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PREFACE TO THE THIRTIETH EDITION
We are happy to place before the student community the revised thirtieth edition
of this popular book. In this book, an attempt has been made to present a rather
abstract subject in a more concrete, practical and illustrative format.
University Questions have been indicated at appropriate places in the margin.
We are confident that this edition will continue to enjoy unrivalled popularity among
law students.
- The Publishers
CONTENTS
Chapter Chapter Name Page No.
Introduction
The Science of Jurisprudence 1
Part I : THE NATURE AND SOURCES OF LAW
1. Kinds of Law 15
2. Legal Theory 32
3. Civil Law 46
4. The Administration of Justice 59
5. The Sources of Law 73
6. Leg isl ation and Interpretation 79
7. Precede nt 95
8. Custom 111
9. The State 118
Part II : LEGAL CONCEPTS
10. Legal Rights 127
11. Ownership 145
12. Possession 163
13. Titles 176
14. Principles of Uability 180
15. Intention and Negligence 184
16. The Law of Obligations 207
17. The Law of Persons 213
18. The Law of Property 224
19. The Law of Procedure 240
INTRODUCTION
[ NOTE : Jurisprudence deals with law from the philosophical point of

view, and is therefore sometimes described as an abstract subject which is [ M.U. = Mumbai
difficult to grasp. This is, however, a misconception. No doubt, this subject is University l
more "abstract" than, say, the law of contracts or the law of torts. Nevertheless,
Jurisprudence does have multifarious practical applications, inasmuch as it
may be said to be the foundation of all branches of law.
Students are advised first to go through the book cursorily before beginning
its study. They are also advised to study the first three Chapters after studying
a few other Chapters of the book. ]
THE SCIENCE OF JURISPRUDENCE

'Jurisprudence' defined
Jurisprudence is a subject which materially differs from other branches Define jurispru-
of law to be found in a legal syllabus. Most other legal subjects involve a study dence. (2 marks)
of legal principles, which are then to be applied to concrete, practical situations. M.U. Nov. 2010
Apr. 2014
In Jurisprudence, the task at hand is not to derive laws from authorities, and
apply them to given problems; rather, the concern is to reflect on the nature of What is ju rispru-
legal rules and on the true meaning of legal concepts. Thus, whereas the law dence? (2 marks)
of contracts deals with the rights which one party to a contract has against the M.U. May 2015
other, in Jurisprudence, one studies the underlying meaning of the term 'right' Nov. 2015
and the different kinds of legal rights. Nov. 2016
May 2019
Jurisprudence is thus 'the study of fundamental legal principles' . "Juris"
in Latin signifies legal, and "prudentia" means skill or knowledge. Thus, in a
very wide sense, the term connotes the basic knowledge of law. Holland
describes Jurisprudence as "the formal science of positive law", and Allen as
"the scientific synthesis of the essential principles of law".
(a) In a general sense, the term 'Jurisprudence" includes the entire body
of legal doctrines. In this sense , it includes knowledge of the law. But law here
means civil law, the law of the land. Jurisprudence, in this sense, covers the
following three topics:
(1) Legal exposition, the purpose of which is to set forth the contents of
an actual legal system as existing at any time.
(2) Legal history, the purpose of which is to set forth the historical process
whereby any legal system came to be what it is or was.
(3) The science of legislation, the purpose of which is to set forth the law
as it ought to be. This aspect of jurisprudence deals with the ideal
future and purpose of law.
(b) Jurisprudence in the technical sense is different from j urisprudence in
the generic sense. In the technical sense, it is the science of the first principles
of the civil law. It deals not only with the outlines of the law, but also with its
ultimate conception.
2 JURISPRUDENCE
Three branches of Jurisprudence

Jurisprudence, in the technical sense, is divisible into the following three
branches:
1. Historical Jurisprudence : The Historical School of Jurisprudence
deals, firstly, with the general principles governing the origin and the
development of the law and with the influences that affect the law. Secondly, it
also deals with the origin and development of those legal conceptions and
principles, which are so essential in their nature as to deserve a place in the
philosophy of law.
What is Analytical 2. Analytical Jurisprudence : Analytical jurisprudence deals with the
Jurisprudence? present. Its purpose is to analyse the first principles of the law as they exist in
(2 marks)
a legal system .
M.U. May 2018
3. Ethical Jurisprudence : The Ethical or Philosophical School of
Jurisprudence deals with the first principles of the ethical significance and
adequacy of law. It expounds the first principles of law as they ought to be.
An analysis of these three branches of jurisprudence represented by the
three schools is given below. However, three more schools, which are of more
recent origin, will also be considered, viz. , (4) the Comparative School, (5) the
Sociological School and (6) the Synthetic School.
The six schools of Jurisprudence

What is "law" 1. The Historical School of Jurisprudence: The task of the historical
according to the school is to deal with the general principles governing the ·origin and
Historical School?
development of law and with the influences that affect the law. This school
(2 marks)
M.U . Apr. 2010
points out to the history of the first principles and conceptions of the legal
system . From this school of jurisprudence, one can know the origin, sources
and development of law, together with the origin and the development of different
Explain historical societies.
school of jurispru-
dence. Critically According to Sir Henry Maine, Montesquieu may easily be considered as
describe the con- the first jurist of this school, who in his 'Esprit des Lois' (Spirit of the Laws) has
tributions made by made a very great contribution to human knowledge. According to him, all
Von Savigny and
Henry Maine in the
laws should have the basis of historical observations. His only defect was that
growth of histori- he paid too much importance to the accidental and external causes in the
cal school. framing of the laws, and thus failed to see the importance of the qualities of the
M.U. Nov. 2017 human nature or race which go to make and develop the law. Even then,
Montesquieu's contribution to this school is great, for other jurists after him
utilised his observations and have approached the problem in its correct
perspective.
The German Historical School followed the empirical method , and
formulated legal principles from historical observations. According to Hugo,
law is not the result of legislation; nor is it a command as the Austinian School
makes it out to be; nor is it a matter of social contract - but it is the result of
the habits and ways of the people themselves, acquired through necessities,
INTRODUCTION 3
accidents and other pleasant and unpleasant processes. It is only when a

community accepts a rule or command for a long period, and that rule becomes
a recognised habit of the members to accept it as law, that law in its proper
sense evolves.
According to Savigny, "The organic evolution of Law, with the life and Write a short note
character of a people, develops with the ages; and in this, it resembles language. on : The Historical
School.
As in the latter, so in the Law, there can be no rest; there is always movement
M.U. Apr. 2010
and development. Law is governed by the same power of internal necessity as Nov. 2010
simple phenomena. Law grows with a nation, increases with it, and dies at its Nov. 2012
dissolution, and is a characteristic of it". Law thus becomes the result of the May 2019
genius of the people.
James Carter, an American Jurist, maintained that law existed even prior
to political consciousness, and hence, it cannot be created by human agency
and cannot be changed or abrogated by human action. In short, he identified
law with custom. The Historical School thus made history as important as
reason in the development of law. Its only defect is that it has identified law
with custom, which is actually not law, but is at best, quasi-law.
2. The Analytical School of Jurisprudence : The Analytical School is
positive in its approach to the legal problems in the society. It is not concerned
with ideals, and takes the law as given by the State, whose authority it does not
question. The legal system is thus made water-tight against all ideological
instrusions, and all legal problems are couched in terms of legal logic. Its
purpose is only to analyse the first principles of law- without reference either
to their historical origin or development orto their ethical significance or validity.
The Analytical School has made several important contributions, which State the main
can be summarised as follows: contribution of the
Analytical School
1. Positive law and ideal law have been kept strictly distinct. It has thus of Jurisprudence.
analysed the concept of civil law, and established its relationship with (2 marks)
other forms of law. M.U. Nov. 2014
2. All positive law is deduced from a clearly determinable law-giver,

e.g., a sovereign.
3. This school also lays down the essential elements that go to make
up the whole fabric of law, as for instance, State sovereignty and the
administration of justice.
4. It also takes into account the legal (as opposed to the historical)
sources, which are the sources from which the law proceeds. The
most important legal sources are legislation, judicial precedents and
customary law. The Analytical School investigates the claim of each
of these sources from which law proceeds.
5. It inquires into the scientific divisions of the whole fabric of law, i.e.,
how law has come to be divided into different departments and the
reason behind these divisions.
4 JURISPRUDENCE
6. It also analyses the concept of legal rights, together with the division
of rights into various classes, and the general theory of the creation,
transfer, and extinction of rights, together with the investigation into
the theory of legal liability - both civil and criminal.
7. This school also considers such other allied problems which directly
or indirectly affect the fabric of law, such as property, possession,
obligations, contracts, trusts, incorporation, intention, motive and
negligence, and many more which deserve our attention .
8. It favours codification of law and regards law as a conscious
enactment or command with legal sanction behind it.
The works of Bentham, Austin and Salmond are all based on the analytical
school of jurisprudence.
3. Ethical or Philosophical Jurisprudence : This school seeks to
investigate the purpose for which a particular law has been enacted. It is not
concerned with its historical or intellectual content. In this approach, the purpose
and end of law is the maintenance of peace and order with the help of the
physical force of the State, i.e., with the theory of justice in its relation to law.
Ethical jurisprudence points to the reasonableness and soundness of law, and
through law, of justice.
This school of jurisprudence seeks to answer such questions as "What
are the principles on which the existing law is based?", "Are these principles in
keeping with rules of natural justice?", "If not, how can the position be improved"?
and so on.
This School of Jurisprudence essentially deals with the following matters:
(a) The concept of law, and hence, of justice.
(b) The relation between law and justice.
(c) How justice is maintained in a society through its system of law.
(d) The distinction between law and morality, and how each can contribute
to the ends of justice.
(e) The fundamental legal concepts and principles which have ethical
significance .
The greatest contributors to the Philosophical School were Bacon, Grotius,
Spinoza and Kant.
Under ethical jurisprudence, one therefore comes across the general
theory ofjustice in its relation to law. It is not concerned with the detailed criticism
of the actual legal system, or the detailed construction of an ideal legal system,
or with the science of legislation.
It does not follow, however, that in studying the analytical aspect, the
ethical or the historical content of law is completely excluded . As Salmond
rightly says: "For the total disregard of the ethical implication of the law would
INTRODUCTION 5
tend to reduce analytical jurisprudence to a system of rather arid formalism;

and the total disregard of historical origins and development would be
inconsistent with the adequate explanation of those principles and conceptions
with which it is the business of this science to deal."
The Ethical School of Jurisprudence is prevalent throughout Europe, while
in England, it is the Analytical School that predominates.
4. The Comparative School of Jurisprudence : The Comparative
School of Jurisprudence is essentially concerned with the comparative study
of the systems of jurisprudence in the different countries of the world. By
acquiring the knowledge of the legal systems of other countries - civilised or
uncivilised-one gets a better insight into the legal system of one's own country.
The Germans have successfully adopted this method. lhering, as a
representative of this school , regards laws as an efficient means to an end ,
wh ich should be for the good of humanity.
According to Salmond, what passes as comparative jurisprudence is not
a separate branch of jurisprudence which is co-ordinate with the analytical ,
historical and ethical jurisprudence. It is merely a particular method of that
Critically examine
science in a// its branches, i.e., a study of the resemblances and differences the definition of
between different legal systems. One system of law is compared with another, law given under
either for the purpose of analytical jurisprudence, in order to comprehend the the sociological
conceptions and principles of each of those systems , or for historical school of jurispru-
dence.
Jurisprudence, in order that one may better understand the course of M.U. May 2018
development of each system, or for the purpose of ethical jurisprudence, in
order that one may better judge the practical merits of each of them. Otherwise,
apart from such purposes, the comparative study of law would be futile.
5. The Sociological School of Jurisprudence : This school is
Write a short note
comparatively modern, and it devotes itself to the study of law as a social on : Sociological
phenomenon, and tries to examine the consequences of law on human beings School.
in civilised societies. To understand the scope of this school, one has to examine M.U. Nov. 2009
how sociology can influence the legal system in a particular country. Apr. 2014
Nov. 2017
By 'sociology' is meant the study of man in society, and in studying man,
the sociologist studies the law, not as it is understood by the lawyer in his
professional capacity, but in so far as law actually governs the behaviour of an
ordinary citizen .
Critically examine
Sociological jurisprudence deals with the study of social consequences
the Sociological
of law and with the observation of sociological phenomena. In its important school of Jurispru-
branch called Criminology, Sociological Jurisprudence studies the phenomena dence. Highlight
of crime, the mind of the criminal, the causes of crime, the remedies therefor, the contribution
made by Roscoe
the effect of punishment, and so on . Pound.
6. The Synthetic School of Jurisprudence : The Synthetic School is M.U. Dec. 2018
the most recent school ofjurisprudence founded in India in 1955 by an eminent
Indian jurist, Dr. M.J. Sethna.
6 JURISPRUDENCE
This school of jurisprudence attempts to arrive at a harmonious blend of

all the other Schools of Jurisprudence, and, in the words of its founder, Dr.
Sethna, "the jurists of the twentieth century should turn their attention more
and more to synthetic jurisprudence. It is no use regarding jurisprudence as
merely analytical or merely historical. Jurisprudence should be, at the same
time, analytical, historical, comparative, philosophical and sociological."
This approach of Dr. Sethna is seen in his synthetic definitions of legal
terms like "lawtt, "crime", "person", etc., and in his exposition of the Subjective-
Objective Theory of Negligence. {See the Chapter on Negligence.)
{A further discussion of the Synthetic School is contained in the next
Chapter.)
Jurisprudence and Sociology

Write a short note Jurisprudence is the study of the entire body of legal principles. According
on : Sociological to Salmond .jurisprudence is the knowledge of law. In this sense, all law books
Theory.
M.U. Nov. 2015
can be considered as books of jurisprudence . Among the phenomena studied
Nov. 2017 by sociologists is law, and it is here that sociology is intimately connected with
jurisprudence. Jurisprudence is a science of law. But the attitude of the
sociologist is different from that of the lawyer. The lawyer, in his professional
capacity, is concerned with the rules that man ought to obey. He is not interested
in knowing how, and to what extent, these rules actually govern the behaviour
of the ordinary citizen. A text-book of the law of torts or contract states the
rules relating to torts and contracts, but does not attempt to state how often
torts and breaches of contract are committed . The lawyer is essentially
interested in those who frame the rules and execute the same in a given society
of which he is an active member.
There is a separate branch of sociological jurisprudence which is based
on sociological theories , and is essentially concerned with the influence of law
on the society at large, particularly social welfare. The sociological approach
to the legal problems is essentially different from the approach of the lawyer.
Taking the aspect of crime in society, one finds that the causes of crimes are,
to a very great extent, sociological , and therefore, in order to understand the
pros and cons of the commission of crime in society, one must have a knowiledge
of society.
Sociology has further helped jurisprudence in its approach to the problem
of prison reforms, and, has suggested ways and means of preventing social
wrongs. Until very recently, judges and legislators had to gauge the effect of
punishment in general, and also of such specific punishments as flogging and
hanging , with popular opinion or private impressions as their only guides. Now,
very precise data is available through the efforts of criminologists, who use
scientific methods {as for instance, case study and statistics) to determine the
actual effect of punishment upon the incidence of crime in the community, as
well as the effect of various methods of dealing with crime.
INTRODUCTION 7
Every law-reformer is necessarily interested in the sociology of law. A

recent example in this direction is the wide-spread indignation against hanging
as the extreme form of punishment and its consequent abolition in several
countries of the world. Experts have now compiled statistics to examine whether
abolition of this extreme penalty has any effect, desirable or undesirable, on
crime in those places where it has been abolished. Punishment by administering
lashes exists even today in some countries, and even more shocking, is the
recent introduction of punishments like flogging and maiming in some so-called
"civilised" quarters of the world.
From the above discussion , it will be seen that behind all legal aspects,
there is something social. The causes of crime are partly sociological , and a
sufficient understanding of sociology will enable legislators in formulating prison
reforms and better means and instruments for the prevention of crimes. Topics
like motives, aims and theories of punishments and the efficacies of the various
types of punishments and Dr. Sethna's theory of compensation 'for drying up
the springs of criminal desire' all draw considerable assistance from the science
of sociology. The birth and growth of sociology has, therefore, given a new
orientation to the science of jurisprudence.
The Sociology of Law

Sociological Jurisprudence should be carefully distinguished from what
is called the sociology of law.
Sociology of law differs mainly from sociological jurisprudence in that "it
attempts to create a science of social life as a whole, and to cover a great part
of general sociology and political science." Here, the emphasis is on society,
whereas sociological jurisprudence concentrates on law, and considers society
in relation to law. The sociology of law is thus a branch of sociology dealing
with law and legal institutions in the light of sociological principles, aims and
methods .
Paton, in his Textbook on Jurisprudence, is of the view that the relationship
between law and social interests may usefully be studied by jurisprudence for
three reasons. Firstly, it enables us to understand better the evolution of law.
Giving an analogy, he says that the attempt to explain the law on a purely
logical basis (to the exclusion of social interests) is equivalent to interpreting a
graph of the vibrations in a speeding motor-car, without taking into account the
surface of the road.
Secondly, although man's view of ethics and of his social needs have
changed over the centuries, nevertheless , the element of human interest
provides a greater substratum of identity than does the logical structure of the
law. Thus, although German law adopted the subjective theory of contract,
and English law has preferred an objective approach, yet each has been forced
to adapt its theoretical basis to the needs of modern commerce.
8 JURISPRUDENCE
Thirdly, although the view of certain jurists (like Ke/sen) that the jurist
should not discuss the question of social interests, is attractive, inasmuch as it
encourages an impartial approach to jurisprudence, yet, a study of social
interests is essential to the lawyer to enable him to properly understand the
legal system.
Jurisprudence and Economics

Economics is the science of wealth , and as such , has a very close
relationship with the science of law. Behind many crimes, it has been found
that economic crisis is, very often, the main reason . It is the fundamental right
of every individual to live well , and if he is denied that right, he resorts to all
sorts of anti-social activities. So many economic problems exist in everyday
life and the law-giver is called upon to solve these problems. The aim of
economists is to improve the standard of life, so that the people at large can
develop their personalities. Jurisprudence teaches the legislators how to make
good laws for promoting social and economic welfare.
Both economics and jurisprudence , therefore, aim at the betterment and
the greater good of the citizens of a particular society. Thus, there are laws
relating to workmen's compensation, factory laws, law limiting hou rs of work
(and thus giving sufficient leisure to the working-class people), laws relating to
labour, insurance, maternity we lfare , bonus , leave facilities and other
concessions given to workers, so that they may feel that they have an equal
right of enjoying their lives to their own satisfaction . Likewise, there are also
laws for the benefit of poor agriculturists, e.g., Agricultural Debtors Relief Acts,
the Zamindari Abolition Acts, Acts preventing fragmentation and sub-division
of agricultural holdings, and Acts for the regu lation of agricultural labour.
Jurisprudence, as a science of law, is therefore intimately linked up with the
science of economics. Both help each other in furthering the welfare of the
society.
Jurisprudence and Psychology

The application of the psychological clue to the riddles of human society
has become the fash ion of the day, observes Earnest Baker. It must be
recognised that no human science can be discussed properly unless one has
a thorough knowledge of the human mind. One must have a proper perspective
of the science of psychology, in short, of human nature.
Psychology has been defined as a science of mind and behaviour, and
as such, is very closely related to jurisprudence, that is, the science of law. In
the study of criminal j urisprudence, there is a good scope for the study of
psychological principles in order to understand the criminal mind behind the
crime. What is it that makes a criminal? What is a criminal personality? Why
are crimes committed in a particular society? How does the human mind work?
Is it mere pain that deters, or is it mere pleasure , wicked pleasure , that goads
INTRODUCTION 9
the man to commit a crime like rape or murder? Is it the pleasure-pain theory
or is the purpose motivation theory that is the real cause of crime? Why should
we have punishments at all? Do these punishments deter a person from
perpetrating a crime? All these are very interesting and fruitful questions in
which psychology and jurisprudence are closely inter-linked, so that each helps
the other in solving the problem of crime in society.
In criminology, psychology always plays a very important part.
Understanding the criminal and fathoming into the deep recesses of his so-
called "criminal mind" is an important part of the lawyer's duty. To a law-abiding
citizen, laws are essential , and cannot be considered to be something super-
imposed against his will. In fact, laws may be considered as the will of the
people. Therefore, laws must be formulated in such a way that they exhibit
rational and the social nature of man . And this understanding of human nature
involves a knowledge of psychology.
It is the duty of the law-giver, therefore , to understand men , and not to
pass judgments and say that men ought to do, or ought not to do, a particular
hing. Psychology can help the law-maker considerably in the approach to the
problems, of not only making the law, but also of executing it. At the same
time, it must be noted that psychology has its own limitations, and the law-
maker must, therefore, be very cautious in considering psychological clues for
the solution of legal problems.
Ethics and Jurisprudence

Ethics has been defined as the science of human conduct. How men Write a short note
behave, and how they are actually behaving , and what should be the ideal on : Law and
morality.
human behaviour, are all considered by the science of ethics . Thus, there is
M.U. Apr. 2012
the ideal moral code and the positive moral code. The former belongs to the
province of natural law, while the latter deals with rules of positive or actual
conduct. What is public opinion as to good or proper human conduct is a matter
for ethics to consider. Public opinion no doubt varies considerably from place
to place, from time to time, and from people to people . "It changes in the
furnace of social evolution, social culture and social development. What may
be a rule of good morality at one time may be a bad moral today." (Dr. Sethna)
Jurisprudence is related to positive morality, in so far as law may be What is the rela-
considered as the instrument through which positive ethics tries to assert itself. tionship between
law and morality?
Divine morality does not require any sanction of the law. Positive morality is
(2 marks)
not dependant upon the good actions of good men only. Positive morality M.U. Nov. 2016
requires a strong coercive influence for the maintenance of a public conscience
- what public opinion and the culture or moral enlightenment of the citizens in
the locality demand . There is , therefore , a separate branch of ethical
jurisprudence, which tries to examine the existing ethical opinions and standards
of conduct in terms of law, and makes suggestions for the necessary changes
to be brought about in the system of law, so that it can properly depict the
public conscience.
10 JURISPRUDENCE
There are many ethical rules of conduct which are not necessarily
considered as crimes under our system of jurisprudence. The law takes no
notice of trifles, and therefore, although it may be immoral to tell a lie, a simple
lie is not considered to be a crime , - unless it comes, for instance, from a
witness who is under oath to tell the truth . There are many acts which are
unethical, but all unethical acts are not necessarily criminal. One has also to
consider the problem of laws which society considers to be undesirable. Again,
all that is prohibited by the law of the land is not necessarily immoral. Law
exists for purposes of public convenience and expediency. For the purpose of
enforcing certain ethical conduct, ethics depends upon law through the
instrumentality of the police, the law courts, judges, and the system of courts
and punishment. Legislation must always be based on ethical principles. Law
must never be divorced from human values, and no law can be a good law if it
is not based on sound ethical principles.
Ethics, as a science of human conduct, lays down rules for the ideal
human conduct based upon higher and nobler values for life. Laws are meant
for regulating human conduct in the present, and for subordinating the
individual's requ irement of the society at large. A jurist, therefore, must be
familiar with the science of ethics, because he cannot criticise a law or a piece
of legislation, unless he examines that law through the instrumentality of ethics.
"In the mirror of a community's laws are reflected its culture, its ideology
and its miranda. On the high level of its laws is perceived the glory of a country's
civilization - the depth of its positive ethics. Hence the relationship between
ethics and jurisprudence. " (Dr. Sethna)
Purpose of Jurisprudence
It is essential for a lawyer, in his practical work, to have a knowledge of
jurisprudence, as such study (i) serves to train the mind into legal ways of
thought, and (ii} affords a key to the solution of many provisions of civil law,
which would otherwise appear to be singular and unaccountable. Without such
knowledge, no lawyer, however eminent, can really measure the meaning of
the assumptions upon which his subject rests.
Uses and Value of Jurisprudence

State two benefits It is sometimes said that jurisprudence is a subject without any practical
of the study of applicabil ity. What possible value, it is asked, can there be in an abstract,
jurisprudence.
theoretical subject like jurisprudence? The answer to this question is simple.
(2 marks)
Just as the mathematician investigates the number theory, not with the aim of
M.U. Apr. 2010
Dec. 2018 seeing his finding put to a practical use, but by reason of the fascination which
it holds for him, so also the writer on jurisprudence may well be impelled by
nothing more than its intrinsic interest.
However, jurisprudence is not without its practical value also. It has been
rightly said that Jurisprudence is the eye of the law, and this statement may be
best illustrated by stating in short, the main uses of Jurisprudence, as follows :
INTRODUCTION 11
(i) A study of those fundamental principles which are common to a//

systems of law is of great advantage in the study of a particular system
of law.. Thus, by studying how the rule of law works in western
countries, one can better understand how it operates in the Indian
legal system.
(ii) For the practical work of the legislator and the advocate , the
knowledge of the fundamental principles which are adopted by society
to adjust the relations between man and man is absolutely essential.
The aim of jurisprudence is to formulate these principles and to supply
the foundations which the science of law demands, but of which the
art of law is careless.
(iii) A study of jurisprudence is of immense advantage to the closely allied
science of legislation. Whereas legislation may declare what the law
is, jurisprudence will assist legislation at arriving at what the law ought
to be.
(iv) Jurisprudence also has an educational value, since the logical analysis
of legal concepts sharpens the lawyer's own logical technique, which
is one of his invaluable assets.
English and Foreign Jurisprudence

There has been considerable difference between the juristic thought and
literature of England and that of the Continent. There are several reasons for
this difference. Firstly, the English word 'law' means law, and nothing else, but
the corresponding term in the Continental languages means not only law, but
also right or jusUce. Racht, droit and deritto, all have double significance. This
difference in the meaning of words is partly responsible for the difference
between the juristic thought and literature of England and that of the Continent.
Secondly, the term jurisprudence in English would only mean theoretical
or general jurisprudence, while in the Continental languages, it would include
the whole of legal knowledge. Due to these reasons, and probably also due to
the pragmatic approach of the English lawyers, Jurisprudence in England has
been mostly analytical, while in the Continental countries, it is an integration of
analytical and ethical jurisprudence.
Feminist Jurisprudence
In the olden days, women were subjected to various disabilities - only Write a short note
on : Feminist
because they were women. They were barred from becoming lawyers - and at
jurisprudence .
one time, even from being doctors! M.U . Apr. 2011
Under Roman Law, women had perpetual tutelage. Even after her father's Nov. 2014
death , a woman had to continue under the tutelage of a nominee appointed by Nov. 2016
her father, who would act as her guardian . She was not even allowed to dispose May 2019
Nov. 2019
of her own property without the guardian's consent (as was also the position in
India several years ago).
12 JURISPRUDENCE
In England, it was the Married Women's Property Act that removed the
bondages of their proprietary rights. Nor was a married English woman allowed
to choose a domicile for herself. Like a minor, her domicile slavishly followed
that of her husband until 1974, when English law gave a married woman full
powers to choose her own domicile.
The position under Hindu Law was not much better. Only male children
born into a Hindu joint family could become a coparcener and it was only recently
that the law was amended to give the same right to a girl child born into such a
family.
The Constitution of India has also recognised the principle of equality of
sex and has guaranteed fundamental rights to all persons - irrespective of sex.
In fact, discrimination based on gender is prohibited.
Interestingly, it was as far back as 191 Othat the first International Women's
Conference was held in Copenhagen, where it was decided that March 8 would
be celebrated every year as International Women's Day.
In India, the historic Women's Reservation Bill was introduced in
Parliament on March, 8, 2010 to provide for a mandatory reservation of 33%
for women in Parliament. The Bill has, however, yet to see the light of the day.
000
Part - I
THE NATURE AND
SOURCES OF LAW
Chapter 1
KINDS OF LAW
LAW DEFINED
Much ink has been spilt by jurists in attempts to give an exact definition of
e term "law". Indeed, so much time and energy has not been spent in
answering an analogous question , "What is geometry?" The answer lies in the
fact that law is not a legal concept, just as geometry is not a geometrical concept.
Though the term "law" may not be a legal concept, it is nevertheless a basic
concept in the study of jurisprudence, and some working definition of th is term
ought to be kept in mind .
It is not easy task to give a precise definition of law, because of several
difficulties. Firstly, the term is embeded in philosophical perplexities. Secondly,
the traditional method of definition (genus plus differentia) is totally inadequate
or our purpose . Again, the term possesses a high emotive content. Thus,
should the term 'law' be applied also to an unjust law? This is why no short and
simple, yet accurate, definition of law is possible, in terms of which one can
distinguish what is law from what is not law according to such a definition.
Further, in its widest sense, law would include any rule of action. Thus, in
accordance with the law of gravitation , if a stone is dropped from the roof of
X's two-storeyed building , it must fall on the ground (unless it is caught on its
way by X's neighbour on the first storey). Similarly, under the law of accoustics,
· X claps his hands, he must hear the sound (unless, of course, he is totally
deaf.) However, in jurisprudence, one is not concerned with the term law in
such a wide sense.
Blackstone 's definition of law: "Law, in its general and comprehensive
sense, signifies a rule of action , and is applied indiscriminately to all kinds of
action , whether animate or inanimate, rational or irrational. Thus, we say, the
laws of gravitation , of optics, of mechanics, as well as the laws of nature and
of nations."
Holland's definition of law: "More briefly, law is a general rule of external
human action enforced by a sovereign political authority. All other rules for the
guidance of human action are laws merely by analogy; and propositions which
are not rules for human action are laws by metaphor only."
Taking law as meaning any rule of action, the following eight kinds of law
can be enumerated : 1. Imperative Law. 2. Physical or Scientific Law. 3. Natural
or Moral Law. 4. Conventional Law. 5. Customary Law. 6. Practical or Technical
Law. 7. International Law (or the Law of Nations). 8. Civil Law or the law of the
State.
The law may also be defined as the body of principles recognised and
applied by the State in the administration of justice. The law consists of the
rules recognised and acted on in Courts of Justice. (Salmond)
16 JURISPRUDENCE
BENTHAM remarks "Law or the law, taken indefinitely, is an abstract or

collective term, which, when it means anything, can mean neither more nor
less than the sum total of a number of individual laws taken together."
Salmond, however, does not accept Bentham's interpretation. He is of
the opinion that the constituent elements of which law is made up are not law,
but rules of law or legal principles. That a will requires two witnesses is not
rightly spoken of as the law of England; it is rather a rule of English law.
The Law and a Law

The term 'law' is used in two senses-in the abstract sense and in the
concrete. The term law used in the abstract sense means the system of law,
as for instance , the law of India, the law of defamation, or law and order, law
and justice, etc. In its concrete sense, it means a statute, enactment, ordinance
or other exercise of legislative authority. In the abstract sense, one speaks of
law, or of the law; in the concrete sense , one speaks of a law, or of laws. Law
in the concrete sense may be the source of law in the abstract sense. Law in
the concrete is lex; law in the abstract is jus. Therefore, the terms law and
laws-the law and a law-are not identical in nature or scope. Indeed, the
absence of separate words in the English language for these concepts has
been responsible for considerable confusion.
Territorial Nature of Law

That portion of the earth's surface which is in the exclusive possession
and control of a State is called the territory of that State. Throughout the region ,
the will of the State reigns supreme. All alien interference is excluded therefrom.
The exclusive possession of a defined territory is a characteristic feature of all
civilised States. Now, the law is conceived and spoken of as being territorial.
Thus, the Indian Contract Act, the Indian Evidence Act, the Indian Sale of Goods
Act, are all enforceable in, and apply to, India. They are essentially territorial. It
is, therefore, correct to say that the enforcement of law is undoubtedly territorial
in the same way as a State is territorial.
The territoriality of law, in this sense, necessarily flows from the political
divisions of the world . As a general rule, no State allows other States to exercise
governmental powers within its own boundaries. Thus, if a person commits a
tort or a crime in country A and flees to country B, he cannot, so long as he is
in country 8, be reached by the authorities of country A. Of course, in the case
of crimes, this situation is largely remedied by the practice of extradition, often
crystalised in extradition treaties.
Likewise, the English law of torts knows comparatively little of any territorial
limitation. If an action for damages for, say, negligence, committed outside
England, is brought in an English Court, it will, generally speaking, be determined
in accordance with English law, and not otherwise. Then again , the English
law of procedure is, in hardly any respect, territorial. As remarked by Salmond,
KINDS OF LAW 17
the English law of procedure is the law of English Courts, rather than the law of
England.
A law is said to have extra-territorial operation, when it also operates, in
certain circumstances, outside the limits of the territory within which it is enacted .
Thus, by virtue of the Indian Penal Code and the Criminal Procedure Code,
Indian Courts are empowered to try offences committed outside lndia-
(a) onland , and
(b) on the high seas .
The latter is also known as admiralty jurisdiction, and is based on the
principle that a ship on the high seas is a floating island belonging to the nation
whose flag she flies.
Thus, in Savarkar's Case (13 SLR 296), the accused Savarkarwas in the
custody of police officers who had to bring him from London to Bombay. On
the way, he escaped at Marseilles (France), but was rearrested there, and
finally brought to Bombay. He was then committed for trial by the Special
Magistrate at Nasik. The High Court held, in the above circumstances, that the
rial and the committal were valid.
Some countries, as for instance Turkey, go even beyond this, and apply
their criminal law even to foreigners in respect of crimes committed abroad, if
the victims are Turkish subjects and the foreigner concerned ventures within
Turkish territory.
It may also be added that since territoriality is not a logically necessary
part of the concept of law, a system of law is conceivable , which would be
applied, not with reference to territorial considerations, but with reference to
the personal qualification of the individual. Indeed, this can truly be said of the
personal laws prevailing in India, as for instance, Hindu law and Mahommedan
Law.
KINDS OF LAW
The following are twelve kinds of law. For this purpose, by 'law' is
understood 'any rule of action', law in its most general sense, and not civil law,
i. e. , the law of the land, although civil law is also a kind of law, as will be clear
from the following discussion.
1. Physical or scientific law
2. Practical law
3. Conventional law
4. Customary law
5. Imperative law
6. Natural or moral law
7. General law and special law
18 JURISPRUDENCE
8. Public International Law (or Law of Nations)

9. Prize law
10. Common law
11 . Constitutional law
12. Administrative and Municipal laws.
Each of these is briefly discussed below.
1. Physical or Scientific Law

Physical or scientific laws are expressions of the uniformities of nature,
being general principles expressing the regularity and harmony in the operation
of the Universe. Laws of gravity, light, heat, sound, etc. , are instances of physical
or scientific laws.
2. Practical Law
Practical laws consist of the rules which guide people in fulfilling their
objectives, e.g., the laws of health, the laws of architecture, and so on.
3. Conventional Law
By conventional law is meant any rule or system of rules agreed upon by
persons for the regulation of their conduct towards each other, as for instance,
the rules of a club. Likewise, when two persons enter into an agreement, such
an agreement is a law for the parties. Such rules of law are often enforced by
the State, and in many cases, conventional law is also civil law. (It may also be
noted that conventional law is also a form of special law.)
4. Customary Law
Customary law refers to any rule of action which is actually observed by
men : a law, or rule which they have set for themselves, and to which they
voluntarily conform their actions . Prior to 1955, almost the whole of Hindu Law
was based on custom. Then came the Hindu Marriage Act in 1955, and today
the Hindu Law regarding marriage, succession, minority and guardianship,
adoption and maintenance is codified, and therefore, governed by the
appropriate statutes. Custom is one of the most important sources of law.
In this connection , the famous dictum of the Privy Council may be quoted
here. "For," said their Lordships, "a clear proof of usage will outweigh the written
text of the (Hindu) law." (Collector of Madura v. Mootoo Ramalinga,-12 M.I.A.
439). It must not, however, be forgotten that custom can never override statute
law. The custom of 'suttee' for example, cannot be pleaded to a charge of
murder or its abetment.
(See also Chapter 8, "Custom".)
KINDS OF LAW 19
5. Imperative law
Imperative law means any rule of action imposed upon men by some
authority which enforces obedience to it. It is a command which obliges a
person or persons to a course of conduct. In fact, it is the very essence of a
law to be imperative; otherwise it is not law, but a rule which may or may not be
obeyed .
Now, imperative laws are of various kinds. They are classified with
reference to the authority from which they proceed. They are , in the first place,
either divine or human. Divine laws consist of the commands imposed by God
upon men and enforced by threats of punishment in this world (or in the next).
Human law consists of imperative rules imposed upon men . They are of three
ki nds:
(a) Civil Law-which mainly consists of commands issued by the State
to its subjects, and enforced by its physical power.
(b) The law of positive morality - which consists of the rules imposed
by society upon its members and enforced by public censure or
disapprobation.
(c) The law of nations or International /aw-which ordinarily consists of
rules imposed upon States by the society of States, and enforced
partly by international opinion and partly by the threat of war.
6. Natural or Moral Law

By natural or moral law is meant the principles of natural right or wrong or
the principles of natural justice.
Right or justice is of two kinds : (a) natural or moral justice, and {b) positive Write a short note
on : Law accord-
legal justice. Natural justice is justice as it is in deed and truth - in its perfect
ing to justice.
idea. Positive justice is justice as it is conceived , recognised and expressed M.U. Apr. 2008
more or less incompletely and inaccurately by the civil or some other form of
human positive law.
This concept may be classified by saying that natural justice is one meted
out by God or by Nature. Positive or legal justice is one administered by man.
The former, though often not administered (or invisible, if administered), is
perfect; the latter is necessarily imperfect.
Natural justice is the ideal and the truth, of which legal justice is the more What is the rela-
or less imperfect realisation and expression . Legal justice and natural justice tionship between
law and morality?
epresent two intersecting circles (see the figure below). Justice may be legal,
(2 marks)
but not natural or moral, or moral but not legal, or both legal and natural. Natural M.U. Nov. 2016
law has received several names, e.g., it is called the Divine Law or the Law of
Reason, or the unwritten law or the Universal or the Eternal Law, and in the
modern sense, it is also called the Moral Law.
20 JURISPRUDENCE
Natural and legal justice
A = Natural Justice
B = Legal Justice
AB= Natural and Legal Justice
Explaln the This can be illustrated as follows : Z is a notorious cheat. He borrows

meaning and
from A, a poor ignorant widow, t 1,000 on a promissory note over which he
kinds of justice.
M.U . Apr. 2012
affixes a postage stamp instead of a revenue stamp. Such a promissory note
is inadmissible in evidence. When sued , Z is likely to succeed on a point of law
(unless the widow proves fraud}. Here, though legal justice is done, natural
justice is not done to the poor widow. If, however, while coming out of the court
after winning the case, Z is run over by a car and is disabled for life, one could
say that God has punished him for his sins. That would be a case of natural
justice, - and not legal justice.
Justice may, however, be and ordinarily is, both legal and natural, as
when a murderer is hanged, or a rapist would be castrated (under certain
ancient systems of law) or a 'knifer' is sentenced to whipping (under certain
systems of law). Here, Nature does justice through man.
The term 'natural law', in the sense in which it is referred to here, has
fallen out of use in the present times, for which there are two main reasons,
the first being that the term has become equivalent to physical law, i.e., the
uniformity of nature. The second reason is that it brings with it certain misleading
associations, viz. the suggestion of common imposition , external authority,
legislation etc., which are not in harmony with moral philosophy.
It may not be out of place to dwell, for a moment, on the words of ancient
writers which illustrate the meaning of the terms, law and natural law, as referred
to in those days.
ARISTOTLE : "Law is either universal or special. Special law consists of
the written enactments by which men are governed. The universal law consists
of those unwritten ru les which are recognised among all men. Right and wrong
have been defined by reference to two kinds of law. Special law is that which is
established by each society for itself. The universal law is that which is
conformable merely to Nature."
JUSTINIAN : "Natural law (jura naturalia), which is observed equally in
all nations, being established by divine providence, remains forever settled
KINDS OF LAW 21
and immutable; but that law which each State has established for itself is often
changed, either by legislation or by the tacit consent of the people."
GAIUS : ''All people that are ruled by laws and customs observe partly
law peculiar to themselves and partly law, common to all mankind. That which
any people have established for themselves is called jus civile, as being law
peculiar to that State (Jus proprium civitatis). But that law which natural reason
establishes among all mankind is observed equally by all people , and is for
that reason calledjus gentium. "
The consequences of regarding natural law as law in the same sense as
civil law are mainly three:
(1) Natural law and its product, natural right, are in a position to render
void a human law which is repugnant to them.
(2) At a time when the orthodox theory was that the judges were
mechanical interpreters of the law, natural law served as a good cloak
for the judicial development of the law. However, it has now been
recognised that since the law can never be complete and certain, the
judges must have the power of making new laws in the course of
deciding cases, and they naturally act in accordance with their moral
ideas.
(3) Finally, international lawyers regard this doctrine as seeming to give
legal efficacy to international law, which is supposed to conform to
natural law. But this difficulty, viz. , whether international law is really
a true law in the real sense of the term, is only a verbal one.
One may quote here the observations of Bentham, who regards natural
law as only a phrase of the English language, and natural rights as "nonsense
on stilts". According to him, the "natural law reasoning" (as he called it) resulted
from confusing scientific laws with moral or legal laws. As pointed out by him,
scientific laws describe what generally does happen, whereas moral or legal
laws prescribe how men should behave. To take a simple example, the law of
gravity is a general description of how things behave, and if there is any
discrepancy between such law and the observed phenomena, one cannot
conclude that the law of gravity has been broken (on that occasion). Rather, it
only shows that the man-made theory of gravity needs to be revised . Similarly,
one cannot argue from natural laws of a scientific type to natural laws of a
moral type. When one says that it is natural for man to have children, what is
meant is that such is his general tendency, and not that he is under any moral
or legal duty to follow this tendency.
Natural justice and positive morality are both based on right-doing or What is 'Positive
righteousness . Natural justice is justice in truth and in deed. Positive morality Morality'?
(2 marks)
means the rules of conduct approved by the public opinion of any community,
M.U. May 2018
that is, the rules which are maintained and enforced in that community, not by
civil law, but by the sanction of public disapprobation and censure.
22 JURISPRUDENCE
7. 'General law' and 'Special law'

The whole body of legal rules is divisible into two parts, which may be
distinguished as general law and special law. The following are their definitions
and the main points of difference between the two:
General law consists of the general or ordinary law of the land. Special
law consists of certain other bodies of legal rules , which are so special and
exceptional in their nature , sources, or application , that it is convenient to treat
them as standing outside the general and ordinary law.
This distinction can best be illustrated by taking an example of one type
of special law, custom. The Court may not, and ordinarily does not, know what
a particular custom as to a particular fact is. The parties have to prove such a
custom if they are relying upon it. This is therefore a 'special' law. Ordinarily,
special laws are the very opposite of statute laws, which Courts are bound to
know. lgnoratia juris non excusat- Ignorance of the law is no excuse. Thus,
if a person neglects to take a licence for consumption of liquor (where such
licence is compulsory), he is liable to be fined, even if in fact he did not know
that such licence was required . Thus, every person is deemed to know the law,
for had he taken care to know it, he would have known the law.
There is another sense in which, the term 'special law' is used as opposed
to 'general' law. Thus, the Indian Contract Act, the Partnership Act, the Indian
Penal Code are general laws, meaning that they apply to the whole of India;
whereas the Maharashtra Ownership Flats Act, the Tamil Nadu Gambling Act
and the Calcutta Police Act are special laws applying respectively to
Maharashtra, Tamil Nadu and Calcutta only.
Sometimes, the term 'special law' means the law relating to a particular
subject, such as the Opium Act, Salt Act, etc. Thus, it is common knowledge
that the killing of a human being by another under certain circumstances
amounts to murder. Everybody knows what a contract is, and so on . These are
instances of general law, embodied in the Indian Penal Code and the Indian
Contract Act, respectively. But the question whether spirit is liquor, or whether
particular facts amount to gambling or not, are to be determined with reference
to Prohibition and Gambling Laws. These are special laws, and the party relying
on them has to bring them to the notice of the Court.
Moreover, general law consists of those legal rules of which the Courts
will take judicial notice whenever there is occasion for their application. Special
law, on the other hand, consists of those legal rules which, although they are
true rules of law, the Courts will not recognise and apply them as a matter of
course, but which must be proved and brought to the notice of the Courts by
the parties interested in their recognition. The test of the distinction , according
to Salmond, is judicial notice.
KINDS OF LAW 23
Judicial notice
By the expression judicial notice is meant the knowledge, which any Court,
ex-officio, possesses and acts on, as contrasted with the knowledge which a
Court is bound to acquire on the strength of evidence produced for the purpose.
Thus, the fact that the sun rises in the East and sets in the West, or that
England is a monarchy or France a Republic, need not be proved by evidence.
The Court is presumed and bound to know them suo motu. Similarly, the Court
is bound to take judicial notice of a// the statute laws, i.e., laws of the land.
Kinds of Special Law

The rules of special law fall, for the most part, into seven distinct
classes:
1. Local customs : Immemorial custom in a particular locality has the
force of law. Most of Hindu Law, as it existed prior to 1955, was based on
custom, and almost the whole of it was uncodified .
(The law relating to custom is discussed in Chapter 8.)
2. Mercantile customs : The second kind of special law consists of the
body of mercantile customs and usage, known as the law-merchant.
Thus, the whole of the Indian law relating to negotiable instruments in an
Indian language (hundies) derives its origin from mercantile customs.
3. Private legislation : Statutes are of two kinds, public and private. The
distinguishing characteristic of a public Act (as for instance, the Indian Penal
Code or the Indian Contract Act), is that judicial notice is taken of its existence.
A private Act, on the other hand , is one which does not fall within the ordinary
cognizance of the Courts of justice, and will not be applied by them , unless
specially called to their notice.
Thus, examples of private legislation are Acts incorporating individual
companies or Electricity Boards, Acts. regulating the navigation of a river, or
any other Act concerned with the interests of private individuals or particular
localities.
4. Foreign law: It is essential in many cases to take account of a system
of foreign law and to determine the rights and liabilities of litigants on its basis.
This is the field of Private International Law, also known as Conflict of Laws .
Ignorance of law, i.e. , the law of India, is no excuse. One is supposed to
know the law : lgnoratio legis neminem excusat. But ignorance of foreign law
is like ignorance of a fact and, if not known, is a good excuse : lgnoratio facti
excusat.
5. Conventional law : Another variety of special law has its source in
the agreement of those who are subject to it. Agreement is law for those who
make it. Thus, when A enters into a contract with B , the contract creates rights,
duties and liabilities enforceable by and against A and B only. Rules of a club
or a co-operative society are also instances of conventional law.
24 JURISPRUDENCE
6. Autonomic law : Autonomic law is that species of enacted law which

has its source in various forms of subordinate legislative authority possessed
by private persons and bodies of persons. Thus, a Railway Company may
make bylaws for regulating its undertaking , or a university may make regulations
for governing its members, and so on.
7. Martial law : Martial law is the law applied by Courts-martial in the
administration of military justice. The army also exercises the function of
administering justice. The Courts established within the army for this purpose
are called Courts-martial, and the law is of three kinds, being either {i) the law
for discipline and government of the army itself, or {ii) the law by which the
army, in times of war, governs foreign territory in its military occupation outside
the realm, or (iii) the law by which in times of war, the army governs the realm
itself in derogation of the civil law.
Martial Law and Military Law distinguished

