30 Common Law Principles Ruling The Litigation Front in India

4/6/2020 30 Common Law Principles Ruling The Litigation Front In India
LOGIN SUBSCRIBE
Contact Us
TOP STORIES NEWS UPDATES COLUMNS INTERVIEWS FOREIGN/INTERNATIONAL
ENVIRONMENT RTI KNOW THE LAW VIDEOS 
LAW SCHOOL CORNER JOB UPDATES BOOK REVIEWS EVENTS CORNER LAWYERS & LAW
FIRMS CARTOONS लाइव लॉ हंद

Home / Columns / 30 Common Law...
COLUMNS
30 Common Law Principles Ruling The

Litigation Front In India
Shivam Goel 6 April 2020 9:55 AM
!efaS yatS
Ad
Advocate
ADVOCATE-ARUN KUMAR Open
https://www.livelaw.in/columns/30-common-law-principles-ruling-the-litigation-frony-in-india-154836 1/37
150
Facebook Twitter WhatsApp Telegram LinkedIn
More
SHARES
"The law should not be seen to sit by limply, while those who defy it go free, and those
who seek its protection lose hope."
Jennison V/s Baker, (1972) 1 All ER 997
Principle 1: "Where a right or liability is created by a statute which gives a special remedy
for enforcing it, the remedy provided by the statute only must be availed of."
In the matter of: Wolverhampton New Waterworks Co. V/s Hawkesford, (1859) 6 CB (NS)
!efaS yatS
336, Willes, J., observed that:
Also Read - Advocacy- The Mantra Of Success: Justice N. Anand Venkatesh
"… There are three classes of cases in which a liability may be established founded upon
a statute. One is, where there was a liability existing at common law, and that liability is
a rmed by a statute which gives a special and peculiar form of remedy different from
the remedy which existed at common law: there, unless the statute contains words which
expressly or by necessary implication exclude the common law remedy, and the party
suing has his election to pursue either that or the statutory remedy. The second class of
cases is, where the statute gives the right to sue merely, but provides no particular form
of remedy: there, the party can only proceed by action at common law.
Also Read - The Micro, Small And Medium Enterprises Development Act, 2006 - A
Subject Of Increasing Misuse
But there is a third class, viz. where a liability not existing at common law is created by a
statute which at the same time gives a special and particular remedy for enforcing it. The
!efaS yatS
present case falls within this latter class, if any liability at all exists. The remedy provided
by the statute must be followed, and it is not competent to the party to pursue the course
applicable to cases of the second class. The form given by the statute must be adopted
and adhered to."
Principle 2: "Many a time, what seems to be an open and shut case, upon hearing the
accused persuades the decision maker to reach a different conclusion."
In the matter of: John V/s Rees, (1969) 2 All ER 274, Megarry, J., observed that:
"… It may be that there are some who would decry the importance which the courts
attach to the observance of the rules of natural justice. 'When something is obvious,' they
may say, 'why force everybody to go through the tiresome waste of time involved in
framing charges and giving an opportunity to be heard? The result is obvious from the
start.' Those who take this view do not, I think, do themselves justice. As everybody who
has anything to do with the law well knows, the path of the law is strewn with examples
of open and shut cases which, somehow, were of unanswerable charges which, in the
end, were completely answered; of inexplicable conduct which was fully explained; of
xed and unalterable determinations that, by discussion, suffered a change. Nor are
those with any knowledge of human nature who pause to think for a moment likely to
underestimate the feelings of resentment of those who nd that a decision against them
has been made without their being afforded any opportunity to in uence the course of
events."
Principle 3: "If there is a con ict between the earlier clause and the later clauses of a
deed and it is not possible to give effect to all of them, then the rule of construction is
well established that it is the earlier clause that must override the later clauses of the
deed and not vice versa."
!efaS yatS
In the matter of: Forbes V/s Git, [1922] 1 AC 256, Lord Wrenbury, observed that:
"… If in a deed an earlier clause is followed by a later clause which destroys altogether
the obligation created by the earlier clause, the later clause is to be rejected as repugnant
and the earlier clause prevails. In this case the two clauses cannot be reconciled and the
earlier provision in the deed prevails over the later."
Principle 4: "A taxing statute is to be strictly construed."
In the matter of: Cape Brandy Syndicate V/s Commissioners of Inland Revenue, [1921] 1
K.B. 64 [71], Rowlatt, J. observed that:
1. In a taxing Act one has to look merely at what is clearly said. There is no room for
any intendment. There is no equity about a tax.
2. There is no presumption as to a tax. Nothing is to be read in, nothing is to be
implied. One can only look fairly at the language used.
Principle 5: "When a statute provides a particular thing to be done in a particular manner
then it is mandatory to do the same in the manner provided and not otherwise."
In the matter of: Taylor V/s Taylor, (1875) LR 1 Ch D 426, and in the matter of: Nazir
Ahmad V/s King Emperor, AIR 1936 Privy Council 253, it was held that:
If a statute has conferred a power to do an act and has laid down the method in which
the power is to be exercised, the statute necessarily prohibits doing so in any manner
other than the one prescribed.
Principle 6: "There are degrees of proof within the standard of proof."
There is a strong and marked difference as to the effect of evidence in civil and criminal
!efaS yatS
proceedings. In the former a mere preponderance of probability, due regard being had to
the burden of proof, is a su cient basis of decision: but in the latter, especially when the
offence charged amounts to treason or felony, a much higher degree of assurance is
required.
In the matter of: Bater V/s Bater, [1950] 2 All ER 458 [459], it was observed that:
"… It is true that by our law there is a higher standard of proof in criminal cases than in
civil cases, but this is subject to the quali cation that there is no absolute standard in
either case. In criminal cases the charge must be proved beyond reasonable doubt, but
there may be degrees of proof within that standard. So also in civil cases there may be
degrees of probability."
Similarly, in the matter of: Hornal V/s Neuberger Products Ltd., [1956] 3 All ER 970 [977],
it was observed that:
"… Just as in civil cases the balance of probability may be more readily tted in one case
than in another, so in criminal cases proof beyond reasonable doubt may more readily be
attained in some cases than in others."
Lastly, in the matter of: Hawkins V/s Povells Tillary Coal Co. Ltd., (1911) 1 K.B. 988, it
was held that, proof does not mean proof of rigid mathematical demonstration (absolute
certainty or accuracy of statements), because that is impossible; it must mean such
evidence (such degree of probability) as would induce a reasonable man to come to a
just conclusion in the matter. In the matter of Hawkins (Supra) it was observed that:
"… Proof does not mean proof to rigid mathematical demonstration, because that is
impossible; it must mean such evidence as would induce a reasonable man to come to a
particular conclusion."
!efaS yatS
Principle 7: "A party cannot approbate and reprobate at the same time."
In the matter of: Dexters Ltd. V/s Hill Crest Oil Co., (1926) 1 KB 348 (358), Scrutton L.J.
observed that:
"… So in my opinion, you cannot take the bene t of a judgment as being good and then
appeal against it as being bad… It startles me to hear it argued that a person can say the
judgment is wrong and at the same time accept payment under the judgment as being
right…"
Principle 8: "Unless they reveal a contrary intention all statutes are to be interpreted as
'always speaking statutes'."
In the matter of: Comdel Commodities Ltd. V/s Siporex Trade S.A., [1990] 2 All ER 552
[HL], Lord Bridge observed that:
"… When a change in social conditions produces a novel situation, which was not in
contemplation at the time when a statute was rst enacted, there can be no a priori
assumption that the enactment does not apply to the new circumstances. If the
language of the enactment is wide enough to extend to those circumstances, there is no
reason why it should not apply…"
In the matter of: McCartan Turkington Breen (A Firm) V/s Times Newspapers Ltd.,
[2000] All ER 913, it was observed that:
"… Unless they reveal a contrary intention all statutes are to be interpreted as "always
speaking statutes". This principle was stated and explained in R v. Ireland, R v. Burstow
[1997] 4 All ER 225 at 233, [1998] AC 147 at 158. There are at least two strands covered
by this principle. The rst is that courts must interpret and apply a statute to the world as
!efaS yatS
it exists today. That is the basis of the decision in R v. Ireland where 'bodily harm' in a
Victorian statute was held to cover psychiatric injury. Equally important is the second
strand, namely that the statute must be interpreted in the light of the legal system as it
exists today…"
Principle 9: "Evidence Obtained by Undesirable Methods- Whether Admissible? The test
to be applied in considering whether evidence is admissible is whether it is relevant to

