalty, which in practice, in time of peace, is confined to the crime of murder, though it is legally
possible for treason and certain form of piracy and arson.
A similar secondary purpose exists in sub penalties as imprisonment and forfeiture of office, the
suspension of driving licenses and in the old penalty of exile. The aim of this theory is not to repeat
the crime the crime but this theory takes no note of criminal. It prefers to disable the wrong-doer
from committing any more crime but it ignores one of the basic object of the criminal law, i.e. to
reform the criminal.
3. Reformative theory:
A crime is committed as a result of the conflict between the character and the motive of the criminal.
One may commit a crime either because the temptation of the motive is stronger or because the
restrain imposed by character is weaker.
The deterrent theory by showing that crime never pays separate the motive., while the reformative
theory seems to strengthen the character of the man so that he may not become victim of his own
temptation. This theory would consider punishment to be curative or to perform the function of
medicine.
According to this theory crime is like a disease .. This theory maintains that you can cure by killing.
The ultimate aim of reformists is to try to bring about a change in the personality and character of
the offender, so as to make him a useful member of society.
18 JURISPRUDENCE
4. Retributive theory:
Retributive punishment, in the only sense in which it is admissible in any rational system of
administering justice, is that which serves for the satisfaction of that emotion of retributive indignation
which in all healthy communities is strived up by injustice. This was formerly based on theory of
revenge.- “tooth for tooth” and “eye for eye”.
The idea behind the retributive punishment is that of the restoration of the moral character, the
appraisement of the disturbed conscience of society itself and the maintenance of the sovereign
power of the state which becomes aggrieved when a crime is committed and inflicts punishment to
set matters of right. Though the system of private revenge has been suppressed, the instincts and
emotion that lay at the root of these feelings are yet present in human nature. Therefore, according
to this moral satisfaction that the society obtains from punishment can not be ignored.
On the other hand, if the criminal is treated very leniently or even in the midst of luxury, as the
reformative theory would have it, the spirit of vengeance would not be satisfied and it might find its
way through private vengeance. According to this theory eye for eye and tooth for tooth is deemed
to be a complete and really sufficient rule of natural justice.
In the last, we can easily say that the only logical inference from the reformative theory, if akin itself,
is that they should be abandoned in despairs as no fit subject for penal discipline. The deterrent
and disabling theories on the other hand, regard such offenders as being pre-eminently those with
whom the criminal law is called upon to deal.
The application of purely reformative theory, therefore would lead to astonishing and inadmissible
results. The perfect idea of criminal justice is based on neither reformative nor the deterrent principle
exclusively, but the result of comprise between them.
In this it is the deterrent principal which possesses predominant influence. It will not be out of place
to mention here that Gandhiji “hate the sin and not the sinner”, is merely a philosophical assertion
and can not furnish a practical guide in the administration of justice.
**********
19 JURISPRUDENCE
2. LAW OF CONTRACTS - I
INDIAN CONTRACT ACT, 1872
Commencement and applicability:-
Short Title, Extent and commencement :
• Prior to this English law of contract was followed in India.
• It has XI chapters.
• Law of contract creates jus in personam and not jus in rem.
• The Indian Contract Act consists of the following two parts:
(a) General principles of the Law of Contract.
(b) Special kinds of contracts.
• The general principles of the Law of Contract are contained in Sections 1 to 75 of the Indian
Contract Act. These principles apply to all kinds of contracts irrespective of their nature.
• Special contracts are contained in Sections 124 to 238 of the Indian Contract Act. These
special contracts are Indemnity, Guarantee, Bailment, Pledge and Agency.
Sources of Mercantile Law in India
• English Mercantile
• Indian Statutes Law
• Judicial Decisions
• Customs and Usages
INDIAN CONTRACT ACT, 1872
The Indian Contract Act 1872 Applicable to whole of India except the state of Jammu & Kashmir
First day of September 1872(1st Sept. 1872)
Contracts as Defined by Eminent Jurists
1. “Every agreement and promise enforceable at law is a contract.” - Pollock
2. “A Contract is an agreement between two or more persons which is intended to be enforceable
at law and is contracted by the acceptance by one party of an offer made to him by the other
party to do or abstain from doing some act.” - Halsbury
3. “A contract is an agreement creating and defining obligation between the parties”
- Salmond
ESSENTIALS OF A VALID CONTRACT
“All agreements are contracts, if they are made -
• by free consent of the parties, competent to contract,
• for a lawful consideration and
• with a lawful object, and
• not hereby expressly declared to be void.” - Sec.10.
Offer + acceptance = Promise
+
consideration
=
Agreement
+
enforceability By Law
20 LAW OF CONTRACTS - I
Contract
1. Proper offer and proper acceptance with intention to create legal relationship: Cases:- A
and B agree to go to a movie on coming Sunday. A does not turn in resulting in loss of B’s time B cannot
claim any damages from B since the agreement to watch a movie is a domestic agreement which does
not result in a contract.
• In case of social agreement there is no intention to create legal relationship and there the is
no contract (Balfour v. Balfour)
• In case of commercial agreements, the law presume that the parties had the intention to
create legal relations.
• [an agreement of a purely domestic or social nature is not a contract ]
2. Lawful consideration :- consideration must not be unlawful, immoral or opposed to the
public policy.
3. Capacity:- The parties to a contract must have capacity (legal ability) to make valid contract.
Section 11:- of the Indian contract Act specify that every person is competent to contract provided.
(i) Is of the age of majority according to the Law which he is subject, and
(ii) Who is of sound mind and
(iii) Is not disqualified from contracting by any law to which he is subject.
• Person of unsound mind can enter into a contract during his lucid interval.
• An alien enemy, foreign sovereigns and accredited representative of a foreign state.
Insolvents and convicts are not competent to contract.
4. Free consent :- consent of the parties must be genuine consent means agreed upon something
in the same sense i.e. there should be consensus - ad - idem. A consent is said to be free when it is not
caused by coercion, undue influence, fraud, misrepresentation or mistake.
5. Lawful object :
The object of agreement should be lawful and legal.
Two persons cannot enter into an agreement to do a criminal act.
Consideration or object of an agreement is unlawful if it
(a) is forbidden by law; or
(b) is of such nature that, if permitted, would defeat the provisions of any law; or
(c) is fraudulent; or
(d) Involves or implies, injury to person or property of another; or
(e) Court regards it as immoral, or opposed to public policy.
6. Possibility of performance:
The terms of the agreement should be capable of performance.
An agreements to do act, impossible in itself cannot be enforced.
Example : A agrees to B to discover treasure by magic. The agreement is void because the act in
itself is impossible to be performed from the very beginning.
7. The terms of the agreements are certain or are capable of being made certain [29]
Example : A agreed to pay Rs.5 lakh to B for ultra-modern decoration of his drawing room. The
agreement is void because the meaning of the term “ ultra - modern” is not certain.
21 LAW OF CONTRACTS - I
8. Not declared Void
The agreement should be such that it should be capable of being enforced by law.
Certain agreements have been expressly declared illegal or void by the law.
9. Necessary legal formalities
A contract may be oral or in writing.
Where a particular type of contract is required by law to be in writing and registered, it must comply
with necessary formalities as to writing, registration and attestation.
If legal formalities are not carried out then the contract is not enforceable by law.
Example : A promise to pay a time-barred debt must be in writing.
• Agreement is a wider term than contract where as all contracts are agreements. All agreements
are not contracts.
The various agreements may be classified into two categories:
Agreement not enforceable by law / Agreement enforceable by law
All Contracts are Agreements, but all Agreements are not Contracts
Any essential of a valid contract is not available.
Distinction between Contract & Agreement
1. Section : Sec. 2(h) Sec. 2(e)
2. Definition : A contract is an agreement Every promise or every set of promises
enforceable by law. forming consideration for each other is
an agreement.
3. Enforceability : Every contract is enforceable. Every promise is not enforceable.
4. Inter-relationship : A contract includes an An agreement does not include a
agreement. contract.
5. Scope : The scope of a contract is limited, Its scope is relatively wider, as it includes
as it includes only commercial both social agreement and commercial
agreements. agreements.
6. Validity : Only legal agreements are called An agreement may be both legal and
contracts. illegal.
7. Legal Obligation : Every contract contains a legal It is not necessary for every agreement
obligation. to have legal obligation.
TYPES OF CONTRACTS :
b. Unilateral contract
On the Basis of creation
(a) Express contract :- A contract made by word
a. Express contract
b. Implied contract
c. Tacit contract
d. Quasi contract
e. E contract
22 LAW OF CONTRACTS - I
On the Basis of Validity
a. Valid contract
b. Void contract
c. Voidable contract
d. Unenforceable contract
e. Illegal contract
c. Tacit contract: -
A contract is said to be tacit when it has to be inferred from the conduct of the parties. Example
obtaining cash through automatic teller machine, sale by fall hammer of an auction sale.
24 LAW OF CONTRACTS - I
On the basis of liability for performance:-
(a) Bilateral contract:- A contract in which both the parties commit to perform their respective
promises is called a bilateral contract.
Example : A offers to sell his fiat car to B for Rs.1,00,000 on acceptance of A’s offer by B, there is
a promise by A to Sell the car and there is a promise by B to purchase the car there are two
promise.
(b) Unilateral contract:- A unilateral contract is a one sided contract in which only one party has
to perform his promise or obligation party has to perform his promise or obligation to do or
forbear.
Example :- A wants to get his room painted. He offers Rs.500 to B for this purpose B says to A “
if I have spare time on next Sunday I will paint your room”. There is a promise by A to pay
Rs 500 to B. If B is able to spare time to paint A’s room. However there is no promise by B to
Paint the house. There is only one promise.
Difference Between Void and Voidable Contract
Matter Void contract Voidable contract
Definition It means contract which cease
It means an agreement enforceable by
to be enforceable. law by one or more parties.
Nature Valid when made subsequentlyIt remains voidable until cancelled by
becomes unenforceable. party.
Rights or remedy No legal remedy. Aggrieved party has remedy to cancel
the contract.
Performance of contract Party can’t demand If aggrieved party does not cancel it
performance of contract within reasonable time, performance
Reason Due to change in law or If consent is not obtained freely.
circumstances
Damages Not available Can demand in certain cases.
Difference between Void and illegal Agreement
Matter Void agreement Illegal agreement
What Void agreement is not prohibited It is prohibited by law.
by law.
Effect on collateral transaction Enforced Not enforced.
Punishment No Yes
Void ab initio May not be void ab initio Always void ab-initio
Contract of record:
It is either a judgment of a court or a Recognizance.
A Judgment is an obligation imposed by a Court upon one or more persons in favour of another
or others. In real sense, it is not a contract, as it is not based upon any agreement between two parties.
Recognizance is a Bond by which a person undertakes before a Court of Magistrate to observe
some condition e.g. to appear on summons.
Contracts of record derive their binding force from the authority of the Court.
Contract under Seal:
(a) A contract under Seal is one which derives its binding force from its form alone.
(b) It is in writing and signed, sealed and delivered by the parties.
(c) It is also called a Deed or a Specialty contract.
25 LAW OF CONTRACTS - I
E - Contract
Electronic Contract General Principles of contracts to be read along with Information Technology
Act. 2000 and amended act 2008 to understand e-contracts. Electronic contract is a contract
executed by a software system. Computer programs are used to automate business processes that
governs e-contracts. It helps to map interrelated programs which have to be specified carefully to satisfy
the contract requirements. The programs do not have the capabilities to handle complex relationship
between parties to an e-contract.
Modes of entering into an e-contract: An electronic contract is an agreement which is created
and signed in an electronic form. In other words no paper or other hard copies need to be utilized. For
instance., you write a contract on your computer and email it to business associate, then the associate
emails back with an electronic signature accepting your offer. An e-contract can be done “Click to Agree”
contract, commonly used by downloading an software(Flipkart, Snapdeal,Crafts villa, Quiker dot.com
etc.,) The user clicks an “I Agree “ button on a page containing the terms of the software license before
the transaction can be completed.
The contractual rights are determined with reference to individuals , the need of the hour is
to ascertain whether existing contract law doctrine can cope up with the new laws of technology.
E-contracts is of two types. Web-wrap agreements and Shrink –wrap agreements. Web-wrap contracts
are web based contracts which requires assent of the party by way of clicking”I agree “or I’ confirm ‘
For eg., E-bay accepts by terms and conditions mentioned by the seller. On the other hand shrink wrap
agreements are those which are accepted by a user when a software is installed from a CD-ROM e.g
Microsoft office software. Before analyzing these concepts one must know the way contract is entered
into for convenience let us assume the most simple web wrap agreement entered between the buyer and
seller through a computer. A buyer accesses an autonomous computer controlled by a seller wherein
the seller has hosted an item to be sold at a specific price, an interested buyer after satisfying himself
makes an order after reading through after reading through the terms and conditions of the seller. The
computer then checks the availability of the item in its stock and then notifies the buyer that the order has
been confirmed and is dispatched for its delivery after necessary payment option selected by the buyer.
In such cases the actual seller of goods is unaware about the fact that the transaction has been entered
between him and the buyer. The question which arises here is that whether such contracts are valid or
not.
When it comes to legality and enforceability of e-contracts entered between two or more parties
all essential conditions of the contract need to be fulfilled which need to be fulfilled with the aid of the
computer program.
OFFER
Offer(i.e. Proposal) [section 2(a)] :- When one person signifies to another his willingness to do or
to abstain from doing anything, with a view to obtaining the assent of that other person either to such act
or abstinence, he is said to make a proposal.
To form an agreement, there must be at least two elements - one offer and the other acceptance.
Thus offer is the foundation of any agreement.
The person who makes an offer is called “Offeror” or “ Promisor” and the person to whom the
offer is made is called the “Offeree” or “Promised’.
Example
Mr. A says to Mr. B, “Will you purchase my car for Rs.1,00,000?” In this case, Mr. A is making an
offer to Mr. B. Here A is the offeror and B is the offeree.
26 LAW OF CONTRACTS - I
Essentials elements of an offer:-
(1) There must be two parties.
(2) The offer must be communicated to the offeree.
(3) The offer must show the willingness of offeror. Mere telling the plan is not offer.
(4) The offer must be made with a view to obtaining the assent of the offeree.
(5) A statement made jokingly does not amount to an offer.
(6) An offer may involve a positive act or abstinence by the offeree.
(7) Mere expression of willingness does not constitute an offer.
A tells B’ that be desires to marry by the end of 2008, if does not constitute an offer of marriage by
A’ to B’ A further adds will you marry me. Then it become offer.
Legal Rules as to valid offer:-
1. Offer must be communicated to the offeree: The offer is completed only when it has been
communicated to the offeree. Until the offer is communicated, it cannot be accepted. Thus, an offer
accepted without its knowledge, does not confer any legal rights on the acceptor.
Example:
A’s nephew has absconded from his home. He sent his servant to trace his missing nephew. When
the servant had left, A then announced that anybody who discovered the missing boy, would be
given the reward of Rs.500. The servant discovered the missing boy without knowing the reward.
When the servant came to know about the reward, he brought an action against A to recover the
same. But his action failed. It was held that the servant was not entitled to the reward because he
did not know about the offer when he discovered the missing boy. [Lalman Shukla v. Gauri Datt
(1913) All LJ 489]
2. The offer must be certain, definite and not vague, unambiguous and uncertain.
Example:
A offered to sell to B. ‘a hundred tons of oil’. The offer is uncertain as there is nothing to show what
kind of oil is intended to be sold.
3. The offer must be capable of creating legal relation. A social invitation is not create legal relation.
Example:
A invited B to a dinner and B accepted the invitation. It is a mere social invitation. And A will not be
liable if he fails to provide dinner to B.
4. Offer may be express and implied
The offer may be express or implied; An offer may be express as well as implied. An offer which
is expressed by words, written or spoken, is called an express offer. The offer which is expressed by
conduct, is called an implied offer [Section 9].
5. Communication of complete offer
Example:
A offered to sell his pen to B for Rs.1,000. B replied, “I am ready to pay Rs.950”. On A’s refusal
to sell at this price, B agreed to pay Rs.1,000. held, there was not contract at the acceptance to
buy it for Rs.950 was a counter offer, i.e. rejection of the offer of A. Subsequent acceptance to pay
Rs.1,000 is a fresh offer from B to which A was not bound go give his acceptance.
6. Counter offer - A counter offer amounts to rejection of the original offer
7. Cross offer do not conclude a contract
27 LAW OF CONTRACTS - I
8. An offer must not thrust the burden of acceptance on the offeree.
Example:
A made a contract with B and promised that if he was satisfied as a customer he would favorably
consider his case for the renewal of the contract. The promise is too vague to create a legal
relationship.
• The acceptance cannot be presumed from silence.
• Acceptance is valid only if it is communicated to the offeror.
9. Offer must be distinguished from invitation to offer.
Example:
Menu card of restaurant is an invitation to put an offer.
Example:
Price - tags attached with the goods displayed in any showroom or supermarket is also an invitation
to proposal. If the salesman or the cashier does not accept the price, the or the cashier does not
accept the price, the interested buyer cannot compel him to sell, if he wants to buy it, he must make
a proposal.
Example:
Job or tender advertisement inviting applications for a job or inviting tenders is an invitation to an
offer.
Example
Standing Open and Continuous offer
Counter offer
An advertisement for auction sale is merely an invitation to make an offer and not an offer for sale.
Therefore, an advertisement of an auction can be withdrawn without any notice. The persons going to
the auction cannot claim for loss of time and expenses if the advertisement for auction is withdrawn.
10. Offeror should have an intention to obtain the consent of the offeree.
11. An answer to a question is not a offer.
Offer Invitation to offer
• Show his readiness to enter into a contract, it is • Person invites offer to make an offer to him.
called as an offer
• Purpose of entering contract • Purpose of enter offer
• Results in a contract • Results in offer.
Example Application filled in by a prospective Example Issue of prospectus by a Company,
applicable to the Institution, a student seeking an education Institution
admission in educational Institution.
KINDS OF OFFER
1. Express offer
2. Implied offer
3. Specific offer
4. General offer
5. Standing Open and Continuous offer
6. Counter offer
7. Cross offer
28 LAW OF CONTRACTS - I
I. Express offer
When the offeror expressly communicate the offer, the offer is said to be an express offer. The
express communication of the offer may be made by:
Spoken word; Written word
II. Implied offer -
When the offer is not communicated expressly. An offer may be implied from:- The conduct of the
parties or The circumstances of the case
III. Specific:
It means an offer made in
(a) a particular person or
(b) a group of person: It can be accepted only by that person to whom it is made. Communication
of acceptance is necessary in case of specific offer.
IV. General offer:
It means on offer which is made to the public in general.
General offer can be accepted by anyone.
If offeree fulfill the term and condition which is given in offer then offer is accepted.
Communication of acceptance is not necessary in case of general offer
Example
Company advertised that a reward of Rs.100 would be given to any person who would suffer
from influenza after using the medicine (Smoke balls) made by the company according to the printed
directions.
One lady, Mrs, Carlill, purchased and used the medicine according to the printed directions of the
company but suffered from influenza, She filed a suit to recover the reward of Rs.100. The court held that
there was a contract as she had accepted a general offer by using the medicine in the prescribed manner
and as such is entitled to recover the reward from the company.
Carlill v Carbolic Smoke Ball Co. 1893
V. Cross offer:-
When two parties exchange identical offers in ignorance at the time of each other’s offer the offer’s
are called cross offer.
Two cross offer does not conclude a contract. Two offer are said to be cross offer if
1. They are made by the same parties to one another
2. Each offer made in ignorance of the offer made by the
3. The terms and conditions contained in both the offers’ are same.
Example : A offers by a letter to sell 100 tons of steel at Rs.1,000 per ton. On the same day, B also
writes to A offering to buy 100 tons of steel at Rs.1,000 per ton.
When does a contract come into existence: - A contract comes into existence when any of the
parties, accept the cross offer made by the other party.
29 LAW OF CONTRACTS - I
VI. Counter offer :-
When the offeree give qualified acceptance of the offer subject to modified and variations in the
terms of original offer. Counter offer amounts to rejection of the original offer.
Legal effect of counter offer:-
(1) Rejection of original offer
(2) The original offer is lapsed
(3) A counter offer result in a new offer.
In other words an offer made by the offeree in return of the original offer is called as a counter offer.
Example:
A offered to sell his pen to B for Rs.1,000. B replied, “ I am ready to pay Rs.950.” On A’s refusal
to sell at this price, B agreed to pay Rs.1,000. Held, there was not contract as the acceptance to
buy it for Rs.950 was a counter offer, i.e. rejection of the offer of A. Subsequent acceptance to pay
Rs.1,000 is a fresh offer from B to which A was not bound to give his acceptance.
VII. Standing, open and continuous offer:-
An offer is allowed to remain open for acceptance over a period of time is known as standing, open
or continuous offer. Tender for supply of goods is a kind of standing offer.
Example:
When we ask the newspaper vendor to supply the newspaper daily. In such case, we do not repeat
our offer daily and the newspaper vendor supplies the newspaper to us daily. The offers of such
types are called Standing Offer.
LAPSE OF AN OFFER
An offer should be accepted before it lapses (i.e. comes to an end). An offer may come to an end
in any of the following ways stated in Section 6 of the Indian Contract Act:
1. By communication of notice of revocation: An offer may come to an end by communication
of notice of revocation by the offeror. It may be noted that an offer can be revoked only before its
acceptance is complete for the offeror. In other words, an offeror can revoke his offer at any time before
he becomes bound by it. Thus, the communication of revocation of offer should reach the offeree before
the acceptance is communicated.
2. By lapse of time : Where time is fixed for the acceptance of the offer, and it is not accepted
within the fixed time, the offer comes to an end automatically on the expiry of fixed time. Where no time
for acceptance is prescribed, the offer has to be accepted within reasonable time. The offer lapses if it is
not accepted within that time. The term ‘reasonable time’ will depend upon the facts and circumstances
of each case.
3. By failure to accept condition precedent: Where, the offer requires that some condition must,
be fulfilled before the acceptance of the offer, the offer lapses, if it is accepted without fulfilling the
condition.
4. By the death or insanity of the offeror: Where, the offeror dies or becomes, insane, the offer
comes to an end if the fact of his death or insanity comes to the knowledge of the acceptor before he
makes his acceptance. But if the offer is accepted in ignorance of the fact of death or insanity of the
offeror, the acceptance is valid. This will result in a valid contract, and legal representatives of the
deceased offeror shall be bound by the contract. On the death of offeree before acceptance, the offer
also comes to an end by operation of law.
5. By counter - offer by the offeree: Where, a counter - offer is made by the offeree, and then the
original offer automatically comes to an end, as the counter - offer amounts to rejections of the original
offer.
30 LAW OF CONTRACTS - I
6. By not accepting the offer, according to the prescribed or usual mode: Where some manner
of acceptance is prescribed in the offer, the offeror can revoke the offer if it is not accepted according to
the prescribed manner.
7. By rejection of offer by the offeree: Where, the offeree rejects the offer, the offer comes to an
end. Once the offeree rejects the offer, he cannot revive the offer by subsequently attempting to accept
it. The rejection of offer may be express or implied.
8. By change in law: Sometimes, there is a change in law which makes the offer illegal or incapable
of performance. In such cases also, the offer comes to an end.
ACCEPTANCE
Acceptance 2(b):- When the person to whom the proposal is made, signifies his assent there to ,
the proposal is said to be accepted.
1. Acceptance must be absolute and unqualified
Example: A offers to sell his house to B for rupees two lakhs. B accepts the offer and promises to
pay the price in four installments. This is not the acceptance as the acceptance is with variation in the
terms of the offer.
2. Acceptance must be communicated:
Mere mental acceptance is no acceptance, But there is no requirement of communication of
acceptance of general offer.
Example: The manager of Railway Company received a draft agreement relating to the supply of
coal. The manager marked the draft with the words “Approved” and put the same in the drawer of
his table and forgot all about it. Held, there was no contract between the parties as the acceptance
was not communicated. It may however, be pointed out that the Court construed a conduct to
parties as railway company was accepting the supplies of coal from time to time.
3. Manner of acceptance
General rule say that it must be as per the manner prescribed by offeror. If no mode is prescribed
in which it can be accepted, then it must be in some usual and reasonable manner.
4. If there is deviation in communication of an acceptance of offer, offeror may reject such
acceptance by sending notice within reasonable time. If the offeror doesn’t send notice of rejection, he
accepted acceptance of offer.
Example: A offers B and indicates that the acceptance be given by telegram. B sends his acceptance
by ordinary post. It is a valid acceptance unless A insists for acceptance in the prescribed manner.
5. Acceptance of offer must be made by offeror.
Example : A applied for the headmastership of a school. He was selected by the appointing
authority but the decision was not communicated to him. However, one of members in his individual
capacity informed him about the selection. Subsequently, the appointing authority cancelled its decision.
A sued the school for breach of contract. The Court rejected the A’s action and held that there was no
notice of acceptance. “Information by unauthorized person is as insufficient as overhearing from behind
the door”.
6. Acceptance must be communicated to offeror
7. Time limit for acceptance
If the offer prescribes the time limit, it must be accepted within specified time.
If the offer does not prescribe the time limit, it must be accepted within reasonable time.
Example : A applied (offered) for shares in a company in early June. The allotment (Acceptance)
was made in late November. A refused to take the shares. Held, A was entitled to do so as the reasonable
time for acceptance had elapsed.
31 LAW OF CONTRACTS - I
8. Acceptance of offer may be expressly (by words spoken or written); or impliedly (by acceptance
of consideration); or by performance of conditions (e.g.in case of a general offer)
9. Mere silence is not acceptance of the offer
Example: A offers to B to buy his house for Rs.5 lakhs and writes “If I hear no more about it within
a week, I shall presume the house is mine for Rs.5 lakhs. “B does not respond. Here, no contract is
concluded between A and B.
10. However, following are the two exceptions to the above rule. It means silence amounts as
acceptance of offer.
Where offeree agrees that non - refusal by him within specified time shall amount to acceptance
of offer.
When there is custom or usage of trade which specified that silence shall amount to acceptance.
11. Acceptance subject to the contract is no acceptance
If the acceptance has been given ‘subject to the contract” or subject to approval by certain persons,
it has no effect at all. Such an acceptance will not create binding contract until a formal contract is
prepared and signed by all the parties.