Martial law is not to be confused with military law. The two are different
concepts, as will be clear from the following three points of difference between
them:
1. While Military law is a State law, Martial law is based on Common
law.
2. Military law is applicable to soldiers alone. It is embodied in the Army
Act. Offences under this Act are triable by the Courtsmartial. This
does not absolve a soldier from his liabilities under the ordinary law.
He is liable in a dual capacity:
{i) As a soldier, he is governed by the Military law; here, the Military
law imposes upon him some liabilities from which an ordinary
citizen is exempt.
(ii) As an ordinary citizen, a soldier is governed by the ordinary law
of the land . While Military law is applicable to soldiers alone,
Martial law is applicable to soldiers as well as to civilians in times
of war.
3. Lastly, even when there is no war or rebellion, soldiers are governed
by the Military law. Martial law, on the other hand, would be tolerated
only on the ground of necessity.
8. Public International Law (or Law of Nations)

Is international Public International Law (or the Law of Nations) accord ing to Lord
law, law? Birkenhead, consists of rules , acknowledged by the general body or civilised
(2 marks) independent States, to be binding upon them in their mutual relations. It consists
M.U. Apr. 2011
of those rules which govern Sovereign States in their relations and conduct
towards each other. According to Salmond, it is essentially a species of
conventional law, and has its source in international agreement. It consists of
KJNDS OF LAW 25
those rules which Sovereign States have agreed to observe in their dealings
with one another.
International agreements are of two kinds, being either express or implied.
Express agreements are contained in treaties and conventions. Implied
agreements are evidenced chiefly by the custom or practice of States. In a
wide sense, the whole of international law is conventional. In a narrow sense,
international law derived from express agreements is called the conventional
law of nations.
International law is that body of rules which regulate the relations between
the different States, as also the relations between the individuals and the States.
International law, as it has developed, is more or less customary and
conventional, and these rules have developed as a result of international
conferences, opinions, and writings of the jurists.
According to Dr. Sethna, "We should describe international law as all that
body of customs, usages, conventions, and principles of international propriety
and natural justice, as have been accepted or recognised by the nations of the
world (in the case of general international law) or by some of the nations of the
world (in the case of particular international law) with a view to their observance."
Whether or not international law is really law, is a celebrated, though
sterile, controversy. Austin and his followers deny the existence of the law of
nations and do not consider it as law proper, because in their opinion, there is
no sanction behind international law. According to them, it may, at best, be
considered as international positive morality, and can be described as law only
by courtesy. This is because of the fact that rights with which international law
is concerned cannot be described as legal rights. Law necessarily requires
some political arbiter or some authority which can enforce the law. Law, without
such a force or such an arbiter, becomes a contradiction in terms. In international
law, one finds that the only sanction is international opinion; international censure
or international contempt operates behind international law. According to the
Austin ians, this is not sufficient for the purpose of enforcement of a law. The
ultimate sanction behind international law is war, no doubt, but such a sanction
would lead to nothing but destruction.
Modem jurists are, however, of the opinion that law need not have sanction
or force for its enforcement. Even in civil law, the ultimate sanction lies in the
physical power of the State to bring offenders to justice, but here also, some of
the civil law is only permissive, i.e., it is a law with rights but without remedies
or without legal sanctions. If this is true of civil law, then it can also hold good
for international law. The fear of the atom bomb and devastating weapons of
mass destruction would act as a sufficient deterrent to nations not to resort to
war. Even in civil law, the fear of punishment does not necessarily deter a
person from committing an offence , and similarly, it is possible that there may
be some States which are not deterred by the fear of war or the atom bomb.
26 JURISPRUDENCE
From this it follows that restraint is not necessarily an important element in any
law, though it is a powerful characteristic of civil law.
Therefore , it would not be right to say that international law is not law in
the real sense of the term , because it has no legal sanction behind it. As a
matter of fact, today international censure is a more powerful weapon than the
sanction behind a civil law.
Its nature
Writers are not unanimous in their analysis of the essential nature of the
law of nations (i.e. , international law). Various theories have been put forth
from time to time by various legal experts:
(i) According to one theory, the law of nations includes a branch of natural
law, namely, the rules of natural justice as applicable to the relationship
between States inter se.
(ii) According to the second theory, the law of the nations is a kind of
customary law, namely, the rules actually observed by States in their
relations with one another.
(iii) According to the third theory, it is a kind of Imperative law, namely,
the rules enforced upon States by international opinion, having the
sanction of the threat or fear of war.
(iv) According to the fourth theory, the law of nations is a kind of
conventional law.
According to Salmond, the prevalent opinion accepts the fourth theory,
viz. , that the law of nations is a species of conventional law. Ordinarily,
conventional law is purely based on agreement, which may be either between
private individuals or nations and States.
[ Note : Public International Law is to be carefully distinguished from
what is known as Private International Law. Thus, if a dealer in India sells his
goods to a dealer in France, the delivery to be effected in Germany, and there
is breach of the contract, a question may arise as to whether the French or the
German or the Indian courts would have jurisdiction in the matter, and whether
French or German or Indian Law would be applicable. This would fall in the
realm of Private International Law, also known as Conflict of Laws. ]
9. Prize law
'Prize law' is that portion of the law of nations which regulates the practice
of the capture of ships and cargo at sea in times of war. It is the law as applied
by courts called Prize Courts, in administering justice as between the captors
and all persons interested in the property seized.
A Prize Court is not an international tribunal; it is a court established by,
and belonging exclusively to, the individual State by which the ships and cargo
have been taken . Nevertheless, the law which it is the duty and function of
KINDS OF LAW 27
these courts to administer is the law of the nations. It has its source in the
agreement of sovereign States among themselves.
Thus, Prize Courts were set up to decide the fate of ships and cargo
captured during the 1971 Inda-Pak War.
10. Common law

The term "Common Law" is purely an English term . There is nothing like What are the
common law in India. The general law of England is divided into three parts, exceptions to
common law?
viz., Statute Law, Equity and Common Law. Statute law is derived from (2 marks)
legislation. It is the enacted or written law of England . Equity had its origin in M.U. Nov. 2017
the Court of the Chancery Division, and it has its source in the judicial precedents
of that Court. All the residue is known as the Common Law, and it consists of
the entire body of the Law of England with the exception of the above-named
laws.
In its historical origin, common law was taken to mean the whole law of
England including equity, for in those days, equity was not looked upon with
great interest and was not frequently referred to. Statute law, of course, was
referred to separately, because of its authority. In modern times, however,
Statute law has been developed to a very great extent, and even certain portions
of the common law are undergoing a slow transformation into Statute law by
the process known as codification. Equity also has now gained status, and is
as much a part of the ordinary or general law of the land as is the Common
Law itself.
The term 'Common Law' is still used to mean the whole law of England ,
when it is contrasted with the foreign systems like Roman Law or French Law.
In a phrase like "the principles of English Law" as it has been adopted in the
other Common Law countries like Canada, Australia , New Zealand and the
Irish Republic, the meaning is more extended and widened .
1. 'Common Law' and 'Statute Law' : By the 'Common Law' is
sometimes meant the whole of the law, except that which has its
origin in statutes or some other form of legislation. It is the unenacted
law, with its source in custom or precedent, as opposed to the enacted
law made by the Parliament or subordinate legislative authorities.
2. 'Common Law' and 'Equity' : In another sense, 'Common law'
means the whole of the law (enacted or unenacted), except that
portion which was developed and administered by the Court of
Chancery, and which is distinguished as 'Equity'.
LAW AND EQUITY

In England , during the thirteenth century, it was found that the Common
Law of England had become very rigid , and it was thought necessary that this
rigidity should be broken by supplementing the law by rules governed by the
28 JURISPRUDENCE
conscience of the judge. During this period, there were certain rules of natural
justice which were prevalent, and which to a very great extent supplemented
the rigid principles of Common Law, so much so that an aggrieved party, who
was not in a position to obtain any remedy in the ordinary course, applied to
the Sovereign , who was considered to be the fountain of justice. The Sovereign
then referred such petitions to the Lord Chancellor who was "the keeper of the
King 's conscience", and who considered such applications and gave relief in
fit cases, particularly in cases of frauds, errors, and unjust judgments.
Thus, for instance , the Lord Chancellor recognised the right to 'uses',
which is the mother of the modern trust. Formerly, priests were not allowed to
hold lands, and therefore , they purchased estates, and got them conveyed to
some lay person, who held the lands for the benefit of the priests. If the legal
owner (the lay person) refused to recognise the priests as the beneficiary, the
priests could have no remedy at Common Law, and would, therefore, have to
turn to a Court of Chancery. Th is gave rise to the system of 'use' in the
Chancellor's Courts.
In other words, the need was felt to have some authority above the law,
whom people could always approach when there was injustice. In course of
time, the Lord Chancellor advised the judges of the Court of Chancery to
supplement the law by the principles of equity, justice and good conscience.
But this only resulted in a variety of decisions of a conflicting nature. It became
necessary to preserve uniformity with regard to such judgments. So equitable
decisions came to be uniform, and this led to formation of a body of equitable
rules which were considered as supplementary to the rules of Common Law.
In the reign of Henry VI , the Lord Chancellor developed the remedy of
injunction, which necessarily emanated from Chancery Courts . By this remedy,
the Chancellor prohibited the execution of decrees passed by the Common
Law Courts. It was in the matter of injunctions that a conflict arose between
Lord Chancellor Ellesmere and Chief Justice Coke, because the former had
issued an injunction prohibiting a holder of a decree obtained by fraud from
executing it and which decree had been passed by Chief Justice Coke. The
dispute was referred to Lord Bacon who was then Attorney-General of England,
who decided the matter in favour of the Lord Chancellor. Thus, equitable
principles came to be recognised as principles superior to the rules of Common
Law. During the Chancellorship of Lord Eldon, equity became a body of
principles decided on the basis of precedents laid down by the Judges in the
equity Courts. Uniformity of principles and consistancy of application through
the means of precedents were employed by equity Courts in deciding the cases
before them .
Till 1875, England had two different systems of judicial administration . In
1875, with the coming into existence of the Judicature Act, there was a fusion
of the two systems into the High Court of Justice. In cases of-conflict between
the rules of law and the principles of equity, the latter became the modifying
KINDS OF LAW 29
factor and was even allowed to prevail over the former, and thus correct the
law. Today, equity has been merged into law. "The two streams flow side by
side, but their waters do not mingle." Equitable principles are as effective as
the principles of Common Law and they have the same recognition as legal
principles. For example, a trustee who is the legal owner of property cannot
appropriate the property to the detriment of the beneficiaries, who have an
equitable interest in that property. A subsequent legal charge can defeat even
a prior equ itable charge , but where the equities are equal , the law prevails.
Meaning of the term 'Equity'

According to Salmond, the term 'equity' possesses at least three distinct,
though related , meanings.
In the first sense, it means morality, honesty and uprightness. This is the
most general sense in which the term is used. As Snell, the learned author of
Principles of Equity, points out, in modern legislation, provisions relating to
what is equitable is usually construed as referring to what is fair and just.
In the second sense, it means the principles of natural justice which tamper
the fixed rules of law. Wherever the law is inadequate, rigid or technical , it will
be supplemented by justice, equity and good conscience. In this sense , equity
consists of the rules of natural justice which augment the rules of law.
In the third sense, equity consists of, in itself, a set of fixed rules. It is not
something which is left to the good sense of the judge, but it is a well-formulated
set of rules. In this sense , it is a system of law parallel to the rules of common
law and the statute law. When one speaks of equity under English law, one
makes use of the term in this narrow, restricted sense.
Equity thus became the source of law. The principles emanating from the
conscience of the judge were made uniform, and they were soon made into a
body of rules which were called rules of equity. With the fusion of law and
equity, equity became a part of the law, though the distinction between law and
equity is still clearly maintained . Out of the equitable principles have emerged
laws, such as the Law of Trusts, the Law of Mortgages, the Law of Quasi-
contracts, the Doctrine of Subrogation, Assignments, and the recognition of
several principles in the Partnership Act and the Companies Act. Transfers are
also of two types , legal and equitable, and several principles of equity are
embodied in the Specific Relief Act. All have become a part of the law of the
land, th us correcting and supplementing the law considerably.
11 . Constitutional law
The organisation of a modern State is of extra-ordinary complexity. Such
an organisation consists of two distinct parts. The first consists of its fundamental
elements. The second consists of the details of State structure and State action .
The essential part is known as the Constitution of the State. Constitutional law
is the body of those legal rules which determines the constitution of the State.
30 JURISPRUDENCE
The distinction between Constitutional law and ordinary law, according to

Salmond, is one of degree rather than one of kind. The more important
fundamental and farreaching any principle or practice is, the more likely it is to
be classed as constitutional. But in countries which have a written Constitution
(like India), the distinction may not be as obscure as it is in countries without a
written Constitution (like the United Kingdom).
The concept of Constitutional law presents some difficulty to a student of
Jurisprudence. If Constitutional law is the body of those legal principles which
determines the Constitution of a State, the problem is, how can the Constitution
of a State be determined by law at all? There can be no law unless there is
already a State, and there can be no State without a Constitution; if the State
and the Constitution are prior to the law, how is it that the law determines the
Constitution? Therefore, can it not be said that Constitutional law is not a law
in reality at all? Salmond maintains that the Constitution is both a matter of fact
and of law. The Constitution consists not only of legal rules, but also of
Constitutional practices. Constitutional practices are logically prior to
Constitutional law. There may be a State and a Constitution without any law,
but there can be no law without a State and a Constitution. Therefore, no
Constitution can have its source and basis in the law. It has of necessity an
extra-legal origin.
The Constitutional facts which are extra-legal will be reflected with more
or less accuracy in Courts of justice as Constitutional law. The law will develop
for itself a theory of the constitution, as it develops a theory of many other
things which may come in question in the administration of justice. For example,
the Constitutions of the United States of America had their extra-legal origin in
the independence it achieved by rebellion against the lawful authority of the
English Crown. The constituent States of the United States of America
established Constitutions for themselves by way of popular consent after the
attainment of independence. Before these Constitutions were actually
established, there was no law, save that of England. These Constitutions were
established in defiance of the law of England . Therefore, the origin of these
Constitutions was not merely extralegal; it can even be said to be illegal. But
as soon as these Constitutions succeeded in becoming de facto established,
they were treated as legally valid by the Courts of these States. Constitutional
law followed hard upon the heels of the constitutional fact. Salmond concludes
by observing that "Constitutional law, therefore, is the judicial theory reflection,
or image of the Constitution de facto, that is to say, of constitutional practice."
Amendment of a Constitution
Essentially, a new constitution reflects the problems of the day and the
ultimately accepted solutions. However, like any other statute, the Constitution
needs to keep pace with changing times. Hence the necessity for provisions
for its amendment. In the words of Burke, "A constitution without some means
of change is without the means of its conservation."
KINDS OF LAW 31
The procedure for the amendment of the American Constitution is a highly

rigid and even complicated one, contained in Art. V of the Constitution of the
United States. In England , there being no written Constitution , the Constitution
can be amended by Parliament like any other law, as the doctrine of
Parliamentary Sovereignty prevails in that country. In India, the provisions
relating to the amendment of the Constitution are contained in Art. 368 of the
Constitution, and have been the centre of lively controversies in several judicial
decisions.
It is sometimes urged that the Constitution is a sacred law of the land ,
and therefore, frequent amendments are undesirable. The answer is that the
Constitution is, no doubt a sacred document, but human life is even more
sacred , and any amendment for maintaining the dignity of human life cannot
be considered to be unnecessary. A constitution is, therefore, not, like the ark
of the covenant, too sacred to be touched . It can never be looked upon as a
body of eternal principles operating in a vacuum.
12. Administrative and Municipal Laws

Closely related to Constitutional Law are Administrative Law and Municipal
Law. Administrative Law deals mainly with the administration of the executive
departments of the State and delegated legislation. Municipal Law deals mainly
with the promotion and preservation of public health , water supply, construction
and maintenance of buildings, roads , gardens, etc.
ODO
Chapter 2
LEGAL THEORY
The primary purpose of legal theory is to define law. There have been
several theories of law. These different theories often look at law from various
points of view.
The following six topics are considered in this Chapter:
What do you I. Law as the Dictate of Reason : Natural Law
understand by
legal theory? II. Imperative (or Positivist) Theory of Civil Law: Austinian Theory
(2 marks) Ill. Law as the Practice of the Court : Legal Realism of Justice Holmes
M.U. Apr. 2010
IV. Law as a System of Rules
Nov. 2012
(Hart's Analysis of Law)
(Kelsen's Theory of Legal System)
Critically examine
the Natural law V. Law as a System of Synthesis (Sethna's Synthetic School)
Theory.
VI. The Function & Purpose of Law : Justice, Stability & Peaceful Change.
M.U. Apr. 2012
May 2017
I. LAW AS THE DICTATE OF REASON : NATURAL LAW
According to the Natural Law Theory, there are objective principles, which
Write a short note
on : Merits of depend on the essential nature of the universe, and which can be discovered
Natural Law by natural reason. From the point of view of the ordinary human being , law is
Theory. only true law so far as it conforms to these fundamental rights. According to
M.U. Nov. 2006
this theory, there are certain objective and absolute principles of morality and
justice which are the basis of law. These principles can be ascertained by
What is the central human reason and common sense. Positive law, i.e., man-made law, has to
notion of the conform to these fundamental principles. To the extent positive law is
Natural Law inconsistent with the principles of natural law, it does not claim obedience.
Theory? Discuss
the merits of the The roots of this theory are to be found in the philosophies of the ancient
theory. Greek philosophers. This theory is also responsible for much of the legal and
M.U. Apr. 2011 political thinking of the middle ages. As Bodenheimer rightly remarks, "No other
philosophy moulded and shaped American thinking and American institutions
to such an extent as did the philosophy of natural law in the form given to it in
Examine the com-
ponents of the the seventeenth and eighteenth centuries".
Natural Law The attractions of this theory are evident. Much too often, ordinary laws
Theory.
fall short of the ideal, and men have always felt the need of an appeal from
M.U. Nov. 2016
positive law to some higher standard. And , it is precisely such a standard that
is provided by natural law, which with its battle-cry "lex injusta non est lex"
What is the central (unjust law is no law), has served to criticise and restrict positive law.
notion of the Natu-
ral Law Theory?
Another great use of this theory is that it rejects ethical relativism . Ethical
(2 marks) relativism considers morality as a product of history and convenience, while
M.U. Nov. 2012 natural law affirms the existence of certain objective and absolute values.
LEGAL THEORY 33
This theory promises to find common moral ground in different religions Examine critically
the natural law
and different outlooks. The Greek Stoic Philosophers asserted that man should theories propun-
live according to nature. The essential characteristic of human nature was his ded by different
reason. Therefore, he should live according to the dictates of reason. In the jurists.
Medieval times, the function of natural law was primarily to prescribe man's M.U. May 2019
functions and duties. But later philosophers, such as Hobbes and Locke, made
use of the Doctrine of Natural Law for purposes of asserting man's rights and
freedoms.
Criticism
The main criticism against the Doctrine of Natural Law is that it confuses Explain the central
the nature of law and morality with the scientific laws. In law and morality, the notion of the
Natural Law
value is not a logical outcome of the fact, whereas the scientific laws are Theory and
objective and describe a phenomenon. The natural laws or human laws do not discuss the
prescribe a phenomenon, but they prescribe a code of conduct. This criticism demerits of the
theory.
is met by the natural lawyers, by showing that human laws also describe how
M.U. Nov. 2014
men are ordained to behave. According to them, everything has its proper
functions, and so to be good, it must fulfil this function, and natural law also
fulfills such function .
Further, the critics contend that a human being cannot be compared to
an object like a motor-car. A motor-car is created for performing certain functions
and for certain purposes. It is very difficult to maintain that a human being is
created for such a purpose and function. The natural law theory might involve
the existence of God who created the human being with a purpose or for a
function. This assumption in the existence of God results in several difficulties.
Therefore, the natural law theory, based on the notion of opinion, cannot be
compared to a scientific law.
Another great difficulty which the natural law theory encounters is that it
believes in universal principles of morality. But societies differ and times change.
In such a context, it is difficult to maintain the existence of absolute and
immutable universal principles. This difficulty is sought to be met by writers
like Stammler, who formulate the idea of natural law with a varying content.
According to this view, the basic principles remain the same, though their
detailed application would depend on the special circumstances of each society.
Conclusion
Though there has been quite a bit of criticism of the natural law doctrine,
yet the doctrine has been revived to a large extent in the 20th century, when
totalitarian doctrines rejecting all human moral values became a challenge. To
meet them, humanity naturally had to revert to a certain kind of natural law.
This could be seen in the trials of the war criminals at Nuremburg, and also
formed the basis of the Charter of United Nations and the Universal Declaration
of Human Rights.
34 JURISPRUDENCE
In the words of Dr. Friedmann, "The most important and lasting theories
of natural law have undoubtedly been inspired by two ideals - of a universal
What is positive order governing all men, and of the inalienable rights of the individuals". It can
law? (2 marks) be said to-day that natural law has influenced the Church; it has modified and
M.U. Dec. 2018 restricted the principles of positive law; it has imbibed its philosophy in the
constitutions of several countries, and it has been a very potent source of
international law. Tomorrow, it may lead the countries of the world to accept
the concept of world law.s
II. IMPERATIVE (or POSITIVIST) THEORY OF CIVIL LAW

(THE AUSTINIAN THEORY)
Write a short note Almost diametrically opposed to the theory of natural law is the imperative
on the Imperative
theory of law, which found its most forceful expression in the works of Austin.
Theory of Law.
M.U. Oct. 2008 This important theory is also called the Austinian or the Positivist Theory of
Apr. 2011 law.
According to Austin, positive law has three main features : (i) It is a kind
Who is "s over- of a command; (ii) it is laid down by a sovereign authority; and (iii) it has a
eign" according to
Austin? sanction behind it. A typical illustration would be the English Road Traffic Act.
M.U. Nov. 2011 This Act lays down certain rules which have to be followed (command), it has
been passed by the Queen in Parliament (laid down by the sovereign authority
What are legal of England), and its violations are met with penalties (sanction).
theories? Discuss
the Imperative According to this theory, every positive law, or every law strictly so called,
Theory of Law. is a direct or circuitous command of a monarch or sovereign in the character
M.U. Nov. 2015 of a political superior, that is to say, a direct or circuitous command of a monarch
or sovereign to a person or persons in a State of subjection to its author.
Define the main
propositions of According to the imperative theory of civil law, civil law is, essentially and
positivism. throughout its whole compass, nothing but imperative law. According to this
(2 marks) theory, civil law consists of the general commands issued by the State to its
M.U. Nov. 2016 subjects, and enforced through the agency of Courts of law by the sanction of
physical force. The speciality of this theory is that it construes laws to be
commands issued by the State and enforced by the sanction of its physical
force.
One might generally accept that there are certain rules of law which are
in the nature of a command,- but this theory maintains that all laws are in the
nature of a command. This theory is not acceptable to many jurists. The following
are the main criticisms levelled against it.
Critically examine (a) Historical criticism

Austin's definition Critics belonging to the historical school concede that, in modern societies,
of law. Is sanction
one of the where there are established States, laws may be in the nature of a command,
essential elements but there existed laws even prior to the existence of the State. Such early law,
of law? which existed prior to the State, is not the command of the State. It has its
M.U. Nov. 2009
LEGAL THEORY 35
source in custom, religion or public opinion, and not in any authority vested in Compare and
contrast the
a political superior. Therefore, this school holds that law is prior to, and
imperative theory
independent of, political authority and enforcement. A State enforces it because of law and the
it is already law; and it is not that it becomes law because the State enforces it. natural theory of
law.
Criticism answered M.U. Apr. 2014
Though Salmond is not a supporter of the imperative theory of civil law,
yet he does not accept the criticism levelled by the historical school. Salmond
(a) According to
points out that the rules which were in existence prior to the existence of a Austin, what
political State were not laws in the real sense of the term. They resembled law; are the most
they might have been primitive substitutes for law, but they were not laws. On important
characteristics
the other hand, Salmond considers it to be a virtue of the imperative theory of law.
that it excludes those rules which resemble law, but are not laws. Salmond (b) C r i t I c a 11 y
supports his argument with an analogy. Apes might have resembled human evaluate
beings; further, they might be in existence prior to man; but it is not a defect of Austin's theory
of law.
a definition of man if it excludes apes from such definition. On the other hand,
M.U. Apr. 2008
it is a merit of such a definition.
(b) Moral criticism

Though Salmond rejects the historical criticism, yet he appreciates the
inadequacy of the imperative theory of civil law. He observes : "It is one-sided
and inadequate - the product of an incomplete analysis of historical
conceptions." His main criticism against the imperative theory is that it disregards
the moral or ethical elements in law. This theory ignores the intimate relation
between law and justice. Salmond points out that the end of law is justice. Any
definition of law without reference to justice is evidently inadequate. Law is not
right alone, or might alone, but the perfect union of the two. It is justice speaking
to men by the voice of the State. As the imperative theory excludes the ethical
elements in law, it cannot be accepted as a complete definition of law.
Criticism answered
In all fairness to the Imperative Theory, it must be remembered that, as
pointed out by Austin, his theory of civil law is only a formal, and not a
substantive, treatment of the law. The questions of morality and public opinion
are concerned with the law only in its substantive aspect.
(c) Permissive laws

Salmond further points out that the defect of the imperative theory of civil
law cannot be cured even if an ethical element is added to the definition of the
law as given by the imperative theory. Salmond points out that the imperative
theory does not accommodate a number of rules of law which are not in the
nature of commands. For example, there are permissive laws and procedural
laws. These are, by no stretch of imagination , in the nature of commands. For
example, a law which says that a certain act is not wrongful is not a command,
36 JURISPRUDENCE
or the law which says that hearsay is no evidence is not a command. Therefore,
Salmond concludes that, though there is a large element of truth in the
imperative theory of civil law, it is inadequate and incomplete.
Attempts to meet Salmond's criticism -Authority of Law

There are some writers who try to meet Salmond's criticism, that there
are rules of law which are procedural and permissive and , therefore, not in the
nature of a command . These writers maintain that these procedural rules may
not be commands addressed to the citizens, but they are commands addressed
to the Courts. The procedural law demands that the Court must act in a particular
way under particular circumstances.
But this criticism is easily met by Salmond. It may be true to say that
procedural laws are commands addressed to the inferior Courts, but so far as
the final Court of Appeal is concerned , the existence or procedural law depends
on the interpretation given by such final Courts. For example, there is no way
of correcting the Supreme Court of India, if the Supreme Court of India were
not to follow a particular procedural rule . In the last analysis, the laws depend
on the interpretation given by the Courts, and the judges obey the law, not
because they are ordered to do so, but because they wish to obey it. Therefore ,
there is no force which compels a superior Court to obey procedural law.
Consequently, procedural law cannot be considered as a command to the
Courts.
(d) Other Criticisms

Austin's theory has also been criticised on the ground that if particular
commands can qualify as law, how can one distinguish laws from commands
which are not laws? Everyday life is sprinkled with instances of people giving
commands to others: masters give orders to servants, parents to their children,
teachers to their pupils, and so on . Can all these be called "laws"? Moreover,
some such commands may be unlawful, as for instance, that of the bank-
robber who points his gun at the cash ier and orders him to hand over the cash.
Indeed, some critics, like Goodhart have called this theory "the theory of gunman
law" on the ground that it fails to distinguish between a law and the command
of a bank-robber.
However, criticisms such as these overlook the second requirement of
Austin's theory : To qualify as law, a command must come from a political
sovereign. Thus, one difference between the order of the bank-robber and a
decree of a dictator is that the latter enjoys some measure of general obedience,
whereas the former secures a much more limited compliance.
Vinogradoffhas also criticised Austin's theory on the ground that it is not
only the sanctions behind the law that have to be considered , but also other
factors like general recognition, public opinion, the will of the governed, etc.
LEGAL THEORY 37
According to Cicero and Kant, law is based on reason. Laws flow from
reason, and not from the Sovereign , as reasonableness is one of the primary
ingredients of law.
It has also been said that if sanction and command are really necessary
for law, international law would be no law at all. This criticism has been met by
pointing out that war is the ultimate sanction behind International Law.
Jurists also point out that this theory overlooks the cultural norms of society.
Over a period of time, every country builds up a rich wealth of its own va lues
and cultural norms , which the law cannot afford to ignore.
In a case decided by the Supreme Court (Raj Kapoorv. the State, (1980)
1 S.C.C. 43), Justice Krishna Iyer examined the connotation of the term "law",
and observed as follows:
"Jurisprudentially speaking, law, in the sense of command to do or
not to do, must be a reflection of the community's cultural norms,
not the State's regimentation of aesthetic expression or artistic
creation."
Conclusion
To conclude, it can be said that one cannot accept Austin's theory if it
maintains that all law emanates from the command of the Sovereign. However,
if the theory lays down that most law comes from, and requires the sanction of,
the Sovereign , the theory may be accepted.
Again, from a formal point of view, Austin's theory is, on the whole, forceful ,
and the various criticisms considered above do not shake it off its foundation .
Ill. LAW AS THE PRACTICE OF THE COURT

(LEGAL REALISM OF JUSTICE HOLMES)
One version of legal realism was the one propounded by Salmond, who
pointed out that a// law is not made by the legislature. In fact, he argued that, in
England, much of it is made by the law courts. Nevertheless, all laws, however
made, are recognised and administered by the Courts. Therefore , if a rule is
not recognised by the Courts, it is not a rule of law. Thus, according to Salmond,
it is to the Courts, and not to the legislature, that we must point out if we wish
to ascertain the true nature of the law. Accordingly, he defined law as the body
of principles recognised and applied by the State in the administration ofjustice,
as the rules recognised and acted upon by the Courts.sss
However, there has been another version of legal realism in the United Critically discuss
the American
States of America . According to this theory propounded by American jurists,
realists' version of
law is in reality judge-made. The origin of this theory is traced to Justice Holmes, law.
and the theory has a substantial following in the United States. Holmes highlights M.U. Apr. 2010
the situation , not of the judge or the lawyer, but of (what he calls) "the bad
man", i.e. , the man who is anxious to secure his own selfish interests. Such a
38 JURISPRUDENCE
What is the central man is not interested in knowing what the Statutes or the text-books say, but
notion of American
what the Courts are likely to do in fact. This theory makes a distiction between
realism?
(2 marks)
law in books and law in action. According to this theory, what the Courts will do
M.U. Apr. 2014 in fact cannot necessarily be deduced from the rules of law in text-books, or
even from the words of statutes themselves, since it is for the Courts to say
what these words mean. As Gray observed, "The Courts put life into the dead
Examine criti- words of statute." This approach is a reaction to the traditional approach, that
cally : American
Realism.
judges do not really create law, but only declare what the law already is.
M.U. Oct. 2008 This school fortifies sociological jurisprudence, and recognises law as
the result of social influence and conditions, and regards it as based on judicial
decisions. In the words of Holmes, "The life of the law has not been logic; it
Critically examine
has been experience". Or, in the words of Paton, "Law is what the Courts do; it
the Realist Theory.
M.U. Nov. 2011
is not merely what the Courts say. The emphasis is on action."
sHowever, the American realists point out that when Courts must choose
between alternatives, much will depend on the subjective element of a judge.
How do Realists Judicial process, they argue, is not like that of a slot machine. Much will depend
define law?
on the temperament, up-bringing, social background, realities, learning, etc.,
(2 marks)
M.U. Apr. 2012 of the judge. Therefore, they contend that law is nothing more than a prediction
May 2015 of what the Courts will decide.
It is also argued that the language of several Statutes is uncertain, and
Write a short note
the Courts are, therefore, called upon to decide what a particular word or phrase
on : American
realists. means. Thus, for instance, the English Road Traffic Act makes it an offence to
M.U. Nov. 2014 drive a vehicle in a manner dangerous to the public. An interesting question
before the Court was whether a person who steers a broken-down vehicle on
tow can be said to be "driving" it. Since Parliament had not defined the term
Explain the central "driving", the word would have to be understood in its ordinary sense. However,
notion of the
Realistic Theory of the ordinary usage of the word is not wide enough to cope up with such a
Law and state the marginal situation, as it does not draw a very clear or distinct line between
merits and what is driving and what is not driving. Faced with this question for the first
demerits of the
theory.
time in 1946, the Court had to draw such an arbitrary line, and further define
M.U. May. 2015 the term "driving" in Wallace v. Major (1946 K.B. 473).
A note may also be made of Scandinavian Realism, the founder whereof
was Axel Hagerstrom. Whilst the American Realists preferred to revolve round
what the courts did and what the judges said, the Scandinavian School sought
to develop a formal philosophy of law, showing how law is an inextricable part
of society as a whole. The Scandinavian Realists do not look at law as a divine
command. According to them, law creates morality, and not the other way
around .
Later jurists who adopted the "Scandinavian" line of Realism were Vi/helm
Lundstedt, Alf Ross and Karl Olivecrona.
LEGAL THEORY 39
Criticism
This view that a statement of Law is nothing more than a prediction of
what the Courts will decide is subject to the following criticisms:
(1) Legal situations are not predictions

It should be noted that a statement of Law is seldom treated as a prediction
which a Counsel submits before a Court. He is not forecasting what the judge
will decide, but he is asking what the judge should decide. Further, a judicial
decision is not a prediction of what a higher Court would do, but it is a judgment
as to what the law now is. Similarly, a Legislature is not predicting what will be
done, but it lays down what shall be done.
(2) The theory represents a fraction of the situation

Though the realist view may be true to some extent in those situations
when a new principle of law is evolved , yet it should be noted that most of our
law is settled and stabilised. It should also be noted that several points of law
never reach a Court, for the simple reason that the principle of law is so clear
that the parties adhere to it.
Thus, it is argued that the creative days of the judge is now a thing of the
past. It is argued that today the law is so complete, that the task of the judges
is the more-or-less automatic task of applying settled laws to the cases before
them.
However, this criticism is not without an answer. Legal rules are still not
as certain as was once imagined, and the element of choice still faces a Court
of law. To take just one example, in England, the unlawful and intentional killing
of a human being is the common law crime of murder. But, what would be the
position if X intentionally inflicts a mortal wound on Y, and then, mistakenly
thinking him to be dead, throws his body into a lake , with the result that Y dies,
not from the wound, but by drowning? Would this amount to murder? Until
1954, the English law had no answer to th is problem, when these facts were
before the Courts in Thabo Meli v. R. (1954 1 All E.R. 373), in which case the
Court had to further develop the English law of murder.
(3) The theory of uncertainty of language not is always correct

It may be noted that in some border-line cases, the language may be
uncertain, as in the example of the word "driving" given above, but to generalise
that all language is uncertain is to exaggerate the situation without any
foundation. In marginal cases, the meaning of the word may be uncertain, but
this proves that the meaning of the word is certain in other cases. Therefore,
the realistic approach to law based on the uncertainty of language is a
generalisation of an exceptional situation.
40 JURISPRUDENCE
IV. LAW AS A SYSTEM OF RULES

(Hart's analysis of law; Kelsen's theory of legal system)
There is yet another way of looking at law. This is to analyse law in terms
of legal rules. It should be noted that legal rules are imperative or prescriptive,
rather than indicative or descriptive. In other words, legal rules are not concerned
with what happens, but with what should be done. The legal rules again differ
from commands, because commands order the doing of one particular act,
while legal rules deal with general and repeated activity. In this sense , legal
rules resemble technical rules or directives for achieving certain results. Thus,
for instance , certain rules may provide the mode of preparing a good dish.
Legal rules are more like the rules of a recipe than commands. But the
fundamental difference between rules of recipe and legal rules is that the legal
rules are not merely an instrument for producing certain kinds of society, but
the legal rules and their observations are themselves part of such society.
It has also been pointed out that observing a rule is different from mere
acting out of habit. What is done out of mere habit is done without any sense of
obligation to do it, whi le observance of a legal rule is not merely external.
Internally, it is coupled with an attitude that such external behaviour is obligatory.
Therefore, a legal rule can be defined as one which prescribes a code of
Critically examine conduct, which is done with the feeling that such conduct is obligatory. This
the definition of
law as given by feeling is not a psychological illusion peculiar to the person observing the rule.
H.L.A. Hart. A person who has to act according to a rule wi ll also expect others to act
M.U. Nov. 2010 according to the rule. This sense of obligation arises neither out of mistake nor
out of illusion.
State how H.L.A.

The above is, in short, Professor Hart's theory of law, as set out in his
Hart defines law. treatise, The Concept of Law.
(2 marks) Prof. Herbert Linonel Adolphus Hart (H. L.A. Hart), who was a Professor
M.U. Nov. 2012
of Jurisprudence at Oxford University, defined the word "law" as follows:
"Law consists of rules which are of broad application and nonoptional
What is law character, but which are at the same time amenable to formalisation , legislation
according to and adjudication ."
H.L.A. Hart?
(2 marks) Hart calls these rules of law primary rules, which would simply impose
M.U. May 2017 duties. But the unity among these rules is brought about by secondary rules,
which are power-conferring rules. For example, the Indian Penal Code consists
of primary rules , while the Constitution of India consists of secondary rules , as
Write a short note it consists of a number of power-conferring rules .
on : Legal rules of
games and clubs. Legal rules , as defined above, must be distinguished from rules of games,
M.U. Nov. 2006 clubs, and societies, and moral rules, wh ich are also observed with a sense of
Apr. 2009 obligation . The first difference between moral rules and other rules (including
Nov. 2009 legal rules) is that the latter can be amended and can be subject to adjudication,
while morality can neither be amended by an authoritative body; nor is it
susceptible to the process of adjudication.
LEGAL THEORY 41
Secondly, legal rules and moral ru les can be distinguished from rules of a
game or a club or a society. Obedience to legal and moral rules is general in
application , while the rules of games are applicable only to a limited number of
persons who are playing the game. Again, one could withdraw from the game,
the club or the society, while in the case of legal and moral rules, such withdrawal
from a State or society is practically impossible.
Hart's analysis and Austin's theory compared

Hart's analysis of legal rules is different from the Austinian concept of What is the pure
theory of law?
legal rules. According to Austin, the command of the State is imposed and one
(2 marks)
is obliged or compelled to obey it. According to Hart, a legal rule is observed
M.U. Apr. 2012
because one has a sense of obligation to observe it. Law prescribes, not a
command , but a standard of conduct. This standard is adhered to , not only
because there is a sense of obligation to adhere to it, but also because there is
an expectation that others have some obligation to adhere to it. Therefore ,
even a person who cannot be compelled to obey the law is still reckoned as
having an obligation to obey. According to this view, law is concerned with
obligation rather than coercion.
Kelsen's theory of Legal System

Another connected theory is that of the Austrian Jurist, Hans Ke/sen, the Explain Kelsen 's
theory of law.
great jurist, who was responsible for the framing of the Austrian Constitution.
M.U. Nov. 2012
Ke/sen advocated the "pure" theoryoflaw. He called it pure, because the
theory describes only the law, excluding everything that is strictly not law. It
seeks to lay down what is the law, and not what the law ought to be. Answer ln one or
two sentences:
Ke/sen was of the view that, to be acceptable, any theory of law must be Kelson's contribu-
"pure", that is, logically self-supporting-and not dependent on any extraneous tion to legal theory.
factors , i.e. not influenced by factors like natural law or sociological or politica l (2 marks)
or historic influences. M.U. Dec. 2018
According to Ke/sen , every system of law is based on a grundnorm or

ground rule, from which the validity of other statements of law in that legal What Is
system follow. 'Norms' are regulations setting forth how persons are to behave; " grundnorm " ?
and grundnorm is the basic norm in a given legal system . It is that ultimate Who propouded
It? (2 marks)
norm that confers validity on all other norms . In other words, it is the basic rule
M.U. Apr. 2011
wh ich is the underlying basis of a legal system .
According to Kelsen , any legal system is made up of a hierarchy of norms.
Each norm is derived from its superior norms. Now, the ultimate norm from
which every legal norm gets its validity is the grundnorm, that is, the highest
basic norm.
Kelsen disagreed with Austin who looked upon law as a command backed
by some form of sanction on two counts. Firstly, he rejected the idea of a
command, because that introduces a psychological element into the theory of
42 JURISPRUDENCE
law, whereas Kelsen advocates the pure theory of law. Secondly, Kelsen
disagrees with Austin that the sanction is something that is outside the law and
gives validity to the law. Such a statement is, according to him, "inadequate
and confused". Kelsen took the view that the validity of a rule has nothing to do
with sanctions.
Kelsen also conceded that the grundnorm need not be the same in every
legal system and a grundnorm of some kind will be there in a// legal systems,
whether governed by a written constitution or by the will of a dictator.
In India, the Constitution is the fundamental law of the land. All the organs
of the government owe their origin to this document and derive their authority
from it. In the words of Prof. Wheare -
"Two institutions - a supreme court and a written constitution - are
essential institutions of a federal government. A supreme constitution is essential
if the government is to be federal and a written constitution is essential if the
federal government has to work well."
What Is Ke/sen considered the systematic character of the legal system to consist
"grundnorm"? in the fact that all its rules or norms are derived from the same basic rule or
(2 marks) rules, which he has called grundnorrns. Where there is a written constitution ,
M.U. Nov. 2010
as in India or the United States, the basic grundnorm will be that the constitution
ought to be obeyed. However, where there is no written constitution, as in
Discuss Kelson 's England, Ke/sen postulates that we must look to social behaviour for the
Grundnorms. grundnorm. The English legal system, according to him, is based on several
M.U. Apr. 2007 such basic rules, such as the theory of parliamentary supremacy, the binding
force of precedents, and so on. Such basic rules are very important to any
legal system; they are to a legal system what axioms are to geometry; they
Write a short note
on ; Kelson's constitute the initial hypothesis from which all other legal propositions are
Grund norms. derived.
M.U. Apr. 2009 Kelsen's analysis of the formal structure of law as a hierarchical system
of norms is a great contribution to jurisprudence and has received acclaim
Explain the
from various quarters. However, the 'basic norm' part of his theory has led to a
meaning of norms lot of confusion. It is not very clear as to what kind of norm it is, nor what is its
and the normative function, nor where it is to be found . Thus, Goodhart was skeptical of the utility
system.
of an analysis which is founded on a basic norm - but which fails to explain the
M.U. Nov. 2016
existence of such a norm. Hart has criticised Kelsen 's theory as "needless
duplication" of the living reality of the functioning of the courts.
'Law Is normative, Hart's view differs from that of Kelsen 's, inasmuch as Hart refuses to look
not a natural'. upon such rules as hypothesis. According to Harl, the basic rules of a legal
Explain this state•
ment in two sen- system do not consist of something which one has to assume or postulate.
tences. Rather, it is itself a rule accepted and observed in a particular society. According
(2 marks) to Hart, although the rule of parliamentary sovereignty in England cannot be
M.U. May 2018 derived from any other rule of English law, yet it is more than a merely
hypothesis; it is a customary rule of English law, followed in practice and looked
upon as a standard which has to be complied with.
LEGAL THEORY 43
V. LAW AS A SYSTEM OF SYNTHESIS

(Sethna's Synthetic School)
The Synthetic School of Jurisprudence was founded on 21st July 1955,
by Dr. M. J. Sethna, the learned author of "Jurisprudence ". Jurists are today
now more and more attracted to Dr. Sethna's ingenious concept of Synthetic
Jurisprudence.
According to Dr. Sethna, jurisprudence should be, at the same time,
analytical, historical, comparative and sociological. In the words of the learned
author, "There should be an amalgam of principles derived from the social
studies; and jurisprudence should suggest changes for the better, with the
march of time and the onward progress of society".
An interesting illustration of the product of the school is the Mind-Behaviour
Theory of Negligence (also referred to as the Subjective-Objective Theory of
Negligence), which is discussed in Chapter 15.
Similarly, the definition of the term law also can be synthetic. This school
defines law, in its widest sense, as follows : "Law, in its widest sense, means
and involves any uniformity of behaviour, a constancy of happening or a course
of events, rules of action, whether in a phenomena of nature or in the ways of
rational human beings."
Civil law, according to this school, is "all that body of principles, decisions
and enactments approved or passed by the legally constituted authorities in a
State, for regulating the rights, obligations and liabilities of the citizens in relation
to the State, as also inter se, and enforced through the machinery of the judicial
process securing obedience to the Sovereign authority in the State." In other
words, an ideal civil law seeks to secure the greatest good of the largest number
in the body politic.
Synthetic thinking also enables one to link up the various theories of
punishment, which might otherwise appear chaotic and conflicting. "Not analysis
alone, but rather synthesis, has enabled the outlook of an interdependence,
so far as the theories of punishment are concerned." (See Chapter 4.)
VI. THE FUNCTION AND PURPOSE OF LAW:

JUSTICE, STABILITY AND PEACEFUL CHANGE
Most Jurists agree that law is an instrument of society to establish justice. Explain the
functions of law.
But there is not much agreement in defining justice. Generally, the term justice
M.U. Oct. 2008
has two meanings. In the wider sense, justice is synonymous with morality;
May 2017
but in the narrower sense, it refers to one aspect of morality. In this sense, Dec. 2018
justice would mean that the like must be treated alike. In other words, it means May 2019
fair and equal treatment of all.
44 JURISPRUDENCE
Write a short note Justice, in the sense of equality, has two aspects :
on : Functions of
law. (a) Distributive justice and (b) Corrective justice.
M.U. Apr. 2010 Distributive justice works to ensure a fair division of social benefits and
Nov. 2011
burdens. The task of establishing distributive justice is primarily achieved
Apr. 2012
through Constitution-makjng and by legislation. The function of the Courts is
Nov. 2012
chiefly to apply these rules for the purpose of establishing corrective justice.
D i scuss the Distributive justice works to ensure a fair division of social benefits and
functions of law. burdens amongst the members of a community, as for instance , that every
M.U. Nov. 2010
person has a right to the property legally acquired by him. Distributive justice
May 2017
thus serves to secure a balance or equilibrium amongst the members of a
Write a short note society. This balance can , however, be upset, as when A wrongfully seizes B's
on : Purpose and property. At this point, corrective justice will move in, to correct the disequilibrium,
function of law. and the court will compel A to make restitution to B.s
M.U . Nov. 2006
Apr. 2007 So far as distributive justice is concerned , there is one difficult problem . It
Oct. 2008 is true that distributive justice aims at arriving at a balance in the society, by
Apr. 2009 providing for equitable division of benefits and burdens and further by equal
Nov. 2009 dispension of justice. But while achieving that balance, another factor is to be
Nov. 2019 taken into consideration . In a society, there is conflict, not only between person
and person , but also between interest and interest. For example, the right to
Write a short note
on Social
employment and the right to property may conflict with each other. Then, society
engineering. has to achieve a balance by reconciling such conflict of interests.
M.U. Apr. 2008 Roscoe Pound calls this social engineering. Here, the function of law is to
Nov. 2011
satisfy, to the maximum extent, the desires, interests and claims of the various
Dec. 2018
members of the community, and thus achieve a smooth running of the
Nov. 2019
machinery of the society. According to this theory of social engineering, there
Elaborate on the are several interests which are of a great advantage to a person , e.g. , bodily
various functions security, freedom of speech , etc. Not all such interests are, however, protected
of law. - or sometimes even recognised - by law. Thus, the right to privacy is not fully
M.U. Apr. 2011
recognised by Eng lish law even today. Now, wh ich interests shou ld be
Discuss the
recognised by law is a question which is answered partly by sociology, partly
functions and by ethics, and partly by law. Thus, the reconciliation of competing and conflicting
purpose of law. interests is the ultimate aim of social engineering.
M.U. Apr. 2012
When one speaks of equality and justice, one has to be very clear in
What is distribu-
one's mind on one question. Equality has been defined as the like treatment of
tive justice? How the like. But the basis of grouping the people for this purpose is the crux of the
does the state en- problem . Equality and justice can be achieved only when people are grouped
sure distributive
together for this purpose on a rational and reasonable basis. This has been
justice? (2 marks)
M.U. Apr. 2010 termed as reasonable classification for the purpose of Article 14 of the
Nov. 2017 Constitution of India (Right of Equality) . However, it cannot be said that justice
May 2019 is the only possible, or even desirable , goal of law. Indeed, the very idea of law
represents a basic conflict between two different needs- the need for unifonnity
and the need for flexibility Uniformity is necessary to ensure that there is
certainty and predictability. If the rules of law are fixed and generalised , the
LEGAL THEORY 45
citizen can plan his activities with an ample measure of certainty. Another What do you
understand by
advantage of uniformity is that the judge applies fixed rules, and not his whim "peaceful change
of the moment. Yet another advantage is the stability and security which the as a function of
social order flows from uniform and unchanging rules of law. law"? (2 marks)
M.U. May 2015
And yet, there is also a need for a certain degree of flexibility. The existing
rules may not provide for a border-line case, and indeed , no rule can make Write a short note
provisions for every possible case. Some measure of discretion thus becomes on : Functions and
valuable. Again, flexibility is necessary to enable the law to adapt itself to social purpose of law.
change. If the law, as it exists, is unalterable, the necessary changes would M.U. Nov. 2016
have to come by revolution, violence and upheavals. On the other hand, law
Write a short note
that is capable of adoption, whether by legislation or judicial development, on Roscoe
allows for peaceful changes from time to time. Pound's Theory of
Social Engineer-
In conclusion , it can be said that the function of law is to achieve justice, ing.
stability and peaceful change in a society. M.U. Nov. 2016
Judicial Process and Reasoning

Normally, it is considered that the judicial process is one of deductive
reasoning. There is a principle of law that certain facts lead to certain legal
consequences. Then there is the ascertainment of the fact. Thirdly, the legal
rule is applied to the facts. Thus, it might appear that the judicial process is a
mechanical process. But it is not really so. It is possible that there may be
some ambiguity in the legal rule itself orthe pattern of the facts may be slightly
different. In such cases, some kind of innovation or improvisation is necessary.
In those circumstances, a judge may have to take recourse to deduction or
analogy, and it is also possible that the judge is confronted with a new situation
altogether. In such circumstances, the judge can never take a formalistic
approach. He has to improvise the law to meet the needs of the changing
society. In such circumstances, it is not the Jaw that determines, but it is what
the judge considers as justice that tampers the law. Thus, judicial process and
reasoning is a complicated phenomenon.
000
Chapter 3
CIVIL LAW
The following seven topics are considered in this Chapter :

A. Salmond's Definition of Civil Law
B. Characteristics of Civil Law
C. Place of Law in the Administration of Justice
D. Uses and advantages of Law
E. Defects and disadvantages of Law
F. Questions of Law and Questions of Fact
G. Transformation of Questions of Fact into Questions of Law (Legal
Presumptions & Legal Fiction)
Each of the above topics will now be discussed in necessary details.
A. SALMOND'$ DEFINITION OF CIVIL LAW

Salmond observes , "Law is a growth from small beginnings . The
development of a legal system consists in the progressive substitution of rigid,
pre-established principles for individual judgment, and to a large extent, these
principles grow up spontaneously within the tribunals themselves. That great
aggregate of rules which constitutes a developed legal system is not a condition
precedent of the administration of justice , but a product of it. Gradually, from
various sources, precedent, custom, statute, there is collected a body of fixed
principles which the Courts apply, to the exclusion of their private judgment."
"That it is on the whole expedient that Courts of Justice should thus become
Courts of law, no one can seriously doubt. Yet, the elements of evil involved in
the transformation are too obvious and serious ever to have escaped
recognition. Laws are in theory, as Hooker says, the voice of right reason: they
are in theory the utterances of Justice speaking to men by the mouth of State ,
but too often in rea lity, they fall short of th is ideal. Too often they tum judgment
to wormwood and make the administration of justice a reproach . Nor is this
true merely of the earlier and ruder stages of legal development. At the present
day, our law has learnt, in a measure never before attained, to speak the
language of sound reason and good sense, but it still retains, in no slight degree,
the vices of its youth ; nor is it to be expected that at any time we shall altogether
escape from the perennial conflict between law and justice. It is needful ,
therefore, that the law should prove the ground and justification of its existence"
- Salmond.
Civil law is a portion of the law of the land which is enforced by the law
Courts. As a matter of fact, it is law in the strictest sense of the term . It is
sometimes called the Municipal law, as opposed to international law. According
to Salmond, "Law may be defined as the body of principles recognised and
CIVIL LAW 47
applied by the State in the administration ofjustice." This definition, therefore,

does not include the aspect of international law. But law, as commonly
understood, is something that comes before the law Courts; it does not originate
from the Courts . Law is something that is found in customs, conventions and
habits of the people, which have been accepted by the Legislature as good as
law, which the law Courts have to accept, adopt, confirm , explain and interpret.
It would be a great hardship on the people if they were to wait for the judges to
create law. It is on the very sound principle that ignorance of the law is no
excuse, that one considers something newly created by the legislature and
interpreted by the judges.
Law reflects , to a very great extent, the hopes and aspirations of the
people, and hence, there cannot be either uncertainty or ignorance of law.
Every law has some predeclared principles, which are very well-known to the
citizens at large. It is because of this knowledge that laws find favour with the
society. The only difference is that law is something certain; it is more concrete
than the abstract customs and habits of the people .
From the above, it becomes clear that it is difficult to give a precise
definition of the word 'law'. Law, as the term is understood today, is civil law
exclusively. Such a definition has its obvious advantage, because it separates
law from conventions which are not regarded as law, though they have the
same force as law.
Some writers have suggested that the word 'law' should include the
principles acted upon by the administrators. These principles are no doubt
important to the lawyer, but they are not entirely unknown to the people. There
are rules and regulations which are not always enforced in the law Courts. In
the case of the Sheriff of Middlesex, the Sheriff was imprisoned by order of the
House of Commons, because he attempted to enforce the judgment of a Court
of law. The act of the Sheriff was in accordance with the law enforced by the
law Courts . How could it be said that this action of the Sheriff was in any way
against the principles governing the procedure in the House of Commons?
Can such principles be called Jaw, and how far are they binding? Such questions
are important in the interpretation of the word 'law' in a specific context.
Criticism of the Definition

Salmond's definition of law, as given above, is often criticised on the ground
that the definition is appropriate to case-law, but not to statute law. It is contended
that a statute becomes law as soon as it is passed , and it need not wait for
recognition by the Courts for becoming law. The Courts recognise a statute
because it is law; it is not law because the Courts recognise it. Vinogradoff, for
instance, criticises Salmond's definition, and says that it is very much like
defining medicine as 'a drug prescribed by a doctor', because this ignores its
real function (that of curing) and because medicine does not cease to be so if
it is prescribed by a lay person .
48 JURISPRUDENCE
This criticism is met by Salmond by pointing out that the Courts and the
legislature are the two organs of the community for creating the two kinds of
law. He also points out that so long as the Courts and legislature work
harmoniously, it does not matter whether a statute is law because the Courts
recognise it or the Courts recognise it because it is a statute.
Salmond's definition is also open to another criticism, in as much as he
uses the term "the body of principles" in his definition. The term implies more
of abstract, basic principles, and fails to pay due importance to concrete law,
the law made up of statutes. In reality, civil law deals more with the concrete
than the abstract, and one cannot help feeling that Salmond's definition fails to
bring out this aspect.
Yet another criticism is that since Salmond defined law in terms of justice,
it follows from this that an unjust law cannot exist, because it would amount to
a fatal self-contradiction, just like, say, the term "square circle". In the Roman
days, slavery, for example, existed in the legal systems of the time, and yet it is
something which is condemned by natural law. Therefore, it is pointed out that
law does not cease to be law merely because it is unjust.
Lastly, it is also pointed out that the legal goal of justice is not the only
purpose of law. The law serves many ends, and ends vary from time to time
and from place to place. Today, the ends that seems to be most universally
accepted are those of securing order in society, the greatest happiness of the
largest number, and the recociliation of the will of one with the liberty of another.
The Indian Constitution [under Art. 13(3)(a)] defines law as including any
Ordinance, Order, By-law, Rule, Regulation, Notification, Custom or Usage,
having in the territory of India the force of law. From this, it follows that, today,
it is widely realised that law should be given as wide a meaning as possible.
From this point of view, Dr. Sethna's definition of 'civil law' covers all possible
requirements of civil law, which he defines as follows: "Civil law may be defined
as all that body of statutes, ordinances, rules made by the Government by
virtue of powers given to it by the legislature, and judicial decisions based on
positive morality, public opinion, customs and conventions, enforced through
the machinery of the judicial process, and meant for regulating the rights and
duties of citizens inter se, and the State and the citizens, so as to secure the
greatest good of the greatest number."
B. THE CHARACTERISTICS OF CIVIL LAW

As seen above, by civil law is meant the positive law of the land or law as
it exists.
Secondly, like any other law, civil law is uniform, and this uniformity is
established by judicial precedents.
Thirdly, law is noted for its constancy, because without this, law would be
nothing but the law of the jungle.
CIVIL LAW 49
Fourthly, law is in the nature of the enjoinments by the people who inhabit
a particular State, with the capacity to assert themselves and command
obedience through the judicial processes.
Fifthly, law is backed by the force and might of the State for the purposes
of enforcement. In other words, civil law has an imperative character and has
legal sanction behind it.
Sixthly, law is essentially of a territorial nature and it only applies within
the territory of the State. It is the law of the territory, as opposed to the law of
the locality, or as opposed to the law of the Nations or the law of Nature. It is
not universal, but general.
Seventhly, law creates legal rights, fundamental or primary, as also
secondary rights.
Lastly, as law is enforced by the sanction of the State, an infringment of
the law is always attendant with attachments, fines or imprisonment, or some
other form of punishment which the society inflicts on the wrongdoer in order
to show its displeasure against the person who commits an anti-social act.
In considering the nature of civil law, one must consider both law in the
abstract sense and law in the concrete sense. Law in its abstract sense is
known as jus or droit; in its concrete sense, it is known as lex or loi. In other
words, law in its concrete sense implies a particular law, e.g., the law of Income-
tax, Industrial law, Company law, etc., while in its abstract or general sense, it
means laws generally.
Usually, all laws are general in nature, i.e., laws are applicable to all those
persons who reside in that particular territory. Thus, there are laws which are
applicable to certain acts or to particular individual families or to a group of
individuals. But the law passed by a legislature is always a general law, e.g., a
law regulating succession in a particular community applies to al/the members
in that community. A particular law applicable to a limited number of persons
does not create law in the abstract sense. But all these laws, general as well
as special , constitute a corpus juris civils. Thus, there are local laws, Martial
law, conventional law, autonomic law and law for the Prize Courts. There is
also the common law or the unwritten law of England (lex non scriptum ) which
is based on customs and usages.
It can, therefore, be concluded that civil law, which is enforced by the law
Courts and the physical power of the State, can include many types of laws
depending upon the conditions or the circumstances. The modern world has
travelled far too ahead from the definition given by Austin, who considers all
laws as the product of a general command coming from the supreme authority
in the State. Austin has been criticised by many, but the truth remains even
today as Austin had stated in his times. Austin's definition of 'law' does not take
into consideration the theory of moral right, and is based upon the physical
force of the State. But law, as the term is understood today, is a matter of
public opinion and a matter of discriminating the right from the wrong.
50 JURISPRUDENCE
Sanction
Answer in one or The term 'sanction' has a peculiar meaning in Jurisprudence. It means
two sentences :
and involves the idea of compulsion or threat. It may be defined as the instrument
Sanctions.
(2 marks)
of coercion employed by any regulative system, and any rule of right supported
M.U. May 2017 by such means is said to be 'sanctioned'. The instrument of coercion need not
necessarily be physical. It may be moral, divine, or even political. Thus:
1. Physical force is the sanction applied by the State in the administration
of justice. (The watchful eyes of the policeman and ultimately the
prison bars serve as an effective deterrent to prospective offenders.
2. Censure, ridicule and contempt are the sanctions by which society
enforces the rules of positive morality.
3. War is the last and most formidable of the sanctions which, in the
society of nations, maintains the law of nations.
4. The threat of divine displeasure or divine anger are the sanctions of
religion.
Its forms
So far as administration of justice is concerned, sanction assumes two
different forms, according to the kind ofjustice, i.e., whether civil or criminal.
The administration of justice is the application by the State of the sanction of
force to the rule of right, and it is divisible into two parts, which are distinguished
as the administration of civil and that of criminal justice. Both in civil and criminal
proceedings, there is a wrong complained of, yet the complaint is of an
essentially different character in civil and criminal cases. In civil justice, it
amounts to a claim of right; in criminal justice, it amounts merely to an accusation
of wrong. The former consists in the enforcement of a right, the latter in the
punishment of a wrong. Thus, sanction assumes different forms in these two
cases.
C. PLACE OF LAW IN THE ADMINISTRATION OF JUSTICE

Secondary position of law
As seen earlier, the administration of justice may be defined as the
maintenance of right or justice within a political community by means of the
physical force of the State. Now, in primitive times, justice was more or less
natural justice, in the sense that it was administered in accordance with the
dictates of conscience, equity and good sense. There were no legal rules then.
With the advancement of learning , justice came to be administered in
accordance with fixed legal rules. Therefore , the primary aim of the
administration of justice is to do right by means of law. What is then the place
of Law in the administration of j ustice? The place of law in the administration
of justice is only secondary. The primary purpose of the administration of justice
CIVIL LAW 51
is the maintenance of right or justice within a political community by means of

the physical force of the State and through the instrumentality of the State's
judicial tribunals. Law is only secondary.
Meaning of 'Justice according to law'

Modern justice is justice according to law. It is legal justice. The same
meaning is conveyed by saying that modern Courts of Justice are Courts of
Law. What is then the meaning of these expressions? Modern justice is
administered in accordance with rules of Law, and not independently of them.
The meaning of the phrase 'justice according to law' may be illustrated by
the following example . A is charged with B's murder. He voluntarily makes a
clean breast of the whole affair to a police officer, who is an extremely honest
man. There is no other evidence in the case except this honest confession.
Now the law (contained in the Indian Evidence Act) is that a confession (however
voluntary and sincere) made to police officer (however honest and trustworthy)
cannot be used in evidence . The result will be that B will be discharged, unless
he pleads guilty. Here, however, willing the judge may be to do real justice, his
hands are tied by law. He must release the prisoner. This is justice according
to law. Many such cases may be cited from civil laws, where honest litigants
are defeated sowing to the law being against them. Such , for instance, are
cases where parties sue after the period of Limitation . Here also, the Court
cannot decree the plaintiffs legitimate claim , as it is time-barred. Legal justice
is, however, done in such cases.
It may be noted that one cannot term the cases mentioned above as What kind of
cases of injustice. The real principles of justice underlying them are that it is Justice does
abolition of
dangerous and unsafe to convict on the strength of a confession to the police, untouchablllty
and that the law should not help litigants who sleep over their rights , and then ensure?
seek the Court's assistance to redress them after the period of Limitation has (2 marks)
run out : law is for the vigilant and not the indolent. These are not cases of M.U. Apr. 2010
injustice , but are cases of legal justice - justice according to law, though not,
perhaps, according to honest conscience and belief of the judge trying the
cases . It is, therefore, quite correct to say that "In the modern State, the
administration of justice according to law is commonly taken to imply recognition
of fixed rules."
In India, it is the Constitution that guarantees fundamental rights - some What kind of
justice is reflected
to all persons and others to citizens of the country. Thus, for instance, the right in Art. 17 of the
to equality is enshrined in Articles 14 to 18, with Art. 14 laying down that the Constitution?
State cannot deny to any person equality before the law or the equal protection (2 marks)
of the law. Art. 17 then abolishes "untouchability" and makes it punishable M.U. Nov. 2010
Dec. 2018
under the law. Likewise, under Art. 18, no title (except military or academic
Nov. 2019
distinctions) can be conferred by the State.
52 JURISPRUDENCE
D. USES AND ADVANTAGES OF LAW

Explain the Though in the modern State, the administration of justice according to
advantages of law law is generally according to fixed rules, yet it is possible for the Courts to
and describe the
different kinds of
function without fixed rules at all. For example, there could be a tribunal which
law existing today. administers justice according to conscience and natural justice, and not
M.U. Nov. 2017 according to previously fixed or accepted general principles (as for instance,
the Chancellor's Court in England in the older days).
Even in the modern State, it cannot be said that the administration of
justice is strictly by recognised or fixed rules. An element of free discretion of a
judge is not totally excluded. The question is the extent to which the
administration of justice should be decided by fixed rules, and the extent to
which free judicial discretion should be allowed to play a role in the administration
of justice. This question can be answered only after a review of the advantages
and disadvantages of the administration of justice according to law.
The chief uses or advantages of law are the following :
(1) Uniformity and certainty

Fixed rules of law impart, to a considerable extent, uniformity and certainty
to the administration of justice. It is very important, not only that judicial decisions
should be just, but also that people should be able to know beforehand the
decision to which the Courts of Justice will come. It is often more important
that rule should be definite, certain, known and permanent, than that it should
be ideally just.
(2) Protection against improper motives of judges

The necessity of conforming to publicly declared principles protects the
administration of justice from the disturbing influence of improper motives on
the part of those entrusted with judicial functions. The law is necessarily
impartial, and as already observed, it is certain and known. Therefore, a
departure from a rule of law by the judicial authority is visible to all men. Thus,
it is not enough that justice should be done; it is also necessary that it should
be seen to be done. On the other hand, if administration of justice was left
completely to the individual discretion of the judge, improper motives and
dishonest opinions could affect the administration of justice.
As Salmond observes, "It is to its impartiality, far more than its wisdom
(for this latter virtue it too often lacks) that are due to the influence and reputation
which the law has possessed at all times; wise or foolish, it is the same for all."
Therefore, law acts necessarily impartially, which is considered as one of the
first principles of political liberty. That is why the words of Cicero, "we are the
slaves of the law so that we may be free".
CIVIL LAW 53
(3) Freedom from the errors of individual judgment

Law serves to protect the administration of justice from the errors of
individual judgment. The problems offered for judicial decisions are often difficult
and complicated. Therefore, there is a great need of guidance from the
experience and wisdom of the world at large, of which the law is the record . As
Salmond observes, "The establishment of the law is the substitution of the
opinion and conscience of the community at large for those of the individuals
to whom the judicial functions are entrusted . The law is not always wise, but on
the whole, and in the long run, it is wiser than those who administer it." Aristotle
also observes : "To seek to be wiser than the laws is the very thing which is by
good laws forbidden ."
(4) Reliability
It is also said that law is more reliable than individual judgment. The human
mind is certainly not infallable, and the judge is no exception . It is, therefore,
believed that the wisdom of the legislature, i.e., the collective wisdom of the
representatives of the people, is a safer ano more reliable means of protection,
than the momentary fancy of an individual judge .
E. DEFECTS OF LAW
Though the advantages of law are many, there is a heavy price to be paid
for these benefits. In the words of Salmond, "The law is without doubt a remedy
for greater evils, yet it brings with it evils of its own."
The four main defects of the law are the following :
(1) Rigidity
The first defect of law is its rigidity. A legal principle is the product of a
process of generalisation and abstraction . Therefore, it has to disregard
particular, individual or exceptional circumstances. But one cannot be sure,
while administering justice, that those individual or exceptional circumstances
will be irrelevant in a particular case. But the law is to be applied without any
allowance for special circumstances. The result is inflexibility, which often results
in hardship and injustice.
(2) Conservation
Another defect of law, which is analogous to that of rigidity, is that of
conservatism. Conservatism is the failure on the part of law to conform itself to
the changes in circumstances and in men's views of truth and justice, which
are brought about by the lapse of time. Rigidity is a defect arising out of the
failure of law to meet the requirements of special or exceptional cases, while
conservatism is the defect arising out of the failure of law to conform itself to
the changing needs and notions of justice. Though this defect can be remedied
54 JURISPRUDENCE
by legislation, yet it is impossible to completely counteract the evil of legal

conservatism.
(3) Formalism
The third defect of law is formalism. The law has often a tendency to
attribute more importance to technical requirements than to substantial rights
and wrongs. Though the ancient legal systems were more formal and technical,
yet it cannot be said that modern legal systems are completely free from such
bonds.
(4) Complexity
The last defect of the law is its undue and endless complexity. Law, being
the reflection within Courts of Justice of the complex facts of civilised existence,
it is to a considerable extent complex. Though everyone is presumed to know
the law, it is not possible for everyone to know it on account of its elaborate
nature, excessive subtlety and complexity. Though this defect can be cured by
codification, by reducing its size and by increasing its intelligibility, yet a complex
law for a complex social existence is unavoidable.
In conclusion, Salmond observes that if the benefits of law are great, the
evils of too much law are also not small.
F. QUESTIONS OF LAW & QUESTIONS OF FACT

Generally, all questions which come up before a Court of Justice can be
classified either as questions of law or as questions of fact. But these terms -
questions of law and questions of fact - have three distinct meanings, as
under :
The different meanings of the term, Questions of law and Questions of

Write a short note fact
on : Question of (a) The term 'questions of law' means firstly, that a question is to be
Law and Question
of Fact. answered in accordance with the already established rule of law, and not in
M.U. May 2006 accordance with the evidence that is laid before the Court. All other questions
which are not questions of law in this sense are questions of fact.
Thus, in a suit for damages, the question as to whether damages are at
all recoverable, in the circumstances of the case, is a question of law. But the
question as to the quantum of damages (i.e., how much damages should be
awarded in that particular case) would be a question of fact.
Similarly, whether a contractor has been guilty of unreasonable delay in
building a house is a question of fact, because the law does not prescribe fixed
rules on this point. But, whether the holder of a bill of exchange has been guilty
of unreasonable delay in giving a notice of dishonour is a question of law, to be
determined with the rules laid down in the Bills of Exchange Act in England
and the Negotiable Instruments Act in India.
CIVIL LAW 55
(b) In the second sense, a 'question of law' means a question as to what

the law is. It would be a question of ascertaining the existence or the non-
existence of a particular rule of law. This question arises out of the uncertainty
of statute or the absence of a clear-cut judicial decision. A question of fact
corresponding to the term 'question of law' in the second sense, would mean
that it is a question of ascertaining the facts. This is to be done by appreciation
of evidence laid before the Court.
(c) A question of law in the third sense is a question to be answered by
the judge, as distinguished from one which is to be answered by the jury. A
question of fact in this sense will be answered by the jury. This distinction
between question of law and question of fact is the outcome of the peculiarity
of the English procedure, and with the abolition of the jury system, is irrelevant
in India.
Paton has distinguished law from fact thus: "Law consists of the abstract
rules which attempt to reduce to order the teeming facts of life. Facts are the
raw material on the basis of which the law creates certain rights and duties."
Mixed Questions of Law and Fact

Generally, the matters that come before Courts are either matters of law
or matters of fact, but very often, one comes across matters which involve
both a question of law and a question of fact. For example, when the existence
of a partnership is to be determined, enquiry must be made at two levels :
firstly, whether there has been an agreement between persons participating in
a particular commercial~adventure; secondly, whether such an agreement
amounts to a partnership. The first question is a question of fact, while the
second is a question of law; but on the whole, whether the partnership exists
or not is a mixed question of law and fact.
Similarly, if a person is charged with criminal misappropriation of property,
whether the alleged acts amount to that offence is a question of law, which will
be answered by applying the appropriate provisions of the Indian Penal Code.
But, the question whether that person has actually committed the alleged acts
is a question of fact, which will largely depend on the evidence before the
Court. Thus, the question whether that person has committed criminal
misappropriation is a mixed question of law and fact.
Questions of Fact and Opinion

A question of fact is also to be distinguished from a question of opinion.
Unlike a question of fact, an opinion is only the expression of a person's
judgment, based on what he believes or thinks. Although such a person may
be an expert in his field, such expert opinion also may be based entirely on his
reason and belief, and not on facts. A person may be guilty in the eyes of the
law if he misrepresents facts, but not if he has given his opinion, although it
may turn out that it was an erroneous opinion on the point.
56 JURISPRUDENCE
Questions of Judicial Discretion

To say that all questions which arise before a Court are either questions
offact or questions of law would be an oversimplification. Very often, questions
which are neither questions of law nor questions of fact might arise. For
example, if a person is convicted of a particular offence, the statute might
provide that the maximum punishment to be given to him is imprisonment for
a particular period (say, imprisonment upto 3 years), but the actual sentence
to be given in a particular case (i.e. whether to convict that offender for 1 year,
or 2 years, or for the maximum period of 3 years), is not a question of law, nor
is it a question of fact. Such a question is a question ofjudicial discretion. This
question of judicial discretion includes all questions as to what is right, just,
equitable or reasonable so far as not predetermined by authoritative rules of
law.
A question of judicial discretion pertains to the sphere of right, as opposed
to that of fact in its stricter sense. It is a question as to what ought to be, as
opposed to a question as to what is.
Here, one finds an interesting point of difference. Matters of fact are
capable of proof, such proof to be adduced a per the rules laid down in the law
of evidence. However, matters of right and judicial discretion cannot be the
subject-matter of evidence and demonstration; rather they are to be argued
and are submitted to the reason and conscience of the judge.
Moreover, when a court is determining questions offact, it is trying to get
to the truth of the matter. But, when determining questions ofjudicial discretion,
the court is trying to locate the right or justice of the matter. That an urchin has
committed a petty offence can be proved as a fact, but whether he should be
sent to jail or let off with a fine, is a matter of judicial discretion.
In the field of corporate legislation, a company can be wound up if it is
unable to pay its debts. Now, whether a company is, in fact, unable to pay its
debts is a question offact; but whether, in the circumstances, it deserves to be
wound up is a matter ofjudicial discretion.
Or, take the case of a wife's petition for divorce on the ground of the
husband's cruelty and for custody of the children. Here, the question of cruelty
is a question of fact, but the question of custody is one of judicial discretion.
G. TRANSFORMATION OF QUESTIONS OF FACT

INTO QUESTIONS OF LAW
(Legal Presumption & Legal Fiction)
As a legal system develops, questions of fact in the first sense of the
term have a tendency of being determined by law, and thus they get converted
or transformed into questions of law. Likewise, there is also a transformation
of judicial discretion into questions of law, although this is so to a smaller extent
CIVIL LAW 57
than that within the sphere of pure fact. But in this process of transformation,
discordance between law and fact may arise. In the words of Salmond, ''The
law is the theory of things, as received and acted upon within the Courts of
justice , and this theory may or may not conform to the reality of things outside.
The eyes of law do not infallibly see things as they are." This discordance
between law and fact generally arises in two ways: firstly, by establishment of
legal presumptions, and secondly, by the device of a legal fiction or a fictio
juris.
Legal presumptions (Presumptio Juris)

In the case of a legal presumption, one fact is recognised by the law as
sufficient proof of another fact, whether it is in truth sufficient for the purpose
or not. For example, a notification in an official gazette will be presumed by the
law to have been duly signed by the person by whom it is purported to have
been signed. In fact, the person concerned might or might not have signed;
yet, the fact of notification is considered by law to be sufficient proof of the fact
of the signature.
Presumptions are of two kinds, being either conclusive or rebuttable. A
conclusive (or irrebuttable} presumption is one which constrains the Courts to
infer the existence of one fact from the existence of another, even though this
inference could be proved to be false. In the case of conclusive presumptions
(also known as presumptions juris et de jure ), the law prohibits leading evidence
to the contrary. For example, the birth of a child during coverture will be
considered to be conclusive proof of its legitimacy. The law does not allow any
evidence to the contrary.
Similarly, under our penal system, a child under seven years of age is
conclusively presumed to be incapable to committing a crime (doli incapax),
and the Court will refuse to hear evidence seeking to prove that the child realised
the malicious or criminal nature or quality of the act.
Again, the Companies Act lays down that a certificate issued by the
Registrar of Companies that the requirements of the Act regarding registration
have been fulfilled will be conclusive evidence that such requirements have
been duly discharged. Even if it later turns out that the signatures of some of
the applicants were forged , the certificate is final.
A rebuttable presumption, on the other hand, is one where the law requires
the Courts to draw an inference, even though there is no sufficient evidence to
support it (provided there is no sufficient evidence to establish the contrary
inference) . In other words, the Courts will presume something , but at the same
time, allow the opposite party to rebut or contradict such presumption. For
example, a negotiable instrument is presumed to be given for value, unless
the contrary is proved. So, if no proof is adduced by either side (either of
consideration or the absence thereof), the Court will presume that there was
consideration supporting that negotiable instrument. However, if one of the
58 JURISPRUDENCE
parties proves that there was, in fact, no consideration supporting the

instrument, the presumption cannot be made.
So also, a person who has not been heard of for seven years (or more)
by those who would naturally have heard of him had he been alive, is presumed
to be dead. However, any party to the proceedings is allowed to show that
such a person is, in fact, not dead.
Similarly, any person accused of any offence is presumed to be innocent,
and it is for the prosecution to prove that he has committed a particular crime.
Legal fiction (Fictio Juris)

By the device of legal fiction, law attempts to believe in the existence of a
situation which is contrary to reality. For example, in the case of the adoption
of a child, the fiction of law imputes that the child is the child of the parent who
has adopted it, though in fact it is the child of its natural parents.
Legal fiction was a device familiar to primitive legal systems, but modern
legal systems are not completely free from them . In modern law, besides the
fiction of adoption, there are other fictions. For example, a child in the womb of
the mother, though not born, will be treated as ifit is born for certain purposes,
as for example, inheritance.
In England, legal fiction was used by way of a false averment in the plaint,
with a view to giving jurisdiction to the Court. The defendant was not allowed to
traverse that averment. Thus, the Exchequer Court, dealing with revenue
matters, obtained jurisdiction even over civil cases, by virtue of a legal fiction .
Henry Maine uses the term legal fiction in a broader sense, inasmuch as
he describes it as "any assumption which conceals the fact that a rule of law
has undergone alteration, its letter remaining unchanged, its operation being
modified." An example of a legal fiction used in this broader sense is the dictum
that judges never make new law; they merely expound and interpret what has
always been the law.
000
Chapter 4
THE ADMINISTRATION OF JUSTICE
The most essential functions of a State are primarily two : war and
administration of justice. If a State is incapable of performing either or both
these functions, it cannot be called a 'State'. Now, the term 'Administration of
Justice' at once brings to our minds Civil Law, which is defined as the body of
rules recognised and applied by the State in the administration of justice.
But for the function of the State, might would always be right. It is
administration of justice whereby right is protected by might. The administration
of justice is the maintenance of right within a political community by means of
the physical force of the State. It is the modern and civilised substitute for the
primitive practice of private vengeance and violent self-help.
ITS NECESSITY : ''A herd of wolves is quieter and more at one than so
many men , unless they all had one reason in them or have one power over
them. ''-(Taylor) . Unfortunately, it appears that human beings, who act in the
welter of conflicting interests, do not have one reason in them. Therefore, one
power over them becomes necessary. As Hobbes pointed out, unless man is
under "a common power to keep them all in awe", it is impossible for men to
live together, except in the most primitive forms of society, where life would be
"solitary, poor, nasty, brutish and short".
The element of force is always present in every society. A society in which
the power of the State is never called in actual exercise might prevail in some
places and for some time; but the force of the State is always latent, and
experience shows that ultimately the force of the State has become triumphant.
A society wherein the might of the State never comes to the surface signifies,
not the absence of State control , but its final triumph and supremacy.
There are some optimistic thinkers who believe that the force of the State
is just a temporary phase in the development of human society and that public
opinion might keep people in restraint and the force of the State might become
superfluous. As Salmond points out, "The constraint of public opinion is valuable
and indeed an indispensable supplement of that of law, but an entirely
insufficient substitute for it. " Public opinion may be effective in the case of
people who have a civilised conscience, but in the case of determined evil-
doers, the effect of public opinion would be most inoperative; public opinion
can hardly influence the unjust and the turbulent members of the society. Indeed
the influence of the public censure is least felt by those who need it most.
Besides, the evil-doer might be influenced by another kind of public opinion.
Instead of being amenable to the influence of the society at large , the wrong-
doer may be influenced more by the opinion of his brethren , and he might have
more regard for his opinion within , say, his professional circle of thieves. In
such circumstances, public opinion , instead of becoming a restraint on anti-
60 JURISPRUDENCE
social activity, might even encourage and promote it. Therefore, Administration
of Justice with the sanction of the physical force of the State is unavoidable
and admits of no substitute.
THE ORIGIN OF THE ADMINISTRATION OF JUSTICE

WITH PARTICULAR REFERENCE TO ORIGIN AND
DEVELOPMENT OF CRIMINAL JUSTICE
As it has already been pointed out, the administration of justice is the
modern and civilised substitute for the primitive practice of private vengeance
and violent self-help. The progress from the primitive times to modern days
has been through various stages, mainly the following three:
(a) First Stage : In the early days, a person redressed his wrongs and
avenged himself upon his enemies by his own hand, probably supported by
the hands of his friends and kinsmen, where necessary. At this stage, every
man carried his life in his hands. He was liable at any moment to be attacked,
and could only resist by overpowering his opponent. In those days, every man
was a judge in his own case, and might was the sole measure of right. There
was no guarantee, at this stage, that crime would certainly be punished , and if
it met with punishment, that such punishment would be in proportion to the
crime .
Very often, one crime led to another, and the consequent crime might not
have confined itself to the criminal, but along with him, his family, and even his
tribe, would be the victim of the retaliation. Thus, it led to group conflicts and
tribal conflicts. Blood feuds became very common. At some stages, when the
blood feuds proved to be disastrous, primitive society provided for payment of
some money or its equivalent as a compensation to the victim of the crime or
the relatives of the victim, as the case may be. The advantage of this system
of compensation was readily seen, and it developed until a regular sliding scale
was fixed. Even in the case of murder, the vengeance of the relatives could be
bought off by paying blood money, which varied according to the importance of
the victim.
(b) Second Stage : The second stage in the history of administration of
justice began with the rise of political States; but these infant States were hardly
powerful enough to regulate crime and to inflict punishment on the criminal.
The law of private vengeance and violent self-help continued to prevail. The
function of the State was just to regulate private vengeance and violent self-
help. At this stage, the State prescribed certain rules for regulation of private
vengeance. All that the State could ensure was that the act of revenge or
retaliation would not be disproportionately severe. The State enforced the
concept of "a tooth for a tooth, eye for eye and life for a life". All that the State
enjoined was that a life shall not be taken for a tooth or a life for an eye. It will
be seen that this was definitely a step in the advancement of criminal justice.
THE ADMINISTRATION OF JUSTICE 61
In the days of the Saxons, for instance, vengeance was not totally absent;
it was merely restricted and regulated. It was thought proper that every man
has a right to do with his own hands what today is done by the machinery of the
State.
(c) Third Stage : In the first and second stages, there was hardly any
difference between criminal justice and civil justice. With growth of the power
of the State, the State began to act as a judge to assess liability and to impose
penalty. It was no longer a regulator of private vengeance; it substituted public
enquiry and punishment for private vengeance. Thus, for instance, the
punishment of a murderer would be taken over by the State-and not by the
family members of the victim. The civil law and administration of civil justice
helped the wronged, and became a substitute for the violent self-help of the
primitive days.
Thus, it can be seen that the modern administration of justice is a natural
corollary to the growth of the political State.
Difference between Civil and Criminal Justice

There has been considerable difference of opinion amongst jurists
regarding the difference between civil justice and criminal justice.
(1) Some writers consider that the object of civil proceedings is to enforce
rights, while the object of criminal proceedings is to punish wrongs.
There is an element of truth in this view. Certainly, punishment is more a
feature of criminal proceedings than of civil proceedings, but punishment is
not always present in criminal proceedings, nor always absent in civil
proceedings. For example, a juvenile offender may be just warned, and not
punished , in a criminal proceeding; whereas in an action for torts, damages
may be awarded by way of punishment; or, when a man disobeys an injunction
of the Court, he may even be punished with imprisonment in civil proceedings.
Therefore, this definition does not go to the root of matter.
(2) The second distinction made by some writers is that crimes are more
harmful in their consequences than civil wrongs; it is said that crimes injure the
public at large, whereas civil wrongs injure the private individual.
Thus, according to Salmond, the distinction between crimes and civil
wrongs is that crimes are public wrongs, whereas civil wrongs are private
wrongs. Thus, he maintains that a crime is an act deemed by law to be harmful
to society in general, even though its immediate victim is an individual. He
gives the example of murder, which injures primarily the victim, but falls in the
category of a public wrong (crime) as it shows a blatant disregard for human
life.
This distinction also cannot always be maintained, because some acts
may be considered both as crimes and also as civil wrongs (as for instance,
defamation). Further, it is not always true that crimes are more harmful than
62 JURISPRUDENCE
civil wrongs. For example, the negligence of a contractor (which wou ld be a

civil wrong) , wh ich results in widespread loss of life and property may entail
more harmful consequences than , say, a simple assault or a petty theft (which
are crimes) .
(3) The third distinction is that in a crime, the State constitutes itself as a
party to the proceedings, whereas in civil proceedings, private individuals are
parties .
This distinction is also not always maintainable, as there are some crimes
where private individuals also can be parties.
Conclusion
Therefore , the difference between criminal justice and civil justice cannot
be considered in terms of the natural acts or the physical consequence of the
act. The distinction lies in the differences in the legal consequences. Civil
proceedings, if successful, result in a judgment for damages, or a judgment
for payment of a debt or a penalty, or in an injunction, or a decree for specific
restitution, or in an order for the delivery of possession of land, or any other
form of relief known distinctively as civil; wh ile criminal proceedings, if
successful, result in one or a number of punishments ranging from hanging to
fine, or in binding over to keep the peace, or release upon probation, or other
outcome known to belong distinctively to criminal law.
Though broadly speaking , criminal justice attempts at punishment and
civil justice attempts at remedy, yet to be accurate, the distinction is more in
the legal consequences of the proceedings rather than in the intrinsic nature of
the acts. Thus, civil justice is administered according to one set of forms , in
one set of courts and criminal justice according to another set of forms , in a
different set of courts.
The purpose of Criminal Justice

What is punishment
Punishment, according to the dictionary, involves the infliction of pain or
forfeiture; it is the infliction of a penalty, chastisement or castigation by the
judicial arm of the State. If the sole purpose behind punishment is to cause
physical pain to the wrong-doer, it serves little purpose. However, if punishment
is such as leads him to realise the gravity of the offence committed by him , and
to repent and atone for it (thus neutralizing the effect of his wrongful act), it
may be said to have achieved its desired effect.
A person is said to be punished when some pain or detriment is inflicted
on him. This may range from the death penalty to a token fine .
The needs of criminal justice are mainly five, namely, -
1. Deterrent
2. Preventive
3. Reformative
4. Retributive
5. Compensation.
(1) Deterrent Punishment

Punishment is said to be deterrent when its object is to show the futility of
crime and thereby teach a lesson to other persons. Others with similar designs
may have second thoughts in the matter, and may actually abstain from putting
their evil designs into practice.
According to this theory, offences are the 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, to use the famous
words of Locke, "an ill-bargain to the offender".
(2) Preventive Theory of Punishment

If the deterrent theory tries to put an end to crime by causing fear of the
punishment in the mind of the possible crime-doer, the preventive theory aims
at preventing a crime by disabling the criminal himself, as for example, by
exposing the criminal to the death penalty, or by confining him in the prison, or
by suspension of his driving licence. Thus, the extreme penalty, the death
sentence, ensures that once and for all, the offender will be prevented from
repeating his heinous acts . In the past, maiming was considered an effective
method of preventing the wrong-doer from committing the same crime in the
future, by dismembering the offending limb. Thus, a thief's hand would be cut
off, a sexual offender would be castrated, and so on. Although considered
"primitive", such forms of punishment still exist in some countries.
Relation between the Deterrent and the Preventive Theories of Punishment

The difference between the deterrent and the preventive theories of
punishment must be carefully noted. The deterrent theory aims at giving a
warning to the society at large that crime does not pay, whereas the preventive
theory aims at disabling the actual criminal from doing harm.
As mentioned above, the purpose of the deterrent theory is to set a lesson
unto others and show that crime does not pay. This theory of punishment points
out to the offender and to the rest of the world , that ultimately, punishment
follows the crime, and therefore, crimes are to be shonned. In the case of the
preventive theory of punishment, the main object of the punishment is to disable
the wrong-doer from repeating the crime. This theory does not act so much on
the motive of the wrongdoer, but it disables his physical power to commit the
offence.
(3) The 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
64 JURISPRUDENCE
temptation of the motive is stronger or because the restraint imposed by

character is weaker. The deterrent theory, by showing that crime never pays,
operates on the motive, while the reformative theory seeks to strengthen the
character of the person, so that he may not become an easy victim to his own
temptation. This theory would consider punishment to be curative or as
performing the function of a medicine. According to this theory, crime is like a
disease. This theory maintains that "you cannot cure by killing" .
Exponents of this theory believe that a wrong-doer's stay in prison should
serve to re-educate him and to re-shape his personality in a new mould . They
believe that though punishment may be severe, it should never be degrading.
To them, execution, solitary confinement and maiming are relics of the past
and enemies of reformation. Thus, the ultimate aim of the 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.
True, it is that this reformative element had long been neglected in the
past. However, the present tendency to put excessive stress on it seems to be
only a reaction against the earlier tendency to neglect it altogether, and has
therefore, the danger of going to the other extreme. Whereas reformation is
an important element of punishment, it cannot be made the sole end in itself.
In the case of young offenders and first offenders, the chances of long-lasting
reformation are greater than in that of habitual offenders. Again, some crimes,
such as sexual offences, are more amenable to reformative treatment than
others. Also, reformative treatment is more likely to succeed in educated and
orderly societies than in turbulent or underdeveloped communities.
Relation between the Deterrent Theory and the Reformative Theory

Though the deterrent and the reformative theories might coincide to some
extent, there is also some conflict between them. The deterrent theory might
impose the punishment of imprisonment, fine, or even whipping and death
penalty, but according to the reformative theory, except imprisonment, the other
modes of punishment are barbaric. Imprisonment and probation are the only
important instruments available for the purpose of a purely reformative system.
The next point to be considered is whether in view of this conflict between
the deterrent and reformative theories of punishment, a system of penal code
is possible, having reformation as the sole standard of punishment. Salmond
points out that there are, in the world, men who are incurably bad . With them,
crime is not so much of a bad habit as an ineradicable instinct. A reformative
theory might be quite helpless in the case of such persons. Therefore, according
to him, "The perfect system of criminal justice is based on neither the reformative
nor the deterrent principle exclusively, but is the result of a compromise between
them." In this compromise, it is the deterrent principle which possesses the
predominant influence.
Salmond further adds that the present day acceptance of the reformative
theory is, in a large measure, a reaction to the conservative approach to the
question of punishment. The extreme inclination towards the reformative theory
may be as dangerous as the complete acceptance of the old code of
punishment. It is true that, in the olden days , too much attention was paid to
the crime, and very little to the criminal. It is also true that criminals are not
generally ordinary human beings. They are mentally diseased abnormal human
beings; but if all murderers are considered as innocent and given a lenient
treatment, is it not possible that even ordinary sane people might be tempted
to commit crime, in view of the lenient attitude of law towards the crime? This
theory may be effective in the case of the very young and the completely insane
offenders, but the deterrent element in punishment must be present.
(4) The Retributive Theory of Punishment