the matter in issue. If it is, it is admissible and the court is not concerned with how it was
obtained."
In the matter of: R V/s Sang, [1979] 2 All ER 1222, it was observed that, the House of
Lords would sanction the exclusion of such evidence only where the accused had been
lured into incriminating himself by deception after the commission of an offence.
Similarly, in the matter of: R V/s Christou, [1992] 4 All ER 559, the police operated for
about 3 months by establishing a shop of jewellers and putting up the shady image of
being interested in buying 'stolen property'. The object was to recover stolen goods and
to obtain evidence against those involved in theft and handling. All the transactions in the
shop were lmed and conversations recorded. The evidence so collected was admitted
at the trial. The court reasoned, "the trick was not applied to the appellants [accused
persons]: they voluntarily applied themselves to the trick. It is not every trick producing
evidence against an accused which results in unfairness".
Principle 10: "How the word "include or includes" used in the interpretation clauses of a
statute is to be read and interpreted?"
In the matter of: Dilworth V/s Commissioner of Stamps, (1899) AC 99, Lord Watson
made the following classic statement:

!efaS yatS
"… The word "include" is very generally used in interpretation clauses in order to enlarge
the meaning of words or phrases occurring in the body of the statute; and when it is so
used these words or phrases must be construed as comprehending, not only such things
as they signify according to their natural import, but also those things which the
interpretation clause declares that they shall include. But the word "include" is
susceptible of another construction, which may become imperative, if the context of the
Act is su cient to show that it was not merely employed for the purpose of adding to the
natural signi cance of the words or expressions de ned. It may be equivalent to "mean
and include", and in that case it may afford an exhaustive explanation of the meaning
which, for the purposes of the Act, must invariably be attached to these words or
expressions…"
Principle 11: "Mischief Rule of Interpretation of Statutes"
The literal construction should not obsess the Court because it has only prima facie
preference, the real object of interpretation of statutes is to nd out the true intent of the
law maker and that can be done only be reading the statute as an organic whole, with
each part throwing light on the other.
In the Heydon's Case, (1584) 76 ER 637, Lord Coke observed that four (4) things are
required to be discerned and considered before arriving at the real statutory meaning of a
provision in a statute /legislation:
What was the law before the statute or legislation was passed?
What was the defect/ mischief for which the statute/ legislation had not provided?
What remedy the legislature has appointed?
The reason of the remedy?
Principle 12: "Golden Rule of Interpretation"