32 LAW OF CONTRACTS - I
General Rules as to Communication of Acceptance
Acceptance given on loudspeaker is not a valid a acceptance.
Particulars Offer Acceptance
When Communication is Communication of a proposal is As against the offerer/ Proposer:
complete [Sec.4] complete when it comes to the When it is put in a course of
knowledge of the person to whom transmission to him so as to be out
it is made. of the power of the Acceptor.
Example : A proposes by letter, to As against the Offeree/ Acceptor:
sell his Tonga to B at Rs.10,000. When it comes to the knowledge
Communication of the proposal of the Proposer. (See separate
is complete when B receives the question above)
letter.
When Revocation can Offer/proposal may be revoked at Acceptance may be revoked at any
be made [Sec.5] any time before the communication time before the communication of
of its acceptance is complete, acceptor, but not afterwards.
as against the proposer, but not Example: T sends to S by post,
afterwards. an offer to sell his cycle. S sends
Example: U sends a letter to Y his acceptance via post, S could
proposing to sell his land. Y sends revoke his acceptance, upto any
his acceptance by post. U can time before or at the moment when
revoke the offer at any time before he posts his letter of acceptance,
or at the moment when Y posts but not afterwards.
his letter of acceptance, but not
afterwards.
When communication of As against the offeror: When it is As against the Offeree:
revocation is complete put into a course of transmission When it comes to his knowledge.
[Sec.4] to the person to whom it is made, Example : Communication of
so as to be out of the power of the revocation is complete only when
person who makes it. H receives the telegram. When
Example : S proposes to H by H revokes his acceptance, it is
letter. H sends his acceptance complete when he dispatches the
by letter. Suddenly, S sends telegram.
a telegram revoking his offer.
Revocation is complete as against
S when the telegram is dispatched;
H’s revocation of acceptance is
complete when S receives such
telegram.
Accepted is lighted match, while offer is a train of gun powder- Sir willian Anson
CAPACITY TO CONTRACT
Parties unable to Enter into a contract
1. Minor
2. A person of unsound mind, Person disqualified by law
3. Lunatic Idiot, Drunken and Intoxicated
4. Alien enemy, Foreign Sovereign, Convict, Corporation and Company Insolvent
33 LAW OF CONTRACTS - I
1. Who is competent to make a contract:-
Section 11. Every person is competent to contract who is of age of majority according to the Law
to which he is subject, who is of sound mind and not is disqualified from contracting by any Law to
which he is subject.
Age of majority:- According to section 3 of Indian majority Act-1875 every person domiciled in
India attains majority on the completion of 18 years of age.
Exception: - 21 years - in the following cases.
a. Where a guardian of a minor’s person or property is appointed under the Guardian and wards
Act, 1890.
b. Where minor’s property has passed under the superintendence of the court of wards.
34 LAW OF CONTRACTS - I
Contract for the benefit of a minor.
Contract by Guardian
Benefit of a minor by his guardian or manager of his estate.
a. within the scope of the authority of the guardian.
b. Is for the benefit of the minor.
Contract for supply of Necessaries.
Example :
Food, clothes, bed, shelter, shoes, medicines and similar other things required for the maintenance
of his life or for the life of his dependents, expenses for instruction in grade or arts; expenses
for moral religions or intellectual education, funeral expenses of his deceased family members,
marriage expenses of a dependent female member in the family; expenses incurred in the protection
of his property or personal liberty, Diwali pooja expenses, etc. have been held by courts to be
necessaries of life. However, the things like earrings for a male, spectacles for a blind person
or a wild animal cannot be considered as necessaries.
Liability for tort: A minor is liable for a tort, i.e., civil wrong committed by him.
Example :
A, a 14 - year - old boy drives a car carelessly and injures B. He is liable for the accident i.e., tort.
EXCEPTION
PERSON OF UNSOUND MIND
Lunatic Idiot Drunken and Intoxicated
Person of Unsound Mind
A person who is usually of unsound mind, but occasionally of sound mind can make a contract
when he is of sound mind. Similarly, a person who is usually of sound mind, but occasionally of unsound
mind, may not make a contract when he is of unsound mind.
• At time of entering into a contract, a person must be sound mind.
Law presumes that every person is of sound mind unless otherwise it is proved before court.
An agreement by a person of unsound mind is void. The following are categories of a person
considered as person of a unsound mind.
• An idiot
An idiot is a person who is congenital (by birth) unsound mind. His incapacity is permanent and
therefore he can never understand contract and make a rational judgment as to its effects upon his
interest. Consequently, the agreement of an idiot is absolutely void ab initio. He is not personally
liable even for the payment of necessaries of life supplied to him.
• Delirious persons
A person delirious from fever is also not capable of understanding the nature and implications of an
agreement. Therefore, he cannot enter into a contract so long as delirium lasts.
• Hypnotized persons
Hypnotism produces temporary incapacity till a person is under the effect of artificial induced sleep.
• Mental decay
There may be mental decay or senile mind to old age or poor health. When such person is not
capable of understanding the contract and its effect upon his interest, he cannot enter into contract.
35 LAW OF CONTRACTS - I
• Lunatic is not permanently of unsound mined
He can enter into contract during lucid intervals i.e., during period when he is of sound mind.
Generally of Occasionally of Capacity to Contract Example
Unsound Mind Sound Mind Can enter into a A patient in a lunatic
Contract when he is of asylum, who is at
Sound Mind. intervals of sound mind,
may contract during
those intervals.
Sound Mind Unsound Mind Cannot make a Contract A sane man, who is
when he is of Unsound delirious from fever or
Mind. who is so drunk that
he cannot understand
terms of a contract or
form a judgment, cannot
contract while such
delirium or drunkenness
lasts.
• Drunken person
An agreement made by intoxicated person is void.
36 LAW OF CONTRACTS - I
Example:
Third party to a contract cannot sue or a stranger to a contract cannot sue.
A transferred certain properties to B to be held by him in trust for the benefit of C. In this case, C
although not a party to the trust, can sue for the benefits available to him under the trust.
This exception to the rule of Privity of Contract has been recognised in a well known case of khwaja
Mohd. Khan v. Hussaini Begum (1910) 32 All 410.
Family settlement / Marriage contract:- In case of family settlement members who were not
originally party to the contract can also sue upon it.
A female member can force a provision for marriage expenses made on partition of HUF.
Example:
H sued her father - in - law K to recover Rs.15,000 being arrears of allowance called Pin money
payable to her by K under an agreement between K and H’s father, consideration being H’s
marriage to K’s son D. Both H and D were minors at the time of marriage. Held, the promise can
be made enforceable by H.
Provision of marriage expenses of female members of a Joint Hindu Family, entitles the female
member to sue for such expenses on a partition between male members.,
Two brothers, on partition of family joint properties, agreed to invest in equal shares for their
mother’s maintenance. Held, the mother was entitled to require her sons to make the investment.
Acknowledgement of liability:- Where a person admits his Liability thereafter if he refused he will
be stopped from denying his liability.
Example
X receives money from Y for paying it to Z. X admits the receipt of that amount to Z. Z can recover
the amount from X, even though the money is due from Y.
Assignment of contract. Assignee (the person to whom benefits of contract are assigned) can
enforce upon the contract..
Contract entered into through an agent.
Covenants running with land.
Stranger to consideration:- “Stranger to contract’ must be distinguished from a stranger to
consideration need not necessarily be provided by the promises it may flow from a third party also
such a person is‘ stranger to consideration,.
(Chinnaya v. Ramayya).
CONSIDERATION
1. (a) Consideration is a quid pro quo i,e something in return it may be -
(i) some benefit right, interest, loss or profit that may accrue to one party or,
(ii) some forbearance, detriment, loss or responsibility suffered on undertaken by the
other party [Currie V Mussa]
(b) According to Sir Frederick Pollock, “consideration is the price for which the promise
of the other is bought and the promise thus given for value is enforceable.
2. Definition [Sec 2(d)]:- when at the desire of the Promisor, the promise of any other person.
(a) has done or abstained from doing, or [Past consideration]
(b) does or abstains from doing, or [Present consideration]
(c) promises to do or abstain from doing something [Future consideration] such act or
abstinence or promise is called a consideration for the promise.
37 LAW OF CONTRACTS - I
3. Example
(i) ‘P’ agrees to sell his car to ‘Q’ for Rs.50,000 Here ‘Q’s Promise to pay Rs50,000 is the
consideration for P’s promise and ‘P’s promise to sell the car is the consideration for
‘Q’s promise to pay Rs.50,000.
(ii) ‘A’ promises his debtor ‘B’ not to file a suit against him for one year on ‘A’s agreeing
to pay him Rs.10,000 more. Here the abstinence of ‘A’ is the consideration for ‘B’s
Promise to pay.
1. Consideration must move at the desire of the promisor.
D constructed a market at the instance of District collector. Occupants of shops promised to pay
D a commission on articles sold through their shops. Held, there was no consideration because
money was not spent by Plaintiff at the request of the Defendants, but at instance of a third person
viz. the Collector and, thus the contract was void. Durga Prasad v. Baldeo
2. Consideration may move from the promisee or any other person who is not a party to the
contract. [Chinnaya’s v. Ramayya]
A owed Rs.20,000 to B. A persuaded C to sign a Pro Note in favour of B. C promised B that he
would pay the amount. On faith of promise by C, B credited the amount to A’s account. Held,
the discharge of A’s account was consideration for C’s promise. National Bank of Upper India v.
Bansidhar
3. Consideration may be Past, Present, Future:
Under English law, Past consideration is no consideration.
Present consideration :- cash sale
Future or executory consideration:- A Promises to B to deliver him 100 bags of sugar at a future
date . B promise to pay first on delivery.
4. Consideration should be real and not illusory. Illusory consideration renders the transaction
void consideration, is not valid if it is.
(i) Physically impossible
(ii) Legally not permissible
(iii) Uncertain
(iv) illusory (fulfillment of a pre existing obligation)
5. Must be legal:-
Consideration must not be unlawful, immoral or opposed to public policy.
6. Consideration need not be adequate. A contract is not void merely because of the fact that
the consideration is inadequate. The law simply requires that contract should be supported by
consideration. So long as consideration exists and it is of some value, courts are not required to
consider its adequacy.
Example:
A agreed to sell a watch worth Rs.500 for Rs.20, A’s consent to the agreement was freely given.
The consideration, though inadequate will not affect the validity of the contract. However, the
inadequacy of the consideration can be considered in order to know whether the consent of the
promisor was free or not. [Section 25 Explanation II]
7. The performance of an act what one is legally bound to perform is not consideration for
the contract mean’s something other than the promisor’s existing obligation -
A contract not supported by consideration is void.
38 LAW OF CONTRACTS - I
Exceptions to the Rule “No consideration. No contract”.
1. Written and registered agreements arising out of love and affection:- [25 (1)]
• Expressed in writing and registered under law for the time being in force for registration of
document
• Natural love and affection
• Between parties standing in a near relation to each other
Example:
An elder brother, on account of natural love and affection, promised to pay the debts of his
younger brother. Agreement was put to writing and registered. Held, agreement was valid.
Exception: Rajlukhy Dabee v. Bhootnath Mukharjee
Example:
A Hindu husband by a registered document, after referring to quarrels and disagreements
between himself and his wife, promised to pay his wife a sum of money for her maintenance
and separate residence. Held that the promise was unenforceable since natural love and
affection was missing.
2. Promise to compensate [25(2)]
• Promise to compensate wholly or in part
• Who has already voluntarily done something for the promisor
Ex. Nudo Pacto non oritur actio i,e, an agreement without consideration is void.
Something which the promisor was legally compellable to do.
Example :-
A finds B’s purse and give to him. B Promise to give A Rs.500. This is a valid contract.
3. Promise to pay a time - barred debt. [Sec 25(3)]
• A debt barred by limitation can not recovered. Hence, a promise to pay such a debt is without
any consideration.
• Can be enforced only when - in writing and sighed by Debtor or his authorized agent.
Examples
A owes B Rs.10,000 but the debt is barred by Limitation Act. A signs a written promise to pay
B Rs.8,000 on account of debt. This is a valid contract.
4. Completed gift- gift do not require any consideration.
5. Agency (185) - According to the Indian contract Act. No consideration is necessary to create an
agency.
6. Bailment (148)- consideration is not necessary to effect a valid bailment of goods. It is Called
Gratuitous Bailment.
7. Remission (63).
8. Charity - If a person promises to contribute to charity and on this faith the promises undertakes a
liability to the extent not exceeding the promised subscription, the contract shall be valid.
39 LAW OF CONTRACTS - I
FREE CONSENT
Free consent
• Consent is said to be free when it is not caused by [ Section 14]
(a) coercion [Section 15]
(b) Undue influence [Section 16]
(c) Fraud [Section 17]
(d) Misrepresentation [ Section 18]
(e) Mistake [Section 20, 21,22]
Effect of absence of Free Consent :-
If consent is through coercion, undue influence, fraud , Misrepresentation the contract is voidable
at the option of party whose consent was not free [19, 19A]
(a) Committing any act which is forbidden by the IPC
(b) Threatening to commit any act which is forbidden by the IPC.
(c) Unlawful detaining of any property or
(d) Threatening to detain any property.
Essential elements of coercion
Above four [a - d]
(e) coercion need not necessarily proceed from party to contract.
(f) Coercion need not necessarily be directed against the other contracting party.
(g) It is immaterial whether the IPC is or is not in force at the time or at the place where the
coercion is employed [Bay of Bengal caption]
Effect of threat to file a suit:-
A threat to file a suit (whether civil or criminal) does not amount to coercion unless the suit is on
false charge. Threat to file a suit on false charge is an act forbidden by the IPC and thus will amount to
an act of coercion.
UNDUE INFLUENCE [SECTION 16]
No. Presumption of Domination of will:-
Effect of Threat to commit suicide:- Threat to commit suicide amounted to coercion and the
release deed was example discussed in class.
Therefore voidable. [Chikham Ammiraju v Seshama]
Duress V Coercion
English Law - Duress does not include detaining of property or threat to detain property.
- Duress can be employed only by a party to the contract or his agent.
Effect:- when coercion is employed to obtain the consent of a party the contract is voidable at the
option of the party where consent was obtained by coercion.
A threat to strike by employees in support of their demands is not regarded as coercion. This
is because the threat to strike is not an offence under the I.P.C. it is a right given under the Industrial
Disputes Act.
Detaining property under mortgage: Detention of property by a mortgagee until the payment of loan
does not amount to coercion.
40 LAW OF CONTRACTS - I
Meaning of undue influence :- dominating the will of the other person to obtain an unfair
advantages over the others.
(a) Where the relation subsisting between the parties must be such that one party is in position
to dominate the will of the other.
(b) The dominant party use his position.
(c) Obtain an unfair advantage over the other .
Presumption of domination of will:-
Circumstances Examples
Where he holds a real or apparent authority Master and servant, parent and child, Income Tax
over the other officer and assesses, principal and a Temporary
Teacher.
Where he stands in a Trust fiduciary (benefit) Trustee and beneficiary Spiritual Guru and his disciples,
relation to the other solicitors and clients. Guardian and wards
Mental Capacity of a person is temporarily or Relationship between medical attendant and ward.
permanent effected by reason of age, illness
or mental or bodily distress
Effect of undue Influence:- [Section 19A]
When consent to an agreement is caused by undue influence, the contract is voidable at the option
of the party whose consent was so caused.
Burden of Proof:- A contract is presumed to be induced by undue influence if the following two
condition:-
• A party has the position to dominate the will of the others
• The transaction is unconscionable (unreasonable)
In such a case dominant party is under the burden to prove that undue influence was not employed.
[Unconscionable transactions:- if transaction appears to unreasonable the dominant party to
prove that there is no undue influence. ]
• Any other transaction:- weaker party to prove the influence was employed]
Where some transaction is entered into in the ordinary course of business, but due to certain
contingencies, one party is able to make the other party agree to certain terms and conditions then it is
not undue influence.
Example:
A applies to a banker for a loan at a time when there is stringency in the money market. The banker
declines to make the loan except at an unusually high rate of interest. A accepts the loan on these
terms. This is a transaction in the ordinary course of business, and the contract is not induced by undue
influence.
A spiritual guru induced his chela to donate all his property to the ashram and said that in return of
it, he will certainly get salvation. The chela did the same. Held, that this is a case, of undue influence so
it becomes void.
Induced by undue influence
Burden of Proof - Full disclosure is made to pardanashin women
Pardanashin Women - Understand the contract
- Receipt of competent independent advice .
• Dominant party - full disclosure
• Price was adequate
• Receipt of competent independent advice before entering into contract - weaker party.
41 LAW OF CONTRACTS - I
Rebutting presumption:-
Contract with Pardanashin woman;-
Undue influence v. Coercion
Similarities: - Voidable at the option of aggrieved party:-
Coercion (15) Undue Influence (16)
Meaning - using or threat to use physical Involves use of moral force (mental pressure)
force
Obtain the consent of party (intention) Obtain an unfair advantage (intention)
Punishment under IPC Not criminally liable
Parties - Stranger Between the parties to the contract
Relationship - Immaterial One party dominate the other party
Voidable at the option of aggrieved party Voidable or court set aside
Benefit - Back Benefit - order of court - Back
FRAUD (17)
• The term fraud means to make representation of facts made willfully with a view to deceive the
other party.
• Sec.17- fraud means any act committed by a party to a contract or with his connivance or by his
agent with intent to deceive another party there to or his agent or to induce to enter into contract.
Essentials of fraud :-
(a) By a party to the contract
(b) There must be representation - [an opinion a statement of expression - does not fraud]
(c) The representation must be false.
(d) Before conclusion of contract.
(e) The misrepresentation must be made willfully.
(f) The misrepresentation must be made with a view to deceive the other party.
(g) The other party must have actually been deceived.
(h) The other party have suffered a loss.
Fraud - definition include
• The suggestion, as to fact, of that which is not true by one who does not believe it to be true.
• The active concealment of a fact by one having knowledge or belief of the fact.
Ex. A furniture dealer conceals the cracks in furniture by polish work.
• A promise made without any intention of performing it.
• Any other act fitted to deceive.
Effect of Fraud:-
• Any such act or omission as the law specially declared to be fraudulent.
Ex:- T bought a cannon from H. It was defective, but H had plugged it. T did not examine the
cannon, but it burst when he used it. Held as the plug had not deceived T, he was liable
to pay for the cannon.
Ex.: Where the representation was true at the time of when it was made but becomes untrue
before the contract is entered into and this fact is known to the party who made the
representation. If must be corrected. If it is not so corrected it will amount to be fraud.
42 LAW OF CONTRACTS - I
When the silence amount to fraud:-
(a) General rule:- Mere (only) Silence as to facts likely to affect the willingness of a person to enter
into a contract is not fraud where the circumstances of the case are such that regarding being had
to them. It is duty of the person keeping silence to speak. Such duty arises in the following two
cases.
(1) Duty to speak exists where the parties stand in a fiduciary relationship, e.g. father and son,
guardian and ward, trustee and beneficiary etc. or where contract is a contract of ubberimae fidei
(requiring utmost good faith), e.g. contracts of insurance.
Ex.:- A sells by auction to B a horse which A knows to be unsound. B’ is A’s daughter and has just
come of age. Here the relation between the parties would make it A’s duty to tell B, the horse is
unsound.
(2) When silence itself equivalent to speech. B says to A “ if you do not deny it I shall assume that
the horse is sound”. A say nothing - A’s silence equivalent to speech. A can held liable to fraud.
[Half Truth is worse than a blatant: - Example - company pay dividend - in class room]
Sec. 19: A contract induced by fraud is voidable at the option of the party defrauded. Till the
exercise of such option, the Contract is valid.
1. Rescinds of contract
2. Right to insist upon performance
3. Right to claim damages - if he suffered loss.
Exception : The contract is not voidable in the following cases.
• When the party whose consent was caused by silence amount to fraud and he has the means
of discovering the truth with ordinary diligence.
• When the party give the consent in ignorance of fraud.
• When the party after become aware of fraud takes a benefit.
• When the parties can’t be restored to their original position.
• Where interests of third parties intervene before the contract is avoided.
MISTAKE
Mistake Erroneous Belief about some facts
Mistake of Fact Mistake of Law [21]
Unilateral [22] Bilateral [20] Mistake of Indian Mistake of foreign Law
One party Under Both parties under
Mistake of fact Mistake of facts the contract is valid same as mistake fact
The contract is valid the contract is void
[Not voidable and void] Both parties under mistake
Exception: - Where contract is not valid (void)
1. Identity of persons contract with
Ex.:- A woman, falsely misrepresenting herself to be wife of a well known Baron obtained two
pearl necklaces from a firm of jewelers on the pretext of showing them to her husband before
buying. She pledged them with a broker who took them in good faith. Held that there was no
contract between jeweler and woman and even an innocent buyer or a broker did not get a
good title. Broker must return necklaces to jeweler. Jeweler intended to deal not with her but
with quite a different person, i.e., wife of a Baron.
2. As the nature of the contract
Ex.:- Illiterate man sign Bill of exchanges by means of false, representation that it was a mere
guarantee. It was held that he was not liable for bill of exchange because never intended to
sign the bill of exchange
44 LAW OF CONTRACTS - I
Bilateral Mistakes:-
Subject matter Possibility
Existence Quantity Quality Prices Identity Title Legal Physical
(a) It is forbidden by law - law would also include the rules regulations, notifications etc. or issued
under the authority given by a statute.
Ex.:- A sold liquor without license to B. The sale is unlawful as the sale of liquor without license is
forbidden by the law, i.e., The Excise Act. Hence, A cannot recover the price.
Ex.:- a Hindu already married and his wife alive entered into a marriage agreement with Y an
unmarried girl. The agreement is void because the second marriage is forbidden by Hindu
Law.
(b) If it defeats the Provisions of any Law.
- not directly prohibited by any Law
Ex.:- A’s estate is sold for arrears of revenue under the provision defaulter is prohibited from
purchasing the estate upon an understanding with A becomes the purchaser and agrees to
convey the estate to A . Upon receiving from him the price which B has paid. The agreement
is void.
(c) If it is Fraudulent
Ex.:- Object or consideration of an agreement is fraudulent. An agreement with such an object or
consideration is unlawful and void.
(d) If it involves or Implies injury to a person or property of another.
Ex. :- Where it create injury to a person or to the property of another. An agreement with such an
object or consideration is unlawful and void.
(e) If the court regards it as immoral.
• X gave Rs. 10,000 to Y a married woman to obtain a divorce from her husband. X agrees to
marry when divorce taken. X would not recover the amt.
1. Partially unlawful Object or consideration [Sec. 24]: An Agreement is void if -
(a) any part of a single consideration for one or more objects is unlawful; or
(b) any one or any part of one of several consideration for a single object, is unlawful.
2. Example: B is a licensed manufacturer of permitted chemicals. A promise B to supervise B’
s business and combine it with the production of some contraband items together with the
permitted items. B promises to pay A, Salary of Rs.10,000 p.m. Agreement is void, object of
A’s promise and consideration for B’ s promise being partially unlawful.
3. Lawful Consideration enforceable: When there are several distinct promises made for
one and the same consideration and one or more of them are of such nature that law will not
enforce it, only such of the promises as are unlawful cannot be enforced. Other which are
lawful, can be enforced.
4. Test of Severability:
(a) If illegal part cannot be severed from legal part of a covenant, contract is altogether
void.
(b) If it is possible to severe them, whether the illegality be due to Statute or Common Law,
bad part alone may be rejected and good retained.
In case of pre - existing civil liability, the dropping of criminal proceedings need not necessarily
be a consideration for the agreement to satisfy that liability. Union Carbide Corpn. v. UOI
45 LAW OF CONTRACTS - I
EVERY AGREEMENT OF WHICH THE OBJECT OR
CONSIDERATION IS UNLAWFUL IS VOID [SEC 23]
Illegal agreement - Void - ab - intio
Punishable by the criminal Law of the country or by any special legislation regulation effect of illegal
agreement.
Collateral transactions - illegal
No action can be taken for the recovery of money paid or property transferred.
If illegal part can’t be separated from the legal part.
Whole agreement is altogether illegal. [Sec.57]
If separated
Legal part - enforces illegal part - reject.
Reciprocal promises - In respect of reciprocal promises the agreement as to illegal promise is void.
Agreement opposed to public policy:-
Alternative promises: where in alternative promises one part is illegal, only the legal part can be
enforced. [Sec. 58]
Champerty & Maintenance :
2(g) - Void agreement is an agreement which is not enforceable by Law - void - ab - inito.
(1) Agreement by or with person incompetent to contract [10, 11]
(2) Agreement entered into through a mutual mistake [20]
(3) Object or consideration - unlawful [23]
(4) Consideration or object partially, unlawful [24]
(5) Without consideration [25]
(6) Restraint of marriage [26]
(7) Restraint of trade [27]
(8) Legal proceeding [28]
(9) Consideration identified [29]
(10) Wagering agreement [30]
(11) Impossible agreement [56]
(12) An agreement to enter into an agreement in the future.
Every agreement in restraint of marriage of any person other than a minor, is void, Any restraint of
marriage whether total or partial is opposed to public policy.
Ex. A promised to marry else except Mr. B, and in default pay her a sum of Rs.1,00,000. A married
someone else and B sued A for recovery of the sum. Held, the contract was in restraint of marriage, and
as such void.
Ex. The consideration under a Sale Deed was for marriage expenses of a minor girl aged 12. Held
the sale was a void transaction being opposed to public policy.
Ex. Two co-widows - agreement - if one of them remarried - she should forfeit her eight to her share
in the deceased husband’s property was not void because no restraint was imposed upon either of the
two widows from remarrying.
Ex. Wife to divorce herself and to claim maintenance from the husband on his marrying a second
wife was not void because no restraint was imposed upon husband from marrying a second wife.
Every agreement by which anyone is restrained from exercising a Lawful profession, trade or
business of any kind is void .
46 LAW OF CONTRACTS - I
Burden for Proof :-
Party supporting the contract:- must show that the restraint is reasonably necessary to protect
public interest. Party challenging the contract:- restraints is injurious to the public.