While discussing the history of Administration of Justice, it was noted
that punishment by the State is a substitute for private vengeance. In all healthy
communities, any crime or injustice stirs up the retributive indignation of the
people at large , and according to this theory, a rational system of Administration
of Justice must attempt to satisfy this emotion of retributive indignation. This
kind of punishment will not only satisfy the primitive spirit of private vengeance
in the wronged , but also quench a similar feeling in the society at large.
Though the system of private revenge has been suppressed , the instincts
and emotions that lay at the root of these feelings, are yet present in human
nature. Therefore, according to this theory, this moral satisfaction that the society
obtains from punishment cannot 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. Therefore, punishment, instead of preventing
a crime, might indirectly promote it. According to this theory, an eye for an eye
and tooth for a tooth is a complete and self-sufficient rule of natural justice.
Unfortunately, this theory ignores the causes of the crime, and it hardly
attempts to remove the causes. A mere moral indignation can hardly prevent
crimes . It is quite possible that the criminal is as much a victim of circumstances
as the victim himself might have been.
Further, whereas other theories rega rd punishment as a means to some
other end, this theory looks on it as an end in itself. It regards it as perfectly
legitimate that evil should be returned for evil, and that as a man deals with
others, so should he himself be dealt with . It is unfortunate that this theory
overlooks the fact that two wrongs do not make a right.
Retribution as expiation
There is another interpretation of the retributive theory, which considers
punishment as a form of expiation. To suffer punishment is to pay a debt due
66 JURISPRUDENCE
to the law that has been violated. Guilt plus punishment is equal to innocence.
According to this view of the retributive theory, the penalty of wrong-doing is a
debt which the offender owes to his victim, and when punishment has been
endured, the debt is paid and the legal bond forged by the crime is dissolved.
Therefore, the object of true punishment must be to substitute justice for
injustice. To compel the wrong-doer to restore to the injured person that which
is his own by such restoration and repentance, the spirit of vengeance of the
victims is to be satisfied.
(5) The Theory of Compensation

What Is compen- According to this theory, the object of punishment must be not merely to
sative jurispru-
prevent further crimes, but also to compensate the victim of the crime. This
dence?
(2 marks)
theory further believes that "the main spring of criminality is greed, and if the
M.U. Nov. 2011 offender is made to return the ill-gotten benefits of the crime, the spring of the
criminality would be dried up." (Dr. Sethna)
Though there is considerable truth in this theory, it must be pointed out
that this theory over-simplifies the motives of the crime, and the motive of
crime is not always economic. Offences against the State, against justice,
against religion, against marriage, and even against the person, may not always
be actuated by the economic motives. There may be other complicated motives.
In such cases, the theory of compensation may be neither workable nor
effective. Quite often, even in the case of offences actuated by economic
motives, the economic condition of the offender may be such that he cannot
compensate the victim. Therefore, this theory can at best play a subordinate
role in the framing of a penal code.
Conclusion
By way of conclusion, it may be said that the administration of criminal
justice cannot have any one of the above purpose as the single standard of
punishment. A perfect penal code must be a judicious combination of all these
various purposes of punishment.
No theory of punishment is a complete answer by itself. As has been
said, all theories of punishment are not mutually exclusive.
If by the retributive theory is meant pure vengeance, it cannot be accepted.
However, it does not mean that. In its true sense, it involves the working of
Nemesis. The real idea behind retribution is to make the offender realise, by a
process of reformative detention, the heinousness of his crime, thus preventing
him and deterring others at the same time.
In the words of Dr. Sethna, the theories of retribution, reformation,
determent and prevention go hand-in-hand, and exist for the preservation of
the moral order, the protection of society and the rehabilitation of the offender
himself. In fact, this forms the essence of the Synthetic School of Jurisprudence
advocated by Dr. Sethna.
THE ADM INISTRATION OF JUSTICE 67
KINDS OF PUNISHMENT
(1} Capital Punishment
In the history of punishment, capital punishment has always occupied a
very important place. In ancient times, and even in the middle ages, sentencing
offenders to death was a very common kind of punishment. Even what might
be considered as minor offences in modern criminal law attracted the death
penalty in those days. In England, there was a time when there were as many
as 200 felonies for which the punishment was the death penalty. Even the
offence of theft of property worth more than two shillings could attract the
death penalty. And even as late as the middle of the seventeenth century, the
penalty for the offence of forgery was death.
Then there began a movement in the eighteenth century, which raised a
voice of protest against the inhuman nature of punishment. Bentham may be
considered to be the spearhead of this movement. He analysed the causes of
crime and showed how punishment was inadequate. According to him ,
punishment itself was an evil, but a necessary evil. No punishment was to be
inflicted unless it brought greater good.
The object of capital punishment can be said to be twofold. By putting the
offender to death, it may instil fear in the minds of others and make a lesson
out of it. Secondly, if the offender is an incorrigible one, by putting him to death,
it prevents the repetition of the crime. But it is evident that it is not based on the
reformative object of punishment; in a sense, it is a step of despair.
There are many arguments for and against capital punishment.
Arguments against Capital Punishment
(i) Those who denounce this kind of punishment argue that capital
punishment has not served its deterrent object at all. For example, in certain
States of the United States of America, where the death penalty has been
abolished, there are fewer serious crimes than in those States where capital
punishment is retained. If capital punishment had the deterrent effect it is
supposed to have, crimes in the former States ought to have increased, and
crimes in the latter States ought to have decreased. Therefore, it is argued that
the statistics do not prove the deterrent effect of capital punishment.
Abolition of capital punishment has been a recent experiment in England
and the immediate results are indeed encouraging. The experiment is worth a
trial in India also.
(ii) Capital punishment may be preventive, but at what cost, and with
what justification? Crimes are committed very often, not by normal human
beings, and not under normal circumstances. It is not even certain that a
murderer would repeat the murder again. He might have committed this heinous
crime under the most extra-ordinary circumstances. If law were to kill that
68 JURISPRUDENCE
man, it can have the superficial satisfaction of having prevented a crime which
probably would never have been committed. But, in its anxiety to prevent a
crime, the State itself has committed the greatest crime of taking away the life
of a man. As Professor Henting puts it, "I see in capital punishment, a means
of punishment whose advantages can be obtained by other means, and whose
disadvantages cannot be prevented in any other way than by abolishing it."
(iii) Professor Henting draws attention to another salient defect of capital
punishment. According to him, no thinking person can claim that our law of
evidence and the law of procedure are foolproof and always lead us inevitably
to the truth. It is possible that there are judicial errors, and in such cases,
capital punishment once awarded cannot be revoked. Therefore, it is argued
that this punishment is neither effective nor just.
Thus, there have been cases where after execution of an alleged murderer,
the true murderer is caught. But can the mischief be remedied? It is, therefore,
better to save nine murderers from capital punishment than inflict it on one
man who may be, in fact, innocent.
Arguments in Favour of Capital Punishment

(i) On the other hand, others argue that there may be some offenders
who are not only incorrigible, but who are immensely dangerous to the society,
and there is no reason why society should be burdened with maintaining such
people. If you cannot cure, and if this incorrigible element is harmful to human
society, why not quietly remove it?
(ii) Another argument in favour of capital punishment is that punishment
by the State is a substitute for private revenge. If a murderer is not punished
with death, it is quite possible that other relatives of the victim might murder
the murderer, and thus a chain of murders might set in. So long as human
emotions are powerful, and so long the powers of vengeance prevail, capital
punishment, it is argued, is a necessary kind of punishment.
Conclusion
In conclusion, it may be said that though capital punishment serves some
purposes, in the present context, out of respect of human dignity and possibility
of reforming the character of the offenders, an experiment of abolishing capital
punishment might be worth a try.
(2) Deportation
Next to capital punishment, a method of elimination of incorrigible or
dangerous offenders is the punishment of deportation. In India, It used to be
called transportation {which is now abolished). This could hardly be a solution
to the problem. If a man is dangerous in one society, and if he is let loose in
another society, he is likely to be equally dangerous there. Even if a separate
colony or settlement were to be created for deportation of such offenders, the
problem of maintaining such settlement might create a number of difficulties,

in addition to such colony having a degrading influence on the character of the
offenders. Therefore, this kind of punishment was abolished in England long
ago, and now, it has been abolished in India also.
(3) Corporal Punishment

The punishments of flogging, caning, whipping and torture fall under this
head. This was a very common kind of punishment in the ancient and the
mediaeval times. The main object of this kind of punishment is deterrence. It
has been long ago realised that this kind of punishment is not only inhuman,
but also ineffective. The person who undergoes this kind of punishment may
become more anti-social than he was before. The criminal tendencies in him
might be hardened, and reforming him might become impossible.
Though whipping was one of the kinds of punishment provided in the
Penal Code, it has now been abolished. It is indeed a matter of surprise, that
some countries still have this kind of punishment in their legal systems. Thus
even today, caning is a mandatory punish•nent (in addition to a jail sentence)
in Singapore, and some Arabian states, for offences like robbery, rape ,
attempted murder, drug trafficking, etc.
(4) Imprisonment
Imprisonment is a kind of punishment which, if properly used, can serve
all the three objects of punishment. It can be deterrent, because it makes an
example of the offender to others. It can be preventive, because it disables the
offender, at least for some time, from repeating the offence; and it might, if
properly used, give opportunities for reforming the character of the offender.
Solitary Confinement
Solitary confinement is an aggravated kind of imprisonment. This kind of
punishment seeks to fully exploit the sociable nature of the man, and by denying
him the society of his fellow beings, it tries to inflict pain on him.
It has been felt by many criminologists that this kind of punishment is
inhuman and perverse. It is possible that this might convert a man with sound
mental health into a lunatic. If used in excess, it may inflict permanent harm on
the offender. Though in limited cases, if used in a proper proportion, this kind
of punishment may be useful, yet if those limits are surpassed, it is likely to be
unnecessarily cruel. The Indian Penal Code, therefore, provides stringent limits
to the extent and maximum duration of this type of punishment.
Indeterminate Sentence
Another kind of punishment, which may serve the reformative purpose to
a greater extent, is the method of awarding an indeterminate sentence. In this
case, the accused is not sentenced to imprisonment for any fixed period. The
70 JURISPRUDENCE
period is left indeterminate at the time of the award, and when the accused
shows improvement in his character, the sentence may be brought to an end.
This kind of sentence serves the reformative purpose to a considerable extent,
as even in prison , the offender has a very strong motive to reform himself. This
type of imprisonment has been successfully tried in the United States ofAmerica,
and its results are very encouraging.
(5) Fine
Some criminologists are of the opinion that the punishment of fine, addition
to serving its deterrent object, also serves three more purposes. Firstly, it helps
to support the prisoners; secondly, it can provide expenses for the prosecution
of the prisoners; and thirdly, it may be used for compensating the aggrieved
party. This kind of punishment may be very useful in cases of hardened
criminals. But care must be taken to see that heavy and excessive fines, which
would almost result in forfeiture of the property of the offenders, should not be
inflicted. Moreover, the facilities for collecting fines must be created in such a
way that levying of fine may not inevitably drive the offender to the prison on
account of his inability to pay the fine.
In Indian Courts, it is a very common practice to award both imprisonment
and fine, with a further period of imprisonment in case the fine is not paid.
CIVIL JUSTICE
Primary and sanctioning rights
Civil proceedings are instituted with the object of enforcing a person's
rights. These rights may be classified into primary and sanctioning rights.
A primary right is a right arising out of conduct or as ajus in rem, while a
sanctioning right is one which arises out of the violation of another right. If X
enters into a valid contract, then , X's right to have the contract performed is
primary right, and if the contract is broken, his right to damages for the loss
caused to him for the breach of contract is a sanctioning right.
A primary right may be enforced by specific enforcement, and a sanctioning
right is enforced by sanctioning enforcement. Specific enforcement lies in either
(a) specific performance, e.g., delivery of a rare antique, or (b) specific
restitution, e.g., restoring a person to his status quo.
Sanctioning rights are : (1) the rights to be compensated by damages by
the wrong-doer; or (2) the right to exact the imposition of pecuniary penalty on
the wrong-doer by penal action. The first is divided into two types : (a) Restitution
and (b) Penal redress. Restitution lies in restoring the plaintiff to his original
position, while penal redress involves restitution of all benefits which the offender
derives from his wrongful act, plus a full redress for the plaintiff's loss.
Penal and remedial proceedings

Legal proceedings can be divided into five kinds, namely, (1) action for
penal redress; (2) penal actions; (3) criminal prosecutions; (4) actions for
specific enforcement; and (5) actions for restitution.
The first three proceedings are commonly known as penal, because the
ultimate purpose of the law is, in whole or in part, the punishment of the wrong-
doer. For, whether he is imprisoned or made to pay a pecuniary penalty, the
person is undergoing some form of punishment. Whereas in the other two,
there is no penal element, the idea of punishment is entirely foreign to them,
and hence they may be termed as remedial. This distinction is of greater
importance in the case of penal and remedial proceedings than in the case of
civil and criminal liabilities. The fact is that all criminal proceedings are penal ,
whereas the converse is not true in all cases, for, as seen above, there are
instances where a civil proceeding may also be penal.
However, a controversy has arisen in so far as penal and remedial liability
is concerned, for it has been held that even criminal proceedings may only
result in threats, e.g., release on probation; similarly an action for specific
enforcement may also result in a threat of punishment, i.e., if it is not obeyed.
It must, therefore, be admitted that this somewhat blurs the distinction between
the two kinds of remedies, and puts to naught the contention that the distinction
between penal and remedial proceedings is of great importance.
SECONDARY FUNCTIONS OF COURTS OF LAW

The primary function of a Court of law is the administration ofjustice, viz.,
the application by the State of the sanction of the physical force to the rules of
justice. It is to administer justice that the tribunals of the State are established.
But there are five secondary functions which the Courts also perform. They
are:
1. Petition of right : In England, proceedings against the Crown can be
taken only by a petition of right in a Court of law which determines the rights of
the parties. This is not administration of justice, strictly and properly so called,
for the essential elements of coercive force is lacking. The State is to judge its
own cause and cannot exercise constraint against itself.
2. Declaration of right : A person may seek the assistance of a Court of
justice, not by way of obtaining redress, but by way of having it declared that
he has or has not a certain right. The Court of justice, after hearing the parties,
either makes or refuses to make the necessary declaratory order.
Thus, under the Specific Relief Act, a plaintiff may pray only for a
Declaratory Decree against the defendant, as for instance, a declaration that
persons of a particular village have no right to pass through his land.
72 JURISPRUDENCE
3. Administration : Courts of justice sometimes undertake the

management and distribution of property. Examples are the administration of
a trust, the liquidation of a company, etc.
4. Titles to right : These are all those cases in which judicial decrees
are employed as the means of creating, transferring or extinguishing rights,
e.g., an adjudication of bankruptcy, a grant of a probate or letters of
administration, etc.
5. Supervision of lower courts : Superior Courts are often armed with
the power of supervising the Courts below them. Such a power is given to the
High Courts in India by Art. 227 of the Constitution.
ODD
Chapter 5
THE SOURCE OF LAW
The term "sources of law" is a frequent victim of confusion , because the What Is meant by
term is capable of having more than one meaning. Thus, the followers of the sources of law ?
State the various
philosophical school treat under this topic even some of the deepest problems sources of law,
of legal philosophy. Thus, for instance, Gurvitch has pointed that the question and explain them.
of the source of law is only one aspect of the general study of the validity of M.U. Apr. 2009
law.
The two main sources of law are :
State the sources
1. Formal, and of law. (2 marks)
M.U. Apr. 2010
2. Material.
Material sources can further be sub-divided into :
(a) Legal sources, and What are the two
main sources of
(b) Historical sources. law? (2 marks)
This can be summed up as under : M.U. Nov. 2017
SOURCE OF LAW
What are the for-
ma I and material
sources of law?
Formal Material Discuss custom
as a material
source of law.
M.U. Apr. 2011
Legal, Historical May 2018
Dec.2018
1. Legislation
2. Precedent
3. Custom What are the
formal sources of
4. Agreement law?
5. Professional opinion M.U. Nov. 2014
1. FORMAL SOURCE What are the

sources of law?
A formal source of law is defined by Salmond as that from which a rule of M.U. Nov. 2011
law derives its force and validity. The formal source of the law is the will of the
State, as manifested in statutes or decisions of the Courts. It is that from which
the authority of the law proceeds. Explain the
different sources
However, this approach depends upon the particular definition of law of law in India.
adopted by Salmond. If law is regarded as being created by the will of the M.U. Nov. 2017
State , then that is the formal source of law. If law is the command of the Nov. 2019
sovereign, then such sovereign is the formal source.
74 JURISPRUDENCE
However, looked at from another angle, one could reach the conclusion
that the formal source of law is to be found elsewhere. If law is valid because
it is the embodiment of natural law or absolute justice, then the source of law is
the ideal laid down by us. If law is valid because it is the product of an inner
sense of right, then such sense of right is the source of law. This is the view
adopted by the historical school. Thus, Del Vecchio regards the source of law
as being the nature of man. If law is valid because it is the product of custom,
then the habits of the people are the source of law. The followers of this view
thus do not regard the State as the source of law.
2. MATERIAL SOURCES
The material sources of law are those from which is derived the matter,
though not the validity, of the law. The matter of the law, as stated above, may
be drawn from all kinds of material sources.
Kinds of material sources

Material sources of law are of two kinds - legal and historical.
(a) Legal
Legal sources are those sources which are the instruments or organs of
the State by which legal rules are created, e.g., legislation and custom. They
are authoritative and are allowed by the law Courts as of right. They are the
gates through which new principles find their way into the realm of law.
The five kinds of legal sources are discussed later.
(b) Historical
Historical sources are sources where rules, subsequently turned into legal
principles, were first to be found in an unauthoritative form. They are not allowed
by the law Courts as of right. Some examples are religion, morality and opinion
of text-book writers. They operate only mediately and indirectly.
To take a concrete illustration, one can say that both Acts of Parliament
and the works of Bentham are material sources of English law. Yet, whereas
the Acts of Parliament become law forthwith and automatically, what Bentham
says may or may not become law, and even if it does, it does so, not as matter
of right, but because of its acceptance by the legislature or the judiciary.
In the same way, decisions of the Supreme Court of India are binding
precedents for all other Courts in our country, but the decisions of the U.S.
Supreme Court are not binding in India, and they may or may not be followed
in Indian courts.
In India, much of the early law is based on the precepts of religion. The
Codes of Manu and Brehaspati were almost entirely based on religious precepts.
Likewise, in Aurangzeb's reign, most of the law had its origin in the holy Koran.
Similarly, in ancient Iran, most of the law was of a religious nature, embodied
in the holy Vandidad.
THE SOURCE OF LAW 75
Legal and historical sources distinguished

1. Legal sources are those sources which are recognised as such by Write a short note
law itself. Historical sources are those which lack formal recognition on : Formal and
hlstorical sources
by the law. They are thus destitute of legal recognition . of law.
2. The legal sources are authoritative , (e.g., the decisions of English M.U. May 2006
Courts are a legal and authoritative source of English law, but those
of American Courts are, in England , merely a historical or
u nauthoritative source). whereas historical sources are
unauthoritative.
3. The legal sources are allowed by the law Courts as of n·g ht; historical
sources can stake no such claim .
The above points of difference may be summed up as under :
Legal Sources Historical Sources
1. Recognised by law itself. 1. Not so recognised.
2. Are authoritative. 2. Are authoritative.
3. Allowed as a matter of right. 3. Not allowed as a matter of right.
Kinds of legal sources

There are five kinds of legal sources. They are:
1. Legislation : Legislation is the making of law by the formal and
expressed declaration of rules by some authority in the body politic, which is
recognised by the Courts of law as competent for that purpose. Law which has
its origin in legislation is called enacted law. It is also called statute law.
(See Chapter 6: Legislation and Interpretation.)
2. Precedent : Preceden ts establish the law by the recognition and Discuss judicial
application of new rules by the Courts themselves in the administration of justice. decisions as a
source of law.
Precedents produce case-law.
M.U. Nov. 2009
Judicial decisions form an important source of law. It was on the raw
materials of custom that the judges fash ioned up rules of law. Like sculptors
working on marble, the judges worked on the raw material of custom suppl ied
mostly by the merchants, and thus made a valuable contribution to the law of
the land.
(See Chapter 7 : Precedent. ) Write a short note
on : Custom as a
3. Custom : Law based on custom is known as customary law. In fact,
source of law.
custom is one of the most fruitful sources of law. Custom is to society what law M.U. Apr. 2007
is to the State. Each is the expression and realisation , to the measure of men's
insight and ability, of the principles of right and justice. Define custom.
(See Chapter 8 : Custom .) (2 marks)
M.U. Nov. 2010
76 JURISPRUDENCE
Write a short note 4. Agreement : There is an interesting analogy between legislation and
on : Agreements.
M.U. Nov. 2010
agreement. The former is a public declaration of certain rights and duties,
Dec. 2018 whereas the latter is a similar, but private, declaration. By legislation, the State
does for its subjects that which in other cases, it allows them to do for themselves
- by way of agreements. The autonomy exercised by two consenting parties
prevails between them and a right in personam is created - unless the law or
public interest deems it otherwise.
English law regards the following four categories of agreements:
1. Contracts - which create rights in personam.
2. Grants - which create rights of any other kind.
3. Assignments - which transfer rights.
4. Releases - which extinguish certain rights.
A contract is an agreement which is enforceable in a court of law, as for
instance a contract to sell a car or a house. A grant creates rights in the form of
Write a short note a lease, license, easement, franchise, etc. An assignment is an agreement
on : Legal efficacy which transfers a right, as for instance when A assigns his rights under a contract
of agreements.
to 8 , with the consent of the other party to the contract. A release is an agreement
M.U. Nov. 2014
which extinguishes a right, as when a creditor releases the debtor from making
further payments of a loan. It is also referred to as a surrender or a discharge.
It may sometimes happen that an agreement falls within two or more of
the above descriptions. Thus, the sale of a pen is both a contract and an
assignment, as it transfers certain movable property and at the same time,
also creates an obligation to pay a price. Likewise, a lease is both a contract
and a grant.
There are different kinds of agreements. An agreement is said to be void
when it is not recognised by the law, as for instance, an agreement entered
into by a minor or a person of unsound mind. It is said to be illegal when it is
prohibited by law, as for example, an agreement to smuggle drugs into the
country. An agreement is said to be voidable when the consent of one of the
parties to the agreement is not free, as for instance, when it is caused by
coercion or fraud. Agreements are said to be unenforceable when they suffer
from a technical defect, as when a promissory note is not stamped. All other
agreements (which do not fall under the above categories and are enforceable
in a court of law) are contracts.
All contracts are also divisible into simple contracts and formal contracts.
A simple contract is one which is based on the consenting will of the parties, as
for example, an oral contract to purchase a watch. Formal contracts, on the
other hand, are those which the law requires to comply with certain formalities
- as for instance, a requirement that a particular contract should be in writing
or that it should be on stamp paper or that it should be notarised or that it
should be registered.
THE SOURCE OF LAW 77
The purpose underlying a formal contract is twofold. Firstly, it ensures

that the rights and liabilities of the parties are set out with an adequate degree
of clarity, certainty and permanence. Secondly, since there is a time gap between
the preliminary negotiation and the execution of the formal document, the parties
cannot successfully plead ignorance, misunderstanding, absence of consent,
etc.
In India, a contract comes into existence if the following ingredients are
present:
1. Offer and acceptance
2. Competent parties
3. Free consent
4. Lawful consideration and object
5. The agreement in question not being prohibited by the Indian Contract
Act or any other law.
Indian law also recognises the concept of a quasi-contract, where the
parties have not actually entered into any contract, but the law implies and
imposes a contract between them in the interests of justice and fair play. The
Indian Contract Act contains five such contracts for which provisions are made
in sections 68 to 72 of the said Act.
5. Professional opinion : Professional opinion of eminent jurists may
be called juristic law.
In fact, juristic writing and professional opinion have played a very important
role in legal evolution. In England, the trend was set by Bracton, and continued
by such legal luminaries as Glanvil, Coke and Blackstone. Coming to recent
times, in the field of private international law, the works of Dicey and Cheshire
have become classics.
Lord Eldon once remarked that a writer who had held no judicial position Write a short note
could not properly be cited as an authority. However, this view has been gradually on Juristic
writing.
modified, and it has now become the convention that the works of dead authors M.U. Nov. 2006
could be cited, not, of course, as binding authorities, but as expert evidence as
to the state of the law. Thus, Lord Wright once paid a graceful tribute to Pollock's
Law of Torts in Nicholls v. Ely Beet Sugar Factory Ltd. (1936, 1 Ch. 343).
In Bradfordv. Symondson (1881 7 Q.B.D. 462), the judgment turned almost
entirely on the discussion of the books of leading text writers on insurance.
Similarly, in Haynes v. Harwood (1935 1 K.B. 146), the Court followed a
conclusion reached by Prof. Goodhart in an article written by him in the
Cambridge Law Journal.
In an interesting account of the part played by text-books in the
development of American law is given by Roscose Pound in The Formative
Era of American Law. His view is that doctrinal writing has had more influence
in America than in England, especially in the earlier times. Even toady, that
78 JURISPRUDENCE
influence is not wanting, because the lists of courts are congested , the
authorities are many, and there is thus a strong natural temptation to turn to
any text-book which states the law in clear and definite terms. The American
Restatement of the law is an interesting modern example of co-operation
between the Bench, the Profession and the Law Teacher.
By literary sources of law is meant the original sources of law which
emanate from the authorities on law. Thus , the Institutes of Justinian are
considered as literary sources of Roman law. A literary source, being an original
source, any commentary written on the original works cannot constitute the
literary source of civil law. In England , the writing of some of the great jurists
constitute the literary sources of English law, while the Codes of Manu,
Yajnavalkya and Narada would constitute the literary sources of Hindu law.
Similarly, the writings of such great jurists like Abu Hanifa, Abu Yusuf and
Imam Muhammad would constitute the literary sources of Mohammedan law.
The term "literary sources", according to Salmond, is more used on the
Continent than it is used in England . He considers the literary sources as pre-
authoritative sources of the knowledge of law. Under English Law, the original
sources would be the statute book, the reports, and the older and authoritative
text-books.
Sources of law and sources of rights distinguished

The sources of law may also serve as sources of rights. By a source of
title of rights is meant some fact which is legally constitutive of rights. It is the
de facto antecedent of a legal right, just as a source of law is the de facto
antecedent of a legal principle.
An examination of any legal system will show that, to a large extent, the
same classes of fact which operate as sources of law, operate as sources of
rights also. These two kinds of sources form intersecting circles. Some facts
create law, but not rights ; some create rights, but not law; some create both at
once. An Act of Parliament is a typical source of law, while numerous private
Acts, e.g., an Act of Divorce, an Act granting a pension for public service, are
clearly titles of legal rights. Judicial decision is a source of rights as between
the parties, while it is a source of law for the world at large. Regarded as
creative of rights, it is called a judgment; regarded as creative of law, it is
called a precedent.
000
Chapter 6
LEGISLATION AND INTERPRETATION
This Chapter deals with the following two topics :

A. Legislation
B. Interpretation of Statutes.
A. LEGISLATION
Legislation defined
Legislation consists in the declaration of legal rules by a competent Write a short note
on : Legislation.
authority, conferring upon such rules the force of law. Such 'competent authority'
M.U. Nov. 2010
is styled as the 'Legislature' of a country, and its members are called 'legislators'. May 2015
According to Gray, legislation represents the formal utterances of the legislative
organs of the society. Explain the Impor-
tance of legislation
Legislation, therefore, means making laws. But. judges also make laws
as a. source of law.
when they give decisions which establish a new principle. However, th is is not Describe different
legislation in the strict sense of the term, but is known as 'indirect legislation' or kinds of legisla-
judge-made law. tions.
M.U. May 2017
"In another sense, legislation includes every expression of the will of the
legislature, whether directed to the making of rules of law or not. In this use, Write short notes
every Act of Parliament is an instance of legislation, irrespective of its purpose on : Judge made
law.
and effect. An Act of Parliament may do no more than ratify a treaty with a
M.U. May 2018
foreign State, or alter the calendar or coinage or declare war or make peace.
All this is legislation in a wide sense, but it is not the declaration of legal principles Discuss legisla•
with which we are concerned". (Salmond) tion and prece•
dents as source of
Law which emanates from legislation is described as enacted or codified law and bring out
law (lex scriptum), as opposed to unenacted or uncodified law (Jex non their relative
scriptum). advantage and
disadvantage.
KINDS OF LEGISLATION M.U. May 2019
Legislation may be classified into -

(A) Supreme and subordinate legislation
(B) Direct and indirect legislation.
(A) SUPREME AND SUBORDINATE LEGISLATION

1. Supreme Legislation
Legislation is either supreme or subordinate. The former is that which
proceeds directly from the sovereign power in the State, and is therefore free
from any external control. It is also incapable of being annulled or repealed.
The British Parliament is,Jn every sense, a sovereign law-making body, because
there is no external restraint on its absolute authority. Its laws cannot be
80 JURISPRUDENCE
questioned in any Court of law. Though the Parliaments of the U.S.A. and
India are also sovereign according to the literal meaning of the word, they are
not really so, because the validity of their laws can be challenged in a Court of
law, which may even declare them ultra vires. But according to the modem
concept of sovereignty, even legal restraints are not inconsistent with the idea
of sovereignty. So looking at it from the modem concept, all federal legislatures
also are sovereign and supreme bodies.
2. Subordinate Legislation
What Is Subordi- Subordinate legislation is that which proceeds from any authority other
nate legislation? than the sovereign power, and is, therefore, dependent for its continued
(2 marks)
existence and validity on some supreme or superior authority.
M.U. Nov. 2010
Nov. 2017 Forms of subordinate legislation
Dec. 2018
Subordinate legislation may take any of the following five forms :
1. Executive : The executive is entrusted with the working of the
administrative department of the State, but it also enjoys certain subordinate
legislative powers which have been expressly delegated to it by Parliament or
pertain to it by the common law. Thus, it is the prerogative of the Crown by the
common law to make laws for the government of the territories acquired by
conquest or by cession, and not yet possessed of representatives local
legislation.
2. Judicial : The superior Courts have the power of making rules for the
regulation of their own procedure. Thus, the High Courts of India are empowered
to make Rules to regulate their own procedure. Thus, for instance, we have
the Bombay High Court Rules, which are Rules governing the Bombay High
Court and matters coming before that Court.
3. Colonial : The powers of self-government entrusted to the colonies
and other dependencies of the Crown are subject to the control of the Imperial
Legislature, which may repeal, alter, or supersede any colonial enactment.
4. Municipal : Municipal authorities are entrusted with the power of
establishing special law for the districts under their control. These are sometimes
called bye-laws.
5. Autonomic (or Autonomous) : By autonomic legislation is meant that
species of enacted law which has its source in various forms of subordinate
and restricted legislative authority possessed by private persons and bodies of
persons. A railway company, for example, may make rules for the regulation of
its undertaking, or a university may make statutes for governing its members.
Legislation thus effected is called 'autonomic' or 'autonomous'.
(B) DIRECT AND INDIRECT LEGISLATION

The word 'legislation' is used in different senses, and in its widest sense,
includes judge-made rules of law, and even the particular rules of law or the
LEGISLATION AND INTERPRETATION 81
rights created at law between parties to a contract. Looked at from this angle,
legislation can be of two kinds, viz., direct and indirect. Direct legislation is
legislation in the strict (or narrower) connotation of the term, in the sense that
it connotes enactment and declaration of legal rules of behaviour which are
enforceable in Courts of law. By indirect legislation is meant legislation in the
widest sense, i.e., legislation by judicial interpretation of statutes and the
application of equitable principles by the judges. From this it follows that direct
legislation means the making of rules and laws to be followed and enforced in
the Courts of the State, and these rules can only be framed by a competent
law-making body.
Difference between Autonomic and Conventional Law

There is a close resemblance between autonomic law and conventional
law. Autonomic law is a function entrusted by the State to private persons. But
conventional law is the product of agreement, and therefore, is law for none
except those who have consented to its creation. Autonomic law, on the other
hand, is the product of a true form of legislation.
Codification
Legislation as a source of law, has the advantage of form and brevity. Write short note
The modern tendency is towards reduction of the whole body of law into the on : Codification.
M.U. May 2017
form of enacted law. This process is known as codification. According to
Salmond, codification consists in the reduction of the whole corpus juris to the
form of enacted law.
On the Continent, the bulk of the law, customary or otherwise, has been
reduced to the form of a code. In England, however, there is no general attempt
to codify the various branches of customary or case-laws. On the contrary, in
the earlier days, legal temperament in England was averse to codification, and
this pushed a great jurist like Bentham to publish his works in France (in the
French language). However, English jurists of later days began to realise the
immense value of codification, and now, several branches of Common law
have been reduced to enactments.
Bentham was of the view that it is indeed possible to formulate a Code of
Laws which is so ideal, that it takes care of a// possible legal situations and
avoids all possible scope for law-making via judicial decisions. However, this
view cannot easily be subscribed to. Careful codification may reduce the volume
of judgemade law; it cannot, however, totally do away with precedents.
Thus, codification does not altogether eliminate case-law. Even with
codification , there will be room for case-law, as the code itself has to be
interpreted. But the bulk of the case-law will be reduced. To take an example,
whereas the law of torts is based, more or less entirely, on case law, the law of
contracts is based more on the sections of the Indian Contract Act. However,
codificatoin cannot connote the total abolition of precedents. Even when law is
codified, the growth of precedents marks a parallel development.
82 JURISPRUDENCE
In India, the most classical case is the Code of Manu, where law and
religion are found to be inter-woven. However, codification, in its real sense,
began in the country during the British reign. The first Law Commission was
appointed in 1834 under the chairmanship of Lord Macaulay, to draft a Penal
Code for India, and also to draft a Civil Procedure Code. The drafts prepared
by the first Law Commission were submitted to the Second Law Commission,
and the Civil Procedure Code was passed in 1859, whereas the Indian Penal
Code was enacted in 1860. Shortly thereafter, three more uncodified branches
of law were embodied in statute in the shape of the Indian Contract Act, the
Indian Evidence Act, and the Negotiable Instruments Act.
In India to-day, criminal Law is entirely codified. On the other hand, personal
laws like Hindu Law and Mahommedan Law are partly codified and partly
uncodified. Thus, in Hindu Law, whereas the law regarding marriage ,
succession, minority, guardianship, adoption and maintenance is codified, the
law relating to joint families, coparcenary, etc., is uncodified. Similarly, in
Mahommedan Law, which is mostly uncodified, one finds several enactments,
as for instance, the Dissolution of Muslim Marriage Act, 1939, and the Wakf
Act, 1954.
An interesting compromise between case-law and codification is the
American Law lnstitute's Restatement of American Law. Although this
Restatement is in the form of a Code, it is not statutory, and has no official
sanction. Generally, it merely declares the existing law, without attempting to
suggest or incorporate any improvements. Where there are conflicting
decisions, the framers have adopted what they consider to be the preferable
rule, which may not necessarily be the one supported by most of the Courts.
One may conclude with the words of Austin, who observed as follows :
"The vast difficulty of successful codification, no rational advocate of codification
will deny or doubt. Its impossibility, none of its opponents will venture to affirm."
THE MERITS OF LEGISLATION OVER OTHER

SOURCES OF LAW
Discuss enacted In the words of Salmond, so great is the superiority of legislation over all
law. How is it other methods of legal evolution, that the modern tendency is to acknowledge
superior to other
sources of law? its claim exclusively, and to discard the other instruments as relics of the infancy
M.U. Nov. 2011 of law. Of all the main sources of law, legislation is the most recent and the
most powerful.
In primitive and ancient societies, as law and religion were blended
Analyse legislation
as a source of law.
together, immutable custom was the most important source of law, and
Give reasons for legislation had a very small role to play. It was at times even nonexistent. But
Its primacy among immutable custom can hardly be an adequate source of law in the dynamic
sources.
modern world . Therefore, custom can hardly be considered as a rival to
M.U. Nov. 2012
legislation as a source of law, though it continues to be a subsidiary source of
law, even in modern times.
The other source of law with which the merits of legislation are to be
compared is precedents or case-law. The advantages of legislation can be
best considered by contrasting it with precedent.
The following are the seven important merits of legislation:
1. Abrogative power
Legislation is both constitutive and abrogative, while precedent merely Compare leglsla•
possesses constitutive efficacy. In other words, whereas legislation can both tion and precedent
as sources of law.
make and unmake, precedent can only make new law. The first virtue of
M.U. Apr. 2010
legislation lies in its abrogative power. It is not only a source of new law, but is
also the most effective instrument of abolishing the existing law. The legislature
can amend, repeal or enact new law. It can be progressive. Precedent, on the Why is legislation
other hand, does not possess that abrogative power which is so necessary for superior to other
sources of law?
legal reform. It can produce new law, but it cannot reverse what is already law.
M.U. Nov. 2006
Thus, if a precedent pronounced by a Full Bench of a High Court is unsound,
in a new case, that High Court must first decide in conformity with such
precedent. Only if the aggrieved party then appeals to the Supreme Court, can
the precedent be reversed . Legislation , therefore, is an indispensable
instrument, not only of legal growth, but also of legal reform.
This advantage, however, fizzles away when one considers the fact that
precedent too is not always rigid and irreversible. In legal systems where the
Courts can overrule their own previous decisions (as for example, the Privy
Council in England and the Supreme Courts of India and the United States),
precedent can also make and unmake the law.
2. Efficiency (Division of functions)
Legislation allows an advantageous division of labour, which results in Discuss legisla•
increased efficiency. It differentiates the legislature from the judiciary. The duty tlon as a source of
law and bring out
of the legislature is to make law, while the duty of the judiciary is to interpret
how It is superior
and apply the law. Precedent, on the other hand, unites in the same body, the to the other
business of making the law and that of enforcing it, and this may not always be sources.
the best formula for efficiency. M.U. Apr. 2012
Nov. 2014
3. Declaration
Legislation is also superior to precedent, because before a statute is
Explain the lmpor•
applied by Courts of justice, it is formally declared. Justice requires that laws tance and status of
should be known before they are applied and enforced by the law Courts. legislation as a
Case-law, on the contrary, is created and declared in the very act of applying source of law,
along with kinds of
and enforcing it. The Courts of law apply it as soon as they make it, without
legislation and
making any formal declaration about it. Besides, it operates retrospectively, delegated legisla•
and applies to facts which are prior in date to that law itself. Would it be fair, it tion.
is rightly asked, to keep the citizens in the dark about their legal rights and M.U. Nov. 2016
duties, and then to suddenly subject them to a particular law?
84 JURISPRUDENCE
The validity of the distinction is, however, watered down by the fact that
sometimes even statutes are given a retrospective effect. Thus, for instance, a
man who buys a house and hopes to rent it out at a good rent may find , to his
disappointment, that a Rent Act is later passed by the Legislature , under which
he can recover only the "standard rent" specified in such a statute.
4. Provisions for future cases

Legislation makes rules for cases that have not yet arisen, whereas
precedent must wait until the actual concrete instances come before the Courts
for decisions. Thus, legislation makes room for certainty. But for it, the legal
position in certain cases would have been uncertain and indefinite. It has,
therefore, rightly been said that case-law is essentially incomplete, uncertain
and unsystematic, while if statute law shows the same defects, it is only because
of the incapacity or lethargy of the legislature.
5. Form
Statute law is also superior to case-law in point of form. It is brief, clear,
easily accessible and understandable, while case-law is burried from sight
and knowledge in the huge and growing mass of the records of litigation. "Case-
/aw is gold in the mine, while statute law is coin of the realm, ready for immediate
use."
This, however, is not always so. Instances are many where an Act is
cumbersome and complicated in its reading , and judgments are lucid with
crystal-clear simplicity.
6. Greater access and generality

Another advantage of legislation is that whereas precedents are scattered
here and there, and therefore, inconvenient to refer to (even for a lawyer),
enacted law is codified , easily available, and general in its application.
7. Reliability
Discuss the Finally, codified law is more reliable than individual judgment. As rightly
advantages and
observed by Dr. Sethna, the human mind is not infallible, and the judge is no
disadvantages of
legislation. exception. The collective wisdom of the legislature can , therefore, be regarded
M.U. Apr. 2009 as a more reliable means of protection than the fancy of an individual judge.
Defects of Legislation
The following are the three main defects of legislation:
1. No scope for judicial discretion : It has often been said that where
there is an express provision of the law, the judge is tied down to it, and has to
follow it, even if it results in injustice. On the other hand , precedent allows a
judge to give a decision on the merits of that particular case, without being
rigidly tied down to water-tight rules of the enactment.
There is, indeed, considerable strength in this criticism. However, the

remedy lies in enacting legislation which is not absolutely binding on the judge,
and which provides scope for judicial discretion within the four corners of the
statute.
2. Lack of clarity : It is also said that statute-law is often worded in
cumbersome language, which makes little sense to a layman, whereas
precedent is often to be found in clear and simple words.
There is not much strength in this criticism, and the remedy lies in
employing competent draftsman to frame the statutes. At the same time, it is
well-known that quite a few judgments are verbose and couched in high-
sounding language, which make little sense to a lawyer - much less to a layman.
3. Rigidity : Lastly, it is said that statutes are extremely rigid and leave
little scope for selective application , thus resulting in injustice in extreme cases.
The remedy for this is once again to provide an in-built flexibility in the
statute itself, so that there is a greater scope for judicial discretion.
B. INTERPRETATION OF STATUTES
'Interpretation' defined
Salmond defines interpretation as "that process by which the Courts seek
to ascertain the meaning of the legislature through the medium of the
authoritative forms in which it is expressed." Thus, it involves giving effect to
the intention of the legislature. Interpretation is always a point of law, and it is
the function of the Court to interpret the laws.
Kinds of interpretation
Interpretation can be literal or functional. The former is concerned only State and explain
two kinds of
with how the law is expressed as it stands. It is concerned exclusively with the
interpretation of
verbal expression of the law. This is called litera legis, i.e., the literal construction statutes. (2 marks)
of law. Functional interpretation, on the other hand, is that which departs from M.U. Nov. 2015
the letterofthe law, and looks elsewhere for some other and more satisfactory
evidence of the true intention of the legislature, namely, sententia legis. What is the
literal rule of
Interpretation may be literal or free. In the former, law is interpreted interpretation 7
exclusively in its verbal expression, and it does not look beyond the litera legis. (2 marks)
But free interpretation departs from the letter of the law, and seeks more M.U. Apr. 2010
satisfactory evidence of the true intention of the legislature somewhere else. It Apr. 2014
is the duty of the judiciary to discover the intention of the legislature, because
State the literal
the essence of the law lies in its spirit, and not in its letter. Judges are not at rule of lnterpreta•
liberty to add to or take away from or modify the letter of the law, simply because tion. (2 marks)
they have reason to believe that the true sententia legis (intention of the M.U. May 2015
legislature) is not completely or correctly expressed by the law. As far as
possible, law Courts are therefore required to follow the letter of the statute.
86 JURISPRUDENCE
What is sententia As Mr. Justice Desai remarked in a case before the Bombay High Court,
legls? (2 marks)
"It is the paramount duty of the judicial interpreter to give full effect to the
M.U. Nov. 2017
language used by the lawmaker". However, there are occasions on which law
Explain judicial Courts have to depart from this rule, and one, therefore, finds different methods
Interpretation of of interpretation of statutes, and one such method is the historical interpretation.
enacted law,
bringing out two The Supreme Court has also reiterated the role ofbeneficient construction
kinds of in Addi. C.I. Tv. Surat Art Silk Cloth Manufacturers Association (1980 2 S.C.C.
interpretation and 31 ). It held that a construction that gives meaning and effect to the provisions
the important rules
of interpretation.
of statute is definitely to be preferred to one which does not have this effect. In
M.U. Nov. 2015 the course of its judgment, the Supreme Court observed as follows:
"If there is one rule of interpretation more well-settled than any others, it
is that if the language of a statutory provision is ambiguous and capable of two
constructions, that construction must be adopted which will give meaning and
effect to the other provisions of the enactment, rather than that which will give
none."
Even in the United States of America, the trend today is towards a purpose-
oriented approach, rather than a plain-meaning role in its rigid orthodoxy. The
U.S. Supreme Court has observed (in United States v. American Trucking
Association-310 U.S. 534):
"When the plain meaning has led to absurd or futile results, this Court
has looked beyond the words to the purpose of the Act. Frequently, however,
even when the plain meaning did not produce absurd results, but merely an
unreasonable one, plainly at variance with the policy of legislation as a whole,
this Court has followed that purpose rather than the literal words."
Penal statutes must, however, be always strictly construed. If an Act
creates an offence and prescribes a penalty for it, the words used in the Act
must be strictly construed. In such cases, the Court ought not to be concerned
so much with what might possibly have been intended; it is more concerned
with what has actually been said and by the language used in the Act. If, in a
penal statute, two possible and reasonable interpretations are possible, the
Court must lean towards that construction which exempts the person from a
penalty, rather than the one which imposes a penalty on him.
The Mischief Rule