!efaS yatS
In the matter of: Grey V/s Pearson, (1857) LR 6 HL Cas 61, substantiating on the Golden
Rule of Literal Interpretation, it was observed that:
"… I have been long and deeply impressed with the wisdom of the rule, now, I believe,
universally adopted, at least in the Courts of Law in Westminster Hall, that in construing
wills and indeed statutes, and all written instruments, the grammatical and ordinary
sense of the words is to be adhered to, unless that would lead to some absurdity, or
some repugnance or inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modi ed, so as to avoid that
absurdity and inconsistency, but no farther. This is laid down by Mr. Justice Burton, in a
very excellent opinion, which is to be found in Warburton V/s Loveland [Warburton V/s
Loveland, (1831) 2 Dow & Cl 480: 6 ER 806]…"
Principle 13: "Doctrine of Adverse Possession"
In the matter of: Perry V/s Clissold, 1907 AC 73 (PC), it was held that:
"… It cannot be disputed that a person in possession of land in the assumed character of
owner and exercising peaceably the ordinary rights of ownership has a perfectly good
title against all the world but the rightful owner. And if the rightful owner does not come
forward and assert his title by the process of law within the period prescribed by the
provisions of the Statute of Limitations applicable to the case, his right is forever
extinguished, and the possessory owner acquires an absolute title…"
Principle 14: "Lochner Doctrine stands buried: Judicial hands-off qua economic
legislation"
In the matter of: Ferguson V/s Skrupa, 372 U.S. 726 (1962), the Hon'ble Supreme Court
of United States observed that:

!efaS yatS
"… Both the District Court in the present case and the Pennsylvania court in Stone
adopted the philosophy of Adams V/s Tanner, and cases like it, that it is the province of
courts to draw on their own views as to the morality, legitimacy, and usefulness of a
particular business in order to decide whether a statute bears too heavily upon that
business and, by so doing, violates due process. Under the system of government
created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom
and utility of legislation. There was a time when Due Process Clause was used by this
Court to strike down laws which were thought unreasonable, that is, unwise or
incompatible with some particular economic or social philosophy. In this manner, the
Due Process Clause was used, for example, to nullify laws prescribing maximum hours
for work in bakeries, Lochner V/s New York, 198 U.S. 45 (1905), outlawing "yellow dog"
contracts, Coppage V/s Kansas, 236 U.S. 1 (1915), setting minimum wages for women,
Adkins V/s Children's Hospital, 261 U.S. 525 (1923), and xing the weight of loaves of
bread, Jay Burns Baking Co. V/s Bryan, 264 U.S. 504 (1924). The intrusion by the judiciary
into the realm of legislative value judgments was strongly objected to at the time,
particularly by Mr. Justice Holmes and Mr. Justice Brandeis. Dissenting from the Court's
invalidating a State statute which regulated the resale price of theatre and other tickets,
Mr. Justice Holmes said,
"I think the proper course is to recognize that a State Legislature can do whatever it sees
t to do unless it is restrained by some express prohibition in the Constitution of the
United States or of the State, and that Courts should be careful not to extend such
prohibitions beyond their obvious meaning by reading into them conceptions of public
policy that the particular Court may happen to entertain."
And, in an earlier case, he had emphasized that, 'The criterion of constitutionality is not
whether we believe the law to be for public good' [Adkins V/s Children's Hospital, 261
!efaS yatS
U.S. 525, 567, 570 (1923) (dissenting opinion)].
The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases- that due
process authorizes courts to hold laws unconstitutional when they believe the legislature
has acted unwisely- has long since been discarded. We have returned to the original
constitutional proposition that courts do not substitute their social and economic beliefs
for the judgment of legislative bodies, who are elected to pass laws. As this Court stated
in a unanimous opinion in 1941, "We are not concerned… with the wisdom, need, or
appropriateness of the legislation. [Olsen V/s Nebraska ex. rel. Western Reference &
Bond Assn., 313 U.S. 236, 246 (1941)]".
Legislative bodies have broad scope to experiment with economic problems, and this
Court does not sit to, "subject the State to an intolerable supervision hostile to the basic
principles of our government and wholly beyond the protection which the general clause
of the Fourteenth Amendment was intended to secure" [Sproles V/s Binford, 286 U.S.