Ex. : In Patna, 29 out of 30 manufacturers of combs agreed with R to supply combs only to him and
not to anyone else. Under the agreements R was free to reject the goods if he found no market for them.
Held, the agreement amounted to restraint of trade and void.
VOID AGREEMENT
Agreement in Restraint of marriage [26]
Agreement in Restrain of trade [27]
Exception to Sec. 27
(1) Sale of goodwill: - Seller of goodwill of a business may agree with the buyer to restrain from
carrying on business.
(a) Must relate to same business
(b) Restriction shall apply within specified Local limits.
(c) Restriction shall apply within a reasonable time period
(d) The specified local limits - depends on nature of business.
(a) Restriction on existing partner [11(2)]
Not carry on business other than business of the firm till he is partner.
(b) Restriction on outgoing partner [36]
Not carry on a similar business after retirement
Local limits + specified period - local limit - nature of business
(c) Sec. 54: Upon or in anticipation of dissolution of Firm. Partners may agree that some or all
of them will not carry on business similar to that of the Firm within specified periods or local
limits.
(d) Sec. 55(2) : Partner may agree with due buyers of Goodwill, not to use the Firm name or
carry on Firm’s business or solicit clients of the Firm.
(e) Sec. 55(3): Upon sale of Firm’s Goodwill, a partner may agree that he will not carry on any
business similar to Firm’s within specified periods or local limits.
Exception under judicial interpretations :-
(a) Trade combination.
• Traders may form associations among them to regulate the business or to fix prices.
• Such agreement like opening and closing of business venture, licensing of traders, supervision
and control of dealers, etc. are valid even if they are in restraint of trade.
• But, a Combination that tends to create monopoly; or when two enter into an agreement to
avoid competition, they are against public policy and hence void.
(b) Sale dealing agreement: - Agreements to deal in the products of a single manufacturer or to sell
the whole produce to a single dealer are valid if their terms are reasonable.
Ex.: (Discuss in class)
Agreement - buyer of goods for Delhi market not to sell them in Chennai is valid.
• Not to sell to any other firm - valid.
47 LAW OF CONTRACTS - I
(c) Service agreement.
• Agreement: Employers may enter into agreements with employees - (i) not to engage in
other work during the tenure of his employment; or (ii) not to engage in similar work after his
termination.
• During Employment: The first restraint is always valid, e.g. doctors may be paid non
practicing allowances to avoid practicing when they are employed in a hospital.
• After termination of service: The second restraint is valid only if it is to protect the trade
interests of the employer. It may be imposed to prevent the outgoing employee from using
trade secrets he had learnt during his tenure, to the detriment of his previous employer.
• Valid Agreements : Requiring employees to serve the organization for a few years after
training leaving; or execution of a bond requiring employees leaving the organization to pay
compensation to the employer are valid.
• Use of Personal Skills: The employer cannot prevent the employees from using his personal
skills and knowledge to his benefit; e.g. an employer cannot restrain an employee to act in
theatre plays or in performing an art.
Agreement restricting enforcement of rights:
An agreement by which any party is restricted absolutely from enforcing his legal rights under any
contract is void.
Agreements Limiting period of limitation:- An agreement which limits the time within which an action
may be brought is void.
A partial restrain is not void, eg.
Ex. 1: A clause in a contract that any dispute arising between the parties shall be subject to
jurisdiction of a court at a particular place only, is valid.
Ex. 2: An agreement is not void merely because if provides that any dispute arising between two
or more person shall be referred to arbitration.
That has arises.
Which may arise
Which has already arisen?
Ex. 3: An agreement not to go in appeal to higher court against the judgment of a lower court not
amount to restraint of legal proceeding.
1. An agreement is called an uncertain agreement when the meaning of that agreement is not
certain or capable of being certain. Such agreements are declared void u/s 29.
2. Areas of uncertainty: Uncertainty may relate to - (a) Subject Matter of Contract; or (b) Terms
of contract.
(a) Subject Matter: There may be uncertainty as regards - (i) existence; (ii) quantity (iii)
quality; (iv) price; or (v) title to the subject matter.
(b) Terms of Contract: There may be uncertainty as regards - (i) existence (ii) quality; (iv)
price; or (v) title and other terms in the contract.
Example:
1. A says to B “I shall sell my house; will you buy?” A says, “Yes, I shall buy”. Due to uncertainty
of price, the agreement is void and unenforceable. There is no binding contract.
2. A agreed to pay a certain sum, when he was able to pay. Held, the agreement was void for
uncertainty.
3. D agrees to sell his white horse, for Rs.5,000 or Rs.10,000. - void.
48 LAW OF CONTRACTS - I
AGREEMENT IN RESTRAINT OF LEGAL PROCEEDINGS [28]
An agreement the meaning of which is not certain (Sec 29):
An agreement between two persons under which money or money’s worth is payable by one person
to another on the happen or non happening of a future uncertain event is called a wagering agreement.
X promise to pay Rs. 1000 to Y if it is rained on a particular day, and Y promise to pay Rs.1000 to
X if it did not.
Wagering agreement is promise to give money or money’s worth upon the determination of
uncertain event.- Sir Willian Anson.
(1) There must be a promise to pay money or money’s worth
(2) Performance of a promise must depend upon determination of uncertain event. It might have
already happened but the parties are not aware about it.
(3) Mutual chances of Gains or Loss.
(4) Neither party to have control over the events
(5) Neither party should have any other interest in event.
(6) One party is to win and one party is to lose.
Ex. 1:- Agreement to settle the difference between the contract price and market price of certain
goods or shares on a particular day.
Ex. 2: A lottery is wagering agreement. Therefore, an agreement to buy and sell lottery tickets is a
wagering agreement. Section 294 - A of the Indian Penal Code declares that drawing of lottery
is an offence. However, the government may authorize lotteries. The persons authorized to
conduct lotteries are exempt from the punishment. But, the lotteries still remain a wagering
transaction.
Ex. 3: However, if the crossword puzzle prizes depend upon sameness of the competitor’s solution
with a previously prepared solution kept with the organizer or newspaper editor, is a lottery
and, therefore, a wagering transaction.
Ex. 4: However, when any transaction in any commodity or in shares with an intention of paying or
getting difference in price, the agreement is a wager.
• Prize in terms of Prize competition Act, 1955 not exceeding Rs.1000 is not wagering
agreement.
• Horse race [500] - An agreement to contribute a plate or prize.
52 LAW OF CONTRACTS - I
PERFORMANCE
Essential of Valid tender
Unconditional
At a proper place
For whole obligation
Of exact amount and in legal tender money
At proper time
Reasonable opportunity to Promisee
Tender or offer of performance to be valid must satisfy the following conditions:-
(i) It must be unconditional
Ex :- ‘X’ offers to ‘Y’ the principal amount of the loan. This is not a valid tender since the whole
amount of principal and interest is not offered.
(ii) It must be made at a proper time and place.
Ex:- If the promisor wants to deliver the goods at 1 am. This is not a valid tender unless it
was so agreed;
(iii) Reasonable opportunity to examine goods.
Ex:- Delivery of something to the promisee by the promisor promisee must have reasonable
opportunity of inspection.
(iv) It must be for the whole obligation :- goods and amount.
Ex:- ‘X’ a debtor, offer’s to pay ‘Y’ the debt due in installments and tenders the first installment.
This is not a valid tender minor deviation - not invalid [Behari lal v ram gulam]
(v) It must be made to the promisee or his duly authorized agent.
Ex:- It must be person who is willing to perform his part of performance.
(vi) In case of payment of money, tender must be of the exact amount due and it must be in the
legal tender.
Who can demand performance
[who will perform the contract ]
1. Promisor himself :- include personal skill, taste or art work.
Ex:- ‘A’ promises to paint a picture for ‘B’ as this promise involves personal skill of ‘A’. It must
be performed by ‘A’.
2. Promisor or agent :- [does not involves personal skill]
3. Legal Representative:- [does not involve personal skill and taste]
Type of Tender
Tender of goods and services
When a promisor offers to delivery of goods or service to the promisee, it is said to be tender of
goods or services, if promisee does not accept a valid tender, It has the following effects:
(i) The promisor is not responsible for non - performance of the contract.
(ii) The promisor is discharged from his obligation under the contract. Therefore, he need not
offer again.
(iii) He does not lose his right under the contract. Therefore, he can sue the promise.
53 LAW OF CONTRACTS - I
• Tender of money
Tender of money is an offer to make payment. In case a valid tender of money is not accepted, it
will have the following effects:
(i) The offeror is not discharged from his obligation to pay the amount.
(ii)
The offeror is discharged from his liability for payment of interest from the date of the tender
of money.
Person by whom promise is to be performed Sec 40.
1. Promisor himself :- include personal skill, taste or art work.
Ex:- ‘A’ promises to paint a picture for ‘B’ as this promise involves personal skill of ‘A’. If must
be performed by ‘A’.
2. Promisor or agent :- [does not involves personal skill]
3. Legal Representative:- [does not involve personal skill and taste]
54 LAW OF CONTRACTS - I
Sec 45:-
Rights to claim performance of joint [Devolution of joint rights]
1. During their joint lives - all the joint promisors .
2. After the death of any of them - The representative of such deceased promise jointly with the
surging promise
3. With the representatives of all jointly.
Ex:- ‘A’ in consideration of Rs 50,000 lent to him by ‘B’ and ‘ C’ promises ‘B’ and ‘C’ jointly to
replace them that sum with interest on a day specifies.
• ‘B’ dies. The right to claim performance rests with ‘B’ representatives jointly with ‘c’
during ‘C’ life.
• And after ‘C’s death with the representatives of ‘B’ and ‘C’ jointly .
1. No time is specified for performance [Sec 46]
• Time of performance is not specified + promisor agreed to perform without, a demand
from the promisee the performance must be made within a reasonable time. Reasonable
time - in each particulars case - a question of fact.
2. Time specified but hour not mentioned [47].
Time of performance specified + promisor agreed to perform without application by the
promisee
• Performance must perform on the day fixed during the usual business hours and at the
place at which the promise ought to be performed.
3. Where Time is fixed and application to be made [48]
• Proper place and within the usual hour of business
• Promisee to apply for performance
4. Performance of promise where no place is specified and no application is to be made
by the promise [49]
• It is the duty of the promisor to apply to the promisee to appoint a reasonable place for
the performance and perform it at such appointed place.
5. Performance in manner or at time prescribed or sanctioned by promise [50]
• In such prescribed manner and
• Prescribed time
Ex:- ‘A’ desires ‘B’ who owes him Rs 10,000 to send him a promissory note for Rs 10,000
by Post. The debt is discharged as soon as ‘B’ puts into the post a letter containing the
promissory note duly addressed to ‘A’.
Reciprocal Promise :-
Promises which form the consideration or part of consideration for each other as called reciprocal
promises.
1. Mutual and Independent:- Such promises all to be performed by each party independently
without waiting for the other party to perform his promise can’t excuse himself on the ground
of non-performance by the default party.
Y - Price - non Payment
X - goods delivered
2. Mutual and Dependent:- Sue damage . The performance of promise by one party depended
on the prior performance of the promise by other party.
[The party at fault becomes liable to pay compensation to the other party may sustain by the
non performance of the contract - [54]
3. Mutual and concurrent: - when reciprocal promises are to be performed simultaneously a
promisor need not perform his part unless the promisee is ready and willing to perform [51]
55 LAW OF CONTRACTS - I
TIME PLACE AND MANNER OF PERFORMANCE[46-50]
PERFORMANCE OF RECIPROCAL PROMISES
Order of performance of reciprocal promises [52]
• Where the order in which reciprocal promises one to be performed is expressly fixed by the
contract - they must be performed in that order.
• Order is not expressly fixed - nature of transaction requires
Ex :- ‘A’ and ‘B’ contract that ‘A’ shall build a house for ‘B’ at a fixed price ‘A’ promise to build
the house must be performed before its promise to pay for it.
Sec 53 :- One party preventing - voidable at the option of the other party so prevented.
• Compensation for loss
Sec 54 :- Legal and illegal
Legal - valid, illegal - void
Sec 58:- alternative promise, one branch being illegal legal branch alone can be enforced.
A - B - 1000 rupees
Deliver - rice + smuggled goods
Where time is essence - the concerned parties must perform their respective promises within
the specified time.
Time are fact :- time is specified for the performance of the contract is not by itself sufficient
to prove that time is essence of the contract.
• Intention of the parties.
TIME IS GENERALLY CONSIDERED TO BE THE ESSENCE OF THE CONTRACT :-
(a) where the parties have expressly agreed to treat as the essence of the contract.
(b) Delay operates as an injury to the party and
(c) Nature and necessities of the contracts requires it to be performed within the specified time.
Delivery of the goods - considered - essence of the contract payment of the price - No
[However in case of sale and purchase of an immoral property, the time is presumed to not
the essence of the contract]
Time is essence of the contract - party fails to perform
In time - the contract becomes voidable at the option the other party.
Time is not essence - only claim damages for delay in performance
57 LAW OF CONTRACTS - I
Example: A owes B, the following debts:
Amount of Positions of the debt the debt
Rs.2,000 Time barred
Rs.1,000 Time barred
Rs.2,000 Due on 10th June
Rs.3,000 Due on 20th September
A sends Rs. 1,500 in the month of June. He neither expressly intimates nor circumstance of the
case imply as to which debt the amount is to be applied. Moreover, B also does not appropriate the
payment at his own discretion. Therefore, the payment will be appropriated in order of time. However,
here in this case two debts are of equal standing. The payment will, therefore, be appropriated in order
of time but to all equal standing debts. In this case, Rs.1,500 will be appropriated towards the first two
debts of equal standing proportionately, i.e. in the ratio of 2:1.
Discharge by performance
Discharge of a contract means termination of contractual relation between the parties to a contract
in other words a contract is discharged when the rights and obligations created by it are extinguished (i.e.
comes to an end). Fulfillment of obligations by a party to the contract within the time and in the manner
prescribed in the contract.
(a) Actual performance - no party remains liable under the contract. Both the parties performed.
(b) Attempted performance or tender.:- Promisor offers to perform his obligation under
the contract but the promise refuses to accept the performance. It is called as attempted
performance or tender of performance
• But the contract is not discharged.
DISCHARGE OF A CONTRACT
Mode of discharge of contract
1. By performance
• Actual
• Attempted
By impossibility of performance
By lapse of Time
By breach of contract
• Actual
• Anticipatory
2. By mutual agreement
(By implied consent)
1. Novation - Sec 62
2. Rescission - Sec 62
3. Alteration - Sec 62
4. Remission - Sec 63
5. Waiver
6. Merger
58 LAW OF CONTRACTS - I
3. By Operation of law
1. Death
2. Merger
3. Insolvency
4. Unauthorized alteration
4. Discharge by mutual agreement
(a) Novation [Sec 62] - Novation means substitution of a new contract in the place of the original
contract new contract entered into in consideration of discharge of the old contract. The new
contract may be.
• Between the same parties (by change in the terms and condition)
• Between different parties (the term and condition remains same or changed)
Following conditions are satisfied :-
(1) All the parties must consent to novation
(2) The novation must take place before the breach of original contract.
(3) The new contract must be valid and enforceable.
Example:
A owes B Rs.50,000. A enters into an agreements with B and gives B a mortgage of his estate for
Rs.40,000 in place of the debt of Rs.50,000. (Between same parties)
A owes money Rs.50,000 to B under a contract. It is agreed between A, B & C that B shall henceforth
accept C as his Debtor instead of A for the same amount. Old debt of A is discharged, and a new
debt from C to B is contracted. (Among different parties)
(b) Rescission [62]:- Rescission means cancellation of the contract by any party or all the parties
to a contract. X promises Y to sell and deliver 100 bales of cotton on 1st oct at his go down
and Y promises to pay for goods on 1st Nov. X does not supply the goods. Y may rescind the
contract.
(c) Alteration [62] :- Alteration means a change in one or more of the terms of a contracts with
mutual consent of parties the parties of new contracts remains the same.
Ex:- X Promises to sell and delivers 100 bales of cotton on 1st oct. and Y promises to pay for
goods on 1st Nov. Afterwards X and Y mutually decide that the goods shall be delivered in
five equal installments at is godown . Here original contract has been discharged and a new
contract has come into effect.
(d) Remission [63]:- Remission means accepting a lesser consideration than agreed in the
contract. No consideration is necessary for remission. Remission takes place when a
Promisee-
(a) dispense with (wholly or part) the performance of a promise made to him.
(b) Extends the time for performance due by the promisors
(c) Accept a lesser sum instead of sum due under the contract
(d) Accept any other consideration that agreed in the contract
• A promise to paint a pictured for B. B after words for him to do so. A is no longer bound to
perform the promise.
(e) Waiver:- Intentional relinquishment of a night under the contract.
59 LAW OF CONTRACTS - I
Discharge by operation of law
(f) Merger :- conversion of an inferior right into a superior right is called as merger.(Inferior right
end)
(a) Death :- involving the personal skill or ability, knowledge of the deceased party one discharged
automatically. In other contract the rights and liability passed to legal representative.
Example : A promises to perform a dance in B’s theatre. A dies. The contract comes to an end.
(b) Insolvency:- when a person is declared insolvent. He is discharged from his liability up to the date
of insolvency.
Example: A contracts to sell 100 bags of sugar to B. Due to heavy loss by a major fire which leaves
nothing to sell, A applies for insolvency and is adjudged insolvent. Contract is discharged.
(c) By unauthorized material alteration - without the approval of other party - comes to an end -
nature of contract substance or legal effect.
Example : A agrees upon a Promissory Note to pay Rs.5,000 to B. B alters the amount as Rs.50,000.
A is liable to pay only Rs.5,000.
(d) Merger: When an inferior right accruing to a party in a contract mergers into a superior right
accruing to the same party, then the contract conferring inferior right is discharged.
Example: A took a land on lease from B. Subsequently, A purchases that land. A becomes owner
of the land and ownership rights being superior to rights of a lessee, the earlier contract of lease
stands terminated.
5. Rights and liabilities vest in the same person:
Where the rights and liabilities under a Contract vest in the same person, the contract is discharged.
Example: A Bill of Exchange which was accepted by A, reaches A’s hands after being negotiated
and endorsed through 4 other parties. The contract is discharged.
60 LAW OF CONTRACTS - I
Discharge by Lapse of time
Where a party fails to take action against the other party within the time prescribe under the
limitation Act, 1963. All his rights to come end. Recover a debt - 3 Years recover an immovable property
- 12 years
Ex.:- On 1st July 2001 X sold goods to Y of Rs 1,00,000 and Y had made no payment till August
2004. State the legal position on 1st August 2004
(a) If no. credit period allowed and
(b) If 2 month credit period allowed.
Failure of a party to perform his part of contract
(a) Anticipatory Breach of contract :- Anticipatory breach of contract occurs when the part
declares his intention of not performing the contract before the performance is due .
(i) Express repudiation: - 5 agrees to supply B 100 tunes of specified category of iron on
15.01.2006 on 31.12.2005. 5 express his unwillingness to supply the iron to B.
(ii) Party disables himself: - Implied by conduct.
Ex.:- A agrees to sell his fiat car to B on 15.01.2006 on 31.12.05 A sells his fiat car to T.
(b) Actual Breach of contract :- If party fails or neglects or refuses to perform his obligation on
the due date of performance or during performance. It is called as actual breach.
During performance - party has performed a part of the contact.
Consequences of Breach of contract:- The aggrieved party (i.e. the party not at face it ) is discharged
from his obligation and get rights to proceed against the party at fault. The various remedial available to
an aggrieved party.
(a) Effect of Initial Impossibility
(b) Effect of supervening. Impossibility
(a) Initial Impossibility - at the time of making contract
• Both parties know - put life into dead body - void .
• Both don’t know - void.
• One know - compensate to other party
(b) Effect of super vanity Impossibility:-
• Where an act becomes impossible after the contract is made - void
• Becomes unlawful, beyond the control of promisor - void
• Promisor alone knows about the Impossibility - compensate loss.
• When an agreement is discovered to be void or where a contract becomes void
61 LAW OF CONTRACTS - I
Cases when a contract is discharged on the group of super vent Impossible
(a) Distraction of subject matter - Failure of the ultimate purpose of contract - king coronate
process.
(b) Death of personal Incapacity
(c) Declaration of war
(d) Change of Law
(e) Non existence or Non occurrence of a particular state of thing necessary for performance.
No Super Impossibility - does not become void
• Difficulty of performance - coal - transport
• Commercial Impossibility
• Default of a third party
• Strikes, knockout and civil disturbance.
• Partial Impossibility - coronation of king and to sailing around the lake by boat.
RESCISSION OF CONTRACT - SEC 39
SUIT FOR DAMAGES
Remedies for Breach of contract
5. Quantum Merit
4. Suit for Injunction
Remedy means course of action available to an aggrieved party when other party breaches the
contract.
• It means right to party to cancel contract.
• In case of breach of contract, other party may rescind contract.
Effect of Rescission of Contract
• Aggrieved party is not required to perform his part of obligation under contract.
• Aggrieved party claims compensation for any loss.
• Party is liable to restore benefit, if any.
When can Court Grant Rescind Contract?
Court can rescind the contract in the following situation:
• Contract is voidable.
• Contract is unlawful.
• It means monetary compensation allowed for loss.
• Purpose is to compensate aggrieved party and not to punish party as fault.
• In India, rules relating to damages are based on English judgment of Hadley v. Baxendale.
The facts of case were - H’s mill was stopped due to the breakdown of the shaft. He delivered the
shaft to common carrier to repair it and agree to pay certain sum of repair it and agree to pay certain sum
of money for doing this work. H has informed to B that delay would result into loss of profit. B delivered
the shaft after reasonable time after repair. H filed suit for loss of profit. It was held that B is not liable
for loss of profit. The court laid down rule that damage can be recovered if party has breach of contract.
1. Rescission of contract
2. Suit for damage
3. Suit for specific performance
62 LAW OF CONTRACTS - I
REMEDIES FOR THE BREACH OF CONTRACT
The following are the different kinds of damages:
• Ordinary damages
These are the damages which are payable for the loss arising naturally and directly as result of
breach of contract. It is also known as proximate damage or natural damage.
• Special damages
These are damages which are payable for loss arising due to some special circumstances. It can
be recovered only if special circumstances which result in special loss in case of breach of contract and
party have notice of such damage.
Example: A sends sample of his products for exhibition to an agent of a railway company for
carriage to “New Delhi” for an exhibition. The consignment note stated: “Must be at New Delhi, Monday
Certain.” Due to negligence of the company, the goods reached only after the exhibition was over. Held,
the company was liable for the loss caused by late arrival of the products because the company’s agent
was aware of the special circumstances.
• Exemplary or punitive or vindictive damages
These damages are allowed not to compensate party but as mean of punishment to defaulting
party. The court may award these damages in the case of:
Breach of contract to marry - loss based on mental injury.
Wrongful dishonor of cheque - smaller amount, larger the damage.
• Nominal damages
Where party suffers no loss, the court may allow nominal damages simply to establish that party
has proved his case and won. Nominal damage is very small in amount.
• Damages for inconvenience
If party has suffered physical inconvenience, discomfort for mental agony as result of breach of
contract, party can recover the damage for such inconvenience.
Example: A photographer agreed to take photographs at a wedding ceremony but failed to do so.
The bride brought an action for the breach of contract. Held, she was entitled to damages for her injured
feelings.
• Liquidated damages and penalty
Party may specify amount at the time of entering into contract. The amount so specified may be (a)
liquidated damage, or (b) penalty.
If specified sum represent, fair and genuine pre - estimate damages likely to result due to breach,
it is called liquidated damage.
But if specified sum is disproportionate to the damages, it is called as penalty.
As regard the payment of liquidated damages and penalty court can’t’ increase amount of damages
beyond the amount specified in the contract.
KINDS OF DAMAGES
Example : A gives B, a bond for the repayment of Rs.1,000 with interest at 12 per cent, at the end
of six months, with a stipulation that, in case of default, the interest shall be payable at the rate of 75 per
cent, from the date of default. This is a stipulation by way of penalty, and B is only entitled to recover from
A such compensation as the Court considers reasonable.
• Forfeiture of security deposit
Any clause in contract entitling the aggrieved party to forfeit security deposit in the nature of penalty
and court may award reasonable compensation.
63 LAW OF CONTRACTS - I
• Payment of interest
It is permissible.
If interest is in nature of penalty, court may grant relief.
If no rate of interest is specified in contract party shall be liable to pay as per the law in force
or as per custom or usage of trade.
• Cost of suit or decree
The court has also discretion to award cost of suit for damages in addition to the damages for
breach of contract.
It means, demanding an order from court that promise agreed in contract shall be carried out.
SUIT FOR SPECIFIC PERFORMANCE
• When is specific performance allowed?
Where actual damages arising from breach is not measurable.
Where monetary compensation is not adequate remedy.
• When specific performance is not allowed?
When damages are an adequate remedy.
Where performance of contract requires numbers of minute details and therefore not possible for
court to supervise.
Where contract is of personal in nature.
Where contract made by company beyond its power. (ultra - vires)
Where one party to contract is minor
Example : A agree to sell B, an artist painting for Rs.30,000. Later on, he refused to sell it. Here B
can file suit against A for specific performance of the contract.
• It means stay order granted by court. This order prohibits a person to do particular act.
• Where there is breach of contract by one party and order, of specific performance is not granted by
court, injunction may be granted.
Example: Film actress agreed to act exclusively for W for a year and for no one else. During the
year she contracted to act for Z.
SUIT FOR INJUNCTION
It means stay order granted by court. This order prohibits a person to do particular act.
Where there is breach of contract by one party and order, of specific performance is not granted by
court, injunction may be granted.
Example: Film actress agreed to act exclusively for W for a year and for no one else. During the
year she contracted to act for Z.
QUASI CONTRACT
[Contracts implied in law or implied contract]
It means a contract which lacks one or more of the essentials of a contract.
Quasi contract are declared by law as valid contracts on the basis of principles of equity i.e.
no person shall be allowed to enrich himself at the expense of another the legal obligations of parties
remains same.
Nature of Quasi contracts:-
(a) A quasi contract does not arise from any formal agreement but is imposed by law.
(b) Every quasi contract based upon the principle of equity and good conscience.
