That which was originally void does not by

lapse of time become valid.

QUOD AB INITO
NON VALET IN
TRACTU
TEMPORIS NON
CONVALESSCIT

Prof. Annmol Chacko

Neelam Lalwani
Div C
Roll No. 155
INTRODUCTION

A legal maxim is an established principle or proposition of law, and a species of aphorism and general
maxim. A legal maxim or legal phrase elucidates or expounds a legal principle, proposition or concept.
There are many legal maxims, which are commonly used in Indian judicial system.
The term Maxim is the Latin derivation of ‘axioma’ which means the first principle, for instance,
geometry. Axioms being first principles self-evident in nature, all the subsidiary prepositions could be
deduced from them but they themselves were underived. They held their own authority. so, a legal
Maxim would be a self-evident first principle without any contradiction.
Legal Maxims are generally stated in Latin form. Most of these Latin maxims originated from the
Medieval era in the European states that used Latin as their legal language. These principles guide
Courts all over the world in applying the existing laws in a fair and just manner to enable the Courts
in deciding issues before it. Such principles don't have the authority of law but when Courts apply the
maxims in deciding issues of law or the legislature incorporates such maxims while framing laws, they
take the form of law and form the basis of sound judgements.
Sir James Mackintosh, a Scottish jurist, Whig politician as well as historian made his statement on
maxims as follows, “Maxims are the condensed Good sense of Nations”.
Maxims are very prevalent for legal purposes. According to Bouvier’s Law Dictionary, 1856 a maxim
is defined as “An established principle or proposition. A principle of law universally admitted, as being
just and consonant with reason.”
Each legal maxim is the concise form of a big definition and each of them came from a different source
or case laws. There are many different types of legal maxims. Usage of legal maxims are widely
appreciated and praised. Thomas Hobbes, an English philosopher and scientist says in his book doctor
and student that legal maxims are of the same strength as that of acts and statutes.
Significance
Legal maxims have become a part and parcel of daily lives of legal professionals. The influence of
these maxims has not only for lawyers and law students but also common consultants and other
laymen. Legal maxims are scattered in every legal document right from statute to books or journals
related to law. Legal maxims have modified the language.
Importance of legal maxims can be derived as below:

• To avoid usage of long definitions: Instead of using a long definitions and sentences in the
judicial proceedings, usually the maxims are used. For example: “Ab Initio” - Its meaning is
‘from the beginning’ or ‘from the very start of something’. So instead of writing it so long, we
use the word ab initio which is applicable enough in most of the situations.
• To make the language clear: When used in right context, the maxims make the language very
clear and crisp.
OBJECT
Legal Maxims are widely used to establish the strength and effect in any judicial pronouncement.
Francis Bacon in the preface to his collection of maxims as mentioned that “The use of maxims will be
"in deciding doubt and helping soundness of judgment, but, further, in gracing argument, in correcting
unprofitable subtlety, and reducing the same to a more sound and substantial sense of law, in
reclaiming vulgar errors, and, generally, in the amendment in some measure of the very nature and
complexion of the whole law".
A few of the legal maxims which are followed by Courts in India are as follows:
- Ab initio (from the very beginning of the law/ act) - This Latin term was used by Hon’ble
Supreme Court of India to arrive at a conclusion in the case of Delhi Development Authority vs.
Kochhar Construction Work and others. In this case, it has been held that the proceedings were
ab initio defective and could not be instituted because the firm in whose name the proceedings
took place was not registered at the date of the institution of the proceedings.

- Audi Alterem Partem (No man shall be condemned unheard) – No man shall be condemned
unheard. It is one of the fundamental principles of administrative law and judicial procedure that
no decision shall be given against a party without giving him/her a reasonable hearing. In the
case of Maneka Gandhi Vs Union Of India & Ors., MANU/SC/0133/1978: AIR 1978 SC 597:
1978(1) SCC 248: 1978 (2) SCR 621 Hon’ble Supreme Court explained the facets of the said
maxim as –

• notice of the case to be met and the opportunity to explain. It also explained certain
exceptions to the said rule:
o Express exclusion by Statute
o Exclusion may be necessitated due to urgency, where the obligation to give notice
and opportunity to be heard would obstruct the taking of prompt action of a
preventive or remedial nature.
o Audi alteram partem rule may be disregarded in an emergent situation where
immediate action brooks no delay to prevent some imminent danger or injury or
hazard to paramount public interests.