Answer in one or When the sententia legis (intention of the legislature) cannot be determined
two sentences :
Mischief Rule.
by the language of the enacted statute, it is open to the Court to consider the
(2 marks) historical background underlying the statute. The Court may consider the
M.U. May 2017 circumstances that led to the introduction of the Bill and also to the
circumstances in which it became law.
It is no doubt true that when judges are allowed to probe into questions of
policy in interpreting statutes, there is bound to be some uncertainty in such
interpretation. It is maintained that the judges may look at the law before the
Act and the mischief in the law which the statute was intended to remedy; the
Act is then to be construed in such a manner as to suppress the mischief and

advance the remedy.
This rule of interpretation is also known as the mischiefrule, and takes its
origin from Heydon's case (1584-3 Co. Rep. 76). As was observed in Heydon's
case, "For the sure and true interpretation of all statutes, four things are to be
discussed and considered ; first, what was the Common Law before the making
of the Act; second, what was the mischief and defect for which the Common
Law did not provide; third, what remedy the Parliament hath resolved and
appointed to cure the disease; fourth, the true reason of the remedy, and then
the office of all judges is always to make such construction as shall suppress
the mischief and advance the remedy, and to suppress subtle invasions and
evasions for continuance of the mischief and to add force and life to cure and
remedy, according to the true intent of the makers of Act, pro bono publico."
Thus, in Gorris v. Scott, (1874 L.R. 9. Exch. 125), a newly enacted statute
provided that animals carried on board a ship should be kept in pens. The
Defendant shipping company had failed to enclose the Plaintiff's sheep in pens,
and sheep had been washed overboard during a storm. If only the sheep had
been penned as required , this mishap would not have occurred. However, the
English Court rejected the Plaintiff's suit for breach of statutory duty on the
ground that this Act had been passed to prevent infection from spreading from
one owner's animals to those of another, and should not therefore be used to
provide a remedy for a totally different "mischief.
Reiterating the application of the mischief rule, the Supreme Court has
observed that always that construction must be adopted which would advance
the legislature's object and suppress the mischief sought to the cured. (Vishesh
Kumarv. Shanti Prasad, (1980) 2 S.C.C. 378)
But law Courts are rather cautious in utilising this method of interpretation
of statutes, because the Courts are always restricted by the limitations of the
interpretation that they may put on the law. Thus, English Courts do not permit
themselves to consider the preliminary discussion that took place before the
enactment became law. They will not look at debates in Parliament, or in general,
at the reports of Commissions to which effect was given in framing the
legislation. The reason is that the motives of different members vary
considerably and those who have spoken represent the intention of the majority.
Further, the intention of Parliament is not clearly seen through such debates;
moreover, the intention of the Parliament may not give a precise effect to the
reports of the Commission.
"The dominant purpose in construing a statute is to ascertain the intent of
the legislature, and this may be done in any of the three ways. Firstly, by
considering the cause and necessity of the Act; secondly, by comparing one
part of the Act with another; and thirdly, (and this the most indefinite) sometimes
by foreign (meaning extraneous) aids, so far as they can justly be considered
to throw light on the subject." (Lord Wrenbury)
88 JURISPRUDENCE
In India, the Courts have always looked into all relevant material when
interpreting a statute. Thus, in The CommissionerofLabourv. The Associated
Cement Companies Ltd. (57 Born. L.R. 367), the Bombay High Court held that
if it is relevant and material to consider the circumstances under which an Act
was passed, the Court may consider the Debates in the Legislature. Similarly,
in The State of West Bengal v. Subodh Gopal Bose (1964 S.C.R. 587), it was
observed by the Supreme Court that, in proper cases, the Statement of Objects
and Reasons relating to the Act ought to be considered.
The Supreme Court has also referred to the Statement of Objects and
Reasons of a statute in interpreting its provisions. (Shyamcharan Sharma v.
Dharamdas, (1980) 2 S.C.C. 151)
The use of external aids, such as a dictionary, was once in question before
the Supreme Court. Pointing out the differences between different dictionaries,
the Court observed that the function of the Court is to gather the meaning of a
particular word , not under the dictatorship of dictionaries, but guided by the
statutory purpose, the mischief to be countered and the public interest to be
advanced . (Subhash Chandra v. State of U.P., (1980) S.C.C. 324)
The words used in the heading of a Chapter do not control the sections
which fall under that Chapter. They are to be regarded as a Preamble to the
sections that follow. Although the Preamble to an Act cannot over-ride the
plain meaning of its operative parts, it may assist in understanding the true
meaning or implication of a particular section in an Act.
The Supreme Court has also observed that where the language of a
statute is clear and explicit, restructuring the provision with the aid of the
Preamble is not permissible. (Bhim Singhji v. Union of India, (1981) 1 S.C.C.
166}
The Supreme Court has also held that where a statute contains a definition
clause, i.e., a particular term is defined by the Act itself, the defined meaning
generally prevails, unless the context otherwise requires. However, such a
clause does not necessarily apply in all possible contexts in which the word
defined may be found in that Act. (K Balakrishna Rao v. Haji Abdulla Sait,
(1980) 1 S.C.C. 321)
Logical Interpretation
Ordinarily, the judge must accept the language in which a rule of law is
framed, i.e., /itera legis. Such interpretation becomes literal. By this method,
the Court arrives at the correct conclusion with regard to the intention of the
legislature. But if it is not possible to find out the intention of the legislature
because of some logical defect, then it must be interpreted by some other
means. It is then for the judge to supply an intelligent interpretation in order to
furnish what is lacking in the law. This can be termed as the logical interpretation
of a statute.
It is also to be remembered that words and phrases in an enactment are

not to be taken in an isolated or detached manner-but as a whole, in the light
of the entire enactment. Thus, under certain circumstances, the word 'may' is
properly to be construed to mean 'shall'. Again, the word 'child' may not include
an illegitimate child. Likewise the term "void" as used in several English statutes,
has been interpreted as also covering "voidable", as that was the meaning
required to give effect to the requirement of the legislature.
However, there is no scope for a free or logical interpretation in a penal
statute. Where an Act defines an offence and prescribes a penalty for its
commitment, the words must be strictly construed in favour of the subject.
Thus, if a man is charged with theft under the Indian Penal Code, the Court
would insist on proof of a dishonest intent, and a mere fraudulent intent would
not suffice.
Sometimes, a rule of law may be ambiguous, and in such cases, it is the
duty of the Court to make a logical interpretation, and give the best and most
equitable interpretation, so that the litera legis becomes clear.
As a rule, interpretation of law is literal or strict, and unless there is a very
good ground for following a broader and equitable interpretation, the judge
never departs from the grammatical, narrow, strict or restrictive interpretation
of a statute. The difficulty sometimes arises because of two or more inconsistent
interpretations which may be attributed to the same point of a statutory law.
Such an inconsistency is a serious logical defect, which can be remedied by
correcting the language of the law and supplying a fair and reasonable
interpretation. There are cases where the legislature may create a logical defect
by accident, slip or oversight, or even by placing a comma at the wrong place,
and therefore, it is for the judge to decide, for instance, that the comma ought
to be at some other place, and the Court has the right to rectify such a mistake,
so as to restore the true intent of the legislature, and thereby remove very
great hardship on those who are likely to suffer on account of such an accident
or oversight.
"There can, I think" says Lord Mac-Naughten, "be only two cases in which State the meaning
it is permissible to depart from the ordinary and natural sense of the words of of phrase 'Noscitur
a soclls'.
an enactment. It must be shown either that the words taken in their natural (2 marks)
sense lead to some absurdity, orthat there is some other clause in the body of M.U. Nov. 2019
the Act inconsistent with or repugnant to, the treatment in question construed
in the ordinary sense of the language in which it is construed."
Noscitur a Socis (Rule of ejusdem generis)

The Latin maxim, Noscitur a Socis has been translated by Lord Macmillan State the rule of
as, "The meaning of a word is judged by the company it keeps." This means ejusdem generis.
(2 marks)
that the meaning of a word, the connotation whereof is not clear, may be
M.U. Nov. 2011
ascertained by referring to the meaning of the other words associated with it. Nov. 2014
The rule of ejusdem generis involves a reference to the context and refers to a Nov. 2019
90 JURISPRUDENCE
Write a short note similar item. Thus, if a man asks his wife to go out and buy bread, butter, milk,
on : The rule of
ejusdem generis.
eggs, and anything else she needs, he will not normally be understood to
M.U. Nov. 2016 include in "anything else she needs" an item like a new dress or a TV,-but the
May 2019 words would obviously be taken to mean similar items, like cheese or jam.
Expressio unius est exclusio alterius

This maxim means that when one thing is specifically mentioned, it implies
that other similar things are excluded by implication. Thus, where a person
talks of "men" and "women", and then makes a statement regarding "women"
it shows that he did not imply it to cover men also. Similarly, if an Act seeks to
regulate land and buildings, and then makes a provision for 'land', it may be
taken to exclude buildings.
However, this maxim is to be very carefully applied, and is indeed a
valuable servant but a dangerous master. In certain circumstances, Courts
may hold that a reference to only one of two items is merely by way of abundant
caution, and that the provision applies to the other item also.
Principles of interpretation
The principles which guide the judiciary in the interpretation of enacted
law may be summed up as under:
In all ordinary cases, literal interpretation is the rule. The Courts must be
content to accept the litera legis as the exclusive and conclusive evidence of
the sententia legis. They must generally take it for granted that the legislature
has said what it meant, and meant what it has said. Judges are not at liberty to
add to, or take away from, or modify, the letter of the law, simply because they
have reason to believe that the true sententia legis is not completely or correctly
expressed.
As stated above, the Courts must be content to accept the litera legis as
the exclusive and conclusive evidence of the sentenita legis. To this general
principle of interpretation, there are two exceptions:
1. The first exception is where the letter of the law is logically defective,
i.e., when it fails to express some definite idea. Now, logical defects may be of
three kinds, as under:
(a) Ambiguity : In case of ambiguity, Courts may go behind the letter of
the law (litera legis) to find its true import. This difficulty often arises
from ambiguity of formal words like "or", "and", etc. Thus, for instance,
if power is given to the Court to award "imprisonment or fine", would
it mean that the Court can either fine or imprison, but not both? Or,
would it imply that the Court can both fine and imprison? In other
words, the question would be whether the word "or'' was used by the
Legislature in an exclusive or an inclusive sense.
(b) Inconsistency : Similar is the case where the language used is
inconsistent or contradictory.
(c) Incompleteness: When the idea in an enactment is left incomplete,

the Courts may supply the same.
2. The second exception in which logical interpretation is entitled to
supersede the grammatical, is that in which there is an obvious clerical error in
the text.
Disobedience to an unreasonable statute

However unreasonable, unjust or oppressive a statute may be, it is the
duty of the Courts to follow it and administer justice according to that statute.
Judges are not to sit in judgment over statute. Their duty is to interpret it, apply
it and act up to it for, "to seek to be wiser than the law is the very thing which is
by good laws, forbidden." The judge must enforce the law as it stands, unless
of course, there are defects, clerical, logical, or otherwise, in which case, he
has to follow the above rules of interpretation.
The golden rule for avoiding absurdity

When a literal interpretation of a statute cannot be adhered to, either What is the
because there is some logical defect in it, or because the text of the statute golden rule of
interpretation?
leads to a result which is so absurd or unreasonable, that it is evident that the
(2 marks)
legislature could not have meant what it has said, the Courts adopt what is
M.U. Apr. 2011
known as the golden rule of interpretation. According to this rule, the Courts Nov. 2012
imply into statutes saving clauses that have not been expressed , to avoid what
they regard as absurdity. According to these implied saving clauses, it is
considered that the previous principles of common Jaw are preserved . As Byles,
J. observed, "It is a sound rule to construe a statute in conformity with the
common law rather than against it, except where or in so far as the statute is
plainly intended to alter the course of the common law.
Although the golden rule was first evolved by Lord Wensleydale, the first
recorded expression, "golden rule", is to be found in the judgment of Chief
Justice Jervis in Mattison v. Hart (1884-14 C. B. 357). In India, the rule has
been endorsed time and again, by various High Courts as also by Supreme
Court Judges, the most notable amongst them being Justice Krishna Iyer.
Thus, in one case, where a statutory order was made transferring the
rights and liabilities of a dissolved Company to another Company, it was held
that this did not have the effect of transferring the employees for the dissolved
Company, as though they were chattles, for it is the general principle of law
that contracts of personal service are not capable of being assigned. (Nokes v.
Doncastor Amalgamated Collieries Ltd., 1940 AC. 1014)
The justification for this method of interpretation is two-fold. Firstly, this
rule of interpretation is likely to effectuate the intention of the legislature;
secondly, it avoids absurd, unjust or immoral results, and preserves the broad
principles of the law.
92 JURISPRUDENCE
However, when no principle of common law can be invoked to control a

statute, the absurdity rule is less likely to be applied. It must also be noted that
the absurdity rule is almost wholly confined to the restriction of statutes for the
avoidance of absurdity; statutes should not be extended on this ground beyond
their expressed language.
The commonest situations where the golden rule of interpretation has
been applied are the following:
(a) Where there is an ambiguity in a statute regarding the exact
connotation of a particular word. This is also known as semantic
ambiguity.
(b) Where there is an ambiguity in the arrangement of a particular set of
words in a statute, also known as syntactic ambiguity.
(c) Where there is ambiguity between two provisions in the same statute.
(d) When a provision of one statute is in conflict with the provision of
another statute.
(e) Where the legislature has not made a provision for the particular
situation which is before the court.
(f) Where there is a clerical error in the statute.
(g) Where the legislature has used certain words without intentionally
defining the same, so as to give the court a measure of discretion to
be exercised in the peculiar facts and circumstances of the case.
Summary of rules of interpretation as laid down by the Supreme Courts

The following basic rules of interpretation of statutes have been reiterated
by the Supreme Court in decided cases:
(i) The legislative intent is to be gathered by reading the statute as a
whole. (/swhari Khetan Mills (P) Ltd. v. State of U.P, (1980) 4 S.C.C.
136)
(ii) A benignant provision must receive a benignant construction, and
even if two interpretations are permissible, that which furthers the
beneficial object should be preferred. ( Som Prakash Rekhi v. Union
oflndia, (1981) 1 S.C.C. 449)
(iii) Normally, the Court should stick to the literal meaning of an
expression, in the absence of any alternative meaning. However, it
can go beyond the strict grammatical construction when a new and
ambiguous provision is to be construed. (C./. T. v. B.N. Bhattacharjee,
(1979) 4 S.C.C. 121)
(iv) A liberal construction can be departed from, when it would lead to a
manifestly absurd result, not intended by the legislature. (C.I. T. v.
National Taj Traders, (1960) 1 S.C.C. 370)
(v) A construction which frustrates the objects of the legislation and leads
to a manifest absurdity should not be preferred. (Industrial Supplies
Pvt. Ltd. v. Union of India, (1980) 4 S.C.C. 341)
(vi) Courts must interpret words and their meanings so that public good
is promoted and misuse of power is interdicted. (Bhim Singhji v. Union
of/ndia, (1981) 1 S.C.C. 166)
(vii) A construction which leaves without effect, any part of the language
of a statute, will normally be rejected. (Life Insurance Corporation of
lndiav. D.J. Bahadur(1981) 1 S.C.C. 315)
(viii) There is a presumption in favour of the constitutionality of a statute.
(State of Kamataka v. Hansa Corporation, (1980) 4 S.C.C. 697).
Therefore, a construction which upholds the constitutionality of a
provision is to be preferred. (Mathurdas Mohan/al Kedia v. S.D.
Munshaw, (1980) 4 S.C.C. 653)
(ix) The Constitution should not be interpreted with a doctrinaire approach.
(Bhim Singhjiv. Unionof/ndia, (1981) 1 S.C.C. 166)
(x) Provisions of the Fundamental Rights of the Constitution must be
liberally and widely construed. (Francis Mullin v. Administrator, Union
Territory of Delhi, (1981) 1 S.C.C. 608)
(xi) A matter stated by the Minister piloting the Bill is not relevant when
finding the object and purpose of the enactment. ( Sat Pal & Co. v. Lt.
Governor of Delhi, (1979) 4 S.C.C. 232)
(xii) Legislative proceedings and speeches are relevant only if the
language of the statute is ambiguous, and the legislative intent is not
clear. (Life Insurance Corporation of India v. D.J. Bahadur, (1981) 1
s.c.c. 315)
(xiii) Punctuation marks do not, by themselves, control the meaning of a
statute, which is otherwise obvious. (Dadaji v. Sukhdeobabu, (1980)
1 s.c.c. 621)
(xiv) Marginal notes of sections and titles of Chapters do not take away
the effect of the provisions of the Act, and render those provisions
legislatively incompetent, if they are otherwise within legislative
competence. (Tara Prasad Singh v. Union of India, (1980) 4 S.C.C.
179)
(xv) The dictionary meaning of a term may be resorted to when the
definition clause has not conceptually defined the expression .
(Gestetner Duplicators Pvt. Ltd. v. C.I. T., (1979) 2 S.C.C . 354).
However, a resort to the dictionary meaning is not necessary when
the meaning of a word can be gathered from the context and from
the relevant regulations. (M. C. Gupta v. A run Kumar Gupta, (1979) 2
S.C.C. 339)
94 JURISPRUDENCE
(xvi) A provision designed to suppress smuggling activities should be

liberally construed, so as not to undermine its scheme. (State of
Maharashtra v. Natwar/a/ Damodardas Soni, (1980) 4 S.C.C. 669)
(xvii) A provision which provides protection to tenants should not be
construed too technically and literally, so as to defeat the object of
Act. (Mangat Raiv. Kidar Nath, (1980) 4 S.C.C. 276)
(xviii) Statutes affecting substantive rights are generally presumed to be
prospective. But there is no such presumption in favour of statutes
relating to procedures; alternations in procedure may operate
retrospectively. (Mahadeo Prasad Singh v. Ram Lochan, (1980) 4
S.C.C. 354)
(xix) When two constructions are possible in a criminal trial, the one which
is beneficial to the accused will have to be adopted. (Paha/ya Motya
Va/vi v. State of Maharashtra, (1980) 1 S.C.C. 530)
000
Chapter 7
PRECEDENT
Meaning of "Precedent"
A precedent is a statement of law found in the decision of a superior What is a
court, which decision has to be followed by that Court and by Courts inferior to precedent?
it. If each judge were left to himself in deciding cases without reference to (2 marks)
M.U. Nov. 2011
similar cases decided in the past, the result would be utter confusion and chaos;
Apr. 2013
the law would be uncertain , and the fate of litigants would hinge on the
temperament of the judge or his mood of the day. Uniformity can only be
achieved by the judges following , as far as possible, the law laid down by their
fellow judges. It is through precedents that the judges herald the law to the
world. Thus , the theory of precedent plays a very important role in the
jurisprudence of every country.
Force (authority) of precedents in England

Precedents are of greatest importance in any system of law which is
mostly unwritten, as in England. Whatever may be the position in theory, it
must be admitted that, in practice, the Common law of England has been the
work of English judges. In the words of Salmond, "the importance of judicial
precedents has always been a distinguishing characteristic of English Law".
A precedent is held in such high esteem in England that Salmond says Discuss judicial
that a judicial precedent speaks in England with authority; it is not merely decisions as a
source of law.
evidence of the law, but a source of it; and the Courts are bound to follow the M.U. Nov. 2009
law that is so established . This is chiefly due to the peculiarly powerful and
authoritative position which has been at all times occupied by the English judges.
They are, in themselves, a compact body of legal experts, and the Common Write a short note
law of England is almost the entire product of decided cases. Neither Roman on : Precedent.
M.U. May 2006
law nor the various legal systems based on it allot such a degree of authority to
Oct. 2008
precedent. In England, the bench has always given the law to the bar, whereas
in Rome, it was quite the opposite.
The principle that a Court is bound by the pronouncements of Courts
superior to it is simple and understandable, but English law has gone much
further, for even in modern times , Courts even on the higher level are bound by
their own decisions. This rule applies to the Court of Appeal , Division Courts
and Courts of Criminal Appeal. Before 1966, the House of Lords too was bound
by its earlier decisions. However, in 1966, the House of Lords announced that
too rigid an adherence to precedent might do injustice in a particular case;
therefore they decided to depart from a previous decision when it was necessary
to do so. In 1966, Lord Gardiner issued a Practice Statement which laid down
that although the House of Lords would treat its decisions as normally binding,
it would depart from them when it appeared right to do so. Th is departure from
96 JURISPRUDENCE
its earlier view was because there are certain decisions which, if seen in the
light of experience of mature consideration, are bad decisions, although their
number at present is small. However, this trend is likely to increase with the
passage of time and accompanying changes in moral ideas. This is particularly
important in commercial matters where custom is still somewhat fluid.
Another ground for refusing to attach too much importance to the decisions
of the earlier judges was that in those days, the same persons sat as judges,
both in the Court of Chancery as well as in the House of Lords, and hence,
there was poverty of legal learning.
Further, when a decision of the House of Lords is on the construction or
interpretation of legislation or of a document, it is easy for any Court to depart
from its spirit, by showing that the decision was on the particular words before
the House. Thus, if a Court can distinguish its own decisions, what harm is
there in theory that it is bound? The answer is that it complicates the law, and
as pointed out by Maitland, it is perhaps the main fault of judge-made law that
its destructive work can never be cleanly done. "Of all vitality and therefore of
all parent harmfulness, the old rule can be deprived, but the moribund husk
must remain in the system, doing latent mischief." This remark must be
construed as applying only to the process of restrictive distinguishing, and not
overruling. Where a Court is permitted to overrule a precedent, the operation
is a clean one. In short, it is a mistake to suppose that predictability of legal
decision is always best secured by a system which accords binding force to a
precedent under which the judges are restive.
Thus, the argument for changing the rule of precedent is stronger for the
highest Court of the land than any other Court, for if a lower Court goes wrong,
there is always the possibility of the mistake being rectified by a higher Court.
In settling the relative importance of legal certainty and flexibility, much depends
on the particular part of the law to which one is referring . Certainty is important
in the case of property and criminal law, but may not be so important in say, the
law of contracts. The present doctrine of precedent makes no distinction
between these different branches of the law. It is, therefore, refreshing to see
that the House of Lords has finally decided to shake off the yoke of the binding
nature of precedents, and is today not bound by its earlier decisions. The
Supreme Court of India is likewise not bound by its own previous judgments.
THE DECLARATORY THEORY OF PRECEDENTS

Write a short note Juris dice re et non jus dare : Judges administer the law, and not make it.
on : The Declara-
According to the declaratory theory of precedents, a Judge never makes law.
tory Theory.
M.U. Apr. 2008 He merely declares what the existing rule of law is. It is the legislature that lays
down the law, and the function of the Judges is merely to interpret the law and
apply it to the facts of the case before them. In other words, judges never play
a creative role in the process of making laws. Thus, it is said that in England,
the Common Law is merely customary law and not judge-made law, and that
judges merely declare what has been law since times immemorial.
PRECEDENT 97
As Blackstone puts it, judges are "sworn to determine, not according to

their own private judgment, but according to the known law and custom of the
land, not delegated to pronounce a new law, but to maintain and explain the
law and not make the law." Thus, according to Blackstone, judges discover the
law; they find the law - rather than make the law.
This theory oversimplifies the process of the development of Common
Law. It is true, generally, that a judge applies an existing rule, but very often, he
widens and extends a rule of law. He also develops rules on analogy and by
deduction. Quite often, he is faced with a unique situation which has never
arisen in the past; in such cases, he creates an entirely new principle. Therefore,
a judge not only administers and interprets the law, but he also develops it. To
this extent, the Declaratory Theory does not provide a satisfactory solution.
Salmond and Bentham have also criticised the declaratory theory. They
strongly maintain that judges do make new law also; they do make original
precedents of a far-lasting value.
An interesting point is raised in this connection by Paton. Suppose the
Court of Appeal lays down a particular doctrine, and two years later, the decision
is overruled by the House of Lords; can it be said that such doctrine was the
law between these two dates? Under English law, the answer would be in the
negative. Because according to the accepted legal fiction, the House of Lords
merely lays down what is, and has always been the law. However, from the
point of view of the persons to whom such law is applicable, the reasoning
would be, to use the phrase of Paton himself, pure nonsense.
NATURE OF PRECEDENT
Precedent makes new law. It is the function of a judge to make precedent, Explain precedent
which binds not only the parties before him, but future ones also. as a source of law.
Compare it with
The power of precedents to make law is purely constitutive, and in no legislation.
degree abrogative. In other words, judicial decisions may make law, but they M.U. May 2015
cannot alter it. Where there is a settled rule of law on any point, the judges
have no authority to substitute for it a law of their own making. Their legislative
power is strictly limited to supplying the vacancies of the legal system, to filling
up with new law, the gaps which exist in the old, thus supplementing the
imperfectly developed body of legal principles.
Doctrine of "Stare Decisis"

The origin of the doctrine of Stare Decisis (binding force of precedents) What is doctrine of
can be traced to the practice of law reporting , i.e., reporting and publishing Stare Decisis?
(2 marks)
decisions of the Court. Until the fifteenth century, legal treatises seldom
M.U. Nov. 2016
contained references to judicial decisions. Thereafter, appeared Bracton's
Nov. 2019
'Notebook' and The Year Books, the latter being regarded as the first Law
Reports in England .
98 JURISPRUDENCE
However, it was only in the seventeenth century that decisions of only the
Exchequer Courts (and not even of the House of Lords) came to possess
binding efficacy. It was towards the end of the eighteenth century that the
necessity for recognising the binding force of precedents was realized. Then,
Ex pl ain the Doc- in 1833, the famous decision of Chief Justice Park in Mirehouse v. Renne/
trine of Stare Deci- (1833, ICI , & F, 527) reiterated the urgent need for recognising the binding
sis, with special
reference to India. force of precedents. Then came the Supreme Court of Judicature Acts of 1873
M.U. May, 2006 and 1875, and finally the theory of stare decisis was firmly established. Today,
it is a characteristic feature of both the English and the Indian legal systems.
"Stare decisis" literally means "to stand by decided cases". The doctrine
is embodied in the Latin maxim, Stare decisis et non quieta mouere.
The doctrine of stare decisis has also been recognised by the Constitution
Write a short note of India. Article 141 gives it constitutional sanction, and provides that the law
on : Justification declared by the Supreme Court shall be binding on a// Courts in India. Although
for the doctrine of
stare decisis. the expression "all Courts" is wide enough to cover the Supreme Court itself
M.U. Nov. 2011 also, it has been held that the expression does not include the Supreme Court.
(Bengal Immunity Co. Ltd. v. State of Bihar, A.LR. 1955 S.C. 661 ). Thus, the
Supreme Court is free - like the House of Lords - to depart from its previous
decisions, if valid reasons exist for doing so.
When the Supreme Court is divided in its decision, the judgment of the
majority constitutes "the law declared by the Supreme Court" - and not the
view or observations of the minority, however logical they may appear to be.
Again, it is immaterial that the conclusion of the majority was arrived at by
different judges on different grounds or different processes of reasoning.
In India, the Supreme Court has held, in Mahadeolal v. Administrator-
General of West Bengal (AIR 1960 SC 936), that Judges of coordinate
jurisdiction should not set aside one another's judgments, for judicial decorum,
no less than judicial propriety, forms the basis of judicial procedure, and certainty
in law is not only desirable, but also essential. When a single Judge of a High
Court is of the opinion that the previous decision of another single Judge of the
same High Court on a point of law is erroneous, he should refer the matter to
a larger Bench, and should not himself hold that the previous decision is wrong.
The Supreme Court observed that this rule applies not only to Judges sitting
singly, but also to Division Benches. In other words, one Division Bench should
not set aside the decision of another Division Bench of the same High Court.
In this connection, the Supreme Court has observed that decisions of the
(erstwhile) Travancore High Court could, at best, have a persuasive effect,
and not the force of binding precedents on the Madras High Court. The doctrine
of stare decisis cannot be invoked in such cases. ( Valliama Pillai v. Sivalthanu
Pillai, A.I.R. 1979 S .C . 1937)
Along the same lines, the Madras High Court has held that a Division
Bench is the final Court of Appeal in a High Court in India, and if a Division
PRECEDENT 99
Bench does not accept, as correct, the decision on a question of law, of another
Division Bench of that Court, the only proper course is to refer the matter to a
Full Bench. (Sheshamma v. Venkata Rao, - 1940 Mad. L.J. 400)
This view was also reiterated by the Andhra Pradesh High Court, which
held that if one Division Bench of a High Court has expressed a view and
another Division Bench is not inclined to agree with it, the latter cannot, by
itself, express a contrary view, but must refer the matter to a Full Bench.
(Yedlapat Venkataswarlu v. The State of Andhra Pradesh, A.LR. 1978 A.P.
333)
Commenting on the doctrine of stare decisis, the Supreme Court in Minerva
Mills Ltd. v. The Union of India, [(1980) 3 S.C.C. 625). observed as follows :
"Certainty and continuity are essential ingredients of the rule of law.
Certainty in the applicability of law would be considerably eroded, and suffer a
serious set-back, if the highest court in the land were readily to overrule the
view expressed by it in the field for a number of years. It would create uncertainty,
instability and confusion, if the law propounded by this Court on the faith of
which numerous cases have been decided and many transactions have taken
place, is held to be not the correct law after a number of years.
But, the doctrine of stare decisis, should not be regarded as a rigid and
inevitable doctrine, which must be applied at the cost of justice. There may be
cases where it may be necessary to rid the doctrine of its petrifying rigidity. The
Court may, in an appropriate case, overrule a previous decision taken by it, but
that should be done only for substantial and compelling reasons."
THE VALUE AND IMPORTANCE OF

THE DOCTRINE OF PRECEDENT
The "doctrine of precedent" is generally understood in two ways. In the
first sense (and this may be called its loose meaning), it means that precedents
are reported, may be cited, and will probably be followed by the Courts. This
was the meaning applied to precedents in England upto the end of the nineteenth
century, and that which still prevails on the Continent. In the second and stricter
sense, the phrase means that precedents not only have great authority, but
must be followed. This was the rule which developed during the nineteenth
century, and was fully evolved during the twentieth century.
The arguments advanced in favour of the doctrine of precedent will be
found to support it in the loose sense, while those who attack the doctrine do
so as regards its stricter meaning. The real issue is whether the doctrine should
be adopted in its stricter sense or in the loose one. There is no harm in citing
cases and attaching weight to them; fhe dissatisfaction is with the present
practice of treating precedents as absolutely binding. The argument put forward
in favour of the present practice is that it is necessary to secure the certainty of
the law, predictability of decision being more important than approximation to
100 JURISPRUDENCE
an ideal; any unsatisfactory decision can be reversed by statute. This remedy

is available, but is not taken advantage of to a great extent, because when
Parliament has intervened to rectify the errors of the common law, it has almost
always done so, not by a clean reversal, but by introducing exceptions to the
common law rule, subject to further exceptions and qualifications. What is
really needed is to give power to the judges to set right their own mistake.
Such a remedy exists to a certain extent in the case of higher Courts. They can
overrule a decision of a lower Court, but that puts the litigant into considerable
expense. The power of restrictive distinguishing is also unsatisfactory, because
it leaves the previous decisions standing, and this introduces refinements and
illogicalities into the law. Hence, the present rule does not always promote
certainty of legal administration.
As a compromise between the two opposing views, it is submitted that
the strict doctrine should be retained in so far as it binds the Courts to follow
the decisions of superior Courts, but that Courts should cease to be bound by
decisions of Courts of co-ordinate jurisdiction.
The doctrine of precedent assumes all the more importance in a field of
law which is mostly judge-made. For example, in the law of torts, leading cases
like Rylands v. Fletcher, Donoghue v. Stevenson, Ashby v. White, Bradford v.
Pickles and Derry v. Peek (to take just a few examples) have set the trend and
laid down fundamental principles, which have since then been followed .
However, as Paton points out, under the umbrella of a general principle, so to
speak, one case plots a point on the graph of the law of torts, but to draw the
curve of the law, one needs a series of points and a series of cases.
GROUNDS FOR RECOGNISING PRECEDENTS

The operation of precedents is based on the legal presumption of the
correctness of judicial decisions. A matter once decided is decided once for
all. That which has been delivered in a judgment must be taken to be established
truth. For in all probability, it is true in fact, and even if it is not, it is expedient
that it should be held as true nonetheless. Unless and until reversed by a
higher or superior Court, a precedent stands unchallenged and cannot be
questioned otherwise than by an appeal to a higher Court.
CIRCUMSTANCES WHICH DESTROYTHE BINDING

FORCE OF PRECEDENT
What are the The rule of the binding force of precedent is, however, subject to a number
circumstances
under which the of exceptions. The seven important exceptions are as follows:
binding force of 1. Abrogated decision : A decision ceases to be effective if a statute
precedents is
inconsistent with such a decision is enacted , orif it is reversed or overruled by
either destroyed or
weakened? a higher Court. Reversal occurs when the same decision is appealed against,
M.U. Apr. 2004 and reversed by the appellate Court, whereas overruling takes place when the
Apr. 2005 higher Court declares, in another case, that the precedent was wrongly decided,
PRECEDENT 101
and will not be followed. Overruling need not be express; it may also be implied. Write a short note
on Circum -
The latter doctrine being of a recent origin , until the 1940's, the practice of the stances destroy-
Court of Appeal was to follow its own previous decisions, even though they ing or weakening
may be inconsistent with those of the House of Lords, until they were expressly precedents.
overruled. M.U. Nov. 2015
Recent examples in India where Parliament has passed enactments to

supersede decisions of the Supreme Court are not far to seek. Thus, the 24th
Amendment of the Constitution was passed to nullify the Supreme Court
decision in the famous Golak Nath case. Similarly the 25th Amendment of the
Constitution sought to remedy the situation resulting from the Supreme Court
decision in the Bank Nationalization case.
2. Reversal on a different ground : Suppose that a case has been
decided in the Court of Appeal on one ground, and in the House of Lords
another plea is put forth, and no mention is made of the previous ground; in
such a case, the decision of the lower Court is not overruled; in fact, it is as
good a precedent as the decision of the House of Lords.
It is submitted that the true view is that a decision either affirmed or
reversed on another point is deprived of any absolute binding force it may
otherwise have had, but it remains an authority which may be followed by a
Court that thinks the particular point to have been rightly decided.
3. Precedent per incuriam : A decision is not binding if it was rendered
in ignorance of a statute or of a rule having the force of a statute, i.e., delegated
legislation. Similarly, a Court may know of the existence of the statute or rule
and yet not appreciate its relevance to the matter in hand; such a mistake also
vitiates the decision. Even a lower Court can refuse to follow a precedent on
such grounds. In such a case, the decision is said to be given per incuriam
(which literally means through want of care.)
In other words, a precedent has no binding force if rendered in ignorance
of a statute. ( Yeshbai v. Ganpat, A .I. R. Born. 20)
Likewise, the Andhra Pradesh High Court has also ruled that a decision
which overlooks a statutory provision is to be treated as per incuriam, and
cannot be a binding precedent. (Thuraka v. Tahsilder, Kadiri, A.I.R. 1980 A.P. ,
267).
In order that a case may be said to have been decided per incuriam, it is
not enough to show that it was not adequately argued. It must be shown that
the decision was given in ignorance of a rule of law binding on the court, as for
instance, an Act of Parliament, or a decision of the Supreme Court (in India) or
the House of Lords in England.
4. Inconsistency with earlier decisions of higher Courts : A precedent
loses its binding force if the Court that decided it overlooked an inconsistent
decision of a higher Court. Thus, if the Bombay High Court decides a case in
ignorance of a decision of the Supreme Court, the decision of the Bombay
102 JURISPRUDENCE
High Court would not be a precedent, and hence would not be binding on any
other lower Court. Such decision is also said to be given per lncuriam.
5. Inconsistency between earlier decisions of Courts of the same
rank. : A Court is not bound by its own previous decisions that are in conflict
with one another. Hence, the Court of Appeal and other Courts are free to
choose between conflicting decisions - even though this might amount to
preferring an earlier to a later decision, preferring an unreported decision to a
reported one, and preferring a decision of a Court of co-ordinate jurisdiction to
its own decision.
6. Precedent sub silentio or not fully argued : When a particular point
involved in a decision is not taken notice of, and is not argued by counsel, the
Court may decide in favour of one party, whereas if all the points had been put
forth , the decision may have been in favour of the other party. Hence, such a
case is not an authority on the point which had not been argued, and this point
is said to pass sub silentio.
This rule can be traced , in English law, to as far back as 1661, when in a
famous English case, the Counsel said, "A hundred precedents sub silentio
are not material" - and the judge agreed.
A good illustration of a precedent sub silentio given by Salmond is that of
a case where an employee was discharged by a company, and he obtained
damages against the company for wrongful dismissal. The employee applied
for a Garnishee Order in respect of a Bank Account standing in the name of
Liquidator of the company. The only point argued in the Court of Appeal was
on the question of the priority of the employee's claim and the Order was granted.
No consideration was given to the question whether a Garnishee Order could
properly be made in such a case. The latter point came up for argument in a
subsequent case before the same Court, and the Court held that it was not
bound by its previous decision .
It is interesting to note that where a judgment is given in a case where the
losing party had not been represented , such a decision (an exparte decision ,
as it is called) ought not to be regarded as possessing an absolute authority,
even if it does not strictly fall within the sub silentio rule, for there is no assurance
in such a case that all relevant considerations had been brought before the
Court.
However, a precedent is not destroyed merely because it was badly argued
by the losing party. It will thus be seen that an arbitrary line is sought to be
drawn between a complete absence of argument, which robs the precedent of
its binding force , and insufficient argument, which would not be a ground for
not following the precedent.
The Supreme Court has observed that the binding effect of a precedent
does not depend on whether a particular argument was considered therein or
not, provided that the point with reference to which an argument was
PRECEDENT 103
subsequently advanced was actually decided by the Court. (K. Balakrishna

Rao v. Haji Abdulla Sait, (1980) 1 S.C.C. 321)
7. Decisions of Courts equally divided : When the decision of the
appellate Court is equally divided (for example, where in the Bench of two
judges, one sides with the appellant and the other with the respondent), the
usual practice is to dismiss the appeal, and the view adopted by most Courts
is that the decision only has the authority of the Court appealed from . This
problem is not a serious one today, as it is the usual practice of most appellate
Courts to sit with an uneven number of judges, like three or five .
Should precedents be diverted from?

In the interests of certainty, it is fair that a precedent once established ,
should always be followed . However, it is equally in the interest of justice, that
a particular precedent be disregarded in particular circumstances.
"It is better," said Lord Eldon, "that the law should be certain , than thats
every judge should speculate upon improvements in it.n Salmond also th inks
that it is "more important that the law should be certain than that it should be
ideally perfect." These requirements are of the opposite nature and one must
choose between them. Whenever a decision is not followed , the certainty of
law is sacrificed to its rational development, and the evils of the uncertainty so
produced may far outweigh the trifling benefit to be derived from the correction
of the erroneous doctrine. Precedent may easily have established the law,
valuable properties having been dealt with in reliance on it. Justice may,
therefore, imperatively require that the decision, though founded on error, should
stand inviolate nonetheless.
Further, a precedent acquires added authority from the lapse of time. A
precedent of long standing will require greater force to be overruled than a
comparatively new one, for it is likely to cause more than harm in the way of
uncertainty and disappointment of reasonable expectations. The rule is,
however, subject to modification , for after a certain period, the precedent
becomes obsolete and inoperative. A moderate lapse of time will give added
vigour to a precedent, but after a still longer time, the opposite effect may be
produced , not directly, but in an indirect manner, i.e., through the accidental
confl ict of the ancient, and perhaps partially forgotten principle, with later
decisions. Overruling , however, is more difficult in the case of proprietary rights
than where merely personal rights are affected .
In conclusion , one can say that there are various special circumstances
that determine the weight to be attached to a precedent. Circumstances which
add weight to the authority of a precedent are unanimity of the Court, affirmation
or approval by the Courts, eminence of the judge, approval by the profession,
learned argument, consultation by the judges or other such deliberation.
Circumstances which tend to lessen the authority of precedents are lack of
unanimity, failure to notice a contrary decision, being misled by reliance upon
104 JURISPRUDENCE
a case of no authority, absence of final judgment or where the matter is

compromised or not opposed.
Justice Krishna Iyer of the Supreme Court of India has cautioned that
although blind adherence to precedents is not justified, in the sensitive area of
labour relations - under a Constitution with a slant towards social justice - a
Court should hesitate to disregard them. (Life Insurance Corporation of India
v. 0 . J. Bahadur, (1981) 1 S.C.S. 315)
Ex facto oritur jus

From the above observation, it will be seen what exactly the effect of a
precedent is. A judge cannot make or 'enact' a new law. This is the function of
the Legislature. At the most, he can put his own interpretation on an existing
law, thereby creating precedents from the peculiar facts of a case. In future, on
similar facts, the cases will be decided accordingly. In other words, case-law
arises from facts - ex facto oritur jus.
WAYS OF DISREGARDING A PRECEDENT AND

THE EFFECT THEREOF
A precedent may be disregarded in two ways:
1. It may be overruled by the Court in which it is relied upon; or
2. The Court may refuse to follow it.
In the first case, the precedent becomes null and void. It is an act of
superior jurisdiction, and such a precedent is definitely and absolutely deprived
of all authority. Thus, for example, a precedent established by the High Court
of Calcutta may be overruled in a case before the Supreme Court of India.
Such an overruling can only be done by a Court of higher authority. Moreover,
this overruling of an earlier precedent takes effect retrospectively, except
regarding matters which are res judicata. This is a departure followed in the
case of a new enactment; when a statute is repealed , all the transactions
entered into before the Act came into force would be governed by the repealed
Act. What is newly constituted ought to be prospective, and not retrospective,
in its operation.
In the second case, the refusal to follow a previous decision is an act of
co-ordinate, and not of a superior, jurisdiction. Two courts of equal authority
have no power to overrule each other's decisions. Where a precedent is merely
not followed, it does not mean that the latter authority substitutes the earlier
one; on the contrary, the two stand side by side, conflicting with each other.
Thus, the Bombay High Court may refuse to follow the precedent laid down by
the Madras High Court. It cannot, however, overrule such a precedent. The
legal ambiguity thus produced can only be solved by the act of a higher authority
(in this case, the Supreme Court) which will, in due time, decide between the
two, formally overruling one of them, and sanctioning the other as good law. In
the meantime, the matter remains doubtful, and the law stays uncertain.
PRECEDENT 105
KINDS OF PRECEDENT
Precedents may be authoritative or persuasive; declaratory or original.
1. Authoritative and persuasive precedents

An authoritative (also known as 'absolute') precedent is one which the Distinguish bet-
judges must follow, whether they approve of it or not. It is binding upon them ween a persuasive
precedent and a
and excludes their judicial discretion for the future . The authoritative precedents binding precedent.
recognised by English law are the decisions of the superior Courts of Justice (2 marks)
in England . M.U. Nov. 2012
Following are the rules regarding authoritative precedents in India:

1. The decisions of the Supreme Court are of the highest authority. Write short notes
2. The decisions of one High Court are not authoritative with regard to on : Kinds of
precedents.
another High Court. M.U. Dec. 2018
3. In the same High Court, the decision of a single judge is binding on
another single judge, but not on a Division Bench.
4. A judge of the lower Court is bound to follow the ruling of the High
Court of his own State when there is a conflict amongst various High
Courts.
5. Unreported judgments have as much binding authority as reported
ones.
Authoritative precedents may be either unconditional or conditional. A
precedent that is authoritative unconditionally is binding on the Courts. The
judges have no power to reject such a precedent, however unreasonable it
may be, but a precedent which Is authoritative conditionally can be rejected
under certain circumstances, e.g., where there is such an extreme or serious
degree of error or unreasonableness that to follow it would really be a mockery
or absolute denial of justice.
It should be remembered that if a conditionally authoritative precedent is
so unreasonable as to lead to nothing but injustice, it can be disregarded by
the Courts. Cessante ratione legis cessat lex ipsa : if the reason of the law
ceases, the law itself ceases.
There are four main exceptions to this rule of the authoritative nature of
precedent. They are as follows :
1. Where there is another equally authoritative precedent conflicting
with the rule sought to be overruled, the latter need not be followed .
2. Where the Court deciding the case erred by not being aware of a
statutory provision or rule , the precedent need not be followed.
3. Likewise, a precedent will not be followed, when it is inconsistent
with a later precedent of a high Court, though the first precedent may
not have been expressly rejected .
106 JURISPRUDENCE
4. A precedent must be rejected after the law has been changed by an

enactment, so as to nullify or modify the effect of the precedent.
Thus , the main difference between the two is that the absolutely
authoritative precedent is one which is absolutely binding and cannot be set
aside, unless it has been overruled by statute, orthere is a conflicting precedent
of equal authority or of a higher Court. A conditionally authoritative precedent
is one which is binding on the Courts, unless it is too erroneous or too
unreasonable to follow.
A persuasive precedent is one which the judges are under no obligation
to follow, but which they will take into consideration and to which they will attach
such weight as they deem fit. Thus, judgments of American Courts are merely
persuasive in their nature , as far as Indian Courts are concerned.
2. Declaratory and original precedents