(c) A quasi contract is always a right to money and generally though not always to a liquidated
sum of money.
64 LAW OF CONTRACTS - I
(d) A suit for its breach may be filed in the same way as in case of a complete contract.
(e) The right grouted to a party under a quasi contract is not available to him against the whole
world but against particular person(s) only.
(f) A suit for breach of a quasi contract may be filed in the same way as in case of an ordinary
contract
(g) Although there is no contract between the parties under a quasi contracts, yet they are put in
the same position as if he were a contract between them .
Provisions relating to various quasi contracts are contained in section 68 to sec 72 of the con-
tract Act, 1872.
Sec. 68 Sec. 69 Sec. 70 Sec. 71 Sec.72
Supply of Reimbursement Obligation to pay Responsibility of Person receiving
Necessaries of money due for benefit out of Finder of Goods goods are money
non-gratuitous act by mistake
Sec. 68:
If a person, incapable of entering into a contract, or anyone whom he is legally bound to support, is
supplied by another person, with necessaries suited to his condition in life, the person who has furnished
such supplies is entitled to be reimbursed from the property of such incapable person.
1. Meaning of Necessaries:
(a) Necessaries normally include articles required to maintain a particular person in the state,
degree and station in life in which he is.
(b) They are essentials to run a life.
(c) An item will not be considered necessary, if a person already has sufficient supply of things
of such kind.
(d) Necessaries include Services rendered to a person.
(e) What constitutes necessaries depends on the circumstances of each case.
2. Only property liable: person not liable:
(a) It is only the property (movable and immovable) of the incapable person they shall be liable.
(b) He cannot be held liable personally.
(c) Where he doesn’t own any property, nothing shall be payable.
3. Example:
(i) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be
reimbursed from B’s property.
(ii) A who supplies the wife and children of B, a lunatic, with necessaries suitable to their condition
in life, is entitled to be reimbursed from B’s Property.
Payment By a person who is interested in a transaction [69]
Condition of section [69]
Sec. 69 : A person, who is interested in the payment of money and pays such money, which
another is bound by low to pay, is entitled to be reimbursed by the other.
(a) One party is legally bound to make a payment
(b) Some other persons make such payment
(c) The person making such payment is not legally bound to make such payment
(d) The person making such payment is interested in paying such amount
65 LAW OF CONTRACTS - I
Legal effect of sec 69.:-
If all the conditions of sec 69 are satisfy the person who is interested in paying such amount shall
be entitled to recover the payment made by him.
Ex.:- The goods belonging to A were wrongfully attached in order to realize arrears of Government
revenue due by G. A paid the amount to save the goods from sale at was held that A was entitled to
recover the amount from G.
Obligation of person enjoying benefit of non-gratuitous act [70]
Conditions of section 70.
Sec.70 : Where a person, lawfully does anything for another person, or delivers anything to him;
not intending to do so gratuitously, and such other person enjoys the benefits thereof, then he is bound
to make compensation to the other in respect of, or to restore the thing so done or delivered.
(a) A person has lawfully done something for another person or delivered something to another
person.
(b) Such person must have acted voluntarily and non - gratuitously.
(c) The other person has enjoyed the benefit of the act done for him or the thing delivered to him.
Legal effect of sec 70.
• If the conditions of sec70 are satisfied, there will be quasi contract between the parties.
• Consequently, the party who has done something or delivered a thing shall be entitled to
recover its value from the person who obtained the benefit of the same.
Ex.:- A a trades man leaves goods at B’s house by mistake, B treat the goods as his own, He
is bound to pay A for them.
• A saves B’s property from fire. A is not entitled to compensation from B if the circumstances
show that be intended to act gratuitously.
Breach of Injunction: Section 94(C) and Rule 2-A of Order 39, Civil Procedure Code provide
the consequences of breach of injunction. The Court may order the property of the person to attached
and also order such person yet to be detained in the civil prison for a term not exceeding three months,
unless in the meantime the Court directs his release. The disobedience or breach continues, the property
attached may be sold and out of the proceeds the Court may award such compensation as it thinks fit to
the injured party.
Grant of injunction: The Court is not bound to grant an injunction in every case. Sunil Kumar v.
Ram Prakash (1988) 2 Sec 773. A coparcener field a suit for permanent injunction to restrain the Karta
of the Joint Hindu Family from transferring the joint family property in pursuance of a sale agreement with
a third party. The Court held that such an injunction could not be granted. Therefore the plaintiff was not
entitled for grant of injunction.
**********
75 LAW OF CONTRACTS - I
3. LAW OF TORTS
Nature of Torts
Tort is a species of civil injury or wrong. The distinction between civil and criminal wrongs depends
on the nature of the appropriate remedy provided by law. An action for damages is the essential mark
of tort.
Liquidated and unliquidated damages.
Salmond’s definition of tort. Winfield’s criticism and definition.
Is there a general principle of liability?
The views of Salmond, Winfield and others.
General characteristics of tortious liability.
Forms of action and liability.
The meaning of intention, negligence, strict liability and vicarious liability. Is fault an essential
condition of liability.
The standard of reasonable man and its relevance in the law of torts.
Essential of a Tort
1) Act or Omission
2) Legal Damage
• Injuria Sine Damno
• Darnnum Sine injuria
Malice in the sense of action determined by improper motive is generally irrelevant in the law of
torts. Bradford (Mayor of) V. Pickles.
Assault and Battery
Nature and limits.
Cases: Coward v. Baddeley
Kadar v. Alagarswamy
Tuberville v. Savage
Lunes v. Savage
Stephens v. Myers
False imprisonment - Means complete deprivation of his liberty for any time without lawful cause.
Meaning of ‘false’ ways of committing the tort of false imprisonment. Can a man be imprisoned
without knowing it?
Grainger v. Hill
Meering v. Graham white aviation company
Ram Pyare Lal v. Om prakash
Restraint must be complete:
Bird v. Janes
Mee v. Cruikshank
Means of escape to be reasonable.
Imprositian of reasonable conditions:
Robinson v. Balmain Ferry Co.
Herd v. Weardale etc., Ferry Co.
76 LAW OF TORTS
Remedies: Judicial and extra - judicial
i) self help, 2) Habeas Corpus 3) Action for damages
Nervous Shock
A form of personal injury far which damages may be recovered in certain circumstances.
Cases: Wilkinson v. Downton
Dulieu v. White-Contrasted with
Hambraok v. Stokes Brothers
King v. Philips
Bourhill v. Young
Dooley v. Cammeli Laid & Co.
Defamation
It consist in the publication of a false statement concerning the plaintiff which tends to lower him
in the estimation of right thinking members of society or which tends to make them shun or avoid him.
Clay v. Robert
1. Libel: Representation made in some permanent form (e.g.) writing, printing on pictures.
2. Slander: Publication of a defamatory statement in a transient form (e.g.) words or gestures.
Under Indian Law
South Indian Railway Co., v. Ramakrishnan
Libel and slander.
Youssoupoff v. M.G.M. Pictures Ltd.
Dunlop Rubber Co. v. Dunlop
Byrene v. Deane
Ingredients of defamation
Reference to the plaintiff :
Le Fanu v. Malcolmson
Innocence no defence:
Hulton & Co. v. Jones
Newstead v. London Express Newspapers Ltd.
Words to be defamtory.
Capital and
Counties Bank v. Henty
Lews v. Daily Telegraph Ltd.
Innuendo, meaning of
1. Capital and Counties Bank v. Henty and sons.
2. Morrison v. Ritihie & Co.,
3. Newstead v. London Express Newspaper Ltd.
4. T.V. Ramasubha Iyer v. A.M.A. Mohindeen.
Defamation of a class of persons. Defamation of the deceased person.
Pullman v. Hill.
Communication between Husband and Wife.
1. T.J. Ponner v. M.C. Verghese
2. Theaker v. Richardson.
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Defences
1. Justification or Truth
2. Fair Comment
3. Privilege which may be either absolute or qualified
Rajinder Singh v. Durga Sahi
Tolley V.J.S. Fry & Sons Ltd., knowledge of the defendant is immaterial. Cassidy v. Daily Mirror
Newspapers Ltd., Juxtaposition: Monson v. Tussauds Ltd.
Unintention defamation: Provisions of defamation Act. 1952 (of England)
Publication:
Theaker v. Richardson
Sadgrove v. Hole
Huth v. Huth
Emmens v. Pattie
Vzetelly v. Mudies select Library
Martin v. Trustees of British Museum
Defences: Justification literal truth unnecessary
Alexander v. North Eastern Railway Co.•
Fair Comment:
Dakhyl v. Labouchee
Kemsley v. Foot
Privilege, absolute and qualified, consent and apology.
Negligence
Negligence means either (1) a mode of committing certain other torts e.g. nuisance or trespass or
(2) an independent wrong that is a breach of a legal duty to take care which results in damage, undesired
by the defendant, to the plaintiff. Nature and extent of the duty to take care. Vaughan v. Menlove; Rule
in Donoghue v. Stevenson; “You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The
answer seems to be persons who are so closely and directly affected by my act that I ought reasonably
to have them in contemplation as being so affected when I am directing my mind to the acts or omissions
are called in question”.
1. Donoghue v. Stevenson.
2. Rural Transport Service v. Bezlum
3. The Municipal Board v. Brahm Kishore.
No liability when injury not foreseeable
1. Cates v. Mongini Bros.
2. Ryan v. Young.
Reasonable foreseeability does not means remote possibility
Cases: In Fardon v. Harcourt - Rivington
Home Office v. Dorset Yacht Co.
Glasgow Corporation v. Muir
Booker v. Wenborn
Carmarthensive
Country Council v. Lewis
Fardon v. Harcourt. Revington
Bourhill v. Young
78 LAW OF TORTS
Weller & Co. v. Foot and mouth Disease Research Institute
Haley v. London Electricity Board
Impertia culpa adnumeratur. It is a negligent act to voluntarily do a thing which can be safely done
only by a person with special skill. Dr. Laxman Barkrishna joshi v. Dr. Trimback Bapu Godhole.
Standard of Care:
Cases: Bolton v. Stone
Hilder v. Associated Portland Cement Manufacturers Ltd.,
Paris v. Stepney Borough Council
Weithers v. Perry Chain Co.,
Watt v. Hertfordshire Country Council
Latimer v. A.E.C. Ltd.,
The Magnitude of Risk
1. In Nirmala v. Tamil Nadu Electricity Board
2. Veeran v. Krishnamoorthy
3. Pandian Roadways Corporation v. Karunanidhi.
4. Glasgow Corporation v. Taylor.
Res Ipsa loquitur. The ancient speaks for itself. A rule of evidence and not of liability, Conditions
for the operation of this principles as laid down in Scott. v. London and St.
Catherine Docks Co.
Cases: Gee v. Metropolitan Railway Co.
Eassen v. L.N.E. Railway Co.
Byrne v. Boadle.
Words v. Duncan
Municipal Corporation
of Delhi v. Subhagwanti
Alka v. Union of India
Karnataka State Road
Transport Corporation v. Krishnan
Gangaram v. Kamlabai
Contributory Negligence : If the plaintiffs own negligence was the decisive cause of the accident
or so closely implicated with the negligence of the defendant as to make it impossible to determine
whose negligence was the decisive cause, the plaintiff cannot recover.
Butterfield v. Forrester
Changes made by law reform (contributory Negligence) Act 1945
Davies v. Swan Motor Co. (Swansea) Ltd.
Davies v. Mann, “the last opportunity rule” British Columbia Electric Railway
v. Loach fee constructive “Last opportunity rule”
Oliver v. Birmingham & Midland Motor Omni bus Ltd.
Stapley v. Gypsum Mines Ltd.
Yachuck v. Oliver Blais Co. Ltd.,
79 LAW OF TORTS
Rural Transport
Service v. Bezlum Bibi
Yoginder Paul
Chowdhury v. Durgadas
81 LAW OF TORTS
If, at the time when defendant made the statement, he had no intention of fulfilling it, he is liable for
deceit. Edington v. Fitmaurice.
Blundering but honest belief in an honest allegation cannot be deceit, Derry v. Peek.
False statement must be made with the intention that the statement shall be acted upon by plaintiff.
Peek v. Gurney Exceptions to rule in Derry v. Peek.
Nocton v. Ashburton : Negligent Misstatement: Hedley Byrne & Co., Ltd. v. Heller & Partners Ltd.
Liability for Dangerous Premises:
Liability based on occupancy or control, and not on ownership: Four kinds of visitors under
common law. 1) Contractor 2) Invitee 3) License and 4) Trespasser Duties to them. Changes made by
the Occupiers Liability Act 1957.
Cases: Francis v. Cockrell
Indermaur v. Dames
Fairman v. Perpetual Building Society
Mumford v. Naylor
Hardcastle v. South Yorkshire Railway Co.
Bird v. Holbrook
Duty to children
Coote v. Midland Great Western Railway of Ireland
Lathan v. V.R. Johnson & Nephew Ltd.
Phillips v. Rochester Corporation
Moloney v. Lambeth Borough Councill
Trespass to Land
Ways of committing the wrong of trespass to land. Trespass to subsoil. Trespass on highway.
Hickman V. Maisey, Trespass and Nuisance. Trespass by relation : immediate right to pass. Continuing
trespass. Holmes V. Wilson Interference with air space. Wilson V. Imperial Tobacco Co. Trespass ab
initio: Six carpenters case Elias v. Pasmore Defence: justification by law licence Remedies: 1. Re-entry
2. Ejectment 3. Jus tertii. 4. Action for Mesne profits cases
(i) Hemmings v. Stoke Pogs Golf Club
Distress Damage Pheasant
Nuisance is unlawful interference with a persons use or enjoyment of land or of some right over
or in connection with it, public nuisance and private nuisance. Nuisance to incorporeal property. Right
of support, Right to light and air: Right to water. Relevance of malice in nuisance: Who can sue for
nuisance? Who can be sued for nuisance?
Nuisance Cases:
Dr. Ramraj Singh v. Babulal
Radhey Sham v. Guruprasad
Stone v. Bolton
St. Helen’s Smelting Co. v. Tipping
82 LAW OF TORTS
Case Law:
Barber v. Penley
Nuisance on highway
Defences: Valid and invalid defence
Cases: Rose v. Milles
Health v. Mayor of Brighton
Robinson v. Kilvert
Coil v. Home & Colonial Service
Christie v. Davey
Hollywood Silver
Fox Form Ltd. v. Emmett
Fay v. Pentice
Fritiz v. Hobson
Noble v. Harrison
Tarry v. Ashton
Bliss v. Hall
Adams v. Ursell
Sturges v. Bridgman
Dangerous Chattels:
There is really no category of dangerous things: there are only some things which require more and
some which require less care. Liability to immediate transferee: Godley v. Perry:
Liability to ultimate transferee liable for fraudulent representation misleading the recipient into
causing damage to the plaintiff.
Langridge v. Levy
Liability for negligence liable if he has been guilty of a breach of a duty of care owed to the plaintiff.
Rule in Donoghue v. Stevenson a manufacturer of products, which he sells in such a form as to show
that he intends them to reach the ultimate consumer in the form in which he left him with no reasonable
possibility of an intermediate examination and with the knowledge that the absence of care in the
preparation or putting up of products will result in injury to the consumers life or property, owes a duty to
the consumer to take that reasonable care.
Cases: Brown v. Cotteril
Andres v. Hopkinson
Grant v. Australian knitting Mills Ltd.
Evans v. Triplex Safety-Glaxo Co.
Kubach v. Ho
Injurious Falsehood:
It consists in false statement made to other about the plaintiff as a result of which he suffers loss
through the action of the others.
Ratcliffe v. Evans
Passing off: One trader represent in his goods or services as those of another. While Hudson & Co.
Ltd. v. Asian organization Ltd.
Hendriks v. Mantaque
Reddaway v. Benhan
Fels v. Hedley & Co.
Benme & Co, Ltd v. Moore Ltd.
83 LAW OF TORTS
Jays Ltd. v. Jacobi
Parker-Knold Ltd v. Knoll international Ltd
Day v. Brownrigg
Conspiracy
It consists in agreement of two or more persons to do an unlawful act, or to do a lawful act by
unlawful means.
The Moghul case
Allen v. Flood
Quinn v. Leatham
Moghul steamship Co. v. Mcgregor Gow & Co.
Crafter Hand Woven
Harris Tweed Co. Ltd. v. Veitch.
Soreil v. Smith
Scala Ball room
(oliver hampton) Ltd. v. Ratcliffe.
Malicious Prosecution:
It consists in instituting unsuccessful preceding maliciously and without reasonable and probable
cause against a person which result in damage to him.
Abrath v. North-eastern Railway
Infringement of privacy, It is interference with another person’s seclusion of himself, his family or
his property from the public.
Williams v. Settle
Monson v. Tussand’s Ltd.
Gokul Prasad v. Radho
Komathy v. Gurunanda
MINOR: A minor can sue for torts committed against him just like an adult. He is as much liable to
be sued for torts as it and adult.
Gorley v. Codd
O’Brain v. McNamee
An action based on contract cannot be converted into an action of tort.
Leslie v. Sheil
Jennings v. Rundall
Branard v. Haggis
Batlet v. Mingay
Parents are not as such responsible for their children’s torts
Newton v. Edgerley
Goriey v. Codd
INSANITY: It is not in itself a ground of exemption from liability for tort.
Morris v. Marsden
CORPORATION: A corporation can sue for torts committed against it. It is liable for torts committed
by its agents or servants provided the tort is committed in the course of doing that act which is within the
scope of the powers of the Corporation.
Poulton v. L.& N. W. Railway Company
Compbell v. Paddington Corporation.
84 LAW OF TORTS
JUDICIAL ACTS: If the judge acts within his jurisdiction no action lies for acts done or words
spoken by him in exercise of his judicial office, although his motive is malicious and the acts or words are
not done or spoken in the honest exercise of his office.
Judicial officer’s Protection Act, 1850
Sailajanand Pande v v. Suresh Chandra Goel, State of U.P. v. Tulasiram protection is only for
judicial acts, and not for administrative or ministerial acts.
JOINT WRONGDOERS: Their respective shares in the Commission of the wrong are done in
furtherance of the common design.
Brooke v. Bool
Liability is joint and several Nature of liability
Brinsmead v. Harrison
Provisions of Law Reform (Married Women And Tort Feasors) Act, 1935
Whether one wrongdoer, who had paid damages, has a right to claim compensation from other
wrongdoers?
Merryweather v. Nixon
Adamson v. Jarvis
The law Reform (Married Women and Tort Feasors) Act, 1935 enables a wrongdoer to claim
contribution from the other wrongdoers. Successive actions on the same facts of the case:
More than one action will not lie on the same cause of action.
Fritter v. Veal
If there are two distinct causes of action successive actions will be permitted.
GENERAL DEFENCES
VOLENTI NON FIT INJURIA - That to which consent is given cannot be complained of as an injury.
It applies to intentional and negligent harm. The consent must be real.
Cases: Hall v. Brooklands Auto Racing Club.
LIMITATION
Rescue Cases :- Haynes v. Harwood
(1) Mere knowledge of the risk is not the same as consenting to the risk. The Maxim is volenti non
fit injuria not scienti non fit injuria.
Smith v. Baker & Sons (1981) 60 L.J.Q.B. 683 (1981) A.C. 325.
Smith was employed by Baker & Sons in their stone Ouarry. He worked in a cutting operation. On
his top a crane often jobbed (swing) heavy stones over his head while he was drilling the rock facing in
the cutting. Both he and his employers knew that there was a risk of the stone falling, but no warning
was given to him of the movement at which any particular jibbing was to commence. A stone from
the Crane fell upon and injured him, HELD by a majority of the House of Lords that (1) Smith had not
voluntarily undertaken the risk; (2) there was negligence on the part of his employers and therefore (3)
the employers were liable.
In the case of Master and Servant the maximum should be applied with very great caution where
a person undertakes to do work which is intrinsically dangerous, now withstanding that reasonable care
has been taken to render it as little dangerous as possible, he no doubt voluntarily submits himself to the
risk inevitably accompanying it; but in the case of ordinary occupations, mere knowledge of the risk does
not necessarily amount to consenting to the risk). Imperial Chemical Industries V. Sharwell.
Dann v. Hamilton (1939) I.K.B. 509.
The plaintiff voluntarily chose to travel by motor car though she knew that the driver of the car
was under the influence of drink and though she could have her journey by bus. She was injured in an
accident caused by the driver’s drunkenness.
85 LAW OF TORTS
HELD She could recover damages. Mere Knowledge of the risk is not the same as consenting to
the risk.
Insurance Commissioners v. Joyce.
(2) The maxim has no application to ‘Rescue cases’.
Haynes v. Harwood (1935) I.K.B. 146.
The defendant’s servants had left his van and horses unattended in a crowded street. The horses
bolted when a baby threw a stone at them. The plaintiff was a police constable who was on duty in a
nearby police station. He saw that if nothing was done a woman and children were in grave danger, and
with great personal risk he managed to stop the horses but in doing so he suffered serious injuries to
rescue cases.
In an action against the defendants it was held that the plaintiff was entitled to recover damages.
The maxim Volenti non fit injuria has no application to rescue cases.
M v. Aylen
The plaintiff was in the habit of accompanying a small child home from school. One day when
returning from school the child has stepped on to the road from the pavement when the plaintiff saw the
defendant who was riding his motorcycle approaching at a rash speed. The child was in great danger of
being knocked down, when the plaintiff rushed on to the road to try to save the child but in the process
she herself was knocked down by the motor cyclist and injured.
It was held that she was entitled to recover damages from the motor cyclist as the maximum volenti
non fit injuria has no application to rescue cases.
Cutlet v. United Diaries
Baker v. T.E. Hopkines & Sons Ltd.
Videan v V. British Transport Board.
INEVITABLE ACCIDENT
“An accident not avoidable by any such precaution as a reasonable man, doing such an act then
are there, could be expected to take” - Polock.
The Nitro - Glycerine Case 15 Wall 524 (1872).
The defendants, a firm of carriers, received a wooden case at New York to be carried to California.
‘There was nothing in its appearance calculated to awaken any suspicion as to its contents’. On arriving
at San Franciseo it was found that the contents were leaking. The case was then, according to the
regular course of business, taken to the defendant’s office (which they had rented from the plaintiffs
(or) examination. A servant of the defendants proceeded to open the case with mallet and chisel the
contents being Nitro-Glycerine exploded, and all the persons present were killed and the plaintiffs
building damaged. The action was brought by the plaintiff for damage to his building. It was found as a
fact that the defendants had not, nor had any of the person concerned in handling the case, knowledge
or means of knowledge of its dangerous character, and that the case had been dealt with in the same
way that other cases of similar appearance were usually received and handled and the mode that men
of prudence engaged in the same business would have handled cases having similar appearance in the
ordinary course of business when ignorant of their contents.
HELD: Defendant was not liable as the damages was due to an inevitable accident.
(No one is responsible for injuries resulting from unavoidable accident whilst engaged in a lawful
business.)
Brown v. Kendall 6. Cush. 292. 1850
The plaintiff’s and defendant’s dogs were fighting. The defendant was beating them with a stick in
order to separate them while the plaintiff was looking on. The defendant retreated backwards from before
86 LAW OF TORTS
the dogs, striking them as to be and as he approached the plaintiff, ‘with his back towards’ him, in raising
his stick over his shoulder in order to strike the dog he accidentally hit the plaintiff in his eye thus causing
him a severe injury.
In an action for trespass for assault and battery the Supreme Court of Massachusetts held that this
act of defendant in itself was a lawful and proper act which he might do by proper and safe means; and
that in doing this act, using due care and all proper precaution necessary to the exigencies of the case
to avoid hurt to others, in raising his stick for the purpose, he accidentally, hit the plaintiff in the eye and
wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore
the action would not
All that could be required of the defendant was the exercise of due care adopted to the exigency
of the case.
Holmes v. Mather L. R. 10 Ex 44. (1875)
The defendant was out with a pair of horses driven by his groom. The horses ran away and the
groom being unable to stop them, guided them as best as he could. But he failed to get them round the
corner and they knocked down the plaintiff.
The jury found there was no negligence. It was argued on the authority of the old cases that a
trespass has been committed. The court refused to take this view, but said nothing about inevitable
accident in general.
“For the convenience of mankind in carrying on the affairs of life, people as they go along roads
must expect, or put up with, such mischief as reasonable care on the part of other cannot avoid”.
Stanley v. Powell (1898) I. Q. B. 86
The plaintiff and the defendant were members of a shooting party. The defendant fired his gun a
peasant which rose, but not in the direction of the plaintiff, but a pellet from the cartridge glanced off the
bough of a tree and destroyed the eye of the plaintiff who was employed in carrying cartridges for the
shooting party.
The plaintiff sued the defendant who was held not liable for negligence because there was none,
nor for trespass to the person because the harm was accidental in the same that there was no negligence
or want of due caution in its occurrence. Denman J. based his decision on the ground that even if the
action were in trespass, not case, the injury being accidental the defendant could not be liable.
MISTAKE: Mistake, of law, of fact, no excuse, Consolidated Co. v. Curtis.
ACT OF GOD
Not a general defence like inevitable Accident but restricted to caution based upon the rule in
Rylands v. Fletcher and other instances of Strict or Absolute liability. It is due of operation of Natural
forces in which there is no human agency involved.
Nichols v. Marsland (1876) 2 Ex. D.1.
The defendant had constructed several artificial ornamental lakes on her land and filled it with
water by damming a natural stream. The embankment were well and carefully constructed and were
adequate for all ordinary occasion. An extraordinary rainfall greater and more violent than any within
human memory broke down the artificial embankment and the rush or escaping water carried away from
country bridges belonging to the plaintiff, in respect of which the plaintiff sued the defendant.
Judgement was given for the defendant, the jury had found that she was not negligent and the
court held that she ought not be liable for an extraordinary act of nature which they could not reasonably
anticipate.
Greenock Corporation v. Caledonian Railway (1917) A. C. 556
The Corporation in laying out a park had constructed paddling pool for children in the bed of a
stream and thereby altered its course and obstructed its natural flow.
87 LAW OF TORTS
Owing to rainfall of extraordinary violence the stream overflowed at the pond and a great volume
of water, which would have been safely carried away by the stream in its natural course flooded the
property of the Railway Company.