374, 388 (1932)]. It is now settled that States "have power to legislate against what are
found to be injurious practices in their internal commercial and business affairs, so long
as their laws do not run afoul of some speci c federal constitutional prohibition, or of
some valid federal law" [Lincoln Federal Labor Union, etc. V/s Northwestern Iron & Metal
Co., 335 U.S. 525, 536 (1949)].
In the face of our abandonment of the use of the "vague contours" [Adkins V/s Children's
Hospital, 261 U.S. 525, 535 (1923)] of the Due Process Clause to nullify laws which a
majority of the Court believed to be economically unwise, reliance on Adams V/s Tanner
is as mistaken as would be adherence to Adkins V/s Children's Hospital, overruled by
West Coast Hotel Co. V/s Parrish, 300 U.S. 379 (1937). Not only has the philosophy of
Adams been abandoned, but also this Court, almost 15 years ago, expressly pointed to
another opinion of this Court as having "clearly undermined" Adams. [Lincoln Federal
!efaS yatS
Labor Union, etc. V/s Northwestern Iron & Metal Co., 335 U.S. 525 (1949)]. We conclude
that the Kansas Legislature was free to decide for itself that legislation was needed to
deal with the business of debt adjusting. Unquestionably, there are arguments showing
that the business of debt adjusting has social utility, but such arguments are properly
addressed to the legislature, not to us. We refuse to sit as a "super-legislature to weigh
the wisdom of legislation" [Day-Brite Lighting, Inc. V/s Missouri, 342 U.S. 421, 423 (1923)]
and we emphatically refuse to go back to the time when courts used the Due Process
Clause "to strike down state laws, regulatory of business and industrial conditions,
because they may be unwise, improvident, or out of harmony with a particular school of
thought" [Williamson V/s Lee Optical Co., 348 U.S. 483, 488 (1955)]. Nor are we able or
willing to draw lines by calling a law "prohibitory" or "regulatory". Whether the legislature
takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no
concern of ours. The Kansas debt adjusting statute may be wise or unwise. But relief, if
any be needed, lies not with us, but with the body constituted to pass laws for the State
of Kansas.
Nor is the statute's exception of lawyers a denial of equal protection of the laws to non-
lawyers. Statutes create many classi cations which do not deny equal protection; it is
only "invidious discrimination" which offends the Constitution. The business of debt
adjusting gives rise to a relationship of trust in which the debt adjuster will, in a situation
of insolvency, be marshalling assets in the manner of a proceeding in bankruptcy. The
debt adjuster's client may need advice as to the legality of the various claims against him
[,] remedies existing under State laws governing debtor-creditor relationships, or
provisions of the Bankruptcy Act- advice which a non-lawyer cannot lawfully give him. If
the State of Kansas wants to limit debt adjusting to lawyers, the Equal Protection Clause
does not forbid it. We also nd no merit in the contention that the Fourteenth
Amendment is violated by the failure of the Kansas statute's title to be as speci c as
!efaS yatS
appellee thinks it ought to be under the Kansas Constitution."
That the ratio in the matter of Ferguson (Supra) was a rmatively read into the Indian
jurisprudence by the Hon'ble Supreme Court of India in the matter of: Swiss Ribbons (P)
Ltd. & Anr. V/s Union of India & Ors, Writ Petition (C) No. 99/ 2018 (Date of Decision:
25.01.2019), while testing the constitutionality of the Insolvency & Bankruptcy Code,
2016.
Principle 15: "Quicquid plantatur solo, solo cedit: What is attached to or erected on the
land, becomes part of the land."
In the matter of: Green V/s Green, 90 U.S. (23 Wall.) 486, it was held that growing trees
are immovable property however 'standing timber' is not an immovable property. This is
because, in the case of growing trees they require further nourishment from the soil but
in the case of standing timber such wood can be cut at once for the use in house-
building or other such purposes.
Further, in the matter of: Holland V/s Hogdson, L.R. 7 C.P. 328, it was held that, the looms
xed to the oor of a mill by nails are to be treated as immovable property.
Moreover, in the matter of: Leigh V/s Taylor, 1902 AC 157, it was held that, certain
valuable capacities a xed by a tenant to the walls of a house for ornamental purposes
and for the better enjoyment of them as chattels, do not become part of the house, but
are part of the personal estate of the tenant for life.
It is important to note that the rule in Green (Supra) was applied with approval in the
matter of: Smt. Shanta Bai V/s State of Bombay, AIR 1958 SC 532, by the Hon'ble
Supreme Court of India.