A declaratory precedent is one which is merely the application of an already
existing rule of law; an original precedent is one which creates and applies a
new ru le . A declaratory precedent is not a source of new law; an original
precedent is.
Ordinarily, declaratory precedents are far more numerous than original
precedents; for, on most points, the law is already settled and judicial decisions
are, therefore, usually mere declarations of pre-existing principles. Original
precedents though fewer in number, are greater in importance, for they alone
develop the law.
RATIO DECIDENDI
What Is ratio Ajudicial decision contains two aspects- one, a concrete decision binding
decldendl?
on the parties to the litigation, and therefore having practical consequences,
(2 marks)
and the other, a judicial principle which is the basis of the· concrete and practical
M.U. Apr. 2011
May 2015 decision . This judicial principle, which is general in nature, operates as a
precedent, and has the force of law. This general principle applied in a particular
decision is known as the ratio decidendi of the case.
One must thus distinguish between what a case decides generally and
as against the whole world, from what it decides between the parties inter se.
What it decides generally is the ratio decidendi or the legal rule for which it is
the authority; what it decides between the parties to the suit includes more
than this. As against the persons who are not parties to the suit, the only part of
the judgment which would be conclusive is the general rule of law for which it
is the authority.
Thus, for instance, in the famous Privy Council case , Mohiri Bibi v.
Dharmodas Ghose (1903 A. C. 6), the court was called upon to decide whether
a mortgage executed by a minor was a valid contract. The Privy Council held
that since a minor's agreement is void ab initio, a mortgage executed by a
person under 18 years of age is void. Now, the immediate decision binding the
PRECEDENT 107
parties was that the mortgage in question was void. However, that is not the
ratio decidendi of the case. The ratio of the case is that a minor cannot enter
into a valid contract under the Indian Contract Act.
As Salmond points out. the concrete decision is binding between the
parties, but it is the abstract ratio decidendiwhich alone has the force of law as
regards the world at large. This rule or proposition, or the ratio, can thus be
described as the rule of law applied by and acted upon by the Court, i.e., the
rule which the Court regarded as governing the case in question .
To describe ratio decidendi is comparatively simple; to lay down rules for
determining it is rather difficult. In the course of a judgment, a judge would
have discussed several legal principles, and the problem is to determine which
of these is the ratio decidendi of the case.
According to the test propounded by Prof. Wambaugh, one should take Explain the meth-
ods of determining
the proposition of law put forward by the judge, reverse or negate it, and then
ratio decldendl.
see if its reversal would have altered the actual decision. If the reversal changes M.U. Apr. 2008
the actual decision, then the proposition is indeed the ratio of the case. But, if
such reversal has no effect on the decision, the proposition cannot be the
ratio . This is called the Reversal Test.
This test is, however, not helpful when the report contains only a statement
of the facts together with the order that was made. It is also not helpful where
several reasons are given by the Court for its decision.
Another test, suggested by Dr. Goodhart, is to determine the ratio by
ascertaining the facts treated as material by the judge together with the decisions
on those facts. According to this test, what one should do is to ascertain what
the judge did, and not what the judge said he would do. This is sometimes
referred to as the Material Facts Test.
The observations of the Supreme Court on this point are to be found in
State of Orissa v. Misra (A.LR. 1968 S. C. 647), where it observed as follows:
"A decision is only an authority for what is actually decided. What is of the
essence in a decision is its ratio, and not every observation found therein, nor
what logically follows from the various observations made in it."
Further, it is to be remembered that when a Court first states a new rule,
it cannot have before it all possible situations which such rule might cover, and
there may be situations to which it would be quite undesirable that such rule
should apply. When stating such a rule, the Court is neither concerned nor
Is there any
obliged to formulate all possible exceptions to the rule. Such exceptions must definition of "ratio
be dealt with by the later Courts, as and when such exceptions arise. decldendl" that
absolutely
Thus, in 1851, the Queen's Bench decided in, Bridges v. Hawkesworth, captures Judicial
that if a customer finds money on the floor of a shop, he can keep th e same on practice?
the basis of the rule "finders-keepers". and that he is not bound to hand it over Explain with case
to the shop-keeper. However, in 1896, in South Staffordshire Water Co. v. laws.
M.U. May 2006
Sharman, the Queen's Bench refused to apply this rule in a case where the
108 JURISPRUDENCE
defendant had found two gold rings in a mud pool owned and occupied by the
plaintiffs. The ground of this refusal was that in the earlier case, the money
had been found in a public part of the shop, whereas in the latter case, the pool
was not a public place. It will be seen that the later case carved out an exception
to the ratio decidendi of the earlier case with regard to property found on some
one else's land.
OBITER DICTA
What Is obiter Whereas the ratio decidendi is the general principle of a case and the
dicta? (2 marks) very heart of a precedent, obiter dicta is what the Judge said unwantedly, just
M.U. Nov. 2010
by the way. Judges often express legal opinions on issues they are not asked
Nov. 2015
Dec. 2018
to decide. These statements of law were not necessary for the decision, and
go beyond the requirements of the particular case. Such dicta are, therefore,
called obiter dicta.
In Keeton's Jurisprudence, obiter dicta are described as "statements of
law made by a judge in the course of a decision, arising out of the circumstances
of the case, but not necessary for the decisionn. Thus, in one English case, a
favourable Report given by a Bank about the financial condition of a company
was found to be false . However, the Bank had, in the Report, disclaimed any
liability in the matter. In view of this disclaimer, it was held that the Bank was
not liable. However, the Judgment went on to discuss what the liability of the
Bank would haves been if the disclaimer clause was not there. This entire
discussion, not at all necessary for the purpose of the final judgment, would be
obiter.
Generally, as obiter dicta are merely things said by the way, they merely
possess persuasive efficacy - and not any binding authority. In England, an
obiter dicta has no binding efficacy over a subordinate or a co-ordinate Court.
In India, as seen earlier, under Art. 141 of the Constitution, the law declared by
the Supreme Court is binding on all courts in the country. However, since an
obiter is not the law declared by the Supreme Court, it cannot be relied upon
solely to invalidate a statutory rule. As observed by the Supreme Court itself,
though an obiter of the Supreme Court is not binding as a precedent, it is
worthy of respect, it is entitled to respect and is also entitled to considerable
weight when a lower court is considering a case.
Many a time it happens that, in the course of a judgment, a judge lets fall
from his mouth, various observations which are neither strictly necessary, nor
exactly relevant for the issue in question . These are casual expressions of
opinion on a point not really raised in that case. Some judges, for instance,
have the habit of illustrating their reasoning by reference to hypothetical
situations, and then passing remarks about such situations. In other cases,
after having decided the point in question, the judge may feel that it would be
unnecessary to pronounce on the other points raised by the parties;
nevertheless he may indicate how he would have decided these points, if it
PRECEDENT 109
were necessary. Both these kinds of observations would be by the way, obiter
dicta, and without any binding authority. Such observations may nonetheless
assume importance, because on one hand , they help to rationalise the law,
and on the other, they suggest solutions to problems not yet decided by the
Courts . As rightly observed by Salmond, the obiter dicta of the great masters
like Lord Blackburn often enjoy a greater prestige than the ratio decidendi of
lesser judges .
In one interesting case decided by the Supreme Court of India, K was
appointed as a Branch Manager of a company, and the terms of his appointment
stated, inter alia , as under :
"After you leave the Company, you will not be permitted to join a firm of
competitors or run a business of your own for two years at the place of your
last posting ."
The Company terminated his services, and he started his own business
in the same line soon thereafter. When the matter came in appeal to the
Supreme Court, all the three Judges who heard the matter were of the opinion
that the above clause had no application, as K did not "leave" the Company;
rather, he was fired. However, one of the three Judges, Sen J., went a step
further to consider what would have been the legal position if K had "left" the
Company voluntarily. It may be noted that this was not factually so, and this
point was not even before the Court in the case. Nevertheless, His Lordship
dwelt on this aspect, and observed that even if K had left the employment of
the Company voluntarily, the clause would not apply, as it was hit by S. 27 of
the Indian Contract Act, and thus, "obviously illegal". (Superintendence Co. of
India v. Krishnan Murgai, AIR 1981 SC 1717)
The Supreme Court has held that a mere discussion by a Court after
"pondering over the issue in depth" would not be a precedent binding on the
Court. (Rajput Ruda Maha v. State of Gujarat, (1980) 1 S.C.C. 677)
Difference between "Ratio Decidendi" and "Obiter Dictum"

In a given case, several questions may arise before the Court. The Court
may answer all of them, although only some of them may be necessary for the
determination of the case. The questions which were necessary for such
determination would form the ratio, and the opinion of the Court on the other
question would be obiter dicta.
Thus, ratio decidendl constitute a legal source of law, whereas obiter
dicta can, at best, constitute only a historical source of law.
This difference between ratio decidendi and obiter dictum may best be
described in the words of Chagla, C.J. who distinguished between the two
thus In Mohandas v. Satanathan (referred to abov,e) thus : "Now, an obiter
dictum is an expression of an opinion on a point which is not necessary for the
ultimate decision of the case . The question which was necessary for
determination of the case would be the ratio decidendi; the opinion of the tribunal
110 JURISPRUDENCE
on the question which was not necessary to decide the case would be only an
obiter dictum."
However, as Allen points out, such a distinction sounds admirably clear-
cut in the abstract, but in practice, it is not always easy to distinguish between
deliberate expressions of opinion given after due considerations (ratio decidendi)
and statements made by the way (obiter dicta). Very often, the dividing line
between the two is quite thin, and in a given case , it may become extremely
difficult to say what is a mere 'aside' and what is 'one of the links in the chain of
judicial reasoning'. This is so because a judgment is a fabric woven out of all
different kinds of materials, and frequently, it is difficult to determine what exactly
is essential to its warp and woof.
DOD
Chapter 8
CUSTOM
ITS EFFICACY
Custom is one of the most fruitful sources of law. "Custom is to society "Custom Is a
what law is to the State. Each Is the expression and realization, to the measure product of society
and it is to the
of men's insight and ability, of the principles of right and Justice." When the society what
State takes up its function of administering justice, it accepts, as true and valid, Positive Law Is to
the rules of right already accepted by the society of which it is itself a product, the State ."
Comment and
and it finds these principles already realised in the customs of the realm .
discuss the
Another ground of the creative efficacy of custom is to be found in the Importance of
fact that the existence of an established custom is the basis of a rational custom as a
source of law. Why
expectation of its continuance in the future. Justice demands that, unless there Is Its importance
is good reason to the contrary, man's rational expectations shall be fulfilled diminishing?
rather than frustrated, even if the customs are not ideally just and reasonable. M.U. Oct. 2008
According to Paton, custom is useful to the law-giver and codifier in two

ways. First of all, it provides the material out of which the law can be fashioned , Why has custom
because it usually takes a great deal of intellectual effort to create law de novo. been accorded the
Secondly, psychologically also, it is easier to secure reverence for a law, if the force of law?
same is based on a custom which has immemorially been observed. There is M.U. Nov. 2006
always a tendency to feel that what has been followed in the past would be a
safe guide for the future. Define custom.
Recently, custom has lost much of its efficacy as a source of law, owing Why custom Is
attributed the
to the growth of legislation and precedents. As observed by Salmond, -
force of law?
"As an instrument of the development of English law in particular, it M.U. Apr. 2014
has now almost ceased to exist, partly because it has, to a large
extent, been superceded by legislation and precedent, and partly
Explain if custom
because of the stringent limitations imposed by law upon its law-
Is attributed to the
creating efficacy." force of law.
Yet, the role played by custom even today is not totally insignificant. Much Describe the
essentials of a
of statute law itself is subject to well-recognised customs to the contrary. Thus, valid customs.
the law relating to hundies (negotiable instruments in an Indian language) is M.U. Nov. 2017
not governed by the Indian Negotiable Instruments Act, but by local custom,
unless such custom is expressly excluded by any provision of that Act.
Define custom.
Today, custom plays a more important role in the Indian system than in
(2 marks)
England or America. One instance is the Mohammedan Law rule of pre-emption, M.U. Nov. 2010
which prescribes that a person's neighbour has the first option of buying a plot Nov. 2019
of land about to be sold . Another example is the Hindu Law rule of damdupat
(which applies throughout Maharashtra and Gujarat) under which a deqtor
cannot be made to pay a sum of interest which exceeds the principal amount.
So also, there is a custom in the fur trade in India that whoever orders any fur
112 JURISPRUDENCE
Write a short note arti cle does so at his own risk, and has to pay the price even if the goods are
on : Custom as a
source of law.
lost in transit. All these are ill ustrations of the maxim , modus et conventio
M.U. Apr. 2007 vincunt legem : Modes and conventions override the law.
KINDS OF CUSTOM
Customs, which have the force of law, are of two kinds, viz. , legal and
What Is a custom? conventional. Legal custom , in turn , may be general or local. Thus -
Explain the kinds
of customs .
CUSTOM
M.U. Nov. 2014
Explain k i nds of Legal Conventional

custom In short.
(2 marks)
M.U. Nov. 2016
General Local
1. Legal custom
What is general A legal custom is one which has the force of law, irrespective of any
custom? agreement on the part of those who are bound by it; its legal authority is absolute.
(2 marks) Legal custom is itself of two kinds; it is either general or local.
M.U. May 2019
(a) General : Where a custom is observed by all the members of a society,
it is general custom.
What is a local (b) Local : Where a custom is observed only by residents of particular
custom?
locality, it is a local custom . Local custom is one which prevails in some defined
(2 marks)
M.U . May 2015 locality, and constitutes a source of a law for that place only. General custom is
May 2018 that which prevails throughout the country, and constitutes one of the sources
of the common law of the land. The term 'custom' in the narrowest sense
means local custom only.
2. Conventional custom (Usage)

Write a short note A conventional custom (or usage) is one whose authority depends on its
on : Custom and being incorporated , expressly or impliedly, into an agreement between two or
Usage.
more parties to regulate their mutual relations.
M.U. Apr. 2009
Apr. 2011 A legal custom exists in a country apart from any agreement between the
Dec.2018 parties. It has its own independent status, and is not a creature of agreement.
On the other hand , a conventional custom or usage does not exist or arise out
of any legal authority independently possessed by it, but arises out of an
agreement between the parties. From th is, it follows that there are three
important points of difference between legal custom and usage.
Distinction between legal custom and conventional custom (i.e. usage)

1. A legal custom , in order to be valid , must have been supported by
immemorial antiquity. A usage does not require such an antiquity, because
CUSTOM 113
it is sufficient if the usage has been well-established for a considerably Write short note
on: Conventional
long time, for it is then automatically regarded as a custom . It does not Customs.
matter even if a usage has been in existence for a year or so. M.U. Nov. 2017
2. Conventional customs or usages are implied when they do not contradict
the general law of the land. But if they contradict or negative the general
Write a short note
law, they may be made applicable by an express agreement between the
on : Convention .
parties. Thus, in the Indian Contract Act and in the Indian Partnership M.U . Nov. 2012
Act, one finds such clauses such as 'subject to an agreement to the
contrary'. To take a simple example, death or insolvency dissolves a
partnership under the Indian Partnership Act. But if there is an agreement What do you mean
to the contrary, then death or insolvency will not dissolve the firm. Much by conventional
law? (2 marks)
of the law of Marine Insurance and the Sale of Goods Act, is also subject M.U. Nov. 2014
to contract or usage to the contrary. Conventional customs, as far as
possible, should never conflict with the statute, though the statute itself
may allow the usages by express agreement.
3. There is a legal maxim which says that modes and conventions override
the law : Modus et conventio vincunt legem. Mercantile Law has its origin
in custom. Thus, there are certain usages existing in certain traders which
allow certain practices which are contrary to the statute law. But such
practices are enforced by the Courts. For example, as stated earlier, in
the fur trade, the person who orders fur goods on approval, does so at his
risk and peril, and will be held liable for the price if the goods are destroyed
in any way. But what is required is that such mercantile practices must
have consistency, so that judges may not have any difficulty in enforcing
them.
Judicial recognition of custom

Before a custom is recognised by a law Court, it has to be proved. This Define custom and
may be done on the evidence of trustworthy persons orof residents of a locality explain the
essentials of a
or of professionals of the trade. Once the Court accepts the custom by valid custom.
recognising it as such in its judgment, it becomes law and need not be proved M.U. May 2019
afresh in the future . In such cases ,judicial note (or judicial notice) is said to be
taken of such custom .
REQUISITES OF A VALID LOCAL CUSTOM

A local custom becomes valid and operates as a source of a law only ifit Explain the differ-
ent kinds of cus-
is reasonable and is of immemorial antiquity having a continuity, is capable of toms. Highlight
peaceful enjoyment and is not inconsistent with statute, and is observed as of the characteristics
right. of a valid custom .
M.U. May 2017
In other words, to be fully operative as a source of law, a local custom
must satisfy the following seven requirements:
114 JURISPRUDENCE
1. Reasonableness
What are the A local custom must be reasonable, because no Court will enforce or
essentia ls of a accept an unreasonable custom. The reasonableness of the custom is to be
valld custom ?
judged from the date of its inception, and the Court must be satisfied that,
M.U. Apr. 2014
apart from being acceptable, it is not opposed to rules of natural justice, equity
and good conscience. Thus, in India, a custom allowing sale of a religious
office was held unreasonable, and therefore unenforceable.
Similarly, a so-called "custom" whereby Kamins were required to deliver
Write a short note
on : Essentlals of
their manure to the Biswedars without any consideration (although the Kamins
a valld local needed the same themselves), merely because the Kamins were residing in
custom. the village of the Biswedars, was held to be unreasonable and one-sided .
M.U. Apr. 2008 (Mahadeva v. Ganesh, A.I .R. 1953 Pepsu 126)
Another example of a case where a custom was held to be unreasonable
is an English case, where the House of Lords held as unreasonable, an alleged
custom whereby a Lord could take minerals underneath the surface of copyhold
or freehold lands, without making compensation for subsidence and damage
to such buildings. It was observed , in that case, that such a custom was of an
oppressive character and probably founded more in wrong and usurpation,
than in the voluntary consent of the holders of such land .
2. Immemorial antiquity
What is immem o- It is necessary to distinguish between two kinds of customs, namely, those
rial antiquity? which are general, the customs of the realm, which prevail throughout the
(2 marks) whole territory, and those which are local and are limited to some special part
M.U. Nov. 2015
of the realm . A custom which is merely local must have existed from time
immemorial. In the case of other customs, however, there is no such
requirement. It is sufficient that the usage is definitely established, its duration
being immaterial.
In order that a custom may have immemorial antiquity, it must stand the
test of time. It must be custom which has run on since time out of mind. Originally,
by immemorial antiquity was meant that the custom should be so old that no
living man could say when exactly it has first started. However, as time went
on , legal memory took the place of human memory; and in England, legal
memory stretches back to the year 1189. Therefore, a local legal custom under
the English law becomes valid if it satisfies this requirement of immemorial
antiquity, i.e., it should be as old as 1189, if not older. If it is shown that the
custom has been in existence since the accession of Richard I, the custom will
be regarded as being one of immemorial antiquity.
In India, also, a custom which is observed in a particular district for a very
long time, has the necessary force of law. It must be ancient, but it is not
necessary that, in every case, the antiquity must date as far back as the memory
of man. All will depend upon the circumstances of each case, and antiquity is
CUSTOM 115
to be decided from that point of view. What is important Is that the usage must
have been accepted and acted upon by the people in actual practice for such
a long period and with such invariability as to show that it has, by common
consent, been submitted to as the established governing practice of that
particular district.
In case a party submits that a particular custom was in existence and that
it is not in derogation of the ordinary rights of the other people, then the burden
of proof falls upon that party to give a clear and positive proof of the user rel ied
upon to substantiate the custom. It follows from this that, in India, the custom
need not be immemorial, but it should have been in existence for a long period,
so that the custom can easily derive the force of law thereby regulating rights
of the parties .
From the point of view of a Court of law, it is also necessary that a custom ,
in order to be acceptable, must have some antiquity. Modern customs are not,
therefore, enforced by the law Courts, because they change so often , and they
do not enjoy the same confidence of the people as an established custom . "A
mere habit, practice, or fashion which has existed for a number of years nobody
supposes to be ipso facto an obligatory custom; antiquity is the only reliable
proof resistance to the changing conditions of different ages"- (C. K. Allen).
Hence, to facilitate a uniform and healthy system of law, and to prevent confusion
and injustice, the requirements of the test of time and reasonableness are
both essential in order to establish the validity of a custom.
No hard and fast rule can be laid down to define as to what is an old
custom. In this connection, one is reminded of Azo, who remarked that a custom
is long if it is 10 years old, very long if it is 30 years old, and ancient if 40 years
old.
3. Opinio necessitatis
By opinio necessitatis is meant an ethical conviction on the part of those Bring out the dif-
who follow a custom that it is obligatory, and not merely optional. Thus, if in a ference between
custom an d con-
mercantile community, sending a cheque by ordinary post was optional , i.e. vention.
followed by some merchants and not by others, such transmission cannot be (2 marks)
said to have become a custom. What distinguishes custom in the legal sense s8.U. Apr. 2012
from mere convention is what is known as opinio necessitatis, viz. , the
recognition that there is an authority behind it.
4. Conformity with statute law

A custom must not be contrary to an Act of Parliament. "The common law
yields to immemorial usage, but the enacted law stands forever." However, an
enactment may expressly provide that it is subject to any usage or custom to
the contrary. Thus, an Act may open with the words "Nothing herein contained
shall affect any usage or custom of trade. "
116 JURISPRUDENCE
5. Conformity with the Common Law

Unless immemorial, a custom must be consistent with the common law.
That it must be consistent with statute-law is applicable to all customs, whether
immemorial or not. That it must be consistent with the common law is a rule
applicable only to recent customs, and not to those which have the prestige
and authority of immemorial antiquity.
6. Continuity
A local custom must have continuity, i.e., it must have been in existence,
and must have been recognised by the community without any interruption or
break, for such a period as may be considered by the Court as being reasonably
long to be recognised as a local custom .
If a custom is not actively exercised for a brief period, that does not
necessarily defeat its efficiency. In England , what is essential is that it should
not have been abandoned at any time after 1189, and then recontinued . Thus,
where certain fishermen had a customary right to spread their nets on a certain
portion of the shore, and they did not do so, as that part was submerged under
water, it was held that the custom had not been abandoned , as there was
merely a temporary cessation.
7. Peaceable enjoyment
Local custom must be capable of peaceable enjoyment without any
disturbance or contest. Unless this undisturbed existence is proved to the
satisfaction of the Court, it cannot be said that the custom was based on the
general consent of the people .
Discontinuance of custom : In the case of a family custom, it is
competent to a family to discontinue it. But in the case of a local custom, the
custom of individuals not to follow it cannot have the effect of destroying it.
Burden of proof: In the case of persons governed by any special law,
the burden of proving a custom derogatory to such special law is upon the
person who asserts it.
When the existence of a custom has been proved , the burden of proving
its discontinuance is upon the party who alleges its discontinuance.
What the law requires, before an alleged custom can receive the
recognition of the Court and thus acquire legal force , is satisfactory proof of
usage, so long and invariably acted upon in practice as to show that it has, by
common consent, been submitted to as the established governing rule of the
particular family, class, or district; and the course of the practice upon which
the custom rests must not be left in doubt, but must be proved with certainty.
Custom is one of the sources of Hindu law. 'Immemorial custom is
transcendent law' says Manu. Custom is a rule which in a particular family or
district has, from long usage, obtained the force of law.
CUSTOM 117
As a branch of Hindu law, custom plays an important part, and within the
limits in which its operation is now confined , it modifies or supplements the
written law. Custom is an independent source of law, and when it is universally
adopted , it should supersede the provisions of the written law for, "under the
Hindu system of law, clear proof of usage will outweigh the written text of the
Hindu law". (Collector of Madura v. Mootoo Ramalinga, 2 M.I.A. 439.)
On this point, the Privy Council observes - "Their Lordships are fully
sensible of the importance and justice of giving effect to long established usages
existing in particular districts and fam ilies in India, but it is of the essence of
special usages, modifying the ordinary law of succession that they should be
ancient and invariable, and it is further essential that they should be established
to be so by clear unambiguous evidence."
THEORIES OF CUSTOMARY LAW

There are two theories of customary law - The first of these is a
characteristic feature of foreign, and more especially of German , jurisprudence,
being chiefly due to influence of Savigny. It is based on the proposition that
custom is rightly to be considered as a formal, and not merely as a material ,
source of law.
Salmond's view is that this theory is almost unanimously rejected by
English jurists. Custom, he says, is a material, not a formal, source of law. Its
only function is to supply the principles to which the will of the State gives legal
force. Law exists only because it is applied and enforced by the State, and
where there is no State, there can be no law. From custom , the State may
draw the material contents of the rules to which it gives the form and nature of
law.
The second theory of customary law is that which may be called the
Austinian theory. Austin considers that the true legal source of customary law
is to be found in the precedents in which custom receives judicial recognition
and enforcement for the first time. Customary law is, according to Austin, a
variety of case-law. It follows from this that a custom does not acquire the
force of law until it has actually come to the notice of the Courts and has
received judicial approval and application.
The correct theory according to Salmond, is that custom, although not a
formal source of law, is a legal source of law, that is to say, its authority as a
law-creative source depends upon an antecedent rule of the law, wh ich
recognises the force of all sorts of customs . Custom is a source of law
irrespective of, and even prior to , the existence of judicial decision upon it.
(For the distinction between Custom and Prescription, see Chapter 13.)
000
Chapter 9
THE STATE
1 STATE' DEFINED
A State is a society of men established for the maintenance of peace and
justice (within a determined territory) by way of force. In one American case,
the U.S. Supreme Court has defined "State" as a body of free persons, united
for the common benefit to enjoy peaceably what is their own and to do justice
to others. Salmond says that a State is "an association of human beings
established for the attainment of certain ends by certain means".
PRI MARY AND ESSENTIAL FUNCTIONS OF THE STATE

The end of every organised political association is to provide defence
against external enemies and to maintain peaceful and orderly relations within
the association itself. The Sovereign, according to Hobbes, carries two swords-
the sword of war and that of justice. The essential functions, therefore, of a
modern political State are war and administration of justice.
Every organised political society which performs these two functions is a
State, and none is such which does not perform them. These are the two
methods by wh ich a State fulfills its appointed purpose of establishing right
and justice by physical force . tt is thus a combination of right as well as might.
Th e organisation of the modern State

The organisation of the modern State is of extraordinary complexity. The
three most important departments of the modern State are the legislature, the
executive and the judiciary. The enactment of the law is done by the legislature,
though it is not the only body which makes the law; it is helped to a great extent
by the judges who, though they do not enact laws , yet interpret the laws in
such a way that it conforms to the public morality, public opinion , custom and
conventions. The common law of England is judge-made. The executive carries
out the orders and decrees of the Courts, and preserves peace and order,
through its administrative and welfare departments.
The organisation of a State necessitates the existence of a population, a
territory and the government. Without a sufficiently reasonable number of
persons to organise, there is no question of an organisation . A State exists
within a certain defined territory, outside of which a State or its organs can
have no authority or function . The State has its own sovereignty and
independence; it is not dependent upon any other State or unit.
Salmond however has pointed out that, in a modern State, independence
and sovereignty are not the essentials of a State. A State may be independent,
i.e., sovereign , or it may be dependent, i.e., nonsovereign . Constitution and
THE STATE 119
constitutional practice have preceded constitutional law, i.e. , there must have
been some sort of a State or organisation for the existence of the political or
civil life of the people. It was later when the constitution became a matter of
law that it developed, and in course of time, became highly complex, with its
several types of State powers and State functions .
The complexity of the State has increased to a very great extent due to
the fact that the State provides to its citizens greater amenities in the form of
good health , safety, econom ic and social welfare, education and other
requirements of good living. It strives towards the idea of family and social
welfare State.
Functions of the modern State

The complexity of the modern State lies in the fact that no longer does
one consider a State as an organisation meant merely to be the police force,
only to collect taxes and to maintain law and order. There are secondary and
ministerial functions also . It engages in all sorts of welfare activities. The
organisation of the modem State is not only complex in its essential parts i. e.,
regarding its constitution , but it is complex a/so in its secondary part, which
comprises of the details of State structure and State functions.
As seen earlier, the primary function of the State is to maintain law and
order and to administer j ustice. Further, it also protects its members against
foreign aggression by the use of ex1ra-judicial force . Under the secondary
function fall legislation , taxation , and the maintenance of welfare activities and
discharge of welfare duties for benevolent purposes. Legislation is an important
work of a modern State, for without good laws, a State cannot function efficiently,
nor can its subjects and citizens thrive . Good laws are the essence of a good
government, and are absolutely necessary for the maintenance of the social
balance of justice and well-being. For this, the State must have finances to
maintain the government and engage in works of public utility and social welfare,
and hence the necessity of taxation as a secondary function of the State.
Thus, the complexity of the modern State arises from the fact that it is no
longer responsible only for the maintenance of law and order. For a government
to be considered a good government, it is necessary that it should be in a
position to discharge its social obligations in the form of looking after the welfare
of its citizens and promoting their well-being , by procuring fu ll employment,
social security, and freedom from want. In the strength and welfare of its citizens
lies the strength and welfare of the State. Hence the great necessity for the
secondary aspects of the purpose and function of the modern State.
WAR AND ADMINISTRATION OF JUSTICE DISTINGUISHED

The two primary functions of a State, namely, war and administration of
justice, can be distinguished in the following five respects:
120 JURISPRUDENCE
1. Judicial and extra-judicial use of force

(1) Force is judicial, when it is applied by or through a tribunal, whose
business it is to judge or to arbitrate between the parties. It is extra-
judicial when it is applied by the State directly, without the aid or
intervention of any such judge or arbitrator.
(2) Judicial force involves trial and adjudication, as a condition precedent
to its application; extra-judicial force does not.
(3) The primary purpose of judicial force is to execute judgments against
those who will not voluntarily yield obedience to it. Only indirectly,
and through such judgment, does it enforce rights and punish wrongs.
But extra-judicial force strikes directly at the offender. It recognises
no trial or adjudication as a condition of its exercise. When a rebellion
or a riot is suppressed by troops, this is the extra-judicial use of force ,
but when, after its suppression , the rebels or rioters are tried,
sentenced and punished by criminal Courts, the force so used is
judicial.
2. Law
Judicial force is regulated by law, while the force of arms is usually exempt
from such control. Justice is according to law; war is according to the pleasure
of those by whom it is carried on. As between the State and its external enemies,
the civil law is wholly silent.
3. Persons, States
Judicial force is commonly, though not always, exercised against persons;
extra-judicial force is exercised against other States.
4. Internal, external
The administration of justice is generally the internal, while war is generally
the external, exercise of the power of the State. In other words, the State
commonly proceeds against internal enemies by way of judicial, and against
external enemies, by way of extra-judicial, force .
5. Latent, patent
In the administration of justice, the element of force is commonly latent or
dormant, whereas in war, it is seen in actual exercise.
Thus, when a prisoner is sentenced to death, one does not see the Judge
using any force . He merely passes the sentence. Real force is used later on
when the person is hanged . So, here, the element of force is latent. It is there,
but one does not see it when the Court pronounces the judgment. The same
remarks apply when a person is sentenced to imprisonment or fine .
THE STATE 121
SECONDARY FUNCTIONS OF THE STATE

The primary and essential functions of the State are, as mentioned above,
war and the administration of justice. Its secondary functions are many, and
may be divided into the following three classes:
1. Legislation : Legislation is the formulation of the principles in
accordance with which the State intends to fulfil its functions of administration
of justice.
[ See Chapter 6: Legislation and Interpretation.)
2. Taxation : Taxation is the instrument by which the State obtains the
revenue which is the essential condition of all its activities.
3. Other activities: Then there are all the other activities undertaken by
the State. Examples of this class are very numerous in modern times, e.g.,
Post Offices , railways , education, maintenance of welfare activities, etc.
Titles to State membership

In all modern States, membership may arise either by the personal tie of
citizenship or by subjectivity. A citizen is or becomes a member of a State by
virtue of his birth, but he can also become a citizen by virtue of residence.
Citizenship and residence are , therefore , types of title to a membership of a
modern State .
Membership of a State entitles a person to many rights and privileges,
wh ich are not enjoyed by those who are not citizens of that State. Rights also
include obligations . The citizens have a right to enjoy their rights , immunities
and protection afforded by the civil law or the law of the State, and the citizens
in turn owe allegiance to the State. In all modern States, protection of the law is
given not only to citizens, but also to noncitizens who are residents of that
State.
The terms citizen and subject both suggest that there is a permanent and
personal relationship between the State on the one hand and the individuals
residing in that State on the other. One normally talks of citizens in republics,
and of subjects in monarchies. The Britishers are the subjects of Her Majesty,
the Queen , to whom all pay their homage and acknowledge their allegiance.
But in a Republican State like India, the individuals are citizens, and they have
all the rights, duties and liabilities of citizens.
According to Salmond, citizenship has its source in nationality. Fellow-
citizens are those who belong not merely to the same State, but also to the
same nation . There is thus a difference between citizenship and nationality. By
nationality is meant membership of a particular nation , as opposed to citizenship,
which is membership of a State. A nation means a group of persons having
common interests , though not necessarily a common religion or a common
language, but necessarily common sentiments and traditions, without which
there can be no nation . A State is a political society meant for the purpose of
122 JURISPRUDENCE
protecting the life and liberty of subjects, and granting them certain facilities
for the development of their personalities. In one State, there may be several
nations, cultures and languages and in the same nation, there may be several
States. It is only to the State that a nation or nations look in order to secure
oneness.
Ordinarily, a person may acquire citizenship by birth, by residence, or by
naturalisation. From this, it follows that it is absolutely necessary that an
individual should be a member of some State. A person cannot be considered
as a full individual without the membership of a State. It is necessary that in
order to acquire such rights, he would have to be faithful, obedient, and of
service to the State.
RIGHTS AND LIABILITIES OF A CITIZEN

Concept of 'Citizenship'.-Citizenship is a legal concept; nationality is
membership of a nation. Citizenship is one kind of membership of a State. A
nation is a society of men united by common blood and descent. A State, on
the other hand, is a society of men united under one government.
"The historical origin of the conception of citizenship is to be found in the
fact that the State has grown out of the nation. The State in its origin is the
nation politically organised for the purposes of government and self-defence.
The citizens are the members of a nation which has thus developed into a
State."-Holland.
Men become united as fellow-citizens, because they are, or are deemed
to be, already united by the bond of common kinship.
The relationship between a State and its members is one of reciprocal
obligation. The State owes protection to its members, while they in turn owe
obedience and fidelity to it.
Every State is known by a system of rights that it maintains. A subject,
therefore, has many rights in a State, and one such right is the right against the
State. He can claim this right in the same way as he claims it against any other
citizen in the State, i.e., by instituting proceedings against the State for the
determination and recognition of his rights. He can also claim a judgment in
his favour, if he finds that his rights have been infringed by the State. The State
recognises certain duties which it owes to the subjects, and it tries to fulfil
these duties by respecting these rights. As a matter of fact, the strength of the
law is the strength of the State; and law, therefore, cannot be used or turned
against the State whose very strength it is. According to Salmond, these rights
of the subject against the State are therefore imperfect. They obtain legal
recognition, but not legal enforcement.
This had led many writers to deny that subjects have any legal rights at all
against the State. But this is too narrow a definition of the term 'legal rights',
and would include only those rights which are enforced by the law Courts. It
THE STATE 123
would be better if one includes within the term 'legal rights', all those claims
that are legally recognised in the administration of justice. From this, it follows
that all rights against the State are not legal in the same way as all rights
against the private persons are also not legal. The fact is that some rights are
legal and can easily be enforced in a Court of law. All these limitations to the
power of the State are determined by the rules of law courts, and they are
determined in accordance with the fixed principles of law. It, therefore, follows
that the State has a legal duty to defend the legal rights of the subjects. To a
lawyer, a contract entered into by a layman with the State is as much a source
of legal rights and obligations as is a contract entered into by two private persons.
The party to the contract, can, therefore, successfully sue the State for a breach
of the contract.
It is needless to say that rights against the State are held at the State's
pleasure, and are therefore not legal rights at all, for all other legal rights are in
the same position. They are legal, not because the State is bound to recognise
them, but because the State voluntarily recognises them.
Allegiance
The duty of assistance, fidelity and obedience is called allegiance. Subjects
owe permanent allegiance to the State. Resident aliens owe temporary
allegiance to the State during the period of their residence.
CONSTITUTION OF THE STATE

Every State must have a permanent and definite organisation, a
determinate and systematic form, structure and operation. The organisation of
a modern State is divisible into two parts. The first part consists of its fundamental
or essential elements; the second consists of the details of State-structure.
The first essential and basic portion is known as the constitution of the State.
The form and structure of the government adopted by a country is called
its constitution. The English constitutional law is not to be found in any one
document. It does not mean any particular law or collection of laws. It means
the whole structure of a political society, its legislative and executive organs
and their fun ctions, and the rights and duties of subjects in relation to the
supreme power in the State. In England, there is (i) no written fundamental
law, and (ii) no distinction between the fundamental laws and the ordinary
laws. In India, on the other hand, there is an elaborately written Constitution,
which defines the fundamental rights of citizens, and even of non-citizens.
Constitutional Law defined - Constitutional law is that branch of civil law
which deals with rules directly or indirectly affecting either the exercise or the
distribution of the sovereign power in the State. It embodies rules which
prescribe the structure and the main functions of the different organs of any
government. Constitutional laws mean, in England, laws which affect the
fundamental institutions of the State, and not laws which are legally more sacred
and more difficult to change.
124 JURISPRUDENCE
KINDS OF STATES
1. Unitary and composite
A unitary or simple State is one which is not made up of territorial divisions
which are States themselves. A composite State, on the other hand, is one
which is itself an aggregate or group of constituent States.
Composite States are of two kinds -

(a) Imperial and (b) Federal. In an Imperial State, the governmen! of one
of the parts is the common government of all. In a Federal State, the common
government is not that of one of its parts, but a central government in which all
the constituent States participate.
2. Independent and dependent

An independent or sovereign State is one which possesses a separate
existence, being complete in itself, and merely a part of a large whole to whose
government it is subject.
Independent States are of two kinds:

(a) Fully sovereign and (b) Semi-sovereign. A fully sovereign State is one
whose sovereignty is in no way derogated from by any control exercised over
it by another State. A semi-sovereign State is one which is subordinate to some
other State.
A dependent or non-sovereign State is one which is not complete and
self-existent, but is merely a constituent portion of a greater State which includes
both it and others and, to whose government it is subject.
□□□
Part - II
LEGAL CONCEPTS
Chapter 10
LEGAL RIGHTS
'LEGAL RIGHT' DEFINED

Gone are the days when food , clothing and shelter provided for all the
needs of man. Today, one can clearly see the emergence of what is called the
welfare state, where man needs many other th ings. Amongst others, what he
needs are rights - rights which are recognised and enforced by the Courts of
law.
In all civil ised societies, law consists of those principles in accordance
with which justice is administered by the State, and that administration of justice
has beh ind it the physical power of the State, for the purpose of enforcing
rights and punishing the wrong-doers for violations. It follows, therefore, that
every right involves a 'title ' or a source from which that right is derived. The
word title ' may be understood as the de facto antecedent of which the right is
the dejure consequence. (This is discussed at length in Chapter 13, "ntles".)
The concept of a right is of fundamental significance in modern legal
theory, because one cannot live w ithout rights which are recogn ised and
enforced at law. Different authors have defined rights in different ways.
According to Salmond, right is an interest. recognised and protected by a rule
of Law. It is any interest, respect for which is a duty, and the disregard of which
is a wrong. Thus, a righ t is recognised and protected by a rule of legal justice.
According to Austin, a party has a right when another or others are bound Define a legal
right. (2 marks)
or obliged by law to do or forbear something towards or in regard to him.
M.U . Nov. 20 15
According to Holland, a right is the ability possessed by a person to control
other's actions and self-protection , with the help and assistance of the State.
According to Dr. Sethna, a right is any interest, either vested or created
under a law or under a contract.
One often says that an act is right or just because it promotes some form
of human interest; therefore, if any act is wrong or unjust, it means that human
interests are prejudicially affected by it. It means a form of human conduct
which the law takes into account and it has an influence upon the interests of
others. Those interests which thus receive recognition and protection are called
rights . Every man who has a right to anything has an interest in it also, but he
may have an interest without having a right. Therefore, a right is an interest,
the violation of which is a wrong. Thus, according to Salmond, every right
corresponds to a rule of right from which it proceeds , and it is from this source
that it derives its name.
According to Austin, every right implies a corresponding duty, but every
duty does not necessarily imply a correspond ing right. To take an example,
one can say that it Is the duty of a Magistrate to punish a wrong-doer whose
128 JURISPRUDENCE
guilt has been proved. However, can it be said, by any stretch of the imagination,
that the offender has a corresponding right to be punished?
Rights may be private, i. e., vested in individuals, or they may be public,
How can legal that is vested in, acquired or possessed by the public ora section of the public
rights be at large. If two persons have entered into a contract, each will have rights
acquired?
against the other under the contract. These are private rights. However, the
(2 marks)
M.U. May 2017
right of a person to use a highway is a public right which he shares with other
Nov. 2017 persons. Again, rights may be divided into those which are perfect or enforceable
and rights which are imperfect or unenforceable. A perfect legal right is always
enforceable at law, and its infringement, however insignificant it may be, is
necessarily an infringement of a legal right. "There must be a means to vindicate
and maintain the right, and a remedy if there is an injury in the exercise and
employment of it; and indeed it is a vain thing to imagine a right without a
remedy, for want of right and want of remedy are reciprocal." - (Holt C.J. in
Ashbyv. White)
The right to a debt created by a contract is a personal right of the creditor
to receive the amount on the appointed date, and if the debtor fails to pay the
amount, the creditor can enforce this primary right by bringing an action for the
recovery of the amount. Similarly, every citizen has a right to reputation, and if
any person defames any other person, the defamed person can enforce his
right to reputation by a suit for damages for the loss of reputation he has suffered.
Imperfect rights are unenforceable because, as Salmond says, "a legal
enforcement does not pertain to the essence of the conception of right."
Therefore , according to Salmond, a legal right is one that is protected and
recognised by the law, but not necessarily one that is enforceable. A legal
right, therefore, need not be enforceable at law. But such a right cannot be
called perfect or complete. There are certain rights which are incomplete and
unenforceable, e.g., under the Indian Partnership Act, a minor who is entitled
to share the benefits of partnership can ask the partners of the firm to show
him the books of accounts, but in case of their failure or refusal to do so, the
minor cannot successfully sue them, unless the firm is dissolved at the option
of the sued partners. So also, a finder of goods has a right to be reimbursed
for the expenses he has incurred in finding out the true owner of the goods and
in preserving the goods in proper condition. But if the owner refuses to reimburse
the finder, the finder cannot sue for compensation; he can only have a lien
against the goods. A right barred by the Limitation Act is also an imperfect right
because it is unenforceable at law.
Are rights and duties necessarily co-relative?