HELD by the House of Lords that this was not an Act of God and the corporation was liable.
Flour of the law, Lords cast doubt upon the finding of the jury in Nichols v. Marsland and two of them
distinguished his case on the ground that no one could say that such rainfall was unprecedented in
Scotland where the case arose.
Necessity: If the defendant is acting under necessity to prevent a great evil he may not be liable
even for damage done intentionally. Cope v. Sharpe.
STATUTORY AUTHORITY
May be of two kinds (i) Absolute Authority (i.e.) authority to do the act not withstanding the fact that
if necessarily causes a nuisance or other injuries to third parties, Or (ii) ,Conditional Authority to do the
act provided it can be done without causing a nuisance or other injurious consequence.
1) Green v. Chelsea Water Works Co.
2) Vaugham v. Taff Vale Railway (1806) 5 H.N.679
The defendant Railway Company has statutory authority to use steam engine for their trains. A
spark escaped from one of their engines and set fire to the plaintiff’s which was alongside the railway
lines.
It was proved that the engines were constructed with all due care and skill and that it was impossible
wholly to prevent the escape of sparks.
HELD: Defendants were not liable. They had absolute statutory, authority, Metropolitan Asylum
District v. Hill (1881) 6. A. C. 193.
A local authority had been authorised by statute to erect a hospital for patients suffering from
Smallpox and other infectious diseases. They constructed a hospital near the plaintiff’s property. This
constituted nuisance to the plaintiff and, he brought an action for an injunction to stop the defendant from
using the building as a small pox hospital.
HELD the defendant could be restrained. The statutory authority was construed, not a absolute
authority to erect a hospital where the defendants pleased and whether a nuisance was thereby created
or not, but as a conditional authority to erect one if they could obtain a suitable site where no nuisance
would result to others.
Private defence: Of person and property. Law permits a man to use reasonable degree of force for
the protection of himself on others against unlawful use of force.
MOTIVE - MALICE
In general, motive is irrelevant in the law of Torts. An act which is not otherwise tortuous will not
become wrongful because it is done with a malicious motive.
Mayor of Bradford v. Pickles (1895) 64 L. J. Ch. 759 (1895) A. C. 597
Pickles was annoyed at the refusal of the Bradford Corporation to purchase his land in connection
with a water supply scheme. Therefore, animated by the most spiteful and revengeful motive, Pickles
deliberately sank shafts on his land pumped out all the under ground penolating water as a result of
which the corporations water supply became dry and polluted.
Held in action for an injunction to restrain the defendant that Pickles was not liable. The act, done
by him was one which he was entitled to do. The mere fact that the act was done with an evil motive will
not convert his otherwise lawful act into a wrongful one.
88 LAW OF TORTS
“No use of property which would be legal if due to a proper motive can become illegal because it is
promoted by a motive which is improper or even malicious”
“It is the act, not the motive for the act, that must be regarded. If the act apart from the motive gives
rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply
that element”.
CAPACITY OF PARTIES
1) Act of State
2) Corporations
3) Minor
4) Independent and Joint Tort feasors (composite Tort-feasors)
5) Husband and wife
1. THE STATE (a) England
The law in England on this matter has been greatly changed by the crown proceedings Act 1947,
Section 2 (1 ) of the Act provides as follows:
Subject to the provisions of the Act, the Crown shall be subject to all those liabilities in tort to which,
if it were a private person of full age and capacity it would be subject.
(a) In respect of torts committed by its servants or agent;
(b) In respect of any breach of their duties which a person owes to his servants or
agent in common law by reason of being employer; and
(c) In respect of any breach of the duties attaching at common law to the ownership,
occupation, possession or control of property.
The liability of the crown is of course conditional on the agent or servant being liable in tort for such
conduct. There are several exceptions provided by the Act such as that no action will be against the kind
in his personal capacity, no action possible in respect of act or omissions of its servants or agents in
relation to a postal packer or telephonic communications or respect of an act or omission of a member of
the Armed forces causing death or personal injury to another member of the Armed Forces etc.
(b) India
Article 300 of the constitution of India provides for suits against the Government.
A distinction is made between mercantile or private function of the Government on the one hand
and Sovereign Act on the other. For acts done in former capacity Government can be sued, but not for
acts done in sovereign capacity just as in the case of the East India Company provisions to 1858.
P & 0 Steam Navigation Company v. Secretary of State for India (1861) Born. H. C. R.
The plaintiff’s horse was injured owing to the negligence of the servants employed in the
Government’s dockyard on the river Hoogly who had allowed a heavy piece of machinery on the horse
while it was being led along the dockyard in a action brought in by the plaintiff against the Government.
HELD: Government would be liable, as the maintenance of the dockyard was an act done by the
Government in its mercantile capacity.
Secretary of State for India v. Cockraft (1914) I.LR. 39 Mad. 351
The Government was maintaining a military road in Malabar. Owing to the negligence of servants
employed by the Government a heap of gravel was left in the middle of the road on which the plaintiff’s
carriage dashed and capasized and the plaintiff was injured. In an action against the Government.
HELD: No action would lie as the maintenance of a military road was an act done by the Government
in its sovereign capacity.
89 LAW OF TORTS
ETTI v. Secretary of State for India I. L. R. (1939) Mad. 843
The plaintiff has taken his infant son for treatment at the Government women and children’s hospital
in Egmore. He was asked to come back some days later to take away his child. When he went there he
was informed that by mistake his child had been given away to some other person. For the negligence
of the hospital staff the plaintiff brought an action against the Government.
HELD: That since the hospital was maintained by the Government out of a public Revenue and for
the benefit of the Public, the Government was acting in the exercise of their sovereign functions and so
no action would lie.
State of Rajasthan v. Vidhyawati A.I.R. 1962 / S.C. 1933
The driver of a jeep which was owned and maintained by the State of Rajasthan for the official use
of the collector of a district; drove the Vehicle negligently while bringing it back from a workshop after
repairs and knocked down a pedestrian who died subsequently. In an action by the widow against the
state of Rajasthan ..
HELD: As the maintenance of the jeep for the Collector’s use not an act done in the exercise of
sovereign powers by the Government of the State of Rajasthan, it could be made liable for the negligent
act of the driver.
Kasturi Lal Ralia Ram Jain v. State of U. P. :
The Supreme Court held that the State is not liable for the acts done by its servants in the exercise
of statutory duties.
ACT OF STATE
“An act injurious to the person or to the property of some person who is not at the time of that act a
subject of Her Majesty; which act is done by an representative of Her Majesty’s authority, civil or military,
and is either previously sanctioned or subsequently by Her Majesty” - Sir Fitzames Stephon.
For an act of State neither the State nor its representative is liable.
BURON v. DENMAN (1948) 2 EX. 167.
The plaintiff a Spaniard was a slave trader who owned some slaves and some buildings, housing
the slaves in the West Coast of Africa. The defendant who was a captain the British Navy released the
slaves and set fire to the plaintiff’s property. He had no authority to do so but his act was ratified by the
British Government who congratulating him on his “Spirited and able conduct” granted him a reward of
$ 4,000.
It was held that Buron had no remedy for lies Paris as it was an act of State.
An Act of State can only be justified against foreigners.
JOHNSTONE v. PEDLAR (1921) 2A, C.262.
Pedlar, an Irishman, became a naturalised American citizen, returned to Ireland in 1916, took part
in a rebellion there, and was deported. In 1917 he returned to Ireland and in 1918 was arrested there for
illegal drilling. A sum of money found upon his was confiscated by the police, the action being ratified by
the Chief Secretary for Ireland. Pediar sued the Chief Commissioner of Police for wrongful detention of
the money are alternatively for damages for conversion of it. The defendant pleaded act of State.
The House of Lords; held the defence bad, as there cannot be an act of State between a Government
and its own subjects. A friendly alien residing in Britain is in the same position as a British subject even
if a resident alien flagrantly violates his allegiance to the Crown as Pediar had done.
MASTER AND SERVANT
The master is liable for any tort which the servant commits in the course of this employment.
The Servant is also liable.
90 LAW OF TORTS
WHO IS A SERVANT?
A servant is one whose work under the control of another. He must be distinguished from an
independent contractor “who undertakes to produce a given result but so that in the actual execution of
the work he is not under or control of the person for whom he does it and may use his own discretion in
things not specified beforehand”.
Performing Right Society v. Mitchell 1924, I. K. B. 762
The plaintiffs were the proprietors of the sole right of performing in public certain musical work.
They alleged that the defendants infringed their copyright in two musical works by allowing their
band to play these musical items in public in a dance ball owned by them without getting the plaintiff’s
consent.
HELD: Mc Carida J. that the defendants were vicariously liable for the act done by the band who
were servants of the defendants and not independent.
The agreement between the defendants and the band made the band the servants of the defendants
... “It provides for seven hours daily service”. It mentions salary’ .. it mentions pay’. It uses the word
employ’. It provides for a period of employment. It provides that the band shall play at any place in London
where the defendants may direct. It provides that the services shall be at the exclusive disposal of the
defendants. It gives the defendants the right of immediate dismissal for the breach of any reasonable
instruction or requirements. Above all it gives 1 think, to the defendants the right of continuous dominant
and detailed control on every point including the music to be played. In my opinion this is not a case of
an independent contractor agreement with some features of service agreement, it is a case rather of a
service agreement with several peculiar features appropriates to the employment of a band ...
Hospital Cases
Hilleyer v. The Governors of St. Barthalomews Hospital (1909) 2 K. B. 820 (C. A.):
The plaintiff had gone for treatment at the defendant’s hospital. He was taken to the operating
theatre for examination and placed under an anaesthetic. When he recovered consciousness he found
that his arm had been brushed by coming into contact with, hot water can, due to the negligence of the
hospital staff. The staff concerned consisted of a consulting Surgeon, a house surgeon, an anesthetist
and three nurses. The plaintiff claimed damages from the hospital authorities for the negligence of their
staff.
It was held that hospital authorities were not liable as the members of their staff involved were not
servants for the purpose of liability ..
Farwell L. J. .... The first question then is : Were any of the persons at the examination servants of
defendants ?. It is impossible to contend that Mr. Lockwood the surgeon, or the acting assistant surgeon,
or the acting house surgeon, or the administrator of anesthetics or any of them were servants in the
proper sense of the world: they are all professional men employed by the defendants to exercise their
profession to the best of their abilities according to their own discretion: But in exercising if they are in
no way under the orders or bound to obey the direction of the defendant. .. It is true that the defendants
have power to dismiss them, but it has this power not because they are its servants but because of its
control of the hospital where their services are rendered. They would not recognise the right.. While
retaining them, to stand on a somewhat different of patients. “The three nurses and the two carriers
stand on a somewhat different footing, and I will assume that they are the servants of the defendants.
But although they are such servants for general purposes, they are not so for the purposes of operations
and examination by the medical officers. It and so long as they are bound to obey the orders of the
defendants. It may be that they are their servants, but as soon as the door of the theatre or operating
room has closed on them for the purposes of an operation (in which term (i) include examination by the
surgeon) they cease to be under the orders of the defendants, and are the disposal and under the sole
91 LAW OF TORTS
orders of the operating surgeon until the whole operation has been completely finished .. The nurses and
carriers therefore, assisting at an operation cease for the time being to be the servants of the defendants,
in as much as they take their orders during that period from the operating surgeon alone and not from
the hospital authorities”.
Gold v. Essex Country Council (1942) 2.K.8. 293 (C. A)
The plaintiff, a child of 5 was taken to the defendant’s hospital for treatment for warts on her face.
She was seen by the visiting dermatologist of the hospital who prescribed treatment by 1000 units Grenz
rays and sent the plaintiff to the radiology department. The department was in charge of a radiologist,
but the treatment was given to the plaintiff by a qualified and competent radiographer who was employed
under a full time contract of service. In the course of the treatment the radiographer was admittedly
negligent in that he covered the plaintiff’s face only with a piece of lint while submitting her to the Grenz
ray treatment. As a result the plaintiff’s face permanently disfigured.
HELD that the hospital authorities were liable for the negligence of the radiographer even though
he was a skilled professional man.
The Court of Appeal in this case repudiated the opinion expressed in Hiltyer v. St. Barthalomew’s
Hospital that a hospital was not responsible for the negligence of its professional staff (including trained
nurses) in matters involving professional care and skill as distinct from matters of a purely administrative
nature.]
Cassidy v. Ministry of Health (1951) 2 K. B. 343 (C. A.)
The plaintiff, a general labourer was suffering from a contraction of the third and fourth fingers of his
left which was diagnosed as Dupuytren’s conditions. He went to a hospital belonging to the defendants
where an operation was performed by Dr. Fahrni, a highly qualified surgeon who was a whole time
assistant medical officer of the hospital. After the operation the patient hand and lower arm was kept
rigid in a splint for about 14 days although the patient had complained and his hand was to all intents
and purpose useless. The post operative treatment was under the case of Dr. Fahrni, a house surgeon
and the hospital’s nursing staff.
The plaintiff claimed damages from the hospital authorities for their negligence on the part of the
staff.
HELD that the hospital authority would be liable for the negligent post operational treatment afforded
by the full time staff (assistant medical officer, house surgeon and nurses) each of whom were employed
under a contract of service. The fact that these employees were exercising professional care and skill
was held to be no defence.
LENDING OF A SERVANT
Where a servant is lent by his master to another person, and the servant commits a tort against a
third person in the course of his work for that other person, the question as to which of his two masters
will be responsible will depend on which of them had the right to control his work at the time he committed
the tort in the sense that he is entitled to order the servant, not only what he is to do, but also how he is
to do it.
Mersey Locks and Harbour Board v. Goggin and Graffiths Ltd., (1947) A. C. I.
The appellant Harbour owned a number of mobile cranes, each driven by a skilled workman (driver)
engaged and paid by them for the purpose of letting out the cranes so driven, to applicants for unloading
cargo from ships. There was a clause in the conditions of hiring. “The drivers so provided shall be the
servants of the applicants. The Respondents Coggins and Griffiths Ltd. Were a firm of stevedore who
had hired a mobile crane together with its driver from the Harbour board. While the crane driver was
opening the crane for the hirers, he was negligent and a serious injury was caused to one Mc. Farlane
who was trapped and struck by the cranes.
92 LAW OF TORTS
The question was whose servant was the crane driver at the time of the accident.
It was held that not withstanding the clause in the contract of hiring it was the permanent employers
of the crane driver (i.e.) the Harbour Board who was vicariously liable because they had the control of the
servant’s work at the time of the accident.
Lord Porter in his judgement stated:
“Many factors have a bearing on the result. Who is a paymaster, who can dismiss, how long
the alternative service lasts, what machinery is employed, have all be kept in mind ... But the ultimate
question is not what specific orders, or whether any specific orders were given but who is entitled to
give the orders as to how the work should be done. Where a man driving a mechanical device, such as
a crane is sent to perform a task, it is easier to infer that the general employer continues to control the
method of performance since it is his crane and the driver remains responsible to him for its safe keeping
.... ‘
Lord Ushwatt in the course of his judgement said:
“ ..........The manner in which the crane was to be operated was an remained exclusively the
workman’s affair as the servant of the appellant board. The workman (crane driver) in saying in his
evidence “I take no orders from anybody” he asserted what was involved in the hiring out of the crane,
committed to his charge by the appellant board, arid so far as the respondent Company (Coggins and
Griffiths Ltd. was concerned gave an accurate legal picture of his relations to the respondent company.
The respondent ,Company’s part was to supply him with work; he would do that work, but he was going
to do it for the appellant board as their servant in his own way.........“
Casual delegation of Authority: ‘A’, while still retaining his right of control of his chattel allows ‘B’ to
use it for a purpose in which ‘A’ has some interest and ‘B’ negligently injures ‘C’. with it. ‘A’ is liable to ‘C’.
Hull v. Lees
Ormrod v. Crosville Motor Service Ltd.,
Scarsbrook v. Mason
Britt v. Galmoye
COURSE OF EMPLOYMENT
Unless the servant has committed the wrong in the course of his employment the master will be
liable. Cases
National Insurance Co. Kanpur v. Yogendra Nath
1) Mistake of Servant
A servant may be acting in the course of his employment even if he makes a mistake as to the
scope of the authority conferred on him by his master
Baylay v. Manchester, Sheffield and Linconshire Rly. (1873) 42 L. J. C. P. 75
A porter employed by the defendant Railway Company asked plaintiff, a passenger who had taken
his seat in a railway Carriage, where he was going. The plaintiff replied, “To Maccles field” and in fact that
was there the train was going. But the porter mistakenly thinking that he was in the wrong train told him
so and violently pulled him out of the train as it started moving off and the passenger fell on the platform
and was injured.
The plaintiff sued the defendant Railway Company on the ground that the porter’s tort was
Committed in the course of his employment.
HELD that the Railway company was vicariously liable. It was part of the porter’s duty to see that
passenger’s were travelling in the right trains. One of the rules of the Railway Company was that porters
are to do all in their powers to promote the comfort of the passengers and the interests of the Company.
93 LAW OF TORTS
No doubt the porter made a blunder, but he had authority to prevent passengers going by a wrong train.
So since he was doing an authorised act but in an unauthorised manner., he was acting within the course
of his employment and his master would be liable.
Poland v. Parr & Sons
(2) Negligence of Servant
Williams v. Jons (1896) 3 H and C. 602
A Carpenter employed by X to make a wooden sing board while working in Y’s shed lit his pipe
and carelessly threw away the lighted match which set fire to the wooden shavings and burned Y’s shed,
HELD that the first was not caused in the course of the carpenter’s employment and therefore X
was not liable to Y.
Jafferson v. Derbyshire Farmers Ltd. (1921) 2 K. B. 281
The defendants were using the plaintiff’s premises as a garage. A servant of the defendants while
transferring motor spirit from a drum into some tins, lit a cigarette and threw the match on the floor. The
spirit caught fire and the shed was burnt.
The defendants were held liable as the servant’s act was a negligent performance of his work (i.e.)
drawing motor spirits.
In one sense it may be said that the act of the boy in lighting and throwing away the match was
not done in the course of his employment; “ .... but that is not the way in which to approach the question.
It was in the scope of his employment to fill the tin with motor spirit from the drum. The work required
special precautions. The act which caused the damage was an act done while he was engaged in this
dangerous operation, and it was an improper act in the circumstances. That is to say, the boy was doing
the work of his employers in an improper way and without taking reasonable precautions; and in that
case the employers are liable. Williams v. James 3.H. and C. 602 is distinguishable, because the making
of a sign-board is not in itself a dangerous operation demanding the exercise of any precautions. The act
of the Carpenter in lighting his pipe had no connection with the work he was engaged to perform. The
act was no breach of any duty to exercise due care and caution in the work on which he was engaged
because the work on which he was engaged was not dangerous” Per. Warrington L.J.
Century Insurance Co. Ltd., v. Northern Ireland Road Transport Board (1942) A. C. 509
(House of Lords).
The driver of a petrol lorry, employed by the defendants, while transferring petrol from a lorry to an
underground tank in the plaintiff’s garage, struck a match to light a cigarette and threw it on the floor and
caused a fire and an explosion which damaged the plaintiff’s property.
The defendants were held liable, for the careless act of the driver was done in the course of his
employment. Lord Wright pointed out that the act of the driver in lighting his cigarette was done for his
own comfort and convenience was in itself both innocent and harmless. But the act could not be treated
in abstraction from the circumstances as separate act; the negligence was to be found by considering
the time when and circumstances in which the match was struck and thrown down, and this made it a
negligent method of conducting his work.
Sitaram v. Santanuprasad
Station v. National Coal Bound
Storey v. Ashton
(3) Wilful Wrong of Servant
Limpus v. London General Omnibus Co. (1862) I. H. & C. 526
The driver of the defendant’s bus had printed instruction not to race with or obstruct other vehicles.
In disobedience to this order the driver obstructed a rival bus by driving across the road, and caused a
collision which injured the plaintiff’s bus.
94 LAW OF TORTS
The defendants were held liable because what the driver did was merely a wrongful, improper and
unauthorised mode of doing an act which he was authorised to do namely to promote the defendant’s
passenger carrying business in competition with their rivals. The driver whose conduct was in question
was engaged to drive and the act which did the mischief was a negligent mod¬of driving for which his
employers must answer, irrespective of any authority or of any prohibition.
Twine v. Beans Express Ltd. )1946) 62 T. L. R. 155
The employers had expressly forbidden the driver of one of their vans from giving a lift to any
unauthorised persons and had affixed a notice to this effect on the dash board of the van. Despite this
the driver gave a lift to a person, who knew of the breach of instructions and was killed by reason of
the driver’s negligence. The Court of appeal held that the driver was acting outside the scope of his
employment and so his employers were not liable.
“He was doing something that he had no right whatsoever to do, and qua the deceased man he
was as much as a frolic of his own as if he had been driving somewhere on some amusement of his own
quite unauthorised by his employers”.
Giving a lift to an unauthorised person “was not merely a wrongful mode of performing the act of
the class this driver and employed to perform but was the performance of an act of a class which he was
not employed to perform at all.
It may be otherwise in the cases of “stray passengers, picked up by a driver to whom no contrary
instruction had been given”. Or if the plaintiff could show that the defendants had acquiesced in their
servants branches of his instructions.
A master is liable if the tort is committed in the course of employment even though it was not
committed for the benefit of the master.
Fraud of Servant
Lloyd v. Grace Smith & Co. (1912) A. C. 716 House of Lords
The plaintiff was a widow who owned some cottages. Being dissatisfied with the income which they
produced, and from a mortgage on other property and wishing to find a more profitable investment, she
went to the office of the defendant, Frederick Smith, who was then the sole member of Grace Smith &
Co., a firm of solicitors. There she saw one Sandles whom she thought to be a partner, but who was
the managing clerk who conducted all the conveyancing business of the defendants without supervisors.
Acting on his advice she directed him to sell the cottages and call in the mortgage. Sandles then
fraudulently induced her to sign certain documents, on the pretence that documents were necessary for
the sale of the property. Actually there was a conveyance of the cottage to Sandles. He then dishonestly
disposed of the property for his own benefit.
Smithon J. gave judgement 1 ; for the plaintiff. The Court of Appeal reversed this. But the House of
Lords unanimously reversed the decision of the Court of Appeal and restored the judgement of smithon
J.
It was held that the fraudulent act committed by the clerk was done in the course of his employment
and the employers would be vicariously liable even though the tort was committed for the servant’s own
benefit and the master did not stand to give anything .
.... ‘The general rule is, that the master is answerable for every such wrong of the servant or agent
as if committed in the course of the service and for the master’s benefit though no express command
or privity of the master be proved ... But it is a very different proposition to say that the master is not
answerable for the servant or agent committed in the course of the service, if it be not committed for the
master’s benefit.
... It would be absolutely shocking to my mind if Mr. Smith was not held liable for the fraud of his
agent in the present case. When Mrs. Lloyd put herself in the hands of the firm, how was she to know that
the exact position of Sandles was? Mr. Smith carries on business under a style of firm which implies that
95 LAW OF TORTS
unnamed persons are, or may be, included in its members. Sandles speaks and cut as if he were on of
the firm. He points to the deed boxed in the room and tells her that deeds are quite safe in “our” hands.
Naturally enough she signs the documents he puts before her while trying to understand what they were.
Who is to suffer for this man’s fraud? The person who relied on Mr. Smith’s accredited representative, or
Mr. Smith who put this rogue in his place and cloth him with his authority. If Sandles had been a partner
in fact. Mr. Smith would have been liable for the fraud of Sandles as his agent. It is a hardship to be
liable for the fraud of your partner. But that is the law under the partnership Act. It is less a hardship for
a principal to be held liable for the fraud of his agent or confidential servant. You can hardly ask your
partner for a guarantee of his honesty. But there are such things as fidelity policies. You can assure the
honesty of the person you employ in a confidential situation, or you can make your confidential agent to
obtain a fidelity policy” Per Lord Macnaughten.
(4) Criminal offence of Servant
Warren Henlys 1948) 2 All E. R. 935
The defendants who were the owners of a service station employed a petrol pump attendant.
The attendant erroneously believing that the plaintiff who was a customer would drive away his car
without paying money for petrol he had filled in his car and without surrendering the coupons, entered into
a violent quarrel with him. The plaintiff after paying the bill and giving the coupons called in a policeman
who tried to pacify the parties. Subsequently the plaintiff told the attendant assaulted him on his face.
HELD by Hilbery J. that the employers were not liable for this assault committed by the servant
because the assault was an act of personal vengeance and not within the course of employment
Peterson v. Royal Oak Hotel Ltd. (1948) N. Z. L. R. 136
Court of Appeal of New Zealand.
The plaintiff was in the bar of Royal Oak Hotel when an elderly customer who had been refused
a drink by the barman named Price. The customer resenting the refusal, threw an empty glass at the
barman, who in his turn took a portion of the broken glass and hurled at back at the resentful customer.
A fragment of the glass became detached from the main piece and struck the plaintiff who was standing
nearby, in his eye.
(5) Negligent delegation of authority by the Servant
If a servant negligently delegates his authority and instead of himself carefully performing a duty
allows it to be negligently performed by another person, the master will be liable for such negligence of
the servant. Thus if a driver instead of himself driving the bus allows somebody else to drive the same it
would amount to negligent mode of performance of the duty by the driver.
Case Laws: 1) Baldeo Raj v. Deowali
2) Ilkiw v. Samuels.
Cases :- Baldeo Raj v. Deowali
Indian Insurance Co. v. Radhabai
Ilkiw v Samuel
Ricketls v. Thomas Tilling Ltd.
It was argued that the employers were not liable for this act of the barman was not done in the
course of his employment, as the barman threw the piece of glass not to ensure the troublesome customer
leaving the hotel but owing to his personal resentment and anger against the customer.
HELD that the employers were liable at the act done by barman was done in the course of his
employment. The barman had been authorised to maintain order in the hotel and his act in throwing the
glass could be considered as a wrongful act through unusual method of maintaining order.