!efaS yatS
Principle 16: "Contract to Assign and Doctrine of Relation Back"
In the matter of: Holroyd V/s Marshall, (1862) 10 HLC 191 (at pp. 210-11), Lord Westbury
observed that:
"… It is quite true that a deed which professes to convey property which is not in
existence at the time is as a conveyance void at law, simply because there is nothing to
convey. So, in equity a contract which engages to transfer property, which is not in
existence, cannot operate as an immediate alienation merely because there is nothing to
transfer.
But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of

which he is not possessed at the time, and he receives the consideration for the contract,
and afterwards becomes possessed of property answering the description in the
contract, there is no doubt that a Court of Equity would compel him to perform the
contract, and that the contract would, in equity, transfer the bene cial interest to the
mortgagee or purchaser immediately on the property being acquired. This, of course,
assumes that the supposed contract is one of that class of which a Court of Equity
would decree the speci c performance."
Similarly, in the matter of: Collyer V/s Isaacs, LR 19 Ch. D. 342 (at p. 351), Jessel, M.R.,
observed that:
"… A man can contract to assign property which is to come into existence in the future,
and when it has come into existence, equity, treating as done that which ought to be
done, fastens upon that property, and the contract to assign thus becomes a complete
assignment."
!efaS yatS
However, observations of Lord Cave in the matter of: Performing Right Society V/s
London Theatre of Varieties, LR (1924) AC 1, are pertinent and warrant notice especially
on the point that assignment has to be in terms of the mandate contained in the speci c
statute. In this case, in 1916 a rm of music publishers, being members of the plaintiff
Society, assigned by an indenture of assignment to the Society the performing right of
every song, the right of performance of which they then possessed or should thereafter
acquire, to be held by the Society for the period of the assignor's membership.
Subsequently, a certain song was written, and the copyright in it, together with the right
of performance, was assigned by the author to the said rm, but there was no fresh
assignment in writing by the rm to the plaintiff Society such as was required by Section
5 (2) of the Copyright Act, 1911. The defendants, who were music hall proprietors,
permitted this song to be publicly sung in their music hall without the consent of the
plaintiff Society. The plaintiff Society then sued the defendants for infringement of their
performing rights and claimed a perpetual injunction. The defence was that as there was
no assignment in writing of the copyright subsequently acquired by the rm to the
plaintiff Society, thus, the latter was not the legal owner and, therefore, was not entitled
to a perpetual injunction. Discussing the nature of the right acquired by the plaintiff
Society under the indenture of 1916 and its claim to the after-acquired copyright secured
by the rm and referring to Section 5 (2) of the Copyright Act, 1911, Viscount Cave, L.C.,
observed that:
"… There was on the respective dates of the instruments under which the appellants
claim no existing copyright in the songs in question, and therefore no owner of any such
right; and this being so, neither of those instruments can be held to have been an
assignment signed by the owner of the right within the meaning of the section. No doubt
when a person executes a document purporting to assign property to be afterwards
acquired by him, that property on its acquisition passes in equity to the assignee: Holroyd
!efaS yatS
V/s Marshall, 10 HLC 191; Tailby V/s O cial Receiver, 13 AC 523; but how such a
subsequent acquisition can be held to relate back, so as to cause an instrument which
on its date was not an assignment under the Act to become such an assignment, I am
unable to understand. The appellants have a right in equity to have the performing rights
assigned to them and in that sense are equitable owners of those rights; but they are not
assignees of the rights within the meaning of the statute. This contention, therefore,
fails." (emphasis added)
Principle 17: "An absolute restraint on alienation (immovable property) is void."
In the matter of: Rosher V/s Rosher, (1884) 26 Ch. D. 801:
Rosher transferred his estate to his son. He transferred it upon a condition that, if his son
or heirs desire to sell the estate, his widow should have the option to purchase it at a
xed price, that is, one- fth of the real market value of the estate, during her lifetime.
It was held that the condition to sell at a xed price much below its real value was
equivalent to an absolute restraint on the sale, and hence, it was void.
In India, as per Section 10 of the Transfer of Property Act, 1882, a transferor cannot
impose an absolute condition or limitation restraining the alienation of the immovable
property. According to Section 10 of the Transfer of Property Act, 1882, an absolute
condition restraining the alienation is void, but, not partial conditions, for example: (i)
restraint for a particular period of time, say for a period of 5 years, and/or, (ii) de nite
class of persons restrained such as: doctors, lawyers etc.
Principle 18: "Rule against alienability of an immovable property."
In the matter of: Hobson V/s Tulloch, (1898) 1 Ch 424, a house was conveyed to the
transferee subject to a covenant on his part to not to use it for any purpose other than a
!efaS yatS
private house. The transferee conveyed it to another for the purpose of boarding house. It
was held that, the covenant not to use the house for any other purpose was not
repugnant to the nature of the estate and might be enforced by an injunction.
It is important to note that as per Section 11 of the Transfer of Property Act, 1882, an
interest created in favour of a person must be absolute and free; any limitation directed
or imposed against the free enjoyment of the property is void. Nonetheless, an
immovable property cannot be used for a purpose repugnant to the nature of the estate.
Principle 19: "Fraudulent transfers are not void, but only voidable at the option of the
creditor."
In the Twyne's case, (1601) 76 ER 809, P was indebted to T and C. C brought an action of
debt against P. Pending the case, P being possessed of goods and chattels of the value
of £300, in secret made a general deed of gift of all his goods and chattels real and
personal whatsoever to T, in satisfaction of his debt. Debtor (P) transferred the whole of
his property without giving possession to C.
The court held that the transfer which was made secretly had a badge of fraud, and
hence was a fraudulent transfer. The court observed that the transfer made was not
against a fair consideration and the transferor continued to be in the possession of the
transferred property, and hence, it was a fraudulent transfer effected in secret, when an
action was already pending against the transferee (P). The court further enunciated that
consideration paid by the transferee itself never gives any protection unless, it is bona
de transfer, dehors fraudulent intention.
Therefore, the burden lies on the creditor to show that: (i) the transfer was intended to
defeat or delay his claim; and (ii) he was the creditor on the date of the transfer. The term
creditor includes a decree holder whether he has or has not applied for execution of the
decree obtained by him. Nonetheless, a creditor whose decree is barred by the statute of
!efaS yatS
limitation so far as the aspect of execution of decree is concerned cannot be treated as
creditor.
According to Section 53 of the Transfer of Property Act, 1882, any fraudulent transfer
cannot be rendered as one which is void ab initio, but only as voidable. The transfer is
voidable only at the option of the creditor whose interest is either defeated or delayed by
fraudulent transfer effected by the debtor. The aggrieved creditor has the option of
moving to the court of law to get the fraudulent transfer declared as void.
To attract Section 53 of the Transfer of Property Act, 1882, two conditions are to be
ful lled:
1. There must be a transfer of an immovable property;
2. The transfer of such immovable property must have been made with an intent to
defeat or delay the interest of the aggrieved creditor.
Principle 20: "There is distinction between actual bias and apparent bias."
In the matter of: Director General of Fair-Trading V/s The Proprietary Association of
Great Britain, Court of Appeal (Civil Division), Date of Decision: 21.12.2000, Case No.
C/2000/3582, it was held that:
"… 38. The decided cases draw a distinction between 'actual bias' and 'apparent bias'. The
phrase 'actual bias' has not been used with great precision and has been applied to the
situation:
Where a Judge has been in uenced by partiality or prejudice in reaching his