State the definition "A duty is an obligatory act; it is an act the opposite of which would be a
of a legal duty. wrong . Duties and wrongs are co-relative. The commission of a wrong is the
(2 marks) breach of a duty, and the performance of a duty is the avoidance of a wrong" .
M.U. Apr. 2012
(Salmond}
LEGAL RIGHTS 129
It is a debatable question whether rights and duties are necessarily co- Write a short note
on : Right duty
relative. According to one view, every right has a corresponding duty. There relatlonshlp.
can, therefore, be no duty unless there is some one to whom it is due. According M.U. Nov. 2012
to this view, there can be no right without a corresponding duty, or a duty
without a corresponding right, just as there cannot be a husband without a
wife, or a father without a child .
The followers of this view point out that every duty is a duty towards some
person or persons , in whom , therefore, a corresponding right is vested .
Conversely, every right is a right against some person or persons, upon whom ,
therefore, a co-relative duty is imposed . Every right or duty thus involves a
vinculum juris or a bond of legal obligation , by wh ich two or more persons are
bound together. Thus, there can be no duty unless there is someone to whom
it is due. Likewise, there can be no right unless there is someone from whom
it is claimed .
The other school of thought distinguishes between relative and absolute
duties. Relative duties are those which have rights corresponding to them,
while absolute duties have no such rights.
This school believes that the essence of a right is that it should be vested
in some determinate person , and that it should be enforceable by some form
of legal process to be instituted by him. Thus, duties towards the public at
large or towards indetermined portions of the public have no co-relative rights.
So, also, the duty to refrain from committing a public nuisance has no co-
relative rights. Similarly, where trustees hold property on trust for 'religious
purposes', even though there is no ascertained beneficiary, the trustees are
under a duty not to use the property for any other than religious purpose. The
question is, to whom is the duty owed? If owed to anybody, it must be owed to
the public at large or to the State or to the Crown . But it makes no difference
whether one says that the duty is owed to one or the other or it is not owed to
any one. In any event, the law on this point is clear, viz. , that it is the duty of the
trustees to use the property only for those purposes for which it is ear-marked .
As stated earlier, according to Austin, every right implies a corresponding
duty, but every duty does not imply a corresponding right. Thus, a right to a
debt implies a corresponding duty to pay the amount of the debt to the creditor.
However, as stated above, every duty does not imply a corresponding right. As
observed earlier, it is the duty of the Magistrate to punish an offender if his guilt
is proved in the Court. However, it would be going too far to say that, in such a
case, the offender too has a corresponding right to be punished .
In conclusion, it may be said that duties in the strict sense of the term
have corresponding rights , but duties in the wider sense do not. It is relevant to
note the observations of the Supreme Court in this connection . In Minerva
Mills Ltd. v. The Union of India, (1980) 3 S.C.C. 625, it observed as under:
130 JURISPRUDENCE
"There may be a rule wh ich imposes an obligation on an individual or

authority, and yet it may not be enforceable in a court of law, and therefore, not
give rise to a corresponding enforceable right in another person. But it would
still be a legal rule , because it prescribes a norm of conduct to be followed by
such individual or authority. The law may prov,de a mechanism for enforcement
of this obligation, but the existence of the obligation does not depend upon the
creation of such a mechanism. The obligation exists prior to, and independent
of, the mechanism of enforcement. A rule imposing an obligation would not
therefore cease to be a rule of law because there is no regular judicial or
quasi-judicial machinery to enforce its command. Such a rule would exist despite
of any problem relating to its enforcement."
THE CHARACTERISTICS OF LEGAL RIGHT

Every legal right possesses the following five characteristics:
Write a short note 1. There is a person who is the owner of the right. He is the subject of
on : Characteris- the legal right, sometimes also described as the person of inherence.
tics ofa legal right.
M.U. Apr. 2010 The owner of a right need not be a determinate or fixed person.
Nov. 2010 When an individual owes a duty towards society at large , it can be
May 2017 said that an indeterminate body, i.e. , the society at large is the subject
Nov. 2017 of inherence. Similarly, in the case of a bequest to an unborn person ,
the owner of the right is an unborn child , i.e. , an unascertained person.
2. A legal right accrues against another person or persons, who are
under a corresponding duty to respect that right. Such a person is
called the person of incidence or the subject of the duty.
Thus, if A has a particular right against 8, A would be the person of
inherence, and B the subject of incidence.
3. Next is the content or substance of the legal right. It may be an act
which the subject of incidence is bound to do or it may be a
forbearance on his part.
4. Then , there is the object of the right. This is the thing over which the
right is exercised. This may also be called the subject-matter of the
right.
5. Lastly, there is the title to the right, i.e., the facts showing how the
right vested in the owner of the right. This may be by purchase , gift,
inheritance, assignment, prescription, etc.
To take an example that illustrates all these five characteristics of a legal
right, suppose a man buys a house from another. The buyer will be the person
of inherence and the seller and other persons generally the persons of incidence.
The subject-matter of the right will be the house, and the contents of the right
would lie in the fact that the seller and every other person should not disturb
the buyer's peaceful possession and enjoyment of the house. In this case, the
title to the right is to be found in the fact of the sale of the house, reflected in
LEGAL RIGHTS 131
the conveyance (sale-deed) under which the house was acquired by the
purchaser from the vendor.
When a person purchases anything by paying the price for it, he is entitled Write a short note
on : Components
to the undisputed right of use in the thing which he has purchased. Other of a legal right.
persons are bound by the co-relative duty, and the owner has a right against M.U. Apr. 2012
the whole world. The object or subject-matter of the right in the thing purchased
is his legal right. He acquires the title of the right because the property in the
object has been conveyed to him in the same manner as it was acquired by WWhat is a legal
the former owner. right? What are
the characteristics
Thus, every right involves a three-fold relation in which its owner stands : of a legal right?
Explain different
1. It is a right against some person or persons. kinds of legal
2. It is a right to some act or omission of such person or persons. rights.
M.U. Apr. 2010
3. It is a right over or to something to which that act or omission relates. Nov. 2009
It may be noted that every right involves a relation with its owner. An Nov. 2012
ownerless right is not recognised by law, although it is not a legal impossibility. May 2018
But it must not be forgotten that although ownerless rights are not recognised,
the ownership of a right may be uncertain or contingent. Such owner may be
Enumerate and
an indeterminate person. Or, he may be an unborn person, and may perhaps explain the char-
never be born. It is, therefore, clear that although every right has an owner, it acteristics of legal
need not have any certain or vested owner. rights. Explain the
essentials of a
From this it follows that an object is as essential an element in the idea of right.
right as the subject to whom the right belongs. A right, being a legally protected M.U. Nov. 2008
interest, the object of the right is the thing in which the owner has his interest
- whether material or immaterial -which he desires to keep or to obtain, and
which he is able to keep or to obtain by means of the duty which the law
imposes on other persons. In respect of rights over material things, all civilised
societies have a great mass of legal rules which are by far the most important
of legal rights.
Then, there are also rights in respect of one's own person. Every person
has a right not to be killed, and the object of this right is one's life. Similarly,
one has a right not to be physically injured or assaulted. One has also a right
not to be coerced or deceived into acting contrary to one's desires or interests.
Similarly, one has a right of reputation, rights in respect of domestic relations,
rights over immovable property, rights to services, and many such rights, over
which a man has a full right of enjoyment.
As regards the right of personal service, the law which recognises slavery
make it perfectly legal for another to buy and sell a human being, in the same
manner as a horse or a car. But where slavery is not recognised , the only right
that one can acquire over a human being is the temporary and limited right to
the use the services of that person, created by a voluntary agreement with that
person; and in no way does such an agreement create a permanent and general
right of ownership over the person who is a party to the agreement.
132 JURISPRUDENCE
Moral and legal rights

Dlstlngulsh bet- Rights, like wrongs and duties, are either moral or legal. A moral or natural
ween Moral Rights right is an interest recognised and protected by a rule of natural justice. Thus,
and Legal Rights.
the mutual right of a husband and wife to be loved by each other is a moral
(2 marks)
M.U. Nov. 2019 right, the breach of which cannot (unfortunately) be remedied by a Court.
A legal right, on the other hand , is an interest which is recognised and
protected by a rule of legal justice. Rights, says lhering, 'are legally protected
interests'.
"In order that an interest should become a legal right ", observes Salmond,
"it must obtain not merely legal protection, but also legal recognition. The
interests of beasts are , to some extent, protected by the law, in as much as
cruelty to animals is a criminal offence . The duty of humanity so enforced is
not conceived by the law as a duty towards beasts, but merely as a duty in
respect of them. "
Similarly, a man 's interests may obtain legal protection as against himself,
as when drunkenness or an attempt to commit suicide is made a crime. But he
has not, for this reason , a legal right against himself. The duty to refrain from
drunkenness is not conceived by the law as a duty owing by a man to himself,
but as one owing by him for the community. The only interest which receives
legal recognition is that of the society in the sobriety of its members .
'Legal Wrong' defined

State the definition A wrong is an act contrary to the rule of right and justice. Its synonym is
of legal wrong . injury in its true and primary sense of injuria. This term has acquired a secondary
(2 marks)
sense of harm or damage, whether rightful or wrongful. Wrongs or injuries are
M.U. Nov. 2014
either moral or legal. The former are not, whereas the latter are, cognisable by
Courts of Law.
Wrongful act: A wrongful act is an act contrary to the rule of right and
justice. It may be of two kinds : (i) a moral or natural wrong, i.e., an act which
is moral/y or naturally wrong , being contrary to the rule of natural justice; and
(ii) legal wrong , i.e., an act which is legally wrong, being contrary to the rules of
legal justice and a violation of the law. A legal wrong is an act which is
authoritatively determined to be wrong, by a rule of law, and is therefore treated
as a wrong for the purposes of the administration of justice by the State. The
essence of a legal wrong consists in its recognition as a wrong by the law. It is
synonymous with injuria, that is , the violation of a legal right. A mere loss
(damnum ) without the violation of a legal right (injuria) does not give rise to a
cause of action, though in some cases, injuria without damnum suffices to
constitute a tort.
Legal damage: Damage, in common language, means the physical effect
of the defendant's act. But legal damage or damage that constitutes liability in
tort is neither identical with actual damage, nor does it necessarily mean any
LEGAL RIGHTS 133
pecuniary loss. Every invasion of a person's legal right or unauthorised

interference with his property imports legal damage; that is, although the injured
person may not suffer any pecuniary loss by the wrongful act of the defendant,
yet, if it is shown that there was a violation of some legal right, the law will
presume damage. This is known as 'legal damage'.
The Gloucester Grammar School Case : The defendant, a school-
master, set up a rival school next door to the plaintiff's school, with the result
that the boys from the plaintiff's school flocked to defendant's. The plaintiff
sued the defendant for the loss. It was held that no suit could lie on the ground
that bona fide competition can afford no ground of action, whatever damage it
may cause. Free and fair competition is not illegal.
But a competition in which the legal rights of ril(al are infringed is a ground
of action. Thus, an action lies against a person for causing injury to another by
illegally interfering with the latter's trade, business or employment. Thus, in the
Gloucester Grammar School case (above) if, besides setting up a rival school,
the defendant had interfered with the plaintiff's school by illegal means, as for
example, by procuring another to waylay the children going to the plaintiff's
school or by intimidating them, so that they cease to go there, the defendant
would be liable. In such a case, the plaintiff would be entitled to damages or
injunction or both .
Another case on the same point is Chasemore v. Richards (1869) 7 H.L.C.
349. In this case, the plaintiff was the owner of an ancient watermill near
Croydon. For more than 60 years, the occupiers of the mill had been using and
enjoying the flow of the river Wandie for the purpose of working the mill. The
Local Board of Health of Croydon (whom the defendant in the suit represented)
sank a well in their own land and pumped up large quantities of water, with the
result that the percolating underground water, which would naturally have found
its way to the river, and helped to work the plaintiff's mill was obstructed. With
the diminution of water in the river, the plaintiff found it impossible to work his
mill. The plaintiff sought to make the defendant liable, but the Court held that
the doing of an act which is otherwise lawful cannot give rise to an action in
tort, however much it may be attended with loss to the party complaining. As
the Judicial Committee pointed out, in Rogers v. Rajendra Dutt, (1860) 1 M.L.A.
103, it is essential to an action in tort that the act complained of should, under
the circumstances, be legally wrongful as regards the party complaining . That
is, it must prejudicially affect him in some legal right.
OBJECTS OF RIGHTS
The following are the six chief kinds of legal rights with reference to their
objects:
1. Rights over material things : Thus, one has rights over one's house,
books, car, furniture, etc.
134 JURISPRUDENCE
2. Rights in respect of one's own person : Thus, one's rights not to be

assaulted orfalsely imprisoned by anybody are rights in respect of one's person.
3. The right of reputation : Every person has a right not to be defamed
by another, either by libel or slander.
4. Rights in respect of domestic relations : These include marital rights,
parental rights and a master's rights over his servant.
Violation of marital rights can take place in three ways :
(i) Abduction, or taking away a man's wife .
(ii) Adultery, or sexual intercourse by a man with the wife of another
man .
(iii) Causing physical injuries to the wife.
Violation of parental rights consists in the seduction of a person's daughter
or child .
Lastly, a master's rights over his servant are violated by anyone who
deprives him of the services of his servant by-
(i) injuring or imprisoning him so as to prevent performance of his
services; or
(ii) inducing the servant to leave the master's service wrongfully; or
(iii) harbouring a servant who has left his service wrongfully, i.e., before
the expiration of the stipulated period .
In addition to the above, a master may sue for loss of service caused by
the seduction of a female servant. The relationship of master and servant
must exist both at the time of seduction and at the time of the illness causing
the loss of service .
Write short notes 5. Rights in respect of other rights : In many cases, a right has another
on : Hohfield's
right as its subject-matter. Thus, by a contract for sale , the buyer acquires a
right analysis.
M.U. May 2018
right to the right of ownership over the object of the sale.
6. Rights over immaterial property : Examples of rights over immaterial
property are patent rights, copy-rights, trade marks and commercial goodwill.
Discuss legal LEGAL RIGHTS IN A WIDER SENSE OF THE TERM

rights in a wid er A legal right , in the strict sense of the term, means an interest, recognised
sense of the term.
M.U. Nov. 2015
by law, which imposes a corresponding duty on others; but a legal right in the
Nov. 2016 general or wider sense of the term may be defined as any advantage or benefit
which is, in any manner, conferred upon a person by a rule of law. In this
sense, there are three more kinds of rights :
Explain Hohfeld's
analysis of rights 1. Liberties
in a wider sense.
A person has liberty when there is an absence of a legal duty imposed
M.U. Apr. 2010
upon him. The sphere of his legal liberty is that sphere of activity within which
Dec. 2018
Nov. 2019 the law is content to leave him alone . In this sense, one has a right to publish
LEGAL RIGHTS 135
his opinion on publi<;: affairs, but one has no right to express a defamatory or What is a right in
the wider sense of
seditious libel. In brief, one's liberty is his ability to do a thing without being the term?
liable for it in law. (2 marks)
Just as the co-relative of right is duty, the co-relative of liberty is what is M.U. Apr. 2011
called "no-righf'. The term "no-righf' means an absence of a right against
another in a particular respect. Thus, the owner of a land has a liberty to eject
Write a short note
a trespasser (even forcibly if need be), and correspondingly, a trespasser has on : Prlvllege.
"no-right" not to be ejected from the owner's land. M.U. Nov. 2006
"No-right"
This is a term coined by Hohfeld. If Xhas a right to do a particular thing , Write a short note
it implies that other persons, A, B, C, D, etc., have 'no-right'to prevent Xfrom on : Privilege &
No-right.
doing that thing . Thus, no-right means the absence of any right in other persons
M.U. Oct. 2006
to prevent or hinder a man from exercising his right.
"No-right" thus means absence of a right against another person in a
particular respect. Therefore , it can be said that a trespasser has a "noright" What Is a right in
the wider sense?
not to be ejected forcibly from the trespassed premises - and this corresponds
Explain Hohfeld's
to the owner's liberty to eject him . Again , Xmay dos whatever he likes with his analysis of rights
house. It is his liberty or privilege. The correlative no-right is that other persons in the wider sense.
have no right to interfere with Xwhile he does as he pleases with his house. M.U. Nov. 2010
For the above, it is clear that a liberty or a privilege is the correlative of a

no-right. Hohfeld explains it by saying that if it is A's right that B should stay off What are rights In
his land , the correlative of this right is B 's duty not to enter A's land . a wider sense?
Elucidate.
The maxim "damn um sine injuria" (damage without legal injury) illustrates
M.U. Nov. 2011
a no-right. Thus, Xhas been running the only shop in his vicinity since several
years. Then , one fine morning , Y opens a similar shop just across the street,
and because of cut-throat competition, X suffers a severe loss. Here, X cannot
prevent Yfrom continuing the business; his is a case of no-right.
2. Powers
A power may be defined as an ability conferred upon a person by the law Write a short note
on : Power and
to alter, by his own will directed to that end , the rights , duties, liabilities or other liability.
legal relations , either of himself or of other persons . For example, one's right M.U. May 2015
to make a will is his power, and one's right to alienate his property during his
own life-time is also his power. Define power.
(2 marks)
Tawney defines power as the capacity of an individual to modify the
M.U . Nov. 2015
conduct of other individuals in the manner in which he desires. Nov. 2016
Powers are either public or private : Public powers are those which
are vested in a person as an agent of the State. This power is sometimes Write a short note
on : Rights and
called authority. On the other hand , private powers are those which are vested
powers.
in a person , and are to be exercised by him for his own purpose. Private power M.U . Apr. 2014
is called capacity. Subjection is the correlative of power just as a duty is the
correlative of a right in the strict sense of the term.
136 JURISPRUDENCE
"The term legal 3. Immunities

right Includes the
concepts of right, An immunity is an exemption one enjoys from having a given legal relation
liberty, power changed by another. For example, a Lord is said to be immune from trial by
and Immunity."
jury when he has been exempted from such trial. One's immunity arises on
Explain, with refer-
ence to Hohfe- account of the absence of power or the disability of others to interfere with
dlan's analysis. one's legal position. Therefore, disability is the correlative of immunity.
M.U. Apr. 2009
According to Paton, immunity is a freedom on the part of one person
against having a legal relation altered by a given act or omission on the part of
Define 'Immunity'.
M.U. May 2018 another person. Thus, immunity is the advantage conferred by the absence of
legal powers in other persons.
Conclusion
The concepts of rights , liberties, powers and immunities may be stated
as under:
(a) Rights : What others must do for X.
(b) Liberties : What X may do for himself.
(c) Power : What X can do against other persons.
(d) Immunities : What others cannot do against X.
The analysis of rights in the wider sense into four pairs of correlatives can
be expressed as under :
Right Liberty Power Immunity
-1- -1- -1- -1-
Duty No-right Liability Disability
In the above rectangles , the correlatives can be obtained by following the

arrow downwards. Thus "duty" is the correlative of "right", and so on. Also, the
concepts within each rectangle are closely related to one another, but the
concepts contained in one rectangle are not so related to those contained in
the other rectangle.
KINDS OF CIVIL RIGHTS

Primary and sanctioning rights
Write a short note Civil rights are of two kinds - primary and sanctioning. The object of a
on : Kinds of civil (not 'criminal') proceeding is the enforcement of the plaintiff's right. The
rights.
M.U. May 2015
right so enforced is either primary or sanctioning. A sanctioning right is one
which arises out of the violation of another right; all others are primary. If X
enters into a valid contract with Y, X's right to have the contract fulfilled is
primary right ; if this contract is broken, his right to damages for this breach is a
sanctioning right.
It is, however sometimes not possible for the law to enforce the primary
right. At other times, this may be possible, but not expedient. Thus , if A
LEGAL RIGHTS 137
negligently destroys B's property, B's right to that property is naturally extinct,
and is no longer enforceable. The law, therefore, gives him a new (sanctionary)
right, to receive from A, the monetary value of that property. But if A breaks his
promise to marry B, although it may theoretically be possible to specifically
enforce this right, it would not be expedient to do so. Therefore, the law would,
instead, enforce a sanctioning right, namely, damages or compensaiton for
breach of a promise of marriage.
From the above, it is clear that, almost always, a sanctioning right consists
of a claim to receive monetary compensation. The enforcement of a primary
right is termed special enforcement. There is, however, no term in law to
describe the enforcement of a sanctioning right. In the absence of a suitable
generic term , Salmond prefers to call it "sanctional enforcement".
It is also to be noted that a primary right can either be a right in rem (e .g.
A's right not to be defamed) ora right in personam (e.g. A's right that 8 perform
a contract he has entered into with A) . However, a sanctioning right, which
arises from the violation of a primary right, is always a right in personam. If 8
makes a breach of his contract with A, the latter has a right in personam to get
damages. Likewise, even if A is defamed (a right which he enjoys in personam),
he will have a sanctioning right in personam against the person who defames
- and not against the world at large. The reason for this is obvious. Rights in
rem, which are available against the world at large, are negative in nature, e.g.
A's right not be defamed , not be assaulted, etc. However, a violation of this
right can only be by a posWve act- and only by a specific person , and not by
an indefinite class of persons. Violation of such a right by the world at large, is,
in the words of, Salmond, a "legal impossibility".
Kinds of sanctioning rights

The purpose of sanctioning right can be (1) penal action, i.e., the imposition
of a pecuniary penalty upon the defendant for the wrong which he has
committed, or (2) restitution and penal redress, i.e. , grant of pecuniary
compensation to the plaintiff in respect of the damage which he has suffered
from the defendant's wrong-doing.
1. Penal action : Penal action does not mean 'criminal prosecution'. It
means a civi l action in wh ich the defendant is made to pay a penalty. The law
often creates and enforces a sanctioning right which has in it no element of
compensation to the person injured, but is intended solely as a punishment for
the wrong-doer. Such an action is called a penal action as being brought for
the recovery of a penalty. But it is nonetheless a purely civil proceeding, and
not a criminal proceeding .
2. Restitution and penal redress : The second form of sanctioning right
is the right to pecuniary compensation or damages. Such compensation is
divided into two kinds , restitution and penal redress. The distinction between
restitution and penal redress is the following : In restitution, the defendant is
138 JURISPRUDENCE
compelled to give up the pecuniary value of some benefit which he has

wrongfully obtained at the expense of the plaintiff; he has to restore the plaintiff
to his original position (status quo) . Thus, if a defendant has made profits by
What ls perfect infringing the plaintiff's trade mark, he must compensate the plaintiff by handing
right? (2 marks) over all the profits made by him as a result of such infringement.
M.U. May 2018
In penal redress, the defendant has to restore all the benefits derived
from his wrongful conduct in addition to a full redress for the loss of the plaintiff.
In such cases, the defendant may have to pay much more than what he gained
by his wrongful conduct.
TEN KINDS OF LEGAL RIGHTS

Explain the vari- The following are the ten kinds of legal rights , i.e. , rights recognised and
ous kinds of
rights. enforced by law.
M.U. Nov. 2006
1. Perfect and imperfect
Nov. 2008
A perfect right is one wh ich corresponds to a perfect duty; and a perfect
duty is one which is not merely recognised, but also enforced by the law. A duty
Define legal right. is enforceable when an action (i.e. , a suit) or other legal proceeding will lie for
Examine the
its breach. In other words, a perfect right is enforceable in law. An imperfect
different kinds of
rights with right is not.
examples. What then is an imperfect right? An imperfect right is one which, though
M.U. Apr. 2012
it is otherwise a legal right, cannot be enforced on account of some legal defect.
Thus, claims barred by lapse of time and claims unenforceable by action owing
Define "right". to the absence of some special form (such as a written document, when one is
Explain the required by law) are instances of imperfect rights. In all these cases, the duties
different kinds of and correlative rights are imperfect. No action will lie for their maintenance; yet
rights.
they receive recognition from law. They remain valid for all purposes , save that
M.U. May 2015
of enforcement.
All these cases of imperfect rights are exceptions to the maxim ubi jus ibi
Write a short note remedium. Thus, in the case of a debt barred by the Laws of Limitation, the
on : Kinds of
rights.
debt is not rendered extinct, but merely the right of action is barred , so that
M.U. Nov. 2015 lapse of time does not destroy the right, but merely reduces it from the rank of
one which is perfect to an imperfect one. To take an example, if A has given a
loan to B, but cannot file a suit against B as it would be time-barred, and if
What is on despite this fact, B pays the amount to A, B cannot sue A and ask him to return
imperfect right?
the money on the ground that A could not have filed a suit against him to
(2 marks)
recover the debt.
M.U. Nov. 2011
Nov. 2014 Salmond gives a few examples by which imperfect rights may also be
recognised :
1. An imperfect right serves as a good ground of defence, though not
for any legal action.
2. An imperfect right is sufficient to support any security given for it,
e.g., a mortgage or a pledge remains perfectly valid, though the debt
LEGAL RIGHTS 139
for which it was given as security has become barred by the Limitation
Act, and thus unenforceable.
3. An imperfect right may become perfect, e.g., a debt which has become
irrecoverable by reason of limitation may become recoverable by
reason of a subsequent promise to pay the amount. (See S. 25 of
the Indian Contract Act, 1872.)
The legal nature of rights against the State

In connection with the classification of rights into perfect and imperfect
rights, another problem needs to be discussed, that is, the problem of the
nature of the rights of a subject against the State. In this connection, there are
two views. One view, as advocated by Salmond, is that "A subject may claim
rights against the State, no less than against another subject. He can institute
proceedings against the State for the determination and recognition of those
rights and claim judgment in his favour. But there can be no enforcement of
that judgment." But this absence of enforceability does not amount to the
absence of right. This is a case where a right is recognised but cannot be
enforced. Such a right is, therefore, an imperfect right.
However, the position in a democratic country like India is different. A
citizen enjoys fundamental rights under the Constitution of India, and these
rights are not only recognised by the law courts - but also enforced against
the State by appropriate proceedings under Art. 32 or Art. 226 of the Constitution.
The other view, advocated by Austin, is that a subject or a citizen cannot
have any rights against the State of which he is a member. According to Austin,
a sovereign State claims obedience from all, and owes it to none. The State
would have no duties to its subjects. If the State could have no duty, the subjects
could have no rights. But as pointed out both by Pollock and Salmond, in modern
times, rights against States are recognised, and they should, at the worst, be
considered as imperfect rights, as the element of enforcement may not be
present in them.
2. Proprietary and personal

Proprietary rights are rights concerning property, corporeal or incorporeal.
One often speaks of a man's proprietary rights as his "estate" or "assets" or
"property". Thus, a man has proprietary rights in his house, car, furniture, etc.
Personal rights, on the other hand, are rights in regard to a person's status
or person. Thus, the right to reputation, the right of freedom of speech and
expression, the free choice of a profession or vocation are all personal rights.
Corresponding to personal and proprietary rights, are personal and
proprietary duties and obligations. Thus, the obligation to pay a debt or to deliver
goods under a contract are proprietary obligations, whereas the obligation to
take care when driving a car on a crowded street is a personal obligation.
Likewise, the obligation not to infringe another's copy-right is a proprietary
140 JURISPRUDENCE
obligation, whereas the obligation not to harm another's reputation is a personal

obligation.
Difference between proprietary and personal rights

There are four points of distinction between proprietary and personal rights:
(i) Proprietary rights are valuable (i.e., they can generally be valued in
terms of money); personal rights are not.
(ii) The former are the elements of a man's wealth, the latter are elements
of his well-being.
(iii) The former are inheritable, the latter are not.
(iv) Proprietary rights are more permanent than personal rights.
This distinction can be summed up in a Tabular Form as under:
Proprietary Rights Personal Rights
1. They can be valued in terms of 1. They cannot be so valued.

money.
2. The are elements of a man 's 2. They are elements of a man's
wealth. well-being.
3. They are inheritable. 3. They are not inheritable.
4. They are more permanent. 4. They are less permanent.
3. Inheritable and unlnheritable

What are Inheri- A right is inheritable if it survives its owner; it is uninheritable if it dies with
table and uniheri- him. Proprietary rights are inheritable, while personal rights are uninheritable.
table rights? In other words, the heirs of a proprietary owner become owners after his death,
(2 marks)
which cannot be the case with personal rights, which die with the owner.
M.U. Apr. 2014
'Estate' and 'status': 'Estate ' ordinarily means one's belongings, one's
property, whereas 'status'means one's position in life. It is possible for a person
to have a status without owning property. The popular notion of status is wealth
or property. The word 'status' also means 'legal condition' as when one speaks
of the 'status' of a trustee, minor, bankrupt, etc.
4. Principal and accessory

What are principal A principal right is the main or primary right vested in a person under the
and accessary
rights?
law. An accessory right is secondary right which is connected to, or arises out
(2 marks) of, the principal right. Thus, the right of a person who has bought a tree is a
M.U. Apr. 2010 principal right, but the right to enjoy the fruits of the tree is an accessory right
which flows from the principal right. The legal maxim accessorium sequitur
What is an principale means that the accessory right follows the principal. If a person
accessory right?
purchases land, he has a right not only to the land (principal right), but also to
(2 marks)
M.U. May 2015
its title deeds (accessory right}.
LEGAL RIGHTS 141
5. Positive and negative What is a negative

right? Give
According to their context, rights may also be classified as positive or examples.
negative. When a person has a positive right, he is entitled to something to be (2 makrs)
done by the person who has the corresponding duty. Thus, if A has bought M.U. Nov. 2012
goods from B, the latter has a positive right to claim the purchase money from May 2017
A. On the other hand , a negative right entitles its owner to some forbearance
on the part of the person who has the corresponding duty. Thus, if A is taken as
an apprentice in B 's business, and A covenants not to serve in a rival business
for five years, 8 has a negative right to see that for five years , A forbears from
serving in a rival business.
Distinction between
Write a short note
Positive right Negative right on : Positive and
Negative rights.
1. Corresponds to a positive duty. 1. Corresponds to a negative duty. M.U. Apr. 2014
2. Content : positive act. 2. Content forbearance or
nondoing.
3. Entitles the owner to an alteration 3. It maintains the present position
of the present position to his of things.
advantage.
4. Aim is positive benefit. 4. Aim is not to be harmed .
5. Is a right to receive something 5. Is a right to reta in what one
more than one already has . already has.
6. Requires the active assistance of 6. Requires only passive
other persons. acquiescence of other persons .
7. Mediate and indirect relation to 7. Immediate relation to the other.
the object.
6. Legal and equitable

Legal rights are those which were recognised by the Courts of Common
Law. Equitable rights (also called equities) are those which were recognised
solely in the Court of Chancery.
The Judicature Act, 1873, did not abolish either law or equity, but made
them consistent with each other, by abolishing those rules of Common Law
which conflicted with the ru les of equity.
Difference between legal and equitable rights

Legal rights differ from equitable rights in two respects :
1. In the methods of their creation and disposition : The methods of
their creation and disposition are different. A legal mortgage of land must be
created by deed, but an equitable mortgage may be created by a mere deposit
of title deeds.
142 JURISPRUDENCE
2. In their efficacy : Legal rights are more efficacious than equitable

rights. Equitable rights have a more precarious existence than legal rights.
Where there are two inconsistent legal rights claimed adversely by different
persons over the same thing, the first in time prevails. A similar rule applies to
the competition of two inconsistent equitable rights. But when a legal and an
equitable right conflict, the legal will prevail over the equitable, even though
subsequent to it in origin , provided that the owner of the legal right acquired it
for value and without notice of the prior equity.
Thus, legal rights are in all respects superior to, and more efficacious
than , equitable rights.
Equity in India: In India, both Common Law and Equity jurisdictions are
combined in one Court, which acts according to justice, equity and good
conscience in the absence of specific rule of law. The expression "justice,
equity and good conscience" has generally been interpreted to mean the rules
of English Equity, so far as they are applicable to Indian society and
circumstances. In the absence of specific rules of law, the practice of the English
Equity Courts would be followed in India with the necessary modifications.
Besides, Regulation 4 of 1827 required the East India Company's Courts
to act according to justice, equity and good conscience in the absence of a
specific law and usage. Under clause 36 of the Supreme Court Charter of
1823, the Supreme Court of Bombay (as it was then called) was expressly
made a Court of Equity and given an equitable jurisdiction corresponding to
that of the Court of Chancery.
Whether Legal and Equitable Estates are recognised in India : In
England, estates are either legal or equitable. Thus, in England, the mortgagor's
right to redeem is regarded as a creation of the Courts of Equity, and is an
equitable right known as the equity of redemption. Such is not the case in
India. No distinction is recognised in India between legal and equitable estates
: Tagore v. Tagore, (1872) I.A. Sup. Vol. 47, 71; Webb v. Macpherson, (1904)
30 I.A. 238.
In England, however, equitable estates are recognised . A contract to sell
property in England creates an interest in favour of the purchaser, and the
vendor holds the property in trust for him. But in India, Ss. 40 and 54 of the
Transfer of Property Act clearly lay down that merely by virtue of a contract of
sale of an immoveable property, no interest is created in favour of the purchaser,
but only an obligation is annexed to the ownership of the property.
Similarly, in England, a mortgage passes the legal estate to the mortgagee,
and the mortgagor has only the equitable estate, namely, the equity of
redemption . But in India, what passes to a mortgage is a few rights of the
mortgagor, who is nevertheless the owner of the mortgaged property.
In the case of Chhatra Kumari Debiv. Mohan Bikram, (1931) 58I.A. 279,
the Privy Council endorsed the view taken in the two previous cases of Tagore
LEGAL RIGHTS 143
v. Tagore and Webb v. Macpherson, (above), and observed as follows : "The

Indian law does not recognise legal and equitable estates. By that law, therefore,
there can be but one 'owner' and where the property is vested in a trustee, the
'owner' must, their Lordships think, be the trustee. This is the view embodied
in the Indian Trusts Act, 1882, see Ss . 55 , 56 etc. the right of the beneficiary
being in a proper case to call upon to convey to him ."
7. Real and personal

A real right corresponds to a duty imposed upon persons in general; a
personal right corresponds to a duty imposed upon determinate individuals. A
real right is available against the world at large; a personal right is available
only against particular persons. Thus X 's right not to be assaulted or defamed
is available against the whole world , but X's right to proceed against his assailant
or defamer is personal , being against a person individually.
Real rights , moreover, are more valuable and advantageous than personal
rights. Real rights are mostly negative whereas personal rights are mostly
positive.
8. Rights in rem and rights in personam

A right in rem is one which is available against the whole world . A right in What are rights In
personam? Give
personam is one which is available against a particular individual only. In
examples.
personal rights , it is the personal relation that is the predominant factor, and (2 makrs)
therefore, such rights are called jus in personam. M.U. Apr. 2010
A right in rem is a right vested in some determinate person (either
personally or as a member of the community) and available against the world
What Is a right In
at large. Thus X's rights not to be defamed or assaulted are rights available
rem? Give an
against the whole world. Such rights are rights in rem. Their number is countless . example.
Thus, the right to freedom of person, ownership and possession of property, (2 marks)
the right to reputation , the right to copyright and trade-marks are all instances M.U. Nov. 2010
of rights in rem.
The very opposite of a right in rem is a right in personam. A right in What Is a common
personam is a right available only against some determinate person or body, right? Give an
and in which the community at large has no concern. Thus, X agrees to sell his example.
house to Yfor a certain sum. X does not carry out the contract. Ywill thereupon (2 marks)
M.U. Apr. 2014
have a right to sue X for damages for breach of contract. Here, the mutual
right of X and Y are created by their private mutual agreement. These rights
are personal to both . Third parties are not concerned with them . Such rights
are , therefore , called rights in personam, i.e., personal rights, as opposed to
general rights.
Generally speaking , rights in rem are negative rights, whereas rights in
personam are positive rights. Thus, a right to a debt or a right to a delivery of
goods are rights which are positive as well as in personam. On the other hand ,
a right to reputation or the right to freedom of person are rights which are
144 JURISPRUDENCE
Write short note negative as well in rem. However, this is only the general rule , and some
on : Rights In re
proprla and rights
negative rights are also rights in personam. Thus, the right of an employer to
In re allena. ensure that an employee does not work with a rival employer is a right in
M.U. Nov. 2010 personam, which is, at the same time, a negative right.
State the meaning 9. Rights Uus) in re propria and rights in re a/iena

of rights In re The most absolute power which the law gives over a thing is called the
proprla. (2 marks)
right of property - dominium. This is the real right in a thing which Is one's
M.U. Nov. 2014
own - jus in re propria. But a man may have right in property less than full
What are rights in ownership, the dominium being , in fact, vested in another. Such rights are
re proprla? Give called jura (rights) in re aliena.
examples.
(2 marks)
Both can be created in respect of the same property. "A right in re aliena
M.U. Nov. 2012 is one which limits or derogates from some more general right belonging to
some other person in respect of the same subjectmatter. All other rights which
are not thus limited are jura in re propria." - Salmond.
What are rights In
Thus, X mortgages his house to Y and gives him possession thereof. X
re allena? Give
one example. thereby creates an encumbrance, by dividing his proprietary right in the house,
(2 marks) of which Y becomes the temporary occupier. However, X still has the right to
M.U. Nov. 2015 redeem the mortgage. This right, which is for the time being detached from X 's
complete ownership of the house, is a right in re aliena.
Explain : Jura In re
allena. 10. Servient and dominant
M.U. Apr. 2009
A right which is subject to an encumbrance may be designated as servient,
Explain : Jura In re
while the encumbrance , which derogates from it, may be called dominant.
propria and Jura in The land for the beneficial enjoyment of which the right exists is called
re allena.
the dominant heritage, and the owner or occupier thereof, the dominant owner;
M.U. Nov. 2011
the land on which the liability is imposed is called the servient heritage and the
owner or the occupier thereof, the servient owner. Thus, A, as the owner of a
house has a right of way over his neighbour B's land, or has the right of
maintaining eaves for the discharge of water from his roof on to B's grounds.
A's house is the dominant heritage, and A is the dominant owner and B's house
is the servient heritage and B is the servient owner.
000
Chapter 11
OWNERSHIP
DEFINITION
Ownership is the relation between a person and any right that is vested in Define " Owner-
him. That which a man owns is, in a// cases, a right. When one speaks of the ship". (2 marks)
M.U. Nov. 2011
ownership of a material object, this is merely a convenient and conventional
Nov. 2019
figure of speech. To own a piece of land means , in law, to own a particular kind
of right in that land.
According to Salmond, "ownership denotes the relation between a person Write a short note
and an object forming the subject-matter of his ownership. It consists in a on : Ownership.
M.U. May 2006
complex of rights, all of which are rights in rem, being good against all the
world, and not merely against some persons".
According to Austin, ownership is a right over a determinate thing, indefinite
in point of user, unrestricted in point of disposition and unlimited in point of
duration.
Ownership is thus the sum-total of the rights of possession , disposition
and destruction. According to Holland, it is a plenary control over an object.
Under the French Code, "ownership" means and involves the right of the
owner to enjoy and do away with his things in the most absolute manner, that
is, just as he pleases, subject however to all laws and regulations.
THE ESSENTIALS {OR CHARACTERISTICS OR INCIDENTS)

OF OWNERSHIP
The six essential characteristics or incidents of ownership can be summed Explain the con-
cept and essen-
up as follows : tials of ownership.
(1) The owner has a right to possess the thing which he owns . It is immaterial Describe briefly
whether he has actual possession of it or not, as long as he has a right to the different kinds
of ownership.
such possession . Thus , if A's car is stolen by B, the latter has possession M.U. May 2017
of the car, but A remains the owner, with an immediate right to possession. May 2018
Similarly, if A lends this car to 8 on hire, A has neither possession of the
car, nor even the immediate right to possess it. However, A is still the
owner, for he reta ins a reversionary interest in the car, i.e., a right to
repossess the car on the termination of the period of hire.
(2) Generally, the owner has the right to use and enjoy the thing owned .
Although this is commonly called a right to possess and use such thing ,
as Salmond points out, these rights are, in fact, liberties. The owner has
actually a libert.y to use the things, i.e. , he is under no duty not to use it,
whereas others are under a duty not to use it or otherwise interfere with it.
(3) Thirdly, the owner has the right to exhaust the th ing whi le using it, if the
nature of the thing owned is such.
146 JURISPRUDENCE
Define "owner- (4) Generally, the owner has the right to destroy or alienate the thing he
ship". What are
owns. Thus, a man can effectively dispose of his property by a conveyance
the incidents of
ownership? during his life-time orby will after his death . This is a general right, though
M.U. Nov. 2004 in some cases , such a right may be restricted by law.
Nov. 2009 A person who is not the owner cannot normally transfer the right of
ownership, even though he may have possession of the thing in question,
What is meant by
for the law acts on the maxim nemo dat quod non habet (he who has not
the right to can give not) . However, there are well-recognised exceptions to this rule
atienate? to be found in the Indian Contract Act and in the Sale of Goods Act.
(2 marks)
(5) Another important characteristic of ownership is that it is indeterminate in
M.U. Nov. 2012
duration. Those who are not owners may be entitled to possess or use a
thing , but the period for which they are so entitled is of a limited duration.
"Ownership is a In the case of an owner, it is of an indeterminate duration.
complex of
rights." Explain.
Thus, the interest of a bailee or a lessee comes to an end when the
(2 marks) period of hire or of the lease comes to a close. But the owner's interest is
M.U. Apr. 2014 perpetual , and does not terminate even with the owner's death, because
in that case, the property will go to his legatee or heir or next-of-kin.
(6) Lastly, ownership has a residuary character. It is possible that an owner
has parted with several rights in respect of the thing owned . Nevertheless,
he continues to be the owner of the thing in view of the residuary character
of ownership. For example , if an owner gives a lease of his property to A
and an easement to 8 , his ownership of the land now consists of the
residual rights , i.e., the rights which remain when the lesser rights (i.e.,
the lease and the easement) have been taken away.
Ownership and possession

Ownership, as a legal concept, has to be distinguished from the concept
of possession. Possession is the de facto relation of continuing exercise and
enjoyment, whereas ownership is the de jure relation between a person and a
right. One may possess a thing without owning it, and he may own it without
possessing it. Sometimes, he may both own and possess it. Thus, in the
examples given earlier (of the stolen car) though possession of this car is with
the thief or the hirer (as the case may be), the ownership remains with the
owner of the car.
(The distinction between ownership and possession is discussed in greater
detail in the next Chapter.)
Ownership and encumbrance

The right of ownership of property is also distinct from an encumbrance
on such property. A legal right is vested in the owner, whereas some right
which is adverse, and limiting in respect of the right of ownership, is vested in
the encumbrancer. A may have the right of ownership of a land. 8, having the
right of way over it, is an encumbrancer; but at the same time, the encumbrancer
himself is the owner of the encumbrance.
OWNERSHIP 147
Encumbrance is what limits a right, though it is, by itself, also a right. It is

the dominant right or a limiting right possessed by the encumbrancer over the
property of someone else. If A is the owner of a building , and if B has a right of
way over the land surrounding the building, and if this land belongs to A, then
B's right of way limits the right of A to the ownership of the land .
According to Salmond, an encumbrance, i.e. , a right in re aliena, is one
which limits or derogates from a more general right belonging to some other
person in respect of the same subject-matter. It frequently happens that a right
vested in one person becomes the subject of subordination to an adverse right
vested in another person. It follows that the owner is thus limited in the enjoyment
and disposition of the property owned by him .
A right subject to an encumbrance is known as servient, while the
encumbrance is designated as dominant. These expressions are derived from
the Roman Law. Further, it is essential to an encumbrance that it should ru n
with the right encumberred by it, i.e., the dominant and servient rights are thus
necessarily concurrent. The chief classes of encumbrances are leases,
servitudes, securities and trusts. (A reference may also be made to the Indian
Easements Act in this connection .)
THE SUBJECT-MATTER OF OWNERSHIP

The primary subject-matter of ownership consists of material objects, Define ownership.
like land and chattels. However, a man's wealth may also consist of other What is the
subject matter of
things, as for example, interests in the land of other people, debts due to him ownership?
by his debtors, shares in the companies, patents, copyrights, etc. Thus, Xmay M.U. Apr. 2004
have the right to walk over A's land , or the right to catch fish in B's pond, or a
debt of~ 10,000 owing from C, shares in D & Company Ltd. , various patents,
copyrights, and so on. Yet, none of these is a physical or material thing; they
are in fact noth ing other than rights . Salmond is of the view that true
subjectmatter of ownership has to be a right in all cases, because it wou ld be
a logical absurdity if the subject-matter of the ownership was sometimes a
material object and at other times a right.
There is much support to be found for Salmond's view in English Law.
Nevertheless , if the term is used as always applying to a right , it would not be
in keeping with law and legal usage, because it is normal and natural to talk of
owning things such as land and chattels. Further, since owning a chattel normally
means having certain rights in respect of such chattels, to describe this as
owning rights in respect of the chattels would lead to a rather complicated
conclusion , that the owner would be said to have rights to rights in respect of
such chattels. Further, normally, a man is said to have a right, and not to own
a right. A man does not own a right to his reputation; that is a right which he
has.
It is, therefore, preferable to speak both of owning things in the sense of
material objects, and also of owning rights. Precisely what "thing" can form the
148 JURISPRUDENCE
subject-matter of ownership would depend on the rules of each system of law.