“ ... In the Century case the smoking and lighting of the cigarette was for the servant’s own pleasure,
yet the master was liable because the servant’s act was a wrongful mode of doing his work. In the
96 LAW OF TORTS
present case even if it was because of resentment alone, the throwing of the glass was nevertheless a
wrongful mode of keeping order, and liability is imposed on the employer”
Doctrine of Common Employment Position in England
1) Priestly v. Fowler
Under English common law, a master was not responsible for negligent harm done by one of his
servant to fellow engaged’ in a common employment with him.
This rule has now been abolished by the law reform (Personal Injuries) Act 1948. The rule is also
no now applicable in India.
2) Radcliffe v. Ribble Motor Service Ltd. (1939) A. C. 515
‘A’ and ‘B’ Were motor drivers employed by the defendants to take parties by their buses from
Liverpool to New Brighton .. B had been told to return to the defendant’s garage to Bottle, the particular
route of his return journey being left to his own discretion. On the return journey he stopped at a particular
point for some unknown reason. ‘A’ happened to be returning by the same route and in pulling out to
pass ‘B’s vehicle, he negligently knocked down and killed B who was standing by his own vehicle. B’s
personnel representatives sued the defendants under the Fatal Accidents Act 1846 and also under the
Law Reform. (Miscellaneous). (Provisions) Act 1934.
The defendants pleaded common employment.
HELD that at the time of the accident, drivers A and B were not in common employment and so the
employers were liable to pay damages.
Lord Wright: “The consideration that the risk of injury to one servant is the natural and necessary
consequence of misconduct in the other implies that the skill and care of the one is of special importance
to the other by reason of the relation between these services ... In my opinion the circumstances here, as
found by the judge are such that having regard to the nature of the employment, there was no common
work justifying the conclusion that the deceased man’s contract of employment was subject to the fictitious
implied term that he assumed the risk of his fellow servant’s negligence while driving the employer’s
coach on the high way on a separate job. I think there was no such term. The two drivers concerned
when they were on the road separately driving their motor coaches were engaged on independent piece
of work. There was no common work. The deceased man was not exposed to the risk of the negligence
of another employee of the respondent driving another of the company’s coaches in any greater degree
or in any different sense than he was exposed to the risk of any driver’s negligence on the road. The risk
was the general risk of the highway not the specific risk of the fellow servant’s negligence.
Position in India
1) Secretary of State v. Rukminibai.
2) Governor General in Council v. Constance Zena Wells
REMOTENESS OF DAMAGE It means the defendant is liable only for those consequences which
are not too remote from his conduct.
Cases: 1) Scott v. Shepherd
2) Lynch v. Nurdin.
Two tests have been applied to decide whether the damage is too remote
1. Test of reasonable foresight:
Consequence are too remote if a reasonable man would not have foreseen them.
1) Wagon Mound Case
2) Hughes v. Lord Advocate
3) Doughty v. Turner Manufacturing Co. Ltd.,
97 LAW OF TORTS
2. Test of Direct Consequence
If a reasonable man would have foreseen any damage as likely to result from his act, then he is
liable for all direct consequences of it suffered by the plaintiff, whether a reasonable man would have
foreseen them or not.
Reasonable foresight is relevant to the question “was there any legal duty owned by the defendant
to the plaintiff to take care”. It is irrelevant to the question. “If the defendant broke a legal duty, was the
consequence of this breach too remote ?”
Smith v. London and South Western Rly. Co. 1870 A. R. 6
In a dry and hot summer, the defendants had cut the grass growing near the railway line and placed
it in small heaps between the line and an edge. A spark from an engine of the defendants ignited the pole
of grass and fanned by a strong wind carried across a field and burnt down the plaintiffs cottage which
was at a distance of 200 years.
HELD: That the defendants were liable. Although no reasonable man would have foreseen this
consequence, once the defendants were aware that the heaps of grass were lying by the side of the
line and that it was a hot season and therefore the heaps were likely to catch fire, they were bound to
provide against all circumstances which might result from this and were responsible for all the natural
consequences of it.
.... “I think then there was negligence in the defendants in not removing these trimmings and that
they thus became responsible for all the consequence of their conduct, and that the mere fact of the
distance of his cottages from the point where the fire broke out does not affect their liability”.
Re Polemis v. Furness Withy & Co. Ltd., (1921) 3 K. B. 560
The owners of the steamship. Thrasy Voulos chartered the ship Furness Withy. The charter expected
both the ship owner and the charters free from liability from fire. Among other cargo the charterers loaded
a quantity of benzine and petrol in tins. Owing to leakage there was petrol vapour in the hold of the ship. At
a port of call while some of the benzene tins were being shifted by the charter’s servants a wooden plank
was negligently allowed to fall in the hold of the ship. A fire resulted and the ship was totally destroyed.
The Court of Appeal unanimously held the charters liable to the owners for the loss which amounted to
nearly Rs. 2,00,000. For, to allow the plank to fall into the hold was in itself an act of negligence, in as
much as it would not improbably cause some damage to the ship or cargo. The charters therefore being
guilty of negligence were held liable for the direct consequence of that negligence though in nature and
magnitude those consequence were such as not reasonable man would have anticipated.
Scruttion L. J. said “I cannot think it useful to say the damage must be that natural and probably
result. .. To determine whether an act is negligent, it is relevant to determine whether any reasonable
person would foresee that the act would cause damage; if he would not, the act is not negligent. But if
the act would or might probably cause damage, the fact that the damage that is, in fact causes is not the
exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable
to the negligent act, and not due to the operation of independent causes having no connection with the
negligent act, except that they could not avoid its results. Once the act is negligent the fact that its exact
operation was not foreseen is immaterial”.
Liesbosch Dredger v. Edision S.S. (1933) A. C. 448
By negligent navigation, the ship Edison collided with and snak the dredger Liesbosch the owners
of which were under a contract with a third party to complete a piece of work within a given time failure
to do which would entail them with heavy penalties. Ordinarily the owners of the dredger would have
brought a substitute dredger but owing to their poverty they were unable to do so and they were put to
much greater expense in fulfilling this contract because they had to hire a dredger at an exorbitant rate.
They sued the owners of the Edison for negligence. Among their claim for damages they also claimed
this extra expense which they had incurred owing to their impeniosity.
98 LAW OF TORTS
The House of Lords held that they could recover as damages the mark price of a dredger comparable
to the Liesbosch and compensation for loss in carrying out the contract between the sinking of the
Liesbosch and the date on which substituted dredger could reasonably have been available for work, for
the measure of damages in such case is the value of the ship to her owner as a going concern at the time
and place of the loss, and in assessing that value, regard must be paid to her pending arrangement. But
the claim for extra expenses due to poverty was rejected, because the plaintiff’s lack of means was an
extraneous matter which made this loss too remote. The case of Re Polemis was distinguished on the
ground that there the injuries suffered were “the immediate physical consequences” of the negligent act.
Lord Wright stated ... “ Nor is the appellant’s financial disability to be compared with that physical delicacy
or weakness which may aggravate the damage in the case of personal, injuries, or with the possibility
that injured man in such a case may be either a poor labourer or a highly placed professional man. The
former class of circumstances to the extend of actual physical damage and the later consideration goes
to interference with profit earning capacity; whereas the appellant’s want of means was as already stated
extrinsic”.,
Overseas Tankship (UK) Ltd., v. Morts Dock & Engineering Co. Ltd., (The Wagon Mound)
Privy Council (1916) A. C. 388
‘The appellants, the Overseas Tankship Ltd., were the charters of the ‘Wagon Mound’ an oil burning
vessel which was moved as the Clatex Wharf in Sydney harbour for the purpose of taking on fuel oil.
Owing to the carelessness of the Overseas Tankship Ltd.’s servants, a large quantity of fuel oil was split
on to water and after a few hours this had spread to the Morts Dock Ltd.’s Wharf about 600 ft. Away
whether another ship, the Corimal was under repair. Welding operations were being carried out on the
Corimal, but when the Mort Dock Ltd.’s manager became aware of the presence of the oil he stopped
the welding operation and enquired of the manager of the Caltex oil company whether they could safely
continue their operations on the wharf or upon Corimal. The results of the enquiry coupled with his own
belief as to the inflammability of furnace oil in the open, led him to think the respondents could safely
carryon their operation. He gave instruction accordingly, but directed that all safety precaution should be
taken to prevent inflammable material falling off the wharf into the oil. Two days later the oil caught fire
and extensive damage was done to Morts Dock Ltd.’s wharf.
The case was dealt with on the footing that there was a breach of duty and direct damage, but that
danger caused was unforeseeable.
The Privy Council reversing the decision of the Supreme Court of New South Wales held that the
defendants were not liable as the damage was too remote as it was not reasonably foreseeable. They
held that Re Polemis should no longer be regard as good law. “It is the foresight of the reasonable
man which alone can determine responsibility. The Polemis rule by substituting direct’ for reasonable
foreseeable’ consequences leads to a conclusion equally illogical and unjust”.
Smith v. Leech Brian and Co. Ltd., (1961) 3 All E.R.1159
Smith was a workman employed by the defendants in their iron works: His work involved lowering
articles into a containing of metallic Zinc and flux. The articles were lowered into the tank by means of
an overheads crane from behind a position behind a sheet of corrugated iron. One day as he lowered
the article into the tank he turned round to see and his head was outside the protective shield when a
piece of molten lead struck him on the lip causing a burn. The burn was the promoting agent of cancer
developed subsequently and the work man died about 3 years later. The cancer developed in tissues
which had already a premalignant condition. But for the burn, the cancer may never have developed
although there was a possibility that might have developed at a much later stage in life.
In an action by the widow claiming damages from the defendants under the Fatal Accident’s Act
and the Law Reform (Miscellaneous Provisions) Act 1934.
Lord Parker C. J., held the defendants liable.
“But for the Wagon Mound it seems to me perfectly clear, that assuming negligence proved,
assuming that the burn caused in whole or in part the cancer and the death, this plaintiff would be entitled
to recover” ..
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... “For my own part, I am quite satisfied that the Judicial Committee in The Wagon Mound did not
have what I may call loosely, “the thin skul “ causes in mind. It has always been the law of this country
that a tort feasor takes his victim as he finds him ......
It is necessary to do more refer to the short passage in the decision of Kennary J, In Dulien v. White
......... Where he said.
“If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the
sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had
an unusually thin skull or an unusually heart.”
... “The judicial Committee were, I think, disagreeing with the decision in re polemis that a man is no
longer liable for this type of damage which he could not reasonably anticipate. The Judicial Committee
were not. I think, saying that a man is only liable for the extent of damage which he could anticipate,
always assuming the type of injury could have been anticipated” .....
.... “In those circumstances, it seems to me that this is plainly a case which comes within the old
principle. The test is not whether these defendants could reasonably have foreseen that a burn would
cause cancer and that Mr. Smith would die. The question is whether these defendants could reasonably
foresee the type of injury which he suffered, namely, the burn. What in the particular case, is the amount
of damage which he suffers as a result of the burn depends on the characteristics and constitution of
the victim. Accordingly I find that the damages which the plaintiff claims are damages for which these
defendants are liable”.
Warren v. Scrutons Ltd. (1962) I Lloyd’s Rep. 497
A stevedore sued his employers in respect of personal injuries he had suffered whilst he was
helping to unload a cargo in the London docks. The employers were negligent in permitting the use
of defective wire in a set of ropes, which had become frayed and dangerous to anyone holding it. The
plaintiff scratched his finger on the frayed wire and it became poisoned and a
piece of the finger had to be cut off. Unfortunately, the infection spread to one of his eyes where an
ulcer developed and his vision become blurred. It appeared that when he was a young man this eye had
been injured and he had an ulcer on it and he had a predisposition to further ulcers if there came into his
body some condition which caused a high temperature due to any infection.
It was argued on behalf of the defendants that according to the principle laid down in the Wagon
Mound case, the wrong doer is only liable for reasonably foreseeable damage and as it was not reasonable
for the employers to foresee that if a finger was picked, the eye may become infected and as it was not
reasonable for them to know that the stevedore had this condition, they could not be held liable for the
damage to the eye.
HELD by Paull J. that the defendants were liable even for the damage to the eye. The type of
damage in the present case was a picked finger; and as this could have been reasonably anticipated,
then any consequence which resulted because the particular individual had some peculiarity was a
consequence for which the tort feasor was liable.
Novus actus intervenience. Liability when intervening act is foreseeable. No liability when it is not
foreseeable.
Cases: Cob. v. Great western Railway.
Harnett v. Bond.
S.S. Singletor Abbey v. S.S. Paludina.
The Ororpesa case
Stanstre v. Troman
Mckew v. Holland and Hannan and
Cubitts (Scotland) Ltd.
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4. FAMILY LAW - I
HINDU LAW
I. UN CODIFIED HINDU LAW
1. Sphere of Personal Law
Personal Law and territorial law distinguished - scope of Personal Law - Towards a civil code
codification of Hindu Law - Personal Law distinguished from Territorial Law.
2. Persons governed by Hindu Law
Who is a Hindu - Hindu by birth - Offshoots of Hinduism - Persons who are not Parsis, Muslim,
Christian or Jews - converts to Hinduism - Reconverts to Hinduism - Effects of Conversion.
Case : Ratanji Moraji v. Admn. Gen. of Madras
Case : Perumal v. Ponnusamy
Case : Abraham v. Abraham.
3. Sources of Hindu Law
Meaning of Source of Law = Traditional Sources : The Vedas : Their contribution to Law - The
Smritis - Digests and Commentaries - Custom as ‘a source of Hindu law. Modern Sources : Justice,
Equity and Good Conscience, Precedent and Legislation.
4. Schools of Hindu Law
Origin of the schools of Hindu Law - Mitakshara and Dayabhaga Schools - Sub-schools of the
Mitakshara - Effect of Migration from one sub-school to another.
5. The Hindu Joint Family
i) Nature of Hindu Joint Family & Joint Family Property.
The joint and undivided family is the normal condition of Hindu Society. Every Hindu family is
presumed to be joint, unless and until a partition takes place. A Hindu Joint family consists of
individual bound together by kinship: All agnatic (male descendants from a common ancestor;
their wives and daughters are the members of a joint family. Husband and wife alone do not form
a joint family, a son is essential for its existence, In a joint family the property is owned jointly. The
jointness of ownership of property is due to the undivided status of the family. It is not the result of
any agreement but the creation of law. The joint family can exist even without owning joint family
property. Anyhow, property acquired by the Hindu joint family becomes the joint family property.
ii) Apprathibandha Daya Saprathibandha Daya :
Apprathibandha daya is known as unobstructed heritage. Mitakshara school of Hindu law believed
in the birth right of Hindu sons; in the joint family property. Exercising their rights the son can claim
partition of his share at any stage. The fact that the father is alive in no obstruction for the son to
claim partition of his share. Hence the joint family property is known as unobstructed heritage.
Saprathibandha Daya is known as obstruction heritage. According to Dayabhaga school of Hindu
Law, the Hindu father is the absolute owner of the entire joint family property and of his separate
property. Under Mitakshara he is the absolute owner of his separate property alone. His sons acquire
rights in the property only on his death. Thus the fact that the father is alive is an obstruction for the
sons to claim rights in these properties. Hence the joint family property under Daya Saprathibandha
and the separate property under Mitakshara is known as obstructed heritage.
Coparcenary : A Hindu family is a larger unit within which we come across the smaller unit known
as coparcenary. Coparcenary includes those members in a Hindu Joint Family who are entitled
101 FAMILY LAW - I
to share the family property, Hence joint family property is visually allowed coparcenary property.
A coparcenary extends to three degrees from the senior most, male member. For example, in a
Hindu Joint Family A is father and B is his son. B has a son C and C has son D. D has two sons E
and F. The coparcenary includes A, B, C and D, E, F are not coparceners, since they are beyond
three degrees.
Types of Joint family properties :
Ancestral Property is the first kind of coparcenary property. It is the property inherited from three
paternal ancestors father’s father, a father’s father’s father - (a) Joint Family Property in the hands of
sole surviving coparcener under partition are also ancestral properties of the said coparcener who have
son., son’s son, or son’s son’s son. In the ancestral property the coparcener, son, son’s son, and son’s
son’s son acquire birth right.
Property with Ancestral nucleus :
Property acquired by utilizing coparcenary property is also coparcenary property. The acquisition
may be by an individual in the joint family or by all members. For example, a coparcener insures his life.
He pays the premium out of the income of the coparcenary property. When he dies the insurance amount
becomes coparcenary.
Blended Property : Often in the interests of the family, coparcenary merges his separate property
by the process of merger which is known as blending.
In the case of blending two conditions should be satisfied :
1. The coparcener blending his separate property must have an intention to merge it with
coparcenary property.
2. The merged property must be treated by joint family as part and parcel of the coparcenary
property.
Nature of Coparcenary Property
Ownership of the Coparcenary property remains with the entire coparcenary, therefore no
displacement of ownership when an individual coparcener dies: The interest of the deceased coparcener
devolves upon the surviving coparcener. This principle is known as the Principle of Survivorship. The
interest of a coparcener in the coparcenary property is indefinite. When a coparcener dies the interest of
the other coparcener are increased; when a new coparcener is born the interest of the other coparcener
are reduced. Thus a coparcener interest in the coparcenary property is a fluctuating one and fluctuation
exists till partition.
Separate Property or self-acquired property
Separate property was unknown in early days of Hindu society. In passage of time, a coparcener
was permitted to acquire separate property of his own. He is able to enjoy the property. In short, all
properties acquired by a coparcener, without detrimental to the coparcenary property is recognized as
his separate property.
Originally, even this separate property of a coparcener developed on his death upon the surviving
coparcener. Only during his life time he could enjoy the separate property absolutely with rights to alienate
it. However; this position of law was reversed by the ruling in the famous Sivaganga case. According to
the ruling when a Hindu coparcener dies leaving separate property only his heirs can inherit it.
In a Hindu coparcenary there is joint ownership of property. If one coparcener dies’, the surviving
coparcener succeed to his interest in this property. This rule is known as Doctrine of Survivorship. For
example, A, B and C are brother composing a coparcenary. If A dies undivided B and C jointly succeeded
to A’s share. Till the decision in Sivaganga case ruling of survivorship was applied to the self-acquired
property of a coparcener. The owner of the self-acquired property could be the absolute owner, during
lifetime only. This case settled the rule that the acquired property of an undivided coparcener is inherited
by his heirs.
NATURAL GUARDIANS
Under Sec. 6, of the Act, the following are the natural Guardians.
1. In the case of a boy or unmarried girl the father and after him the mother.
2. In the case of illegitimate boy or unmarried girl, the mother and after her the father.
3. In the case of a married girl, the husband.
The custody of a minor below 5 years shall be with the mother. Though mother has preferential
right to custody, father alone continues as guardian. For just reasons the father can move the Court to
return the custody of a minor below 5 years of him.
DE -FACTO GUARDIANS
Old Law
The term de facto guardian is a misnomer for the de facto manager of the minor’s person and
property. When a minor has no legal guardian, usually some near relation voluntarily looks after his
person and property. He may also apply under the Guardians and Wards Act of 1890 for appointment by
the Court as a Guardian. Without doing so if he possesses and Manages the minor’s property, he is the
de facto manager. The de facto guardian enjoyed powers of dealing with minor’s property. But his acts
could bind the minor only when they were for the minor’s benefit:
1. A de facto guardian could incur liability on behalf of the minor. The liability could bind the
minor, if it was for his benefit, or for the benefit of his estate.
2. An acknowledgment of debt made by a de facto guardian could not bind the minor or his
estate. He could not acknowledge even debts contracted by lawful guardians.
3. The de facto guardian could not bind the minor or his estate by his contracts with third parties,
Besides he had no powers to bind the minor or his estate by personal covenants.
LAW OF MAINTENANCE
Definition of Maintenance :
The Hindu Law of Maintenance has been codified under. The Hindu Adoption and Maintenance
Act of 1956
According to Sec. 3 of the Act maintenance includes -
(1) in all cases provision for food, clothing, residence; education and medical attendance and
treatment; and
(2) in the case of unmarried daughter, also the reasonable expenses, of her marriage, and
expenses incidental to her Marriage expenses cover the actual expenses in performing the
marriage and expenses incurred in the betrothal function and nuptial ceremonies:
The obligation of a Hindu to maintain others arises on account of personal relationship or ownership
of property, Personal obligation is recognized in favour of virtuous wife, infirm, and aged parents, and
minor children. The personal obligation is a legal, obligation, existing irrespective of ownership of property.
Obligation based on ownership of property relates to other members in the Joint Hindu Family, like the
females.
1. Dissolution of Marriage
Sections 10 to 17 deal With dissolution of marriage. Any husband may present petition to the
District Court of High Court for dissolution of the marriage on the ground that the wife is guilty of adultery.
Any wife may present petition to the District Court or High Court for dissolution of the marriage on
the ground that the husband after the marriage has :
1. Changed his profession of Christianity.
2: Gone through a form of marriage with another woman.
3. Is guilty of bigamy with adultery.
4. Is guilty of incestuous adultery.
5. Is guilty of marriage with another woman with adultery.
6. Is guilty of rape, sodomy or bestiality.
7. Is guilty of adultery coupled with cruelty. The cruelty by itself must be enough for dissolution.
8. Is guilty of adultery coupled with desertion, without reasonable excuse for two years.
When the husband filed the petition for dissolution on the ground of adultery, he shall make the
adulterer a co- respondent. The court may excuse him from doing so (1) if she wife is leading the life of
a prostitute (2) the name of the adulterer is unknown to the husband, in spite of his efforts (3) or if the
adulterer is dead.
Every decree of dissolution passed by the High court shall be in the first instance a decree in Nisi.
The decree in Nisi is absolute after expiry of a period fixed by the order of the High court being not less
than 6 months. The petitioner must file a petition to have the decree in Nisi made resolute, after expiry
of the prescribed period. During the period (any person) can oppose the decree being made absolute on
grounds of conclusion or material effects. The Court may take the decree absolute, or reverse the decree
in Nisi or may require further enquiry.
Every decree for a dissolution made by a District Judge is subject to confirmation by the High Court
for confirmation shall be heard by two Judges of the High Court. Confirmation of the decree shall be
made only after expiry of the duration prescribed by the High Court, not less than six months.
Nullity of Marriage (Section 18 and 18)
Any husband or wife may present a petition to the District Court or to the High Court for declaration
that the marriage is null and void. Such declaration is made on any of the following grounds.
MOHAMMEDAN LAW
INTRODUCTION
1. Conspectus :
The place of personal law in the Indian Legal System.
Mohammedan. Law applied in India to Mohammedans in some matters only. Hence application
with respect to (a) persons, (b) topics.
Conspectus of Islamic Law - one of the great legal systems of the world -today.
Islamic conception of religion and law, divinely ordained and basically immutable.
Wider in scope than Western Law. Mohammedan Law is more strictly religious and has undergone
less of secularization than Hindu Law.
2. Origin of Islam :
Hindu Law & Mohammedan Law are so immediately connected with religion that they cannot be
deserved from it.
Origin of Islam - advent of the Prophet and his Mission the rise and spread of Islam as a complete
code of life. Death of Prophet 632 A.D. events following Muslim world divided on the issue of succession
Shias and Sunnis.
3. Sources of Mohammedan Law.
Classical Sources :
The Koran : Ipsissima verba of God communicated in its final form through a single human channel.
Primary source in point of time and importance. Differs from a code in form and context.
The Traditions (Sunna or Hadith): What the prophet said and did and what was done in his presence
without his disapproval.
1. General Principles
“If each sect has its own rule according to Mohammedan Law, that rule should be followed with
respect to the sect”.
Change of sect on sub-sect. Effect of marriage. Law of the sect or sub-sect, to which defendant
belongs.
Presumption :
1) Parties to a suit or proceeding are sunnis.
2) A Sunni is governed by Hanafi Laws.
3) A shia is governed by Ithna- Ashari Law.
2. Persons : Who is Mohammedan?
“The essential doctrine of the Mohammedan religion is that there is but one god and Mohammed is
his prophet” - Naratakata v. Parakkal 45. Mad 986.
Any person who acknowledges the unity of God and the Prophetic mission of Mohammed is a
Mohammedan, Jiwan Khan v. Habib AIR 1933 Loh (PC).
Mohd. by birth : “In strict Mohd. Law if either parent is a Mohd. the child presumed a Mohd. “In India,
under ordinary circumstances, a child takes his father’s religion”. (P.C. in skinner v. Order).
Mohd. by Conversion : Formal profession of Islam is necessary and sufficient Abdul Razack v. Aga
Mohd: (1893) 21 M.I.A. 54.
But the change of religion must be made honestly without any intent to cannot a fraud on the law.
Apostasy : Express and implied. Effect under Islamic Law, Statutory provision - Freedom of Religion
and shariat Act.
3. The Muslim Personal Law (Shariat) Application Act, 1937.
Objects and Reasons
1. To ensure certainty and definiteness
2. There was difficulty of ascertaining and administering customary law.
Different ways in which the marriage may be dissolved under Mohammedan Law.
I. Husband Divorcing Wife :
1. Talak Ahasan
2. Talak Hasan
3. Talak-ul-biddat.
II. Divorce by Mutual Consent
1. Khula
2. Mubaraat
III. Judicial Divorce at Instance of wife
1. Procedure of Lien.
2. Talak by Tafweez.
3. Impotence of Husband.
4. New ground recognized by the Dissolution of Muslim Marriages Act 1939.
VI. Other modes of Divorce
1. Zihar
2. kula
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CHAPTER - II
GENERAL DEFENCES
A person is presumed to know the nature and consequences of his act, and is therefore, responsible
for it in law. However, there are some exceptions to this. A man may be excused from Punishment, either
on the ground of the absence of the requisite ‘mens rea’ for the Commission of a Crime or on some other
ground recognised by law. Such Provisions have been dealt with in chapter IV of the Indian Penal Code
(Ref. sections 76 to 106). Though there are 32 Sections in this chapter it contains 7 heads.
JURISDICTION
Territorial Jurisdiction:
Section 2 of the Indian Penal Code declares that every person shall be liable to punishment under
the code and not otherwise for every act or omission contrary to the provisions of the code of which he
shall be guilty within India.
Ref. case Law: Mobarak Ali v. The State of Bombay A.I.R. 1957 S.C.857.
The accused a Pakistani national while staying at Karachi, made false representations through
letters, telephone conversations and telegrams to the complainant at Bombay and induced the complainant
to part with money at Bombay. When the accused subsequently happened to come to Bombay he was
prosecuted for cheating.