decision and
Where it has been demonstrated that a Judge is actually prejudiced in favour of or
against a party."
!efaS yatS
'Apparent bias' describes the situation where circumstances exist which give rise to a
reasonable apprehension that the Judge may have been, or may be, biased.
XXX
… 42. Had Lord Hewart asked the question 'was there any likelihood that the Clerk's
connection with the case in uenced the verdict?' he would have answered in the negative
on the basis that he accepted the evidence that the Clerk had not intervened in the
Justices' discussion. Had he asked the question 'would a reasonable onlooker aware of
all the material facts, including the fact that the Clerk did not speak to the Justices after
retiring, have concluded that the Clerk's connection with the case might have in uenced
the verdict?' he would equally have answered in the negative. His decision was reached
on the premise that what actually transpired between the Clerk and the Justices behind
closed doors was not relevant. The fact that the Clerk had retired with the Justices gave
an appearance of the possibility of injustice, and that was enough to lead to the quashing
of the verdict."
Thus, in order to determine whether a decision is hit by bias, answer to the following
questions is essential:
1. Whether a Judge (or Arbitrator) has been in uenced by partiality or prejudice in
reaching his decision?
2. Can it be demonstrated that the Judge (or Arbitrator) is actually prejudiced in favour
of or against a party?
3. Did it appear to the Court that there was a real danger that the Judge (or Arbitrator)
had been biased?
4. Would an objective onlooker with knowledge of the material facts have a reasonable
suspicion that the Judge (or Arbitrator) might have been biased?
!efaS yatS
Principle 21: "Ideas cannot be copyrighted."
In the matter of: Jeffreys V/s Bosey, (1854) 4 HLC 815, it was held that for a copyright,
there should be a work and not a mere idea. Idea does not have any copyright protection.
To claim copyright, the work should be in a material form which involves the ideas
translated.
Principle 22: "Cause of action comprises of every fact which is necessary to be proved."
In the matter of: Read V/s Brown, (1889) 22 QBD 128, it was observed that:
"… Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the court. It does not comprise every piece of
evidence which is necessary to prove each fact, but every fact which is necessary to be
proved."
Principle 23: "The court never orders a defendant to give particulars of facts and matters
which the plaintiff has to prove in order to succeed."
In the matter of: Weinberger V/s Inglis, (1916-17) All ER Rep. 843, it was observed that
(Astbury, J.):
"… As a general rule, the court never orders a defendant to give particulars of facts and
matters which the plaintiff has to prove in order to succeed, and this is especially the
case where a defendant has con ned himself to putting the plaintiff to the proof of
allegations in the statement of claim, the onus of establishing which lies upon him."
Principle 24: "Rule as to evidence beyond pleadings: When pleadings are silent on an
issue, the party is precluded from adducing evidence in respect of that issue."
!efaS yatS
It is settled law that a party cannot adduce evidence and set a case inconsistent with its
pleadings. No amount of proof can substitute pleadings which are the foundation of a
claim of a litigating party. Therefore, when pleadings are silent on an issue, the party is
precluded from adducing evidence in respect of that issue.
In the matter of: Throp V/s Holdsworth, (1876) 3 Ch. D. 637, it was observed that:
"… The whole object of pleadings is to bring parties to an issue, and the meaning of the
rules was to prevent the issue being enlarged, which would prevent either party from
knowing when the cause came on for trial, what the real point to be discussed and
decided was. In fact, the whole meaning of the system is to narrow the parties to de nite
issues, and thereby to diminish expense and delay, especially as regards the amount of
testimony required on either side at the hearing."
Principle 25: "Claim for damages on breach of contract: Reasonable Compensation
Principle"
In the matter of: Hadley V/s Baxendale, (1854-9) Ex. 341 (354), it was held that:
"… Where two parties have made a contract which one of them has broken, the damages
which the other party ought to receive in respect of such breach of contract should be
such as may fairly and reasonably be considered either arising naturally i.e., according to
the usual course of things, from such breach of contract itself, or such as may
reasonably be supposed to have been in the contemplation of both parties, at the time
they made the contract, as the probable result of the breach of it."
Principle 26: "When an agreement is invalid every part of it including the clause as to
arbitration contained therein must also be invalid."

!efaS yatS
In the matter of: Heyman V/s Darwins Ltd., (1942) AC 356, the question that arose for
adjudication before the House of Lords was whether repudiation of a contract by a party
thereto had the effect of annulling the arbitration clause contained therein. It was held
that it had not. It was in this context that the law as to the circumstances under which an
arbitration clause in an agreement would become unenforceable came in for elaborate
discussion. Summing up the law on the subject Viscount Simon, L.C., observed:
"… If the dispute is whether the contract which contains the clause has ever been entered
into at all, that issue cannot go to arbitration under the clause, for the party who denies
that he has ever entered into the contract is thereby denying that he has ever joined in the
submission. Similarly, if one party to the alleged contract is contending that it is void ab
initio (because, for example, the making of such a contract is illegal), the arbitration
clause cannot operate, for on this view the clause itself also is void. But, in a situation
where the parties are at one in asserting that they entered into a binding contract, but a
difference has arisen between them whether there has been breach by one side or the
other, or whether circumstances have arisen which have discharged one or both parties
from further performance, such differences should be regarded as differences which
have arisen "in respect of" or "with regard" or "under" the contract and an arbitration
clause which uses these, or similar, expressions should be construed accordingly."
Lord Macmillan with whom Lord Russel agreed observed:
"… If it appears that the dispute is whether there has ever been a binding contract
between the parties, such a dispute cannot be covered by an arbitration clause in the
challenged contract. If there has never been a contract at all, there has never been as
part of it an agreement to arbitrate. The greater includes the less. Further, a claim to set
aside a contract on such ground as fraud, duress or essential error cannot be the subject-
matter of a reference under an arbitration clause in the contract sought to be set aside."
!efaS yatS
Thus, the position of law is that an arbitration clause embodied in an agreement is an
integral part thereof and that if that agreement is non est either because it was never
legally in existence or because it was void ab initio, then the arbitration clause would also
perish with it.
Principle 27: "What is a debt?"
In the matter of: Commissioner of Wealth Tax V/s Pierce Leslie & Co. Ltd., AIR 1963 Mad
356, relying upon the report in the matter of: Webb V/s Stenton, (1883) 11 QBD 518, it
was observed that the essential requisites of a debt are:
An ascertained or readily calculable amount;
An absolute unquali ed and present liability in regard to the amount with the
obligation to pay forthwith or in future within an ascertained time;
The obligation must have accrued and be subsisting and should not be that which is
merely accruing.
Thus, a contingent liability or a contingency debt is neither a liability nor a debt. A debt is
a debitum in praesenti, solvendum in futuro.
Principle 28: "What is an interlocutory decision?"
In S. Kuppuswami Rao V/s The King, 1947 FCR 180: AIR 1949 FC 1, the Federal Court
referred to the following observations made in the matter of: Salaman V/s Warner,
(1891) 1 QB 734:
"If their decision, whichever way it is given, will, if it stands, nally dispose of the matter in
dispute, I think that for the purposes of these rules it is nal. On the other hand, if their
decision, if given in one way, will nally dispose of the matter in dispute, but, if given in
!efaS yatS
the other, will allow the action to go on, then I think it is not nal, but interlocutory."
Principle 29: "A pure question of law can be examined at any stage, including before the
court of last resort."