- Nemo Debet Bis Vexari Pro Una Et Eadem Causa (A man shall not be vexed twice for one and
the same cause)- It is in the interest of the State that there should be an end to litigation.
The Rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem
causa, which means no man shall be put in jeopardy twice for one and the same offense. Article
20 of the Constitution provides that no person shall be prosecuted or punished for the offense
more than once. However, it is also settled that a subsequent trial or a prosecution and
punishment has no bar if the ingredients of the two offences are distinct – Department of Customs
Vs Sharad Gandhi, MANU/SC/0295/2019: 2019 (3) SCALE 447.
- Quod Ab Inito Non Valet In Tractu Temporis Non Convalesscit (That which was originally void
does not by lapse of time become valid)- A contract that requires one of the contracting parties
to commit a crime, or to participate in criminal activites is not enforceable - it is void ab initio -
quod ab initio non valet in tractu temporis non convalesait and no amount of subsequent
transactions can cure it or render it valid.
Given above are a very few examples of legal maxims used widely in the India.
We will further undertake a detailed analysis of Legal maxim - Quod Ab Inito Non Valet In Tractu
Temporis Non Convalesscit.

CONTENT
Quod Ab Inito Non Valet In Tractu Temporis Non Convalesscit is a widely recognized maxim under
Indian Law.
A thing which is void from the start cannot be made legal or enforceable. To quote from Justice Ponder,
below, a dead thing is dead. Hence, a void marriage has never been a marriage and cannot be made
valid by any event.
It may be noted that whatever is done in contravention of a prohibitory law, is void, although the nullity
be not formally directed.
Examples:
o Mr. A is married to Ms. B and without formally ending the marriage with Ms. B, he is married
to Ms. C. The marriage of Mr. A and Ms. C will always be a void marriage. Herein, it may be
noted that the marriage of Mr. A and Ms. C was void ab initio. A second marriage during
subsistence of first marriage is null and void and no event in future will render the same as valid.

o Mr. D was appointed as Manager in XYZ limited based on a declaration regarding qualification
of Mr. D which was false at the time of appointment. It has been later discovered that Mr. D has
subsequently completed the relevant course and had obtained the qualification. However, it may
be noted that the appointment will be void since the same was based on the false declaration and
subsequent completion of course may not be acceptable remedy.

The detailed understanding of the maxim may be drawn from the following judicial precedents:
Shashi Kant Srivastav v. District Inspector of Schools, Varanasi and another Special Appeal No.8 of
2010
Facts of the case:
Shashi Kant Srivastav (Appellant) as appointed as teacher in the primary section of Sri Agrasen
Mahavidyalaya Inter College, Chaukhambha, Varanasi. However, it was later identified that the
appointment of the appellant was violating the provisions of the U.P. Secondary Education Service
Selection Board Act, 1982 and the procedure laid down in the U.P. Secondary Education Services
Commission (Removal of Difficulties) Order, 1981. However, the appellant submitted that the having
worked since 1991, he may not be thrown out of the employment and justice demands that he be
allowed to continue in service and a direction for payment of salary be made.

Findings / Decision:
Under the present case, the counsel has referred the cases of Prabhat Kumar Sharma Vs. State of U.P.
[AIR 1996 SC 2638] and Shesh Mani Shukla Vs. District Inspector of Schools, Deoria [JT 2009 (10)
SC 309], wherein it has been held that in case the appointment is held to be void ab initio, the employee
has no right either to continue on the post or to claim salary. Here, the learned Single Judge has found
the appointment of the writ petitioner to be void ab initio, with which we have concurred and, in that
view of the matter, direction for payment of salary and continuance in service cannot be given on the
ground of equity.
Given the above, and keeping various judicial pronouncements in view it has been held that the
appointment shall not be held valid on the conscious of the maxim "Quod Ab initio Non Valet In Tractu
Temporis Non Convalescit", which implies that which was originally void, does not by lapse of time
become valid. Accordingly, the appointment of the appellant may not be held to be valid.
Smt. Zaitoon Fatima vs Director Of Education, Allahabad
Facts of the Case
In the present case, the appellant (Smt. Zaitoon Fatima) has appealed against the order contained in
the letter dated 6.5.1994 of the Regional Inspectress of Girls Schools in which a reference was made
to the Additional Director of Education. Secondary U. P. Allahabad for appropriate action under
Section 16E (10) of the U. P. Intermediate Education Act. 1921 (in short 'the Act') in respect of initial
appointment by promotion of the appellant herein in C.T. grade as well as her subsequent promotion
in L.T. grade and till then, the approval to the appellant's promotion to the post of Lecturer (Urdu) has
been put on hold by the Regional Inspectress of Girls Schools by the self-same order.
The appellant was appointed Assistant Teacher in the J.T.C. grade in Abdul Salam Girls Inter College,
Moradabad in 1970. In the course of time, she was promoted to the C.T. grade and later, to the L.T.
grade. Later, the appellant was promoted to the post of lecturer as per the seniority level. The relevant
papers were sent to the Regional Inspectress of Girls School on 24.11.1993 for approval qua the
requirements of Regulation 6 (5) of Chapter 2 of the Regulations made under the Act.
On the examination of the documentation and representation by respondent it was held that the initial
appointment of the appellant was invalid and she was not qualified for the for being promoted as
lecturer. Further under the provisions of Section 16E (10) of the Act the initial appointment was
rendered as invalid and thus liable for cancellation.
It was contended by the appellant that the consideration may be given as to whether the Regional
Inspectress of Girls Schools was justified in making reference under Section 16E (10) of the Act to the
Director of Education for cancellation of the initial appointment of the appellant by promotion to C.T.
grade and later, to L.T. grade after a lapse of about 23 years. Reference was made to the case Smt. S.
K. Chaudhary v. Manager. Committee of Management Vidyawati Darbari Girls Inter College.
Lookerganj, Allahabad and others. 11991) 1 UPLBBC 250, the validity of appointment of a teacher
was sought to be challenged after lapse of 17 years. The Full Bench held as under :
"One fails to understand that after a lapse of nearly 17 years the Regional Inspectress of Girls Schools
referred the matter to the Director of Education for adjudicating the question as to whether the
appointments were valid or not. The exercise of power by the Regional Inspectress of Girls Schools on
the facts and circumstances of the case is wholly arbitrary as that poser could not be exercised after
lapse of 17 years.....In any view of the matter, the appointments which were existing for the last 17
years could not be set aside after a lapse of such a longer period.....It is true that there is power under
Section 16E (10) of the Act to cancel the appointments but that power has to be exercised within a
reasonable time. The appointments had been made in the year 1973 and by no stretch of imagination
it can be said that the exercise of that power after the lapse of 17 years by the Director of Education
under Section 16E (10), on the facts and circumstances of the case, can be said to be exercise of a
power within a reasonable time."
Decision
Based on the above facts and relying on the given judgement, it was held that there is no-doubt
conscious of the maxim "quod ab-initio non valet in tractu temporis non convalescit", which implies
that which was originally void, does not, by lapse of time, become valid but rule contained in the said
maxim is subject to certain exceptions and one such exception is illustrated by the maxim, quod fieri
non debet factum valet, which means the fact cannot be altered though it should not have been done,
R. v. Lord Newborough, 4 QB 585. will illustrate the doctrine of facfum valet. There, the question was
as to the payment of salary to certain special constables whose appointments had not been made in
accordance with the requirements of the Special Constable Act, 1831 nor was there any valid order
for payment of their salaries. Relying upon the doctrine of quod fieri non debet facfum valet. Lush. J.,
who decided that, as the order for payment had been acted upon, the account allowed, and the money
paid, the proceedings should not be reopened. The appointment of the appellant herein to C.T. grade
and later, to L.T. grade by promotion having been in fact acted upon, it would not be just and proper
to reopen the question of validity of her appointment by promotion to C.T. grade and later, to L.T.
grade after a lapse of about 23 years. In our opinion, the order of the Regional Inspectress of Girls
Schools referring the matter to the Director of Education under Section 16E (10) is thus liable to be
quashed.
CONCLUSION
Given the above, it may be concluded that in general Quod Ab Inito Non Valet In Tractu Temporis
Non Convalesscit that which was originally void does not by lapse of time become valid. However,
there are certain exception the maxim, which may be duly considered while reaching to a certain
verdict.
BIBLIOGRAPHY

• https://indiankanoon.org/
• Lawtimesjournal.in