Held that the offence was committed at Bombay even though the accused was not physically
present there and that the Court had jurisdiction to try him under S.2.
Jagannadadhas J. Observed “The use of the word” every person in Sec. 2 as contracted with
the use of the phrase any person in Sec. 3 as well as Sec. 4(2) of the Code Sec. 2 must be read with
the phrase every person at the commencement thereof. But this is far fetched and untenable. The
plain meaning of the phrase “Every person is that it comprehends all persons without limitation and
irrespective of nationality allegiance, rank, status, caste, colour or creed.
On the other hand a reference to S.3 of the Code clearly indicates that it is implicit therein that
foreigner who commits an offence within India is guilty and can be punished as such without any limitation
as to his corporeal presence in India at the time. For it is were not so, the legal fiction implicit in the phrase
‘as if such act had been committed within India’ in S.3 would not have been limited to the supposition that
such act had been committed within India but would have extended also to a fiction as to his physical
presence at the time in India.
CHAPTER III
JOINT LIABILITY
When a criminal act is committed by an individual it is easy to assess his liability for punishing
him. But when an offence is committed by means of several acts by several persons in furtherance of
common intention each of the accused who has participated is guilty of the whole offence. Section 34 of
IPC. Provides for such cases and lays down the principle of joint liability.
Sec. 34 reads when a criminal act is done by several persons in furtherance of the common
intention of all each of such persons is liable for the act in same manner as if it were done by him alone”.
Thus the section gives statutory recognition of the common sense principle that if several persons unite
with a common intention to effect any criminal object all those who assists in the accomplishment of that
object are equally, though some may be at a distance from the spot where the crime is committed.
The essential ingredients of Sec. 34 are
1. where a criminal act is done by several persons
2. in furtherance of common intention of all
3. each of such person is liable for that act in the same manner as if it were done by him alone.
The following two cases are illustrative of the application of the principle to joint liability.
Ref.Case Law:
1) Barendra Kumar Ghosh v. Emperor (1952 Cat 197P.O)
2) Mehboob Shah v. Emperor (Indus reiver act case) (A.I.R.1945 P.C.118)
3) Nachimuthu Gounder v. State of TamilNad (1947 Mad)
Corporate liability (Alterego - Doctrine)
Ref. Case Law:
- v. Briminghan and Glouchester Rly Co.
- Moore v. Bresler Ltd. (1944 All E.R.515)
- Vadivelu Arsuthir v. R. (1943 MCJ 445).
Vicarious liability in criminal law
Ref. case Law:
Ruvula Heri Prasada Rao v. The state (A.I.R. 1951 SC 204)
R. v. Prayagsingh.
Fine imposed by the Court can be realized within 6 years or during imprisonment when the term
of the same is longer than 6 years. The death of a prisoner does not discharge him from liability and
his property will be liable for his debt. It has been laid down by the Supreme Court that limitation of
6 years prescribed under Section 70 does not apply to fine imposed for contempt of High Court. The
imprisonment in default is not a substitute of fine but it is punishment for default.
Death Sentence:
The Validity of death sentence as being violative of Articles 14, 19 and 21 of the constitution was
challenged for the first time in Jagmohan Singh V. State (1973). But the Court upheld the constitutional
validity of Section 302 of the Code. In the meantime the new provisions of the Cr.P.C., 1973 came into
being and as per Section 354(3) Judges will have to state special reasons in the judgement for inflicting
death penalty. The Court cannot remain silent spectators of what is happening around the society. So
the Supreme Court of India came forward with a new ruling about the awarding of death penalty rarest
of the rare case Policy in Bachan Singh V. State of Punjab (1980).
The following case examples considered as the rarest of rare cases by the Supreme Court.In Kehar
Singh V. Delhi Admn. (Indira Gandhi murder case), the accused killed Indra Gandhi while standing on
guard duty by firing from carbine, releasing about 25 bullets. Convicting the accused the Court said that
it was the most foul and senseless assassination as persons duty bound to protect the life of the Prime
Minister have themselves become the assassins. Even the preparation for execution of this egregious
crime do deserve the dread sentence of the law. It is one of the rarest cases where extreme penalty of
death was called for.
The accused raped and brutally killed his niece, a 7 year-old girl, it was held that undoubtedly it falls
in the category of rarest of rare cases.
Laxman Naik, v. State, 1994
CHAPTER VI
SPECIFIC OFFENCES
The Provisions contained in IPC were felt to be deficient to control corruption, the parliament in
1947 enacted the prevention of Corruption Act. The PCA 1947 was amended. The PCA, 1988 envisages
widening the scope of the definition of the public servant and omitting the provisions of Sec. 161 to 165
A IPC.
Ref. case :
Dalpat Singh v. State of Rajasthan (AIR 1969 SC)
Man Sankar Prabha Sankar v. State of Gujarat (AIR 1970- Guj 97)
Tirlock chand jain v. State of Delhi (AIR 1977 SC 665)
Rs. Nayak v. A.R.Antulay
Personating a public servant (Sec 170 IPC )
Wearing garb (or) conveying taken used by public servant with fraudulent intent (Sec 171)
personating a public servant and doing or attempting to do an act in such assumed character under color
of office is punishable.
Offences against Administration of Justice giving and fabricating false evidence
This part ‘“of false evidence and offences against public justice” composing 39 Sections i.e. Section
191 to 229 can be roughly divided into the following eleven groups.
Ingredients ( Sec 191 IPC)
1) A person must be legally bound (a) by an oath or by an express provision of law to state the
truth (or) (b) to make a declaration upon a subject
2) He must make a false statement
3) He must take a false statement
4) He must (a) know or believe it to be false (or) (b) must not believe it to be true.
CHAPTER IX
OFFENCES AGAINST PROPERTY
THEFT (SEC 378 IPC)
Ingredients:
1. Movable property
2. It should be in the possession of another person.
3. The accused should move such property in order to take it out of his possession.
4. He should do so without his consent.
5. Intended to take the property dishonestly.
Ref Case law- K.N.Mehra v. State of Rajasthan A.I.R. (1975 SC 369)
EXTORTION (Sec. 383 IPC)
Extortion is a form of theft in aggravated stage.
CHAPTER X
OFFENCES RELATING TO MARRIAGE Sec. 493 to 498 IPC
- Mock marriage sec 493 and 496
- Rambilas Singh v. State of Bihar (AIR 1989 SC 1593)
- Bigamy - Section 494, 495 and 496 Ms. Tolson’s case
- Kawall Ram v. Himachal Pradesh (AIR 1966 SC 614.
- Sarla Mudgal v. Union of India AIR 1995 SC
- Lily Thomas v. Union of India AIR 2000
Adultery - Section 497
A married man having sexual intercourse with (i) an unmarried woman (ii) or with a widow or a
married women whose husband consents to it or iv) with a divorced woman, commits no offence under
this section.
Ref Case: Yusuf Abdul Aziz v. State of Bombay
Justice Malimatti committee and Madavamenon committee reports.
Nanavathi v. State of Maharastra,.
Sowmithri Vishneu v. Union of India (AIR 1985 SC 1618)
148 LAW OF CRIMES
Elopment (Sec 498)
The Section Punishes any person who
a) takes or entires away or conceals or detains the wife of another man from that man or from
any person having the care of her on behalf of that man.
b) with knowledge that she is or having reason to believe that she is a wife of another
man, and c) with intext that she may have sexual intercourse larith any person.
1. Alamgir v. the State of Bihar 1959 SCJ 457.
2. Ramanarayana Karup (1936) 39 Bom LR 61
Dowry Death (304 B)
This Section was added by Dowry Prohibition (Amendment) Act 1983. The object of this section to
is prevent increasing number of dowry death in India and to provide stringent punishment for the same.
Under this Section ‘Dowry death’ is punishable and it should occure within 7 years of marriage.
Lichhama Devi v. State of Rajasthan (1988 - SCC 456)
Delhi Aministration v. laxman Kumar (1985-4-SCC 476)
Cruelty 498-A
This section was inserted by the Criminal law (Amendment) Act 1983 as observed by the Supreme
Court of India in B.S.Joshi v. State of Haryana (2003) the object of introducing chapter XX-A in the IPC
was to prevent torture to a woman by her husband or by relatives of her husband.
Ref Case:
Ramesh Kumar v. State of Punjab (1986) Cri. L.J.2087
Ashok Kumar v. State of Haryana 1986 Cri.L.J. 1963
Constitutional Validity Challenged
Inder Raj Malik and others. v. Mrs. Sunitha Malik 1986 Cri. L.J. 1510.
OFFENCES RELATING TO RELIGION
Sec. 295 IPC
Destroying, damaging or defiling any place of worship or object with intent to insult.
Ref Case: S.Veerbhadran Chettiar v. E.V.Ramaswami Naicker. AIR 1958 SC 1032.
Sec 295 A
Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its
religion or religious feelings:
Ref Case:
Acharya Ramesh v. Naval Thakur 1990 Cri L.J. 2511.
Ram ji lal Modi v. State of U.P. A.I.R. 1957 SC 620.
Sant Das Maheswari v. Babu Ram A.I.R. 1969 All 436.
Disturbing religious assembly (296)
- Trespassing on burial places (297)
- Uttering words etc., with deliberate intentent toward religious feelings (298) also
offences under this head.
149 LAW OF CRIMES
Defemation (Sec. 499 to 502 IPC)
Ref Case : Merivale v. Carson,
Natigam P.Ramaswamy v. M.Karunanithi
Criminal intimation (Sec. 503 IPC)
Ref Case: Ramesh Chandra Arora v. The State (AIR 1960 Sec 154.
Insult the modesty of women IPC Sec. 509
Ref: case: Mohammed Kassim Chisty case.
511 IPC Attempt to commit offence.
Ref case: State of Maharastra v. Mohammed Yakub (A.I.R. 1980 SC 1111)
OBSCENITY
Section 292, 293 and 294 speak of obscenity. The sections prohibit and punish sale of obscene
books or obscene objects, doing of any obscene act or reciting or uttering any obscene songs, ballads
or words.
Ref. case law: R v. Hicklin (1868) - (Hicklin test)
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1. LAW OF CONTRACTS-II
INDEMNITY
Definition
According to dictionary meaning, Indemnity is protection against loss, otherwise It is a security
against, or Compensation for loss etc. According to Sec. 124 of the Indian Contract Act, a contract of
indemnity means “a contract by which one party promises to solve the others from loss caused to him
by the conduct of the promise or himself or by conduct of any other person”. For instance, a contract to
indemnify B against the consequences of any proceedings which C may take against B in respect of a
certain sum of 200 rupees. This is a Contract of Indemnity. The person who promises to indemnify is
known as “indemnifier” and the person in whose favour such a promise is made is known as indemnified
or indemnity holder.
England
Under english law the word indemnity carries a much wide meaning than given to it under the
Indian Contract Act. It includes a contract to save the promise from a loss, whether it be caused by
human agency or any other event like an accident and fire.
The definition of Contract of Indemnity as given in the Indian Contract Act is not exhaustive. It
includes (a) express promises to indemnity; and (b) cases where the loss in caused by the conduct of
the promisor himself or by the conduct of any other person. It does not include (a) implied promise to
indemnity; and (b) cases where loss arises from accident and events not depending on the conduct of
the promisor or any other person.
Principles of equity
According to the rules evolved by the Court of equity that the indemnity-holder can now compel the
indemnifies to save him from the loss in respect of liability against which indemnity has been promised.
In India, it has been held that Sec. 124 and 125 of the Contract Act are not exhaustive of the law of
indemnity and the Courts here would apply the same equitable principles that in England do. (Gajanan
Moreshwar v. Moreshwas Madan / AIR / 1942 Bam. 302).
Sec. 125 deals with rights of Indemnity-holder (i.e. indemnified) when sued. According to it, an
indemnity holder is entitled to recover from the promisor (i.e. indemnifier).]
Right of indemnity holder when sued
(1) all damages which he may be compelled to pay in any suit in respect of any matter to which
the promise to indemnify applies;
(2) all costs which he may be compelled to pay in bringing or defending such suits. But the
indemnified should have acted as any prudent man would act under similar circumstances in
his own case, or with the authority of the promisor (indemnifier); and
(3) all sums which he may have paid under the terms of any compromise of any such suits. The
compromise should not be contrary to the orders of the promisor (indemnifier) and should be
prudent or authorised by the promisor.
Rights of Indemnifier
The Indian Contract Act is silent regarding the rights of the indemnifier (promisor) in a contract
of indemnity. It may be said, on the authority of the English Law, that the rights of the indemnifier are
analogous to the rights of a surety.
153 LAW OF CONTRACTS - II
Time of commencement of the indemnifier’s liability:
The Indian Contract Act (Sec. 125) does not state the time of the commencement of the indemnifier’s
liability under the contract. Different High Courts have been observing different rules in this connection.
Some High Courts have held that the indemnifier is not liable until the indemnified has incurred an actual
loss. Others have held that the indemnified can compel the indemnifier to make good his loss even before
he actually discharged his liability. (Osman Jamal & Sons v. Gopal, (1919) 56 Cal. 262). respectively and
Burkley L.J. v. Richardson Exparte etc. Re (1911) 2 K.B. 705.
Indemnity is not given by repayment after payment. Indemnity requires that the party to be
indemnified shall never be called upon to pay.
The latter view, which is based on equitable principles, has now almost come to stay
Implied indemnity dealt with Sec. 59, 145, 164 and 222 of the Contract Act.
Sec. 59: Application of payment where debt to be discharged is indicated.
Sec. 145: Implied promise to indemnify surety.
Sec. 164: Bailors responsibility to bailee.
Sec. 222: Agent to be indemnified against consequences of lawful acts.
Indemnity Guarantee
1. In a contract of indemnity, there are parties In a contract of guarantee there are three
to contract namely the indemnifier (promisor) parties to the contract viz. the creditor the
and the indemnified (promisee). principal, debtor and the surety.
2. The liability of the indemnifier to the The liability of the surety to the creditor is
indemnified is primary and independent. collateral or secondary the primary liability
being that of the principal debtor.
3. There is only one contract in the case of There are three contracts one between the
a contract of indemnity (i.e.) between the principal debtor and the creditor the second
indemnifier and the indemnified. between the creditor and the surety, and the
third between the surety and the principal
debtor.
4. It is not necessary for the indemnifier to act It is necessary that the surety should give the
at the request of the indemnified. guarantee at the request of the debtor.
5. The liability of the indemnifies arises only There is usually an existing debt of which is
on the happening of contingency. guaranteed by the surety.
6. An indemnifier cannot sue a third party for A surety on discharging the debt due by the
loss in his own names, because there is no principal debtor steps in to the shoes of the
privity of contract. He can do so only if there is creditor. He can proceed against the principal
an assignment in his favour debtor in his own right.
4. Kinds of Guarantee
The function of a contract of guarantee is to enable a person to get a loan or goods on credit, or
an employment. A guarantee may therefore be given for (i) the repayment a debt; (ii) the payment of
the price of the goods sold on credit; and (iii) the good conduct or honesty of a person employed in a
particular office. In the last case the guarantee is called a fidelity guarantee.
A guarantee may be given for an existing or a future, debt or obligation. In the former case it is
called retrospective guarantee and in the latter case, prospective guarantee.
A guarantee may be in respect of a single transaction or in respect of a number of transactions.
Two type of guarantee are (1) Specific guarantee (2) Continuing guarantee.
Specific guarantee: When a guarantee extends to a single transaction or debt, it is called a
specific or single guarantee. It comes to an end when the guaranteed debt is duly discharged or the
promise is duly performed.
Continuing guarantee: When a guarantee extends to a series of transactions, it is called continuing
guarantee (Sec.129). The liability of the surety in case of a continuing guarantee extends to all the
transactions contemplated until the revocation of the guarantee.
DISSOLUTION
When a firm is put to an end as between all the partners, that is called dissolution.
Sec. 39: The dissolution of partnership between all the partners of a firm is called the dissolution
of the firm.
Mode of dissolution:
1. By consent (Sec. 40)
2. By agreement (Sec. 40)
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(b) to produce to the buyer on his request for examination all documents of title relating to the
property which are in the seller’s possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in
respect to the property or the title;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance
of the property when the buyer tenders it to him for execution at a proper time and place;
(e) to take as much care of the property and all documents of title between the date of the
contract of sale and the delivery of the property;
(f) to give, the buyer, or such person as he directs, such possession of the property as its nature
admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the
sale.
189 PROPERTY LAW
Rights of Seller:
The seller is entitled to -
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of thewhole of
the purchase-money, to a charge upon the property in the hands of the buyer, any transferee
without consideration or any transferee with notice of the non¬payment, for the amount of the
purchase-money, or any part thereof remaining unpaid, and for interest on such amount or
part from the date on which possession has been delivered.
Obligations of Buyer:
The buyer is bound-
(a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property
of which the buyer is aware,
(b) to payor tender, at the time and place of completing the sale, the purchase-money to the
seller or such person as he directs:
Rights of Buyer:
The buyer is entitled-
(a) to the benefit of any improvement in, or increase in value of, the property, and to the rents and
profits thereof;
(b) to accept delivery of the property
Doctrine of Marshalling (Section 56)
Right of Marshalling in claimed by subsequent purchaser in the absence of contract to the contrary.
MORTGAGE
Sections 58 to 99 of Transfer of Property Act 1882, deals with Mortgage. A mortgage is a transfer
of an interest in specific immovable property as security for the repayment of a debt.
Definition: [Section 56 (a)]
Mortgage is a transfer of interest in specific immovable property for the purpose of securing loan, an
existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.
Mortgagor, Mortgagee and Mortgage money
The person who transfers the interest in property is called the mortgagor. The person who receives
it is named the mortgagee. Mortgage money is the amount for which the property is transferred as a
security.
Characteristics of Mortgage
Given below are the general characteristics or elements of a mortgage.
a. Interest should be transferred
b. Specific immovable property
c. Transfer for securing a debt
Types of Mortgage
Mortgages are generally divided into six. They are:
1. Simple Mortgage
2. Mortgage by Conditional Sale
3. Usufructuary Mortgage
4. English Mortgage
5. Mortgage by deposit of title deeds
6. Anomalous Mortgage
190 PROPERTY LAW
Remedies for the various kinds of Mortgages
• Section 58(b) Simple mortgage remedies given to simple mortgage are (i) Money suit on
personal covenant and (ii) Judicial Sale
• Section 58(c) Mortgage by conditional sale - remedy to mortgage - foreclosure preventing
mortgage or from redeeming the property.
• Section 58 (d) Usufractory Mortgage remedy to mortgage - to remain in possession till the
mortgage debt is paid.
• Section 58 (e) English mortgage - remedies to mortgage - (i) Suit a personal covenant (ii)
Judicial Sale (iii) Private Sale.
• Section 59(f) Mortgage by deposited of title deeds - Remedies to mortgage - (i) Suit on
personal covenant (ii) Judicial Sale.
• Section 59(g) Anamolous Mortgage - it is a combination of two or more mortgages. Remedy
to mortgages. It depends upon the contract between the parties
Rights and Liabilities of Mortgagor
1. Section 60 - Rights of mortgagor to redeem.
2. Section 60A - Obligation to transfer to third party instead of re-transference to mortgagor
3. Section 60-8 Right to inspection and production of document
4. Section 61- Right to redeem separately or simultaneously
5. Section 62 - Right of usufructuary mortgagor to recover possession.
6. Section 63 - Accession to mortgaged property
7. Section 63A - Improvements to mortgaged property
8. Section 64 - Renewal of mortgaged lease.
9. Section 65A - Mortgagor’s power to lease.
10. Section 66 - Waste by Mortgagor in possession.
Rights and Liabilities of Mortgagee
1. Section 67 - Rights to foreclosure or sale
2. Section 67A - Mortgagee when bound to bring one suit on several mortgagees
3. Section 68 - Right to sue for mortgage-money.-
4. Section 69 - Power of sale when valid.
5. Section 69A - Appointment of receiver.
6. Section 70 - Accession to mortgaged property.
7. Section 71 - Renewal of mortgaged lease
8. Section 72 - Rights of mortgages in possession
9. Section 73 - Right to proceeds of revenue, sale or compensation on acquisition.
10. Section 77 - Receipt in lieu of interest
Benami means with out name. It is a Persian word. In Benami transactions a property is purchased
in some one else name. The benami transaction is done by transfering property to one person for the
consideration paid by another person.The person in whose name the property purchased is not the real
beneficiary but merely represents the real owner. In 1973, the Law Commission of India after studying
various acts and prevailing benami system recommended formulating an act to tackle this issue due
to whichBenami transactions (Prohibition )Act1988 was enacted by the Parliament.is an act of the
Parliament that prohibits benami transactions and the right of the right to recover property held in
benami. It came into force on 5th September 1988. However there are lot of loop holes in the act .Steps
have been taken government of India introduced Benami transaction (Prohibition) Bill 2011 and the
amendment bill in 2015 . This amendment bill if becomes an act would curb corruption. Still light of the
day has to be seen.
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231 CONSTITUTIONAL LAW - I
4. FAMILY LAW II
HINDU LAW
HINDU SUCCESSION ACT, 1956 HINDU JOINT FAMILY AND COPARCENARY
A Hindu joint family consists of a common ancestor, all the lineal male descendants of common
ancestor, wife or wives or widows, unmarried daughters of a common ancestor, unmarried daughter of a
lineal male descendants. The manager of such Hindu joint family is called KARTA.
Mitakshara and Dayabhaga schools having different types in the succession. But both schools
following the paternal system. Mitakshara school following vignaneshwara’s principles, while Dayabhaga
following Jimutavahana’s principles. The heritage followed by Mitakshara school is unabstructed heritage
which is also known as Apratibandha Daya. This is special feature of Mitakshara Joint family system.
The ancestral property of father is unobstructed heritage for the son. The unobstructed heritage is
for four lineal descendants including father (i.e.) son, son’s son, son’s son’s son. Son acquires this right
by birth. The father and son has equal share in the paternal ancestral estate. The property is said to be
coparcenary property, those persons having right by birth are known as coparceners of the property. In
this heritage share are flexible according to birth and death of the one of the coparceners.
Obstructed Heritage
The obstructed heritage is property in which a person gets a right not by birth but on the demise of
the last holder. Obstructed heritage is also called as obstructable heritage.
The Dayabhaga law does not recognise any property as unobstructed heritage. Under that system
all property devolves only as obstructed heritage. Dayabhaga coparceners are in the position of tenants
in common, each with a definite interest.
Right of Coparceners
1. Right to Joint Ownership,
2. Right to common use,
3. Right to enjoyment,
4. Right to survivorship,
5. Right to partition,
6. Right to challenge alienations,
7. Right to alienation,
8. Right to self acquisition,
9. Right to maintenance,
10. Right to marriage expenses.
Gains of Learning
Prior to the enactment of the Hindu Gains of Learning Act, 1930, the personal earnings and
acquisitions of the coparcener may be partiable throughout the life unless he separated himself from
the rest of the family, if he was originally equipped for the calling or career in which the gains were by a
special training at the expense of the patrimony.
Section 3 of the Gains of Learning Act, changed that position and under this, all gains of learning
whether made before or after the commencement of the Act constitute the self acquired property of the
acquirer. Changes in traditional law made by the Hindu Women’s Rights to Property Act, 1937.
232 FAMILY LAW - II
The Hindu Women’s Right to Property Act, 1937 came into force on 14th April, 1937. The Act put
one’s widow, the widow of a predeceased son and the widow of a predeceased son’s predeceased son
on the same level as the male issue of the last owner along with the male issue or in default of them.
In regard to the Hindu Mitakshara joint family property, the Act provided that that widow took place of
her husband. The Act further provided that in all cases the interest taken by the widow was only limited
interest. The Hindu Women’s Right to Property Act, 1937 was repealed by Section 31 of the Hindu
Succession Act, 1956.
Marumakkatayam and Aliyasantana
In the Malabar region of kerala and in the district of canara two similar systems of joint family
inheritance obtained known as Marumakkathayam and Aliyasantana. In both systems descendants was
traced in maternal line (female).
Under this traditional Malabar law, there are large families known as Tarwads, groups descended
in the female line from a common ancestress. A tarwad may consists of a number of branches called
Tawazhis.
Characteristic features
(1) Property was held in commensality by its members,
(2) It was impartiable except with the consent of all its members.
(3) Women was the stock of the descent.
(4) The management of the property was vested in the senior most male member, the other
members of family being entitled only to maintenance.
(5) The issue of male members were excluded from membership.
(6) The property was inalienable except necessity.
The senior most male member is known as Karanavan or Manager. In the absence of senior or any
male member, senior most female can become manager of the family.
In Aliyasantana, it was followed in Karnataka State, they were also following the maternal lineal
descendants as of Marumakkathayam but one difference was the senior most member either male or
female is the manager of the family.
STRIDHAN / WOMEN’S ESTATE
Stridhan
The property of a Hindu woman is called Stridhan. ‘Stri’ means woman, ‘dhana’ means property. It
is also known as woman’s estate. It includes movable and immovable properties. Prior to the Act, there
were several limitations in the right to property. The absolute power of alienation was not given to her.
Acquisition of Woman’s Estate
The Woman’s estate may be acquired in the following way
1. By inheritance
2. By device
3. By partition
4. In lieu of maintenance
5. By arrears of maintenance
6. By gift from any person
7. By her own skill
8. By her exertion
9. By purchase
10. By prescription
11. By mechanical arts
12. By compromise.
233 FAMILY LAW - II
The woman can alienate stridhan property to meet legal necessities only. They need not be actual
compulsion or necessity. It may be a kind of pressure which recognised by law.
KARTA
A senior most male member in a Hindu joint family is called ‘Karta’. ‘Karta’ is the head and manager
of the joint family. He plays a vital role. A women cannot became karta because she is not a coparcener.
When all sons are minor, then their mother can act as manager on behalf of Karta. The Karta’s position
is sui generis, which means ‘unique’. He is having some powers and is bound by some duties.