In the matter of: Connecticut Fire Insurance Co. V/s Kavanagh, 1892 A.C. 473, by Lord
Watson it was observed that:
"… When a question of law is raised for the rst time in a court of last resort upon the
construction of a document or upon facts either admitted or proved beyond controversy,

it is not only competent but expedient in the interests of justice to entertain the plea. The
expediency of adopting that course may be doubted when the plea cannot be disposed
of without deciding nice questions of fact in considering which the court of ultimate
review is placed in a much less advantageous position than the courts below."
Further, relying upon the aforenoted enunciation of law, in the matter of: K. Lubna & Ors
V/s Beevi & Ors, Civil Appeal No. 2442-2443/ 2011 (Date of Decision: 13.01.2020), the
Hon'ble Supreme Court of India observed that:
"… 9. On the legal principle, it is trite to say that a pure question of law can be examined
at any stage, including before this Court. If the factual foundation for a case has been
laid and the legal consequences of the same have not been examined, the examination
of such legal consequences would be a pure question of law."
Principle 30: "Disobeying the order of the court does not put a bar on a party's right of
being heard."
In the matter of: Hadkinson V/s Hadkinson, 1952 (2) All ER 567, Lord Denning observed
that:
"… I am of the opinion that the fact that a party to a cause has disobeyed an order of the
court is not of itself a bar to his being heard, but if his disobedience is such that, so long
!efaS yatS
as it continues, it impedes the course of justice in the cause, by making it more di cult
for the court to ascertain the truth or to enforce the orders which it may make, then the
court may in its discretion refuse to hear him until the impediment is removed or good
reason is shown why it should not be removed." (emphasis added)
TAGS COMMON LAW PRICIPLES LITIGATION GOLDEN RULE OF INTERPRETATION
IMMOVABLE PROPERTY PRINCIPLES
!efaS yatS
loading....
SIMILAR POSTS + VIEW MORE
Advocacy- The Mantra Of

The Micro, Small And
Success: Justice N. Liquidation Value vis a vis
Medium Enterprises
Anand Venkatesh Dissenting Financial Creditors:
Development Act, 2006 - A
Subject Of Increasing Aftermath Of Maharashtra
Misuse Seamless And Orchid Pharma
5 April 2020 6:19 PM 5 April 2020 5:03 PM 5 April 2020 4:00 PM

!efaS yatS
The Constitutional Court Coronavirus And The

And The 'Attached O ce' Constitution – IV: Privacy
In A Public Health Crisis [DEBATE] [Judiciary During

Lockdown] Judicial Service Is
An 'Essential Service' Amid
COVID-19 Lockdown
5 April 2020 10:38 AM 5 April 2020 8:51 AM 4 April 2020 12:53 PM
[DEBATE] [Judiciary During Virtual Arbitration Hearings Eclipsing Dissent And

Lockdown] Need For Judicial In Times Of A Pandemic Scienti c Discourse?
Restraint During Pandemic
4 April 2020 12:20 PM 4 April 2020 9:11 AM 3 April 2020 2:20 PM
Is A Central Examination Law In The Time Of 'Corona' Power Of Review -

Process A Silver Bullet For Consumer Forums
Filling Judicial Vacancies?
3 April 2020 12:15 PM 3 April 2020 11:31 AM 3 April 2020 10:36 AM
!efaS yatS
CARTOONS + MORE
!efaS yatS
[CARTOON] "It Is A Bridge Between Judiciary And Legislature": BCI Hails Ex-CJI Gogoi's
Nomination To Rajya Sabha
+ MORE
LAW FIRMS
!efaS yatS
COVID 19: Revised Default Trigger Under The Insolvency And Bankruptcy Code
LATEST NEWS + MORE
1 30 Common Law Principles Ruling The Litigation Front In India
2 United Nurses Association Move Supreme Court For Formulation Of National

COVID19 Management Protocol [Read Petition]
3 Centre Modi es J&K Order To Extend Domicile Reservation To All Govt Posts
[Read Order]
4 Advocacy- The Mantra Of Success: Justice N. Anand Venkatesh

!efaS yatS
5 SC Takes Suo Moto Case For Guidelines On Court Functioning Via Video
Conferencing; Matter Listed Tomorrow
Amend SC Rules To Provide Video Conference Hearing Facility Even After

6 Lockdown: Former SCBA President Writes To CJI [Read Letter]
7 The Micro, Small And Medium Enterprises Development Act, 2006 - A Subject Of
Increasing Misuse
8 Allahabad HC Noti es Listing Schedule For Minor Bail Applications & Criminal Writ
Petitions [Read Order]
लाइव लॉ हंद + MORE
हंद ू अ वभािजत प रवार क ॉपट को संयु त संपि त सा बत करने का दा य व दावेदार पर: सु ीम कोट
!efaS yatS
वसीयत के एक ह से का फायदा उठाने वाला यि त उसके शेष ह से को चन

ु ौती नह ं दे सकता : सु ीम कोट
!efaS yatS
लॉकडाउन समा त होने के बाद भी वी डयो कॉ स सन

ु वाई जार रखने के लए सु ीम कोट नयम म बदलाव कर,
SCBA के पव
ू अ य ने मु य यायाधीश को लखा प
यन
ू ाइटे ड नसस एसो सएशन ने नेशनल COVID19 मैनेजमट ोटोकॉल के गठन के लए सु ीम कोट म या चका
दा खल क
!efaS yatS
ऐसे मामले अ यंत ज र मामल क ेणी म नह ं आ सकते, िजनसे लॉकडाउन का उ लंघन हो, कई और जान को
जो खम डालना पड़ेः बॉ बे हाईकोट
INTERNATIONAL + MORE
1 [COVID-19] Limitation Of Fundamental Rights & Freedoms To Be Done "Only By