Broadly speaking , under most systems of law, certain things qualify as capable
of being owned, but as not in fact being owned, as for example, islands outside
the territory of any State and wild animals in the jungle. Other things, by nature,
are incapable of being owned , as for example, living persons, corpses (other
than anatomical specimens), the air and the sea, the sun, the moon, the stars,
etc.
However, as Salmond points out, although these things are in principle
incapable of ownership, there is nothing in law or logic to warrant such a
proposition . Thus, if Law were to permit slavery, living persons could be owned.
Likewise, it is equally possible to conceive that the law may also provide that
the air and the sea might be owned , sold, bought, rented, and so on.
It is also to be noted that where a thing is capable of being owned , the
methods of acquiring ownership over such a thing will vary from one legal
system to another. As Salmond points out, basically, one can acquire ownership
in two ways - by operation of law, or by reason of some act or event. As
regards the first, the laws of intestacy and bankruptcy afford good examples,
because they operate to vest one man's property in another. As to the second,
this may consist in cases of original acquisition (i.e. , taking a thing for the first
time) or in derivative acquisition , which consists in taking the thing from one
person, either with or without his consent, and vesting it in another.
INCORPOREAL AND CORPOREAL OWNERSHIP

Ownership, as discussed above, is used in the wider sense of the term. It
is also known as incorporeal ownership. But the term 'ownership' is used in a
narrower sense in which it means the ownership of material things. This is
known as corporeal ownership. (See the discussion, below.)
THE RIGHT OF OWNERSHIP AND THE OWNERSHIP

OF A RIGHT DISTINGUISHED
The corporeal ownership is the right to the entirety of the lawful uses of a
corporeal thing. In this sense, the corporeal ownership or the right of ownership
is not so much one right, as a bundle of rights, liberties, powers and immunities.
According to Pollock, "Ownership may be described as the entirety of the powers
of use and disposal allowed by law." On the other hand , the ownership of a
right describes the jural relation that exists between a person and a right. In
this sense, it denotes that he is neither a possessor nor an encumbrancer, but
the owner of the right. This must be distinguished from the right of ownership,
as the right of ownership is the complex pattern of the bundle of rights, liberties,
powers and immunities. In the case of ownership of a right, it only suggests
that there is a particular legal relationship between a person and a right. It may
be noted that the ownership of a right is also known as incorporeal ownership.
OWNERSHIP 149
In English law, the interest which is by way of a perpetual ownership is

called a fee simple, in which ownership passes to the heirs by devolution. But
a life-interest (which comes to an end with the demise of the owner) or an
interest for a specified number of years is not considered to be a right of
ownership, because it is not perpetual.
KINDS OF OWNERSHIP
Define ownership.
Ownership is of the following six kinds: Explain the vari-
ous kinds of
1. Corporeal and incorporeal ownership, with
Corporeal ownership is the ownership of a material object. It is thus a relevant Illustra-
tions.
right of ownership in some corporeal property, immovable or movable.
M.U. May 2006
Immovable property would include land and buildings and also things attached Nov. 2010
to the land, Movable property would include things not attached to the land and Apr. 2012
chattels of all kinds.
Incorporeal ownership is the ownership of a right. Examples of incorporeal Discuss the
different kinds of
property are copyright, patents, trade-marks, goodwill., etc. Often , it happens ownership.
that the value of incorporeal property is far higher than that of a corporeal M.U. Oct. 2008
property. Thus , the value of the goodwill of a business may be far higher than Nov. 2009
that of the actual property involved in such business.
Explain the
The Bombay High Court has held that, under the Transfer of Property meaning of 'trust'.
Act, in the absence of a contract to the contrary, a lessee may, even after the (2 marks)
lease is terminated , remove all things which he has attached to the earth , M.U . Nov. 2016
which would include structures or buildings put up by him on the leased land .
In such cases, the lessee would remain the owner of the building put up by him Write a short note
on : Kinds of
on the land of the lessor. Thus, the owner of the land does not become the
ownership.
owner of the building , and the maxim, quicquid plantatur solo, solo cedit M.U. Nov. 2011
(whatever is planted or affixed to the soil belongs thereto) does not apply. Nov. 2012
Thus, there can be two distinct ownerships, one of the land and the other of
the building. (Lala Laxmipat Singhania v. Sapat Textile Products Ltd., 52 B.L.R. What are
688) "Trusts"?
(2 marks)
2. Trust and beneficial ownership M.U. Apr. 2011
Dec.2018
Trust-ownership is an instance of duplicate ownership. Trust property is
May 2019
that which is owned by two persons at the same time, the relation between the Nov. 2019
two owners being such that one of them is under an obligation to use his
ownership for the benefit of the other. The former is called the trustee, and his Explain the con-
ownership is trust-ownership; the latter is called th e beneficiary, and his cept of ownership
and discuss the
ownership is beneficial ownership. The ownership of the trustee is in fact,
different kinds of
nominal, not real. In law, however, the trustee represents his beneficiary. ownership.
Thus, if property is given to A on trust for B, A would be the trustee, and B M.U. Nov. 2014
would be the beneficiary or cestui que trust. A would be the legal owner of the Nov. 2016
property, and B the beneficial owner. A would be under an obligation to use

property only for the benefit of B.
150 JURISPRUDENCE
Write a short note Nature of the right of the trustee and beneficiary in the trust property. -
on: Trusts.
The trustee is destitute of any right of beneficial enjoyment of the trust property.
M.U. May 2015
His ownership, therefore, is a matter of form rather than of substance, and
nominal rather than real. In legal theory, however, he is not a mere agent, but
Write a short note an owner. He is a person to whom the property of someone else is fictitiously
on : Trust and ben- attributed by the law, to the extent that the rights and powers thus vested in a
eficial ownership.
nominal owner are to be used by him only on behalf, and for the benefit, of the
M.U. Nov. 2015
real owner. As between the trustee and the beneficiary, the property belongs to
the latter, and notto the former. But as between the trustee and third persons,
the fiction prevails, and the trustee is deemed to be the legal owner of such
property. The trustee is clothed with the rights of his beneficiary, and is so
enabled to represent him in dealings with the world at large.
'Trust' and 'bailment'

According to Maitland, there are two tests which bring out the distinction
between a trust and a bailment - one afforded by the law of sale and the other
by the criminal law.
1. If a trustee sells trust property in breach of a trust, a bona fide
purchaser for value without notice of the trust takes a good title from
the trustee. But, if a bailee makes an unauthorised sale of the goods,
a bona fide purchaser for value without notice of the bailor's rights
gets no title to the goods, for the bailee from whom he has purchased
was not the owner of the goods, and the common law rule is that a
vendor cannot give a better title than he himself possessed.
2. Secondly, if the bailee converts the goods to his own use, he is guilty
of larceny (i.e., theft), for the goods do not belong to him as owner.
But if the trustee misappropriates the trust property, he was guilty of
no crime at common law, for a man cannot steal what he both owns
and possesses. Now by Statute, however, he is liable criminally, but
still not for larceny.
'Trust' and 'executorship'

The position of an executor resembles that of the trustee, in so far as the
executor (after the debts have been paid off) is the full owner of the property of
the deceased person , but at the same time, he is bound to use his rights in a
particular way, e.g., to convey the surplus of the assets to those entitled to the
deceased's property.
Nevertheless, an executor or administrator, as such, is not a trustee for
the legatee or next-of-kin, though he may, under certain circumstances, become
a trustee for them , and in a given case, it may be hard to decide whether a
man has been merely an executor (or administrator) or has also been a trustee.
The question is of much practical importance because the Statutes of Limitation
draw a distinction between an action by a legatee against an executor and an
OWNERSHIP 151
action by a cestui que trust (beneficiary) against his trustee. While an action by
a legatee against an executor to recover a legacy is barred after a lapse of 12
years, a trustee cannot plead the Statutes of Limitation in defence at all in
certa in cases, namely, (i) where he has been guilty of fraud, and (ii) where the
action is to recover trust property retained by the trustee or converted to his
own use. It is to be noted that if an executor makes himself an express trustee
of legacy within the meaning of the Trust Act, his position will be the same as
that of a trustee.
'Trust' and 'contract'

A trust differs from a contract, in that in the case of a contract, a person
who is not a party to a contract wh ich purports to confer a benefit upon him,
cannot (subject to certain exceptions) enforce the contract; in the case of a
trust, this ru le has no application . The beneficiary has always been the person
to whom Equity has given the remedy for breach of trust, though he is no party
to its creation.
A trust can be distinguished from a contract on the following six
fundamental grounds:
1. Historically, contracts were enforceable in Common Law, while trusts
fell under the exclusive jurisdiction of the Court of Chancery, for Courts
of law refused to recognise them. Again, equity did not, and could
not, enforce the trust as an agreement, but as a matter of confidence.
2. Though the commonest origin of the trust is an agreement between
two persons, a trust may be, and is sometimes, created by a perfectly
unilateral act, as when a man becomes bound by a trust by his own
declaration or conduct, while the beneficiary knows nothing about it.
3. Even when the trust is created by a bilateral act, no formal offer or
acceptance between the parties is necessary, as in a contract. The
rule is that though nobody can be compelled to undertake a trust, the
trustee's acceptance is presumed unless he disclaims, either by
conduct, or by deed, or otherwise.
4. The rule that a stranger to a contract acquires neither rights nor
liabilities under it has no application to trusts. In a trust, the equitable
remedy is given not to the author of the trust as such , but to the
beneficiary (cestui que trust) who is no party to the contract.
5. Again , though equity refuses to enforce an agreement to create a
trust at the instance of a person who has given no consideration Uust
as common law refuses to enforce an agreement without
consideration), yet the consideration required in the two cases is not
the same. Thus, for instance, the issues of a prospective marriage
are treated in equity as within the marriage consideration , although
in the common law sense, they are not parties to the consideration .
152 JURISPRUDENCE
6. While a contract creates a mere right in personam, available against

the promiser, the right of a cestui que trust resembles a right in rem,
inasmuch as it is enforceable against all third parties, except a bona
fide purchaser for value.
'Trust' and 'agency'

Trust resembles an agency in that both a trustee and an agent administer
property on behalf of another, and neither is the beneficial owner of such
property. But there are five essential differences between the two :
1. At law, the trustee is the owner of the property he administers , but
the agent is, in no way, the owner of the property which actually
belongs to the principal. As a result, the agent cannot, outside the
sphere of his authority, pass a legal title to a third person , even ifhe
is a bona fide purchaser for value without notice, to any greater extent
than any other wrong-doer could do. On the other hand , a bona fide
purchaser of the legal estate for value , without notice of the trust
from a trustee, obtains a valid title against the whole world .
2. The trustee, being the legal owner, is personally liable on all contracts
entered into by him in reference to the trust. But if the agent enters
into a contract as agent, the contract is with the principal and the
agent is generally not personally liable.
3. The authority of the agent to deal with the property is purely a matter
of delegation from the person whose agent he is and for whose benefit
he acts. But the authority of the trustee is derived from the trust-deed
or other instrument or transaction giving rise to the trust and the
wishes of the beneficiary may have nothing to do with it.
4. Again, though there is an analogy of the cestui que trust's right to
follow the trust property in the hands of the trustee with the right of
the principal to follow the property in the hands of the agent in case
of its unauthorised use, still the right of the principal is not based , in
any way, upon the existence of the trust relation. In such cases, equity
gives relief only because the law recognises such a right; equity merely
'follows the law'.
5. A trust arises when a person receives or holds property in such
circumstances that, by the rule of equity, he ought to employ it for the
benefit of some person or object other than his own . Agency arises
from an express or implied contract to act for some other person ,
and property may not be involved at all.
The above points of difference may be summarised in a Tabular Form as
under:
OWNERSHIP 153
Trust Agency
1. A bona fide purchaser from a 1. A bona fide purchaser from an

trustee gets a good title. agent acting outside the sphere
of his authority gets no title.
2. An agent is not personally liable, 2. A tru stee is personally liable on
as his contracts are entered into all contracts entered into by him.
on behalf of the principal.
3. A trustee derives his authority 3. The agent derives his authority
from the Trust Deed, and the from the principal.
wishes of the beneficiaries have
nothing to do with it.
4. A beneficiary can follow the trust 4. The principal can also follow the
property in the hands of the property in the hands of his agent,
trustee. but this right is not derived from
any trust relationship.
5. A trust arises when one person 5. Agency arises from a contract and
holds property which he ought to property may not be involved at
employ for the benefit of another all.
person.
'Trust' and 'mortgage'

As regards the distinction between a trust and a mortgage, the following
two points may be noted:
1. Though the re lation of a mortgagor and morgagee is purely
contractual , it has some analogy to the fiduciary relation (i.e., trust
relationship), in so far as the mortgagor has, in equity, a beneficial
interest in the property (viz. , the equity of redemption) though, at law,
the mortgagee has an absolute estate after the time fixed for
redemption has passed. The mortgagee, however, is not a trustee
for the mortgagor. He does not hold the legal estate for the benefit of
the mortgagor, as a trustee does for the cestui que trust. Further, the
morgagee has, not only the legal interest in the property mortgaged,
but also a beneficial interest in it adverse to the mortgagor's, which
he can enforce by a su it against the mortgagor.
2. As Ashburner points out, the morgagee becomes a trustee only after
he has been paid. In equity, his right in the property does not go
beyond what is necessary to secure repayment of the money due to
him. Thus, (a) if the mortgagor (or some person entitled to redeem)
has paid the mortgagee his principal, interest and costs, the
mortgagee (if he still holds the property) becomes a trustee of the
mortgaged property for the person making the payment; and (b) if he
154 JURISPRUDENCE
has sold the mortgaged property and reimbursed himself his money
out of the proceeds of sale, he becomes a trustee of the surplus
proceeds (if any) for the person entitled to the equity of redemption .
(In Re Bell, (1886) 34 Ch . D. 462)
3. 'Vested' and 'Contingent' ownership

What Is contingent Ownership is either vested or contingent. It is vested when the owner's
ownership? title is already perfect; it is contingent when his title is imperfect, but is capable
(2 marks)
of being perfect on the fulfilment of some condition . In the former case, he
M.U . Nov. 2014
May 2015
owns the right absolutely; in the latter, he owns it only conditionally.
Thus, if A gives a gift of his car to his son , B, the latter will have a vested
interest in the car. However, if A gifts the car to B, provided he marries a particular
girl , X, B's interest is merely contingent; his interest is conditional on an event
which may or may not happen. If B marries X, his interest becomes vested.
Vested interest
An interest is said to be vested , when it is not subject to any condition
precedent, or when it is to take effect on the happening of an event which is
certain. A person takes a vested interest in property when he acquires a
proprietary right in it, but the right of enjoyment is only deferred till a future
event happens, which event is certain to happen. Thus, if a Hindu widow adopts
a son , but there is an agreement postponing the son's estate during the life-
time of the widow, the interest created in favour of the adopted son is a vested
right; it does not depend upon any condition precedent (e.g., the performance
of an act); it is to take effect on the happening of an event which is certain (viz.,
the widow's death); the adopted son has a present proprietary right in the
estate, the right of possession and enjoyment being deferred; therefore, he
can transfer the property even during the widow's life-time.
Similarly, where under a deed of gift, a donee is not to take possession of
the gifted property until after the death of the donor and his wife, the donee is
given a vested interest, subject only to the life-interest of the donor and his
wife. In such a case, the donee can transfer the property during the life-time of
the donor or of his wife.
So also, where under a compromise decree, it was settled that A was to
hold an estate till his death, after which it was to go to 8 , it was held that the
interest acquired by B under a decree was a vested interest, because the
interest which was created in favour of B was bound to take effect from the
death of A, which was a certain event. ( Sundar Bibi v. Rajendra, 47 All. 496)
Similarly, a transfer of a property in favour of a person simply confers a
vested interest, with an immediate right to the possession and enjoyment of
the property. And such a vested interest is not defeated by the death of the
transferee even before getting possession of the property, because, in that
case, would devolve on his heirs as a vested interest is property which is
divisible, transferable and heritable. (Elokasee v. Darponarain, 5 Cal. 59)
OWNERSHIP 155
It will be seen that in a vested interest, the interest is complete, but on the
happening of a specified event, it may be divested. The true criterion is the
certainty or uncertainty of the event on the happening of which the gift is to
take effect. Where the event is certain, though future, and the payment or
enjoyment is postponed by reason of the circumstances connected with the
estate or for the convenience of the estate, as for instance, where there are
prior life or other estates or interests, the ulterior interest to take effect after
them will be vested. Thus, under a gift by a testator to A at the demise of the
testator's wife, A's interest vests at the testator's death.
It may also be noted that, where, on a transfer of property, an interest
therein is created for the benefit of an unborn person, he acquires upon his
birth, a vested interest in such property.
Contingent interest
Where, on a transfer of property, an interest therein is created in favour
of a person to take effect only on the happening or not happening, of a specified
uncertain event (i.e., an event which may or may not happen) - such a person
acquires thereby a contingent interest in the property.
Such interest becomes a vested interest on the happening of the event,
orwhen the happening of the event becomes impossible, as the case may be.
A contingent interest is one in which neither any proprietary interest nor a
right of enjoyment is given at present, but both depend upon uncertain events.
Thus, where an estate is bequeathed to A until he shall marry, and after
that event, to B, B's interest in the bequest is contingent, because it depends
upon a condition precedent viz., the marriage of A, an event which may or may
not happen. 8 has, at present, no proprietary interest in the estate, and he
cannot alienate it. But as soon as A marries, the contingent interest of B
becomes a vested interest, because of the happening of the event (A's marriage)
on which it was so long contingent. In a contingent interest, the transfer is not
complete, until the specified event happens or does not happen.
If A declares in his deed of gift that Bis to get the property at his marriage,
B 's marriage is a future event which may or may not happen; such an interest,
the vesting of which depends on the happening or non-happening of a contingent
future event, is a contingent interest. A contingent interest becomes vested
when the condition that gives it the contingent character is fulfilled, or in other
words, when the contingency happens or its happening becomes impossible,
as the case may be.
Its characteristics- The following are three main features of a contingent
interest:
1. A contingent interest is solely dependent upon the fulfilment of a
condition, so that in case of non-fulfilment of the condition, the interest
may fall through.
156 JURISPRUDENCE
2. If the transferee dies before obtaining possession , the contingent

interest fails , and the property then reverts to the transferor.
3. It is neither transferable nor heritable.
Difference between vested and contingent interest
There are five points of distinction between a vested and a contingent
interest, which can be summarised in a tabular form thus:
Vested Interest Contingent Interest
1. Definition: Where, on a transfer of property, an interest therein is created
in favour a person -
(a) without specifying the time when (a) to take effect only on the
it is to take effect; or happening of a specified
uncertain event; or
(b) specifying that it is to take effect (b) if a specified uncerta in event
forthwith ; or shall not happen, - such person
(c) on the happening of an event thereby acquires a contingent
which must happen , - such interest in the property.
interest is vested.
2. Fulfilment of condition
A vested interest does not A contingent interest is solely
depend upon the fulfilment of any dependent upon the fulfilment of
condition; it creates an immediate the cond ition, so that if the
right, though the enjoyment may condition is not fulfilled , the
be postponed to a future date. interest may fall through.
3. Effect of transferee 's death
A vested interest is not defeated A contingent interest cannot take
by the death of transferee before effect in the event of transferee's
he obtains possession. death before the fulfilment of the
condition.
4. Whether transferable and heritable
(a) A vested interest is both (a) A contingent interest is neither
transferable as well as heritable. transferable nor heritable.
(b) If the transferee of a vested (b) If the transferee of a contingent
interest dies before actua l interest dies before actual
enjoyment, it passes on to his enjoyment, the interest does not
heirs. pass on to his heirs, because
such an interest is inalienable
and incapable of descending to
his heirs.
Contd.. .
OWNERSHIP 157
5. Present right of enjoyment

In a vested interest, there is a In a contingent interest, there is
present immediate right, even no present right; there is a mere
when its enjoyment is postponed . promise for giving such right, and
such promise may be nullified by
the failure of the condition.
Condition precedent and condition subsequent

A condition is a provision which makes the existence of a right dependent
on the happening or a non-happening of a thing. Conditions are of three kinds,
viz., (i) conditions precedent, (ii) conditions subsequent, and (iii) conditional
limitations.
A condition precedent is one which delays the vesting of a right until the
happening of an event. Thus, a gift of a house may be made to A, provided he
passes the law examination. Till A passes the exam, the gift does not take
effect.
A condition subsequent, also called a condition of defeasance, is one
which destroys or divests the right upon the happening of an event. Thus, a gift
of a house may be made to A, with a condition that if he divorces his wife, the
house is to revert to the donor. In such a case, the gift of the house takes effect
immediately, and if subsequently A divorces his wife, the house will revert to
the owner.
A conditional limitation is a combination of a condition precedent and a
condition subsequent; it is one containing a condition which (i) divests an estate
that has vested, and (ii) vests it in another person. As regards the prior Interest,
it is a condition subsequent; but as regards the ulterior interest, it is a condition
precedent. Thus, a gift of a house may be made to A, with a condition that if he
divorces his wife, the house is to go to B. It will be seen that as far as A is
concerned, this is a condition subsequent, i.e., he gets the house immediately,
subject to be divested if he divorces his wife. However, as far as Bis concerned,
this is condition precedent, because until A divorces his wife, the house will not
vest in him .
This can also be expressed as under:
TRANSFER
Absolute Conditional
Precedent Subsequent
158 JURISPRUDENCE
As seen above, when an interest is created on a transfer of property and

is made to depend on a condition, the transfer is said to be a conditional transfer.
When the interest is made to accrue on the fulfilment of the contingency, the
condition is said to be a condition precedent; but if it is provided that the interest
already created is to cease to exist or is to pass on to another on the happening
of the condition superadded, it is called a condition subsequent.
So, there are two kinds of conditional transfers: (1) In one, the condition
on which the transfer depends is a condition precedent; (2) In the other, it is
condition subsequent. Thus, to take further examples, if a gift is made to A on
condition she marries B, this is a condition precedent, as the condition has to
be fulfilled before the transfer can take effect. Again, a property is transferred
to A, but if A digs any excavation so as to diminish the value of the property or
to affect the buildings adjoining the property, he will forfeit his interest. This is
a condition subsequent as the transfer takes effect before A can be divested of
his interest because of the breach of the condition .
Characteristics of a condition precedent
These are four, namely:
1. A condition precedent is one which must happen before the estate
can vest.
2. Where the condition is precedent, the estate is not in the grantee
until the condition is performed.
3. In the case of a condition precedent being or becoming impossible
to be performed or being immoral or opposed to public policy, the
estate will not vest, and the transfer will be void.
4. A condition precedent is deemed to be fulfilled if it is substantially
complied with .
Characteristics of a condition subsequent
There are also four, namely:
1. A condition subsequent is one by the happening of which an existing
estate will be defeated.
2. Where the condition is subsequent, the estate immediately vests in
the grantee, and remains in him till the condition is broken.
3. In the case of an impossible, unlawful or immoral condition
subsequent, the estate becomes absolute, and the condition is to be
ignored. Thus , where a gift was made with a condition superadded
that the donee should marry a particular person on or before he
attained the age of 21, and the person named died before she attained
that age , it was held that the fulfilment of the condition subsequent
having become impossible, the estate became absolute. A gift to
which an immoral condition is subsequently attached remains a good
gift, though the condition is void.
4. A condition subsequent has to be strictly complied with.
OWNERSHIP 159
DIFFERENCE BETWEEN
Condition precednet Conditon subsequent
1. As to vesting of estate -
(a) Precedes the vesting, i.e., the (a) Follows the vesting, i.e. , the
condition comes before the interest is created before the
creation of the interest. condition can operate and divest
it.
(b) Vesting of estate is postponed till (b) Vesting is complete and not
the performance of the condition. postponed.
(c) Interest once vested can never (c) Interest, even though vested , is
be divested by reason of non- liable to be divested by reason
fulfilment of the condition. of the nonfulfilment of the
condition .
(d) Estate is not in the grantee until (d) Estate immediately vests in the
the condition is performed . grantee and remains in him till the
condition is broken .
.2. Where the condition is (i) impossible of performance, or (ii) immoral, or
(iii) opposed to public policy -
transfer will be void. transfer becomes absolute and
the condition will be ignored.
3. Validity of condition
Must be valid in law. Need not be so, as an invalid or
illegal condition subsequent will
be ignored.
4. Applicability of the doctrine of cy-pres-
It is fulfilled if it is substantially Must be strictly fulfilled (i.e., the
complied with (i.e., the doctrine cy-pres doctrine does not apply).
of cy-pres applies).
Legal and equitable ownership

Legal ownership is that which has its origin in the rules of common law,
while equitable ownership is that which proceeds from rules of equity.
Thus, that ownership which is recognised by the law is legal ownership,
whereas that ownership recognised by equity is called equitable ownership. Jn
many cases, it is seen that equity recognises ownership where law does not,
owing to some legal defect in such ownership . Thus, A, the owner of shares in
a company, transfers these shares to B, who pays him the amount of the
consideration. However, a proper transfer deed, as required by the rules of the
company, is not executed, as a result of which the company refuses to recognise
Bas the holder of those shares. In such a case, the law may give no relief to B,
160 JURISPRUDENCE
as the legal requirements of transfer have not been complied with. However,
equity may step in to provide that though A is still the legal owner of the shares,
he holds them as a trustee for 8 , and must give B all the dividends and the
other amounts realised on account of the shares .
It is also to be remem bered that whereas legal rights may be enforced in
rem, equitable rights are enforced in personam, because equity acts in
person am .
The distinction between legal and equitable estates has little importance
in Indian Law, where such distinction is not recognised . Thus, under the Indian
Trust Act, the trustee is the legal owner of the trust property and the beneficiary
has no direct interest in the trust property itself. Rather, he has a right against
the trustees to compel them to carry out the trust contained in the relevant
Trust Deed.
5. Sole ownership and co-ownership

Ordinarily, a right is owned by one person only at a time; but duplicate
ownership is also possible. Two or more persons may have the same right
vested in them. This may happen in several ways, but the simplest case is that
of coownership. The right is an undivided unity. Co-ownership may be dissolved
into sole ownership of parts (of the whole) by the process known as partition.
Sole ownership means an exclusive ownership of an individual as against
the whole world . The right arises in case of a right of ownership. But in case of
the ownership of a right, sole ownership may be the ownersh ip of a bare right
or a limited right, i.e., a limited right of an encumbrance against the right of
someone else. In sole or exclusive ownership, one person alone is the owner,
but in case of co-ownership, or concurrent ownership, two or more persons
have interest in the same property or thing . Co-ownership is also called duplicate
ownership . In case of co-ownership, there is a common subject-matter, a
common right and two or more persons sharing the same right.
A very common example of co-owners is partners, who are the co-owners
of the goods that constitute their stock in-trade, of the lease of the premises
where they conduct the ir business, and of the debts wh ich their customers
owe to them . It would not be correct to say that the property owned by them is
divided between them , each of them owning a separate part of such property.
Thus, if two partners have ~ 10,000 in the Bank Account of thei r partnership , it
means that there is one debt of t 10,000 owing by the Bank to both of them ,
and not two separate debts of~ 5,000 (or in any other proportion) due to each
of them individually.
6. Co-ownership and joint ownership

Co-ownership may assume different forms . Its two chief kinds in English
law are distinguished as ownership in common and joint ownership. The most
important difference between these relates to the effect of death of one of the
OWNERSHIP 161
co-owners. In ownership in common, the right of a dead owner descends to

his successors like any other inheritable right. But on the death of one of two
joint owners, his ownership dies with him, and the survivor becomes the sole
owner by virtue of his right of survivorship or jus accrescendi .
As seen above, there are thus two principal kinds of co-ownership, viz.,
(1) ownership in common , and (2) joint ownership. In the first type, on the
death of co-owner, his heirs get his share in the co-ownership . But in the case
of a joint ownership, the heirs of a deceased joint owner can have no share
whatsoever in the right of the deceased in the joint ownership, because with
his death, his ownership expires , and the surviving joint owner or owners get
all that the deceased had in that joint ownership. The right of the survivor or
survivors to take away the interests of the deceased joint owner is called jus
accrescendi, i.e., the right of survivorship.
Thus, if property belongs to A and Bin equal shares, and if it is a case of
ownership in common , on the death of A , half the property will pass to the heirs
of A, the other half remaining with 8. However, if in the same case, A and B
were joint owners , B would be entitled to the whole property, and the heirs of A
would get nothing.
Another point of distinction between owners in common and joint owners
is that joint owners have a possession per mie et per tout, i.e ., per parcel and
per whole. It follows therefore, that joint owners take the entire property as
also by moieties. In the case of an ownership in common, the co-owners
possess the property per mie but not per tout, i.e., per parcel and not per
whole . Each owner in common is interested in a part or in a share, but not in
the whole.
Duplicate ownership
The term "duplicate ownership" is sometimes used in cases where two
or more persons have an interest in the same property or thing. The best
example is that of a trust, where the legal owner (i.e., the trustee) and the
beneficial owner (i.e. , the beneficiary) both have an interest in the same subject-
matter (i.e., the trust property). (Trusts have been discussed earlier in this
Chapter.)
Other examples of duplicate ownership are co-ownership and a mortgage.
When a mortgage or other encumbrance is created, both the owner (i.e., the
mortgagor) and the person in whose favour such interest is created (i.e ., the
mortgagee) have certain interests in the same property. (All this has been
discussed earlier.)
Right of ownership and right of possession

A right of ownership is a right of dominion over the property, so as to
include the available rights attached to ownership. The right to possess the
property in a de jure capacity, the right to use the property, to alienate, or even
162 JURISPRUDENCE
to destroy such property, are all rights of ownership which may not be present
at the same time. But a right to possession may give the right to possess the
property, but not to waste or destroy or alienate the same . ln case of the right
to ownersh ip, the re lation of the owner to the property is de Jure relationship ,
but in the case of right of possession, the relation of the possessor to the
property possessed by him is only de facto possession. If A is the owner of a
house, his relation to the property is de Jure relationship. But when he lets it out
to B, the latter has de facto possession of that house.
Possession is the external rea/isailon of ownership, and it is only by
possession that a person can establish his right over the property. While
ownership is a right, the right of ownership is a mere fact of possession.
Possession is de facto manifestation or enjoyment of the property. Ownership
is the de Jure right itself. In the words of Salmond, "A thing is owned by me
when my claim to it is maintained by the will of the States as expressed in the
law; it is possessed by me, when my claim to it is maintained by my own self-
assertive will. Ownership is the guarantee of the law, possession the guarantee
of the facts. Possession is the de facto counterpart of ownership. " According to
Dr. Sethna, "Just as the soul is to the body, ownership is to possession ; or just
as the body is requisite for the manifestation of the soul, possession, that is,
something external or formal , is useful for the manifestation of the right of
ownership."
0
Chapter 12
POSSESSION
DEFINITION
"Few relationships are as vital to man as that of possession, and we may
expect any system of law, however primitive, to provide rules for its protection .
Human life and human society, as we know them, would be impossible without Write a short note
the use and consumption of material things. We need food to eat, clothes to on : Possession .
wear and tools to use , in order to win a living from our environment. But to eat M.U. Apr. 2012
food , we must first get hold of it, to wear clothes, we must have them, and to
use tools, we must possess them. Possession of material things then is essential
to life ; it is the most basic relationship between men and things".- Salmond.
However, mere acquisition of possession would not be enough . Society Define " posses-
must also provide a climate of respect for individual possession . Thus, if a sion."
man could never be sure that the food in his plate, the coat on his back and the (2 marks)
M.U. Nov. 2012
tool in his hand will not be snatched away by his neighbour, life in such a
society would become difficult. It is for this reason that law must provide for
safeguarding possession .
"But the concept of possession is as difficult to define as it is essential to
protect". (Salmond) It should, therefore, be noted , at the very outset, that the
word possession has many meanings , depending upon the context in which it
is used , and that it would, therefore, be futile to search for the proper meaning.
Thus, A might possess a car, B might possess a right to sue for that car -
whilst C might just possess an excellent sense of humour. However, the lawyer
is concerned with the meaning of the term as used in legal parlance. In this
sense, the possessing of a material object can be said to be the continuing
exercise of a claim to the exclusive use of such object.
Paton rightly points out that, in English law, one can clearly see a struggle
between convenience and theory. Theory seeks to discover an underlying
thread , one unitary concept in the interests of consistency and harmony. On
the other hand , judges feel reluctant to lay down any general principles and
seek to dispose of particular cases so as to render justice in every case . One
thing, the learned author says, is clear, and it is that "English law has never
worked out a compietely logical and exhaustive definition of possession".
Possession : Its ordinary and legal meanings

As with the most concepts used by the layman and also by a lawyer, the
concept of possession has both an "ordinary" and a "legal" meaning. And the
two may differ considerably. Law often picks up a word from the lay dictionary,
but uses it in a extended or restricted sense , for legal purposes. Thus, there
may be some cases of actual possession , which the law prefers not to
recognise , and therefore, not to protect. Thus , a borrower or bailee of goods
164 JURISPRUDENCE
Critically examine would have actual possession , but Roman Law refused to recognize such
the concept of
possession . Ex-
"possession", saying that he had mere "custody". He had possession in fact,
plain the different but not possession in law.
kinds of posses- Again , if a person is in possession of an envelope, a layman would say
sion.
M.U . Apr. 2014
that he is also in possession of its contents. However, several English cases
May 2015 have held to the contrary in case of larceny or theft. It is held that such a
Dec.2018 person would not be said to be in possession of its contents (of which he is
Nov. 2019 unaware), until he discovers the contents and realises what it is.
Or again , if a person has car-keys in his hands, a layman would say that
he has possession of the keys. However, a lawyer would say that he has
constructive possession of the car. Or take a situation like this : If A leaves
behind his wallet on the floor of B's shop and 8 has no knowledge thereof, who
has its possession , A or B? The layman may have no answer in such a situation,
but the lawyer must have an answer, as the point would have to be decided in
a suit between A and B.
ITS ESSENTIALS
Explain the Possession involves two distinct elements, one of which is mental or
elements of subjective, the other, physical or objective. These were distinguished by the
possession .
Roman lawyers as animus and corpus. The subjective element is more
M.U. Nov. 2011
particularly called animus possidendi or animus domini. "Neither of these",
observes Salmond, "is sufficient by itself. Possession begins only with their
union, and lasts only until one or the other of them disappears".
1. Animus possidendi
Animus possidendi or the subjective element is the intent to appropriate
to oneself, the exclusive use of the thing possessed. It is an exclusive claim to
a material object. It is the intention of using the thing oneself and of excluding
the interference of other persons.
MENTAL ATTITUDE OF THE POSSESSOR

What is "animus To constitute the animus possidendi, there must be an intention to possess,
possidendi" ? and the nature of the intention is governed by the following rules:
(2 marks)
M.U. Apr. 2014 (a) The animus need not necessarily be in the nature of a claim of right.
May 2019 It may sometimes be consciously wrongful. Even a thief has
possession which is no less real than that of a true owner.
(b) Th e claim of the possessor must be one of exclusive possession,
involving an intent to exclude other persons from the use of the thing
possessed.
(c) The exclusion need not be absolute.
(d) The animus possidendi need not be a claim on ones own behalf,· one
may possess a thing either on his own account or on account of
another.
POSSESSION 16S
(e) The animus possidendi need not be specific; it may be general. X

may intend to possess all the books on his book-shelf, though he
might have forgotten the existence of some of the books on the shelf.
This general intention to possess all the books in the bookshelf is
sufficient animus for Xpossessing each and every book on the shelf.
2. Corpus
To constitute possession, the animus domini is not in itself sufficient; it
must be embodied in a corpus. Corpus is the effective realisation in fact of the
claim of the possessor. Effective realisation means that the fact must amount
to the actual present exclusion of all alien interference with the thing possessed,
together with a reasonable and sufficient security of the exclusive use of it in
the future.
Corpus possessionis
Write a short note
The corpus of possession can be discussed: on : Corpus posse-
(i) in relation of the possessor to other persons; and ssion is
M.U. Nov. 2017
(ii) in relation of the possessor to the thing possessed.
Re/at;on of the possessor to other persons
So far as others are concerned, a person is in possession of a thing when
he can be under a reasonable expectation that he will not be interfered with in
the use of the thing. He must have some sort of security. "A thing is possessed,
when it stands with respect to other persons in such a possession with the
possessor, having a reasonable confidence that his claim to it will be respected,
is content to leave where it is". (Salmond)
Such security may be derived from any of the following sources:
(i) By the physical power of the possession .
(ii) By the personal presence of the possessor.
(iii) By a person being able to hide a thing and keeping it in secrecy, so
that he avoids the interference of others.
(iv) A person may also enjoy such security by the fact that the members
of the society have developed a respect for rightful claims.
(v) A person might enjoy security and protection by the possession of
other things. For example, if one possesses the key of a house, by
virtue of that possession , protection is afforded to the house and
also to other things contained in the house.
Relation of the possessor to the thing possessed

The second element for the purpose of possession is that the relation
between the possessor and the thing possessed is such as to admit of his
making use of the thing as he likes, consistent with the nature of the thing.
166 JURISPRUDENCE
There must be no barrier between him and it, inconsistent with the nature of
the claim he makes to it.
Thus, in one case, a parcel of bank-notes was accidentally dropped on
the floor of A's shop, where they were found by B, a customer. Can A claim the
notes? Here, A had no possession in law of those bank-notes. Possession
requires the concurrence of two elements, animus or the intention of the
possessor with respect to the thing possessed, and corpus or the external
facts in which this intention is realised , embodied or fulfilled. Neither of these
is sufficient by itself. A mere intention to appropriate a thing will not amount to
the possession of that thing. Possession begins only with the union of these
two elements. In this case, A did not have the necessary animus, for he did not
know of the existence of the parcel at all, although he might have had the
corpus , it having been physically present in his shop. [ See Bridges v.
Hawkesworth, 21 L.J .Q.B. 75. ]
LEGAL CONSEQUENCES OF POSSESSION

Write a short note The following are the legal consequences which flow from the acquisition
on : Legal conse-
and loss of possession :
quences of pos-
session . 1. Possession is prima facie evidence of title of ownership. (Possession is
M.U. Nov. 2014 often said to be "nine points of lawn.)
May 2019
Nov. 2019
2. Long adverse possession confers title even to property which originally
belonged to another.
3. Transfer of possession is one of the chief modes of transferring ownership.
What is res
nulllus? (2 marks)
4. The first possession of a thing which as yet belongs to no one (res nul/ius)
M.U. Nov. 2014 is a good title of right.
5. Even in respect of property already owned , the wrongful possession of
such property is a good title for the wrong-doer, as against all the world-
except the true owner.
6. Possession is of such efficacy that a possessor may, in some cases,
confer a good title on another, even though he has none himself. (Such
cases constitute the exceptions to the rule contained in the maxim , nemo
datquod non habet, i.e., he who has not can give not.)
Write a short note KINDS OF POSSESSION

on : K.inds of
possession.
Possession can be classified under the following four heads:
M.U. Apr. 2011 1. Corporeal and incorporeal
What is corporeal Corporeal possession is the possession of a material object. Incorporeal
possession? possession is the possession of anything other than a material object. In the
Examine different case of corporeal possession , the actual use or corpus possessionis is not
kinds of
ownership. essential. In the case of incorporeal possession, actual continuous use and
M.U. May 2019 enjoyment Is essential, it being the only possible mode of exercise .
POSSESSION 167
According to Savigny, the essence of possession is to be found in the

physical power of exclusion. The corpus possessionis required at the
commencement is the present or actual physical power of using the thing
oneself, and of excluding all other persons from the use of it. Thus, according
to Savigny, to acquire possession of a horse, one must take him by the bridle
or ride upon him or have him in one's immediate presence, so that one can
prevent all other persons from interfering; but no such immediate physical
relation is necessary to retain the possession so acquired.
Salmond criticises the above view on the following two grounds:
(a) Firstly, he says that, even at the commencement, a possessor need
have no physical power of excluding other persons. The true test,
according to Salmond, is not the physical power of preventing
interference, but the improbability of any interference, from whatever
source this improbability arises.
(b) Secondly, the theory of Savigny is inapplicable to the possession of
incorporeal things. Here, there is neither exclusion, nor even the power
of exclusion.
The distinction between corporeal and incorporeal possession has often
been criticised on the ground that it is really doubtful whether there can ever
be such a thing as possession of incorporeal objects. How can one have an
actual or physical hold over a thing in the case of incorporeal objects? It is,
therefore, said that an incorporeal right cannot be possessed, though it can be
owned, and that what goes by the name of incorporeal possession is actually
quasi-possession.
2. Mediate and immediate

Again, possession , may be mediate or immediate . By immediate What do you un-
derstand by imme-
possession, is meant the direct or the primary possession by a person over a diate possession ?
particular object which he acquires or gets directly or personally. It implies (2 marks)
necessarily a direct and actual hold over the corpus of the thing. It also implies M.U. Nov. 2015
that there is no other intermediary to hold the thing. The mere fact that X has a
car and that he keeps it in his possession is sufficient to constitute his immediate
possession in this sense. But whenever some property or thing is found in the Define mediate
possession.
possession of one person on behalf of another, such possession is called (2 marks)
immediate possession, as for instance , the possession of a bailee or a M. U. May 2018
custodian; the person on whose behalf the thing is possessed is called a mediate
possessor. So, if X leaves his car with the driver, the driver's possession will
be immediate possession , whereas that of Xwould be mediate.
Kinds of mediate possession

Mediate possession is of three kinds: Write a short note
(a) The first is that which one acquires through an agent or servant, that on : Kinds of me-
diate possession.
is to say, through some one who holds solely on one's account, and
M.U. Nov. 2015
claims no interest of his own .
168 JURISPRUDENCE
(b) The second kind of mediate possession is that in which the direct
possession is with a person who holds the thing possessed , both on
his own account, and also on someone else's account, but who also
recognises the owner's superior right to obtain from him the direct
possession whenever the latter chooses to demand it. This is the
case of a borrower, hirer or tenant-at-will.
(c) The third form of mediate possession is the case in which the
immediate possession is with a person who claims it for him until
some time has elapsed or some condition has been fufilled. Securities
are instances of this type of mediate possession.
3. Concurrent
As a general proposition of civil law, it is true to say that two persons
cannot be in possession of the same thing at the same time, - for two adverse
claims of exclusive use cannot both be effectually realised at the same time.
But claims which are not adverse , and which are not, therefore, naturally
destructive, admit of concurrent or duplicate realisation. Hence, there are
several cases of duplicate possession :
1. Mediate and immediate possession co-exist, for there are two persons
who possess the same article, one of them being in the immediate
possession and the other mediate, i.e., not a present or immediate
physical hold over the thing , for instance, a servant or an agent may
possess a thing on behalf of the master.
2. Two or more persons may possess the same thing in common, just
as they may own it in common.
3. Corporea and incorporeal possession may co-exist in respect of the
same material object, just as corporeal and incorporeal ownership
may. Thus, A may possess a piece of land, while B may have a right
to pass over that same land. A's claim of exclusive use is not absolute,
but general.
4. Possession in fact and in law
What is de jure Possession may be factual (de facto) or legal (de jure) . If X owns a house ,
possession?
he has de jure possession, because he has a legal right to possess the house.
M.U. Apr. 2012
Further, if he lets it out to Y, his possession is also de jure, as the latter is also
Explain posses- legally entitled to use the house. However, if a trespasser goes and occupies
sion in law and X 's house, his possession will not be legal possession, although it will be factual
possession in fact. (de facto) possession .
M.U. Nov. 2009
Possession in fact, possessio naturalis, and possession in law, possessio
Write a short note civilis, are not always identical. There are three possible cases in this respect:
on : De facto and (a) Possession may, and usually does, exist, both in fact and in law.
de jure posses-
sion.
Thus, when a man has a watch on his wrist, his possession of the
M.U. Apr. 2006 watch is both in fact and in law.
POSSESSION 169
(b) Possession may exist in fact, but not in Jaw. Thus, when a man goes
to a shop to buy a watch, whilst he is examining a watch in his hand,
or trying it out on his wrist, he has possession thereof in fact, but not
in law. Likewise , a diner at a restaurant has possession in fact of the
plates, cups, cutlery, etc. (whilst he is dining ); however, he does not
have possession thereof in law. However, a servant's possession of
his master's property is, for some purposes, not recognised as such
by the law, and he is then said to have detention or custody, rather
than possession .
(c) Possession may exist in law, and not in fact. This is what English
jurists, including Salmond, call constructive possession. Thus, Xmay
keep his jewellery in a locked box and leave the box with Y, retaining
its key with himself. In such a case , X is said to have constructive
possession of the jewellery.
Possession in fact
A legal system may not make any distinction between possession in /aw Write a short note
and possession in fact. In such a case, possession would mean actual control on : Possession in
law.
over a thing . But such identification is not always practicable. The concept of M.U. Apr. 2009
possession in law is more refined than the concept of possession in fact.
Possession in fact would mean actual control. Actual control is the
relationship between a person and a thing . As seen above , actual control would
be the result of:
(a) The relation of the possessor to other person ;
(b) The relation of the possessor to the thing possessed .
Possession In law
Notwithstanding the logical and clear analysis of Salmond, the Editor of
Salmond's Jurisprudence is of the view that a terse definition of possession to
apply to all instances of legal possession is impossible. According to him, the
basic concept is that of factual possession , (i. e. , possession in fact), but this
core of the defi nition is refined by extensions or restrictions in order to include
the right to possession in law.
Natu rally, the definition of possession has to be in relation to the purpose
for which it is defined. The defin ition of possession may be relevant in the law
of larceny (theft), law of bailment, law of possessory remed ies, etc. Therefore,
a consistent theory of possession is not possible. One can only conclude that
possession in fact may be absolute, but possession in law is relative.
5. Adverse possession
Adverse possession is where one person in possession claims exclusive
right to the land of another who is not in possession. Thus, if Xis openly in
possession of Y's land for an unbroken period of twelve years or more, he can
170 JURISPRUDENCE
claim a title to the land by adverse possession. Y's legal right of ownership to
the land is destroyed by X's adverse possession.
The above is also an illustration of the maxim "Possession is nine points
of law". Here, X 's adverse possession for twelve years gave him ownership,
being a recognised evidence of X's right over the property.
MODES OF ACQUIRING POSSESSION

Write a short note There are two modes of acquiring possession, namely, taking and delivery.
on : Modes of
acquisition of 1. Taking
possession.
M.U. Nov. 2016 Taking is the acquisition of possession without the consent of the previous
possessor. Such taking may be either rightful or wrongful.
2. Delivery
Delivery is the acquisition of possession with the consent and cooperation
of the previous possessor. It may be actual or constructive.
(a) Actual delivery is the transfer of immediate possession. It is of two
kinds, according as the mediate possession is or is not retained by
the transferor.
(b) Constructive delivery is that which is not actual. It is of three kinds.
The first consists in the surrender of the mediate possession of a
thing to him who is already in immediate possession of it. Thus, a
friend, who has borrowed a book from A has only the immediate
possession of such book, the mediate possession being with A. If
What are the varl•
ous modes of later on, A wants to present that book to him, A need not first take
acquiring posses- back the book from him and then give him full possession by actual
sion? delivery. A can effectually transfer the property in the book by merely
M.U. Apr. 2008
surrendering to him by A's mediate possession, i.e., by asking him,
while it is still retained by him, to keep it for himself. This is known as
traditio brevi manu.
The second consists of the transfer of mediate possession, while the
immediate possession remains in the transferor.
The third is known as attornment. This is the transfer of mediate
possession, while the immediate possession remains outstanding in some third
person.
'Possession' and 'Ownership' distinguished

Distinguish be- "Possession", says lhering, "is the objective realisation of ownership". It
tween possession is in fact what ownership is in right. Possession, whether of a thing, an interest,
and ownership.
M.U. Apr. 2011 or a right, is the de facto exercise of a claim, whereas ownership is the de Jure
Apr. 2014 recognition of such a claim. Ownership is the guarantee of the law, possession
is the guarantee of the fact. Possession, therefore, is the de facto counterpart
of ownership. It is the external form in which rightful claims normally manifest
themselves.
POSSESSION 171
By ownership in law, is meant the right of an individual or a body corporate

or incorporate to possess a thing to the exclusive use of it, to alienate it, and
even to destroy it in such a manner that he does not disturb the rights of other
people. Ownership, in the strict sense of the term, may be defined as a right to
the enjoyment of the uses of the subject-matter, with a right to deal with the
same in the manner stated above.
It is not necessary that the owner of the corpus should enjoy all the rights
or uses at the same time. If A is the owner of a motor-car, he can either use it
or he can lock it up in the garage, or he may use it every day or sparingly or he
may exclude strangers or outsiders from using it; he can gift it away to any
one, or even lawfully destroy it, if he so desires. In short, he has exclusive
dominion over his motor-car. Such a right is against the whole world and nobody
can disturb him in the peaceful enjoyment of the thing owned by him.
Similarly, in case of incorporeal rights , such as a copy-right, trade-mark
or patent, one is fully entitled to the use of all these incorporeal rights to the
exclusion of all others. One's right to the ownership or anything that one
possesses means the duty of all others to abstain from either trespassing or
committing waste or mischief, in such a manner as to disturb him in the
enjoyment of his right of ownership.
Ownership, in its wider sense, has been defined by Austin as a right
"indefinite in point of user, unrestricted in point of disposition and unlimited in
point of duration ". According to him, the right of alienation of property is a
necessary incident to the right of ownership, but it must be noted that today,
there are many restrictions with regard to the alienation of property.
According to Pollock, "Ownership may be described as the entirety of the
powers of use and disposal allowed by law. The owner of a thing is not
necessarily the person who, at any given time , has the whole power or use
and disposal ; very often , there is no such person. We must look for the person
having the residue of all such power, when we have accounted for every
detached and limited portion of it; and he will be the owner, even if the Immediate
power or control and user is elsewhere". In its widest sense, Salmond describes
ownership as "the relation between a person and any right that is vested in
him".
Possession is the external relation of ownership, and to a very great extent,
is a valuable piece of evidence to show the existence of ownership. Possession
may be described as the right of ownership, that is, as something factual.
Possession , therefore, is the de facto manifestation or enjoyment of the right
of ownership. Ownership is the de jure right, of which possession is the de
facto manifestation. According to Salmond, "A thing is owned by me when my
claim to it is maintained by the will of the State as expressed in the law; it is
possessed by me, when my claim to it is maintained by my own self-assertive
will. Ownership is the guarantee of the law; possession is the guarantee of the
facts. Possession is the de facto counterpart of ownership".
172 JURISPRUDENCE
POSSESSORY REMEDIES
Define posses• Possessory remedies are those legal remedies which exist for the
slon. Why does the
protection of possession even against ownership, whereas proprietary remedies
law appoint pos-
sessory rem- are those which are available for the protection of ownership itself.
edies? In many legal systems, possession is a provisional or temporary title,
M.U. Apr. 2010
even against the true owner himself. A wrongful possessor, who is deprived of
Nov. 2011
his possession, can recover it from any person whatever, simply on the ground
Why are posses- of his possession . Even the true owner, who retakes his own, must first restore
sory remedies possession to the wrong~doer, and then proceed in due course of law on the
appointed by law? ground of ownership. As stated earlier, adverse possession for 12 years or
(2 marks) more results in ownership in the eyes of law. It Is therefore, sometimes, said
M.U . May 2015
that possession is nine points of the law.
Why possessory remedies are recognised

The concept of possession is of far-reaching importance in view of the
fact that legal consequences flowing from the acquisition or loss of possession
are quite grave. Possession often amounts to evidence of ownership. Thus, a
finder of goods becomes the owner thereof as against the whole world- except
the true owner - by virtue of the fact of possession. Likewise, by adverse
possession for twelve years or more, a person becomes the legal owner of the
property possessed, and the right of the original owner is extinguished by perfect
negative prescription.
Savigny points out that the protection of possession is of considerable
advantage for protecting citizens and their property, and for the maintenance
of public peace. The protection of possession is absolutely necessary to prevent
forcible interruption and trespasses on the right of property and possession
thereof.
As observed by the Court of Exchequer in Rogers v. Spence (13 M & W
581 ), "These