Powers :
1. Power to manage the family, its property and its business,
2. Power to enter in to contracts,
3. Power to discriminate between the members based on priority.
4. Power to refer the disputes to an arbitrator,
5. Power to repay debt and interest including time barred debt,
6. Power to contract debts,
7. Power to make gift.
Duties of Karta :
1. He must represent family
2. He must maintain all the members of the family
3. He must perform all the marriages of unmarried members.
4. He must prepare the accounts in case of partition.
5. He has to pay taxes and other dues on behalf of the family.
PARTITION
Partition means division. It puts an end to the joint interest. The share is proportionate to the
member of coparceners in the Hindu Joint family. Every coparcener including minor has right to partition
and entitled for a share in the joint family property. Females have no right to partition, however,
fathers wife, mother and grandmother have a right to claim a share. There may be partial partition as to
the property or persons. Partition is purely voluntary and may be partial too. Generally, the entire joint
family property of any kind may be divided but the separate property of the coparceners is not subject
of partition. A coparcener cannot donate his share to others without the consent of other coparceners.
However, he may renounce his share and make a gift in favour of other coparceners. An equal share
should be reserved for the child in the womb. Adopted son has equal right to share in the joint family
property where there is no natural born son to the adopter. If a son subsequently born to the adopter he
is not entitled to the same right to partition and the same share. Various schools allow different shares
to an adopted son as below.
1. In Bengal, 1/3rd of the estate,
2. In Benaras 1/4th of the estate,
3. In Bombay, Madras 1/5th of the estate.
Generally an illegitimate son is not entitled to partition to get his share but he is entitled only to
maintenance. After the enactment of the Hindu Succession Act, 1956, an illegitimate son cannot succeed
to his property.
Mode of Partition
a) Partition by suit
b) Partition by agreement
c) Oral Partition
d) Unilateral declaration
e) Partition by arbitration
234 FAMILY LAW - II
f) Partition by conduct
g) Automatic severance.
Any two or more members of joint family may reunite with an intention to have a common property.
Soon after reunion the status quo ante is fully restored.
Antecedent Debt
Antecedent Debt means preceding loan. The son has a pious obligation to repay his father’s debt.
The object behind the paying of antecedent debt is to protect the interest of the creditor or third person.
Pious Obligation
It means the moral or religious duty of sons to repay their father’s non - avyavaharika debts.
Their liability is limited only to joint family property. Under old law, the sons are personally liable even
for avyavaharika debts and their self - acquired property was liable. Hence the following debts are not
binding on the son
(i) Time - barred debts
(ii) Surety ship debts
(iii) Gaming debts
(iv) Avyavaharika debts.
Avyavaharika means illegal or immoral. Debt taken for illegal or immoral purpose is called
‘avyavaharika debt’.
Examples of avyavaharika debts:
(i) Illegal Debts
(a) Debts for smuggling
(b) Debts for committing a crime
(c) Debts for gambling
(d) Debts for drinking spirituous liquor.
(e) Debts for fines and tolls.
(f) Debts for wagering contracts.
(ii) Immoral debts
(a) Debts for prostitution
(b) Debts for keeping a concubine
(c) Debts for marriage of concubine’s daughter,
(d) Debts for bribing a Hindu woman to take his son in adoption
(e) Debts for gratifying his lust.
In Amritlal v. Jayantilal, AIR 1960 SC 964,
The father executed a mortgage in the course of speculation and incurred debt. Actually there was
no benefit or necessity to the estate. The court held that it was avyavaharika debt.
GENERAL RULES OF SUCCESSION
Legally succession means a chain of persons who have a right to take property. The Hindu
Succession Act, 1956 governs the rules relating to succession. The law of succession is classified into
two categories. They are
1. Testamentary Succession
2. Intestate Succession
1. Testamentary Succession
The testator is free to transfer his property by writing a will. A person who made the will is called
testator. He can determine a scheme of distribution of his property after his death. Therefore the
succession made by the testator by way of will is called testamentary succession.
235 FAMILY LAW - II
S.Sundaresa Pai v. Sumangala. T. Pai, 2002 AIR SC 317.
The court held that uneven distribution of property cannot make the will invalid.
Intestate Succession
Intestate means a person dying without making a will succession of property in the absence of will
is called intestate succession. Intestate succession is based on the law of inheritance. It prescribes the
rules relating to the distribution of property on the basis of relationship.
(i) Descendants
(ii) Ascendants
(iii) Collaterals
(iv) Agnates
(v) Cognates
(vi) Full Blood
(vii) Half Blood
(viii) Uterine Blood
The Hindu Succession Act, 1956 provides five categories of heirs of a hindu male.
Among them Class - I heirs are called ‘preferential heirs’. They are also known as ‘simultaneous
heirs’. The property of a male hindu dying intestate shall devolve as mentioned below::
Class - I
(S) - Predeceased
Class - II Heirs
Entry - I
Father
Entry - II
1. Son’s Daughter’s Son
2. Son’s Daughter’s Daughter
3. Brother
4. Sister
Entry - III
1. Daughter’s Son’s Son
2. Daughter’s Son’s Daughter
3. Daughter’s Daughter’ s Son
4. Daughter’s Daughter’s Daughter
236 FAMILY LAW - II
Entry - IV
1. Brother’s Son
2. Brother’s Daughter
3. Sister’s Son
4. Sister’s Daughter
Entry - V
1. Father’s Father
2. Father’s Mother
Entry - VI
1. Father’s Widow (step mother)
2. Brother’s Widow
Entry - VII
1. Father’s brother
2. Father’s Sister
Entry - VIII
1. Mother’s Father
2. Mother’s Mother
Entry - IX
1. Mother’s Brother
2. Mother’s Sister
General Rules of Succession in the case of males. ( Sec. 8 )
According to Section 8, the property of a male hindu dying intestate shall devolve as below.
a) Firstly, upon the heirs, being the relatives specified in Class - I of the schedule.
b) Secondly, if there is no heir of Class - I, then upon the heirs, being the relatives specified in
Class - II of the schedule.
c) Thirdly, if there is no heir.
General rules of succession to the property of females.
According to Section 14, any property possessed by a female Hindu whether acquired before or
after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
According to Section 15, the property of a Hindu female is categorized under the following heads.
1. The property inherited by a female from her father or mother,
2. The property inherited by a female from her husband or father - in - law.
3. The property obtained from any other source, by inheritance or otherwise.
According to Section 15 (1), the property of a Hindu female dying intestate shall devolve as per the
rules set out in section 16 of the Act. They are
a) Firstly, upon the sons and daughters, children of predeceased son or daughter, husband.
b) Secondly, upon the heirs of the husband,
c) Thirdly, upon the mother and father,
d) Fourthly, upon the heirs of the father and
e) Lastly, upon the heirs of the mother.
According to Section 16, the property of a Hindu female dying intestate shall devolve as per the
following rules. They are.
Rule 1 : According to this rule, the order of priority among the five groups of heirs mentioned in
section 15 (1) and its clauses (a) to (e). Heirs belonging to same group take simultaneously. This rule
however does not speak about the quantum of shares to be taken by any group.
237 FAMILY LAW - II
Rule 2 : According to this rule, where children and eligible grand children co exist the distribution
of property will be per stripes and not per capita.
Rule 3 : According to this rule, a legal fiction whereby property actually belonging to one deceased
person is presumed to be that of another deceased person who died earlier.
Dwelling House
Dwelling house means the house which is wholly occupied by the members of the family of intestate.
Dwelling house is included in property of a Hindu dying intestate and the intestate leaves behind both
male and female heirs (specified in Class - I of the schedule) who occupy the dwelling house any such
female heir cannot claim partition of the dwelling house unless and until the male heir choose to divide
their respective shares therein, but the female heir shall be entitled to a right of residence therein. In case
of a daughter even this right is restricted to such of the female heirs are unmarried or are widows have
been deserted by or separated from the husband.
Disqualifications
Section 24 to 28 deals with the disqualifications to inherit the property under Hindu Law. They are,
Sec. 24 - Certain widows remarrying may not inherit as widows.
Sec. 25 - A person who commits murder or abets the commission of murder shall be disqualified
from inheriting the property of the person murdered or any other property of the person murdered or any
other property in furtherance of the succession to which he or she committed or abetted the commission
of the murder.
Sec. 26 - A Hindu who has ceased or ceases to be a Hindu by conversion to another religion,
children born to him or her after such conversion and their descendants shall be disqualified from
inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at
the time when the succession opens.
Sec. 27 - If any person is disqualified from inheriting any property under this Act, it shall devolves
as if such person had died before the intestate.
Sec. 28 - No person shall be disqualified from succeeding to any property on the ground of any
disease, defect or deformity or save as provided in the Act, or any other ground whatsoever.
Escheat
Escheat means aversion to the state in the absence of the legal heirs. According to section 29, if
an intestate has left no heir qualified to succeed to his or her property shall devolve on the Government.
MUSLIM LAW
HIBA
The meaning of Hiba is gift. Hiba is a transfer of property made immediately without any exchange
by one person to another and accepted by or on behalf of the later.
Donor : The maker or founder of the gift.
Donee : One who receives the property or gift or he is beneficiary.
Gift to unborn person
The gift made to unborn person or not in existence, the that gift is not valid not yet in
existence.
How gifts are made : Offer and acceptance
1. Declaration of gift by the donors
2. Acceptance of gift by the done
3. Delivery of possession immediately
4. Registration (if the property is immovable then registration is compulsory)
Kinds of Gift
1. Conditional Gift
238 FAMILY LAW - II
2. Future Gift
3. Contingent Gift
Conditional Gift
X is the donor gives the immovable property Y is done he gave conditions to enjoy the property
during his life time, but no right to mortgage or lease or to sell this. This gift is totally invalid.
Future Gift
X donor gave agriculture property to Y donee. Its act of god. Its invalid.
Contingent Gift
May or may not happen. On the happening of the specified event.
Illustration
My mansion is thy raq ba. My manson is for you as a gift.
i. If I die it’s yours
ii. If you die it’s mine.
If the gift is like this then it’s invalid.
Exceptions
Delivery of possession immediately is not necessary
i. Guardian ( in case of minor )
ii. Where the donor and donee resides in the same house.
MUSHAA
Meaning of Mushaa is undivided share. Schedule of property is not mentioned. Classification of
Hiba or Classification of Gift
1. Sadaqa
2. Hiba - bil - iwaz
3. Hiba - ba - sharat - ul - iwaz
4. Areeat.
1. Sadaqa
Meaning of sadaqa is pious or charitable ( purposes ) Act.
A gives B Rs. 10,000 for purchasing books is called sadaqa.
Hiba is secular one. But this sadaqa is only for religious purposes.
2. Hiba - bil - iwaz
Hiba is a gift by donor to donee, iwaz - return gift by donee to donor. Hiba - bil - iwaz means gift with
return gift. Gift need not be exact price. It may be small amount. So, it is not a sale.
3. Hiba - ba - sharat - ul - iwaz
Hiba - ba - sharat - ul - iwaz means gift with stipulation ( compelling ), covenant or contract.
4. Areeat
Areeat means temporary licence to enjoy the profit. This is revocable at any time without any
payment.
WAKF
Wakf means detention or stoppage. A is a muslim having some property, suppose A dies the
property goes to son, grandson, great grandson and their legal heirs, without an extinction of family it is
given to the poor people.
Immediately dedicated to God that is to poor, orphans, widows. Wakif, the maker of the wakf owner
of the property.
Registration: Immovable property worth more than Rs. 100, then registration then its known as
‘wakfnama’. The transfer must be between two living persons (i.e. intervivos). There is no unending
period. Wakif has no right to cancel or to modify or revoke the wakf.
239 FAMILY LAW - II
Illegal Wakf
To delay or defeat creditors. If the wakif is having debt on his property. Musalman wakf validating
Act, 1913 explain this
Abdul Fata Mohammed v. Russomoy
Two muslim brothers makes wakf deed when there is total extinction of the family then only the
property goes to the people.
Privy council held that the deed “charity begins at home”. Muslims agitate this decision. If a Muslim
makes a wakf deed for his family that is a valid wakf. That wakf is called wakf - alal - aulad which means
family wakf.
MUTAWALLI
Manager or Superindent of the Wakf property. He is not the owner of the property. He is only the
servent of the God.
Powers
To protect and administer the Wakf property. He is not having power to sell, lease or mortgage the
Wakf property. Wakif himself may a mutawalli, a non- Muslim may also be appointed as mutawalli. Wakif
issues may also be called as mutawalli.
Remove of Mutawali
Once mutawalli is appointed, Wakif has no power to remove him from office. He may be removed
by court on the proof of misconduct. He has no power to transfer the office to another. He may appoint
agents.
Remuneration
Remuneration is fixed by the founder (i.e., discretion of the founder). Suppose he didn’t fix the court
will fix the amount not exceeding 1/10 th of the property.
Takia
Meaning of Takia is resting place or Tombor burial ground.
Kanka
Means religious institution founded by Holyman. He had some disciples.
Sajjadanashin
1. He is the head of the Kanka.
2. Divide the words in to two Sajjada and nashin. Sajjada means carpet used by Mohammedan
for prayer Nashin is sitting. Meaning is one who sits in prayer mat.
3. He is a religious teacher.
4. A female cannot be a Sajjadanashin.
5. The court may remove him for misconduct.
6. A minor cannot be Sajjadanashin.
Mujawar
Mujawar meant servant of Muslim mosque. Duty of Mujawar is sweeping the floor and keeping the
Dharga clean. A female may be a Mujawar.
Kazi
Meaning of Kazi is Judge. S.92 of C.P.C. defines what’s their work, powers, discretions and
procedures to be followed.
Wassiyat
Under Muslim law will is known as Wasiyat. A person who will is called testator. Will means strength
of mind. Tyabi defines will as legal declaration of the intention of a testator with respect to his property
which he desires to be carried after his death.
**********
250 FAMILY LAW - II
5. CLINICAL COURSE - I
PROFESSIONAL ETHICS & PROFESSIONAL ACCOUNTING
SYSTEM (INTERNAL)
Importance of Legal Profession
The Legal Profession plays a very important role in the administration of Justice. Lawyers assists
the court in arriving at a correct Judgement. Actually the law is very complicated. The language of acts
and regulations is often found very complicated and confusing and not easy to be understood. The
lawyers are not puppets compelled to obey the dictate of their clients. Where matters of good faith
and Honourable conduct are concerned. They are also responsible to the court for the fair and honest
conduct of a case, they are agents, not of man who plays them but are acting in the administration of
justice.
According to C. L. Anand has stated that ‘It has rightly been observed that a sound system of the
administration of justice should posses 3 ingredients, namely
i) A well planned body of laws based on wise concepts of social justice;
ii) A judicial hierarchy comprised of the Bench and Bar;
iii) The learned in the law and inspirited by high principles of professional conduct and
existence of suitable generation to ensure fair trial.
So the legal profession is a profession of great honour. It has been created not for private gain but
for public good: It is not money making occupation but a branch of Administration of Justice.
Legal Profession in Pre-British India
During the Hindu period the courts derived their authority from the king who was considered the
fountain head of justice. The King’s Court are superior to all other courts. The king was advised by his
councillors in hearing and deciding the case but he was not bound by their advise.
There is no mention in the Kautilya’s Arthasastra about the existence of legal profession and
therefore most probably such a class did not exist. But according to Justice Ashutosh Mukherjee legal
profession was in existence during the Hindu period.
During the Muslim period the litigants were represented by a body of persons known as Vakils The
court of the kings Administrations concerned determined who should be allowed to appear as Vakil in a
Zilla Court. During this period the legal profession was not an organised one. The Vakils acted more an
agent for principals then as lawyer:
Legal Profession during British period:
The East Indian Company was not interested in legal profession. And there was no uniform Judicial
system in the settlements of the East Indian Company.
First by a Charter of 1726 a uniform system in each Presidency Towns i.e., Bombay, Calcutta,
Chennai, created and Mayor Court was introduced. There was no specific regulation for the legal
practitioners and no provision for legal training. Many person having no knowledge of law were practising
law. After the Regulating Act 1773 and the Charter of 1774 there was much development of legal
profession.
The crown abolished the charter of 1774 and established Supreme court of Judicature at Calcutta
by issuing a charter and the mayor court were abolished.
As per clause II of the Charter of 1774, provided and contained as “We do further authorise and
empower the said Supreme Court of Judicature at Fort William in Bengal to approve, admit and enrol
such and so many Advocates and attorneys at law as to the said Supreme Court of judicature at Fort
William in Bengal seem meet, who shall be attorneys on record shall be and are hereby authorised to
251 CLINICAL COURSE - I
appear and act and plead and act for suitors of the said supreme Court of Judicature at Port Williams and
the said Advocates and Attorneys on reasonable ground to remove and no other persons whatsoever but
such Advocates and attorneys so admitted and enrolled shall be allowed to appear and plead or act in
the said Supreme Court, of Judicature of Fort Williams in Bengal for or on behalf of such suitors or any
of them.”
As per Clause II of Charter of 1774 it empowered Supreme Court to approve and cancel or remove
Advocates and attorneys at law on reasonable cause. They were authorised to appear and plead and
act for the suitors of the Supreme Court. This clause made it clear that no other person but advocates,
or attorneys so admitted arid enrolled could appeared plead or act in the Supreme Court.
The term ‘Advocate’ extended only to English and Irish Barristers and members of the faculty of
Advocates in Scotland and the term ‘Attorneys’ then meant only the British attorneys or solicitors. Thus
the Indian Legal Practitioners were not authorised to appear before the Supreme Court.
The company’s court are not organised one. In addition to company’s court Big Zamindars also had
courts exercising both civil and criminal jurisdiction.
Sadar Diwari Adalat to enroll pleaders for company courts.
Afterwards the Bengal Regulations XXVII of 1814 made provisions to organise legal profession
And Bengal regulation XII of 1833 was modified.
Soon after the legal practitioners Act 1846 was enacted this made certain provision that people of
any nationality or religion would be eligible to be pleaders and attorneys or Barristers enrolled in any of
her majesties courts in India would be eligible to plead in the company’s Sardar Adalat.
The Legal Practitioners Act 1853 authorised the Barrister and attorney of Supreme Court to plead
in the company court.
The most significant in the English period is the enactment of the Indian High Court Act 1861 . The
crown established High Court at each presidency towns.
The High Court of Judicature of Fort Williams in Bengal; was empowered to approve, admit and
enroll such advocates the High Court shall deem fit.
Legal Practitioners Act, 1879
In the year 1879 the legal practitioner Act was passed to consolidate and amended the law relating
to the legal practitioners it empowered an advocate or Vakil on the role of any High Court or pleader of
the Chief Court of Punjab to practice in all the courts subordinate to the court on the role of which he was
entered.
Under the legal practitioners Act 1879 the term legal practitioner has been taken to mean Advocates
Vakil or Attorney of High Court and pleader. This act was passed to I consolidate and amend the law
relating to legal practitioners, Advocates or Vakil on the role of the High Court can practise through India.
Section 13 of the Act empowered the High Court to suspend or dismiss pleader or Mukhtar guilty
of unprofessional conduct.
Section 5 - Deals with persons in the roll can practise.
Section 6 - Deals with suspensions dismissal of pleader or Mukthars.
Section 7 - Made provisions in respect of issuance of certificate
Section 13 - Dealt with powering of High Court reporting suspension of members.
Indian Bar Committees, 1923
In the year 1923 Under the Chairmanship of Sir Edward Chamier a Committee called dian Bar
Committee was constituted. The committee was to consider the issue as to organization of the Bar on all
India basis and establishment of an all India Bar Counsel for the High Court - The committee suggested
that in all High Courts a single grade of practitioners should be established and they should be called
Advocates.
252 CLINICAL COURSE - I
It recommended Bar counsel to be constituted at all High Court. The High Court got power to take
disciplinary action against the Advocates for misconduct. It got powers to refer to the Bar Council before
to enquire and report. Every Bar Council consisted of 15 members. This system was present in all High
Courts.
• 10 members elected from among advocates
• 4 members nominated by High Court
• 1 member was Advocate General
Indian Bar Council Act, 1926
In the year 1926 the Indian Bar Council Act was enacted to give effect to the some of the
recommendations of the Indian Bar Committee. The main object was to provide for the constitution an in
corporation of Bar Counsel for certain courts.
1) To confer powers and impose duties as such court.
2) To amend the law relating to the legal practitioners of such courts.
The distinction between Advocates and Barrister, abolished under Section 10. The High Court got
power to reprimand, suspend or remove from practice of advocate for guilty of professional misconduct
and other misconduct based on complaint.
Legal Profession after Independence
In the year 1951 , All India Bar Committee appointed by Chairmanship of Justice S. R. Das. It
recommended to establish All India Bar Council and Branch in the each state, powers and vested with
Bar council for enrolment, suspension removed and the previous powers conferred on High Court is
removed.
A common roll to practice allover India.
Then Advocate Act in the year 1961 was enacted.
Advocates’ Act, 1961
Admission and Enrolment:
Section 16 to 12 deals with regarding qualification for admission and enrolment before the Bar
Council an Advocate.
Two Clauses (1) Senior Advocates and (2) Other advocates.
Senior Advocate:
1. Designated by virtue of his ability standing at the Bar or Special knowledge or experience
in law or he is deserving such distinction. The senior Advocates restriction deals in the Bar
Council of India and Chapter-I Part (VI) Under Section 49 (1) of Advocate Act.
2. Shall not appear without an advocate on record in Supreme Court or without an advocate.
Shall not accept any brief directly.
3. Shall not accept instructions to draft pleadings or affidavits, advises evidence or to do any
drafting work of an analogous in any court. Junior other Advocate pay him to fee which he
consider a reasonable one.
Eligibility for Admission on State Rules
1) Citizen of India or other Country permitted to practice:
2) 21 years age or above
3) Obtained a law decree
Sudeer-v. - Bar Council of India in this case AIR 1999 SC 1167.
Supreme Court held the Bar Council of India Rule providing for pre enrolment training and
apprenticeship is ultra-vires as per the rule making power of the Bar Council of India [.available fact
under the Advocate Act.
253 CLINICAL COURSE - I
Haniraj L. Chulani v. Bar Council of Maharastra and Goa. The Supreme Court in this case held that
a person carrying on another profession not allowed to practice or enrol as advocate i.e., Doctor is not
violative of Article 21,14,19,18 of the Constitution of Law of India.
Indian council legal aid and advice v. BCI Supreme Court held (AIR 1995 Section 1691) the rule
departing person who have completed the age of 45 years is beyond the rule making power of Bar
Council of India.
Disqualification of Enrolment
Section 24-A Advocates Act that no person shall be admitted as Advocate.
1. If he is convicted of an offence involving moral
2. If he is convicted of an offence under the provision of the untouchability offence (Act 1958).
But after 2 years is elapsed since his release.
Section 30 Deals with right to practice through the termitary to which the advocates act extends all
courts including supreme court tribunal.
But this section have not been brought into effect by the Central Government. Hence the advocate
continue to be debated from appearing in many tribunals such as Industrial Tribunal, Family court etc.
Important Powers of Bar Council and Functions of Bar Council
1. To admit person an advocates on its rolls.
2. Preparation and maintenance of such rolls.
3. To entertain and determine cases of misconduct against advocates.
4. To promote, safeguard, privileges of advocates.
5. To promise and support law reforms supervision and counsel of other state bar.
6. To promote legal education:
7. To lay down standards of legal education.
8. To recognise degrees for enrolment.
Professional Ethics
1. Section 49 (1 ) (c) of the Advocates Act, 1961 empowers the Bar Counsel of India.
Duty to the Court
1. Advocate is required to conduct himself with dignity and self respect. Not to complaint
against judicial officer of grievances to be make complaint to the proper authorities.
2. To maintain respect to court and dignity of the judicial officer.
3. Not to influence the decision of the court by any illegal or improper means.
4. Prohibit private communication with Presiding Officer / Judge.
5. Not to encourage client unfair practice or from doing any thing in relation to the court.
6. To appear in the prescribed dress and his appearance shall always be presentable.
7. An advocate shall not either appearance in any way before a Court Trial if the role of any
member there of in related to advocate.
8. Not to wear bonds or grown in public places other then in court.
9. Not to appear if he got any receiving interest or he is a exercise a member on
director of a company or corporations.
254 CLINICAL COURSE - I
Duty
Rule 11 to 33 deals duties of advocate to his client.
1. An Advocate is bound to accept any brief in special circumstances he may refuse to accept
a particular brief. S. J. Chaudry v. State (AI R 1996 SC 98) Supreme Court held that if
an advocates accepts the brief of a case attend day to day and if he fails and he does
not do so, he will be held liable for breach of professional duty. Shall not withdraw from
engagement.
2. If he does, notice to be given to the client and he is bound to refund such part of fee as has
not been spent.
3. If situation warrants in before in future if he happens to be witness he should not accept
the brief.
4. To make help and frank disclosure to his client relating to his conviction with the parties
any controversies likely to arise at the time of taking brief.
5. To uphold the interest of his client.
6. If a advocate appear for prosecution he should not conduct the case lead to conviction of
the innocent.
7. Advocate shall not commit directly or indirectly a breach of the obligation imposed by
Section 126 of Evidence Act professional communication.
8. Not to be a party to fermenting of litigation.
9. Only act on the instruction of client and not others.
10. The fee of an advocate depending upon the success of the suit is considered as opposed
to the public policy. Also not consistent fee or percentage of the benefit and will be arrived
by client.
11. Shall not buy or traffic in a stipulate for or agree to receive share or instruct in any actionable
claims
12. Not to bid or purchase any property he was professionally engaged.
13. To keep proper account for the money entrusted to him.
14. Any amount is received on behalf of client that should be given to him.
15. On demand from client a copy of the account to be furnished.
16. Rule 32 prohibits an advocate to lend money to his client for the purpose of any legal
proceedings or actions.
In V.C. Rangadurai V.D. Gopalan Supreme Court observed that the ratio between the advocate
and his client is purely personal involving highest personal trust and confidence. P.O. Gupta v. Ram
Murti (AIR 1998 SC 283)
An advocate purchased a property at a very low price from his client which is a subject matter of
litigation and sold the same to third person and made profit. He was held of professional misconduct.
Harish Chand Singh v. Tripathi a Senior Advocate appointed his own junior as Mukhtar of complaint
in consolidation case. He misguided his junior and tried to dispose of the property in favour of his own
father. Senior Advocate held guilty of professional misconduct.