Law": Kosovo Constitutional Court Holds Govt. Decision Restricting Movement Of
Citizens Unconstitutional
2 'Re ects Public Sentiment & Beliefs': Singapore SC Upholds Law Criminalizing
Homosexuality
3 [COVID-19]
Lock Down
South Africa Constitutional Court Dismisses Plea Challenging 21 Day
4 Uganda Constitutional Court Strikes Down Law Which Gave Wide Powers To
Police To Prohibit Protests & Public Gatherings [Read Judgment]
ENVIRONMENT + MORE
1 Establishing Of New Saw Mills In Forest Not Allowed : Karnataka HC [Read Order]
2 'Ex Post Facto' Environmental Clearance Unsustainable In Law : SC [Read

Judgment]
3 Environmental Compensation Can't Be Imposed Without Giving Notice To Violator:

Delhi HC Asks CPCB Reconsider Order Against PWD [Read Order]
4 NGT Directs State/UT's To Have One District Environment Plan Ready In Three
!efaS yatS
Months [Read Order]
JOB UPDATES
1. Consultant Grade 2 (Law) Vacancy At National Financial Reporting Agency
2. Consultant (Law) Vacancy At National Financial Reporting Agency
3. Chairperson-cum-Member (Legal) Vacancy At Consumer Grievance Redressal Forum,

Jamshedpur
4. Assistant Professor Vacancy At Mangalayatan University, Aligarh
5. Consultant Vacancy At Ministry Of External Affairs Headquarters
+ VIEW MORE
Newsletters
Directly in your Mailbox
Enter Your Email
SUBMIT
!efaS yatS
TOP STORIES KNOW THE LAW
NEWS UPDATE LAW FIRMS
COLUMNS JOB UPDATES
INTERVIEWS BOOK REVIEWS
INTERNATIONAL EVENTS CORNER
RTI UPDATES COVER STORY
EDITOR'S PICK PLACEMENTS
LAW SCHOOL CORNER SCHOLARSHIPS
ARTICLES SEMINARS
CALL FOR PAPERS ENVIRONMENT
COMPETITIONS BOOK REVIEWS
INTERNSHIPS
© All Rights Reserved @LiveLaw
Powered By Hocalwire
Who We Are Careers Advertise With Us Contact Us Privacy Policy Terms And Conditions

X
Live Law subscriptions starting ₹ 599 +GST
Subscribe to Live Law now and get unlimited access.

!efaS yatS
SUBSCRIBE NOW
Already have an account? Sign In

30 Common Law Principles Ruling The Litigation Front in India

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

30 Common Law Principles Ruling The Litigation Front in India

Uploaded by

Copyright:

Available Formats

4/6/2020 30 Common Law Principles Ruling The Litigation Front In India

TOP STORIES NEWS UPDATES COLUMNS INTERVIEWS FOREIGN/INTERNATIONAL

ENVIRONMENT RTI KNOW THE LAW VIDEOS 

30 Common Law Principles Ruling The

who seek its protection lose hope."

Jennison V/s Baker, (1972) 1 All ER 997

336, Willes, J., observed that:

Also Read - Advocacy- The Mantra Of Success: Justice N. Anand Venkatesh

Subject Of Increasing Misuse

accused persuades the decision maker to reach a different conclusion."

Principle 4: "A taxing statute is to be strictly construed."

K.B. 64 [71], Rowlatt, J. observed that:

any intendment. There is no equity about a tax.

2. There is no presumption as to a tax. Nothing is to be read in, nothing is to be

implied. One can only look fairly at the language used.

Principle 5: "When a statute provides a particular thing to be done in a particular manner

other than the one prescribed.

Principle 6: "There are degrees of proof within the standard of proof."

offence charged amounts to treason or felony, a much higher degree of assurance is

it was observed that:

certainty or accuracy of statements), because that is impossible; it must mean such

evidence (such degree of probability) as would induce a reasonable man to come to a

'always speaking statutes'."

[HL], Lord Bridge observed that:

[2000] All ER 913, it was observed that:

Principle 9: "Evidence Obtained by Undesirable Methods- Whether Admissible? The test

to be applied in considering whether evidence is admissible is whether it is relevant to

lured into incriminating himself by deception after the commission of an offence.

evidence against an accused which results in unfairness".

statute is to be read and interpreted?"

made the following classic statement:

Principle 11: "Mischief Rule of Interpretation of Statutes"

each part throwing light on the other.

provision in a statute /legislation:

What remedy the legislature has appointed?

The reason of the remedy?

Principle 12: "Golden Rule of Interpretation"

Rule of Literal Interpretation, it was observed that:

Principle 13: "Doctrine of Adverse Possession"

of United States observed that:

U.S. 525, 567, 570 (1923) (dissenting opinion)].

appellee thinks it ought to be under the Kansas Constitution."

land, becomes part of the land."

building or other such purposes.

xed to the oor of a mill by nails are to be treated as immovable property.

are part of the personal estate of the tenant for life.

Supreme Court of India.

Principle 16: "Contract to Assign and Doctrine of Relation Back"

But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of

Society, assigned by an indenture of assignment to the Society the performing right of

no assignment in writing of the copyright subsequently acquired by the rm to the

Principle 17: "An absolute restraint on alienation (immovable property) is void."

In the matter of: Rosher V/s Rosher, (1884) 26 Ch. D. 801:

equivalent to an absolute restraint on the sale, and hence, it was void.

impose an absolute condition or limitation restraining the alienation of the immovable

property. According to Section 10 of the Transfer of Property Act, 1882, an absolute

class of persons restrained such as: doctors, lawyers etc.

Principle 18: "Rule against alienability of an immovable property."

repugnant to the nature of the estate and might be enforced by an injunction.

or imposed against the free enjoyment of the property is void. Nonetheless, an

his property without giving possession to C.

de transfer, dehors fraudulent intention.

limitation so far as the aspect of execution of decree is concerned cannot be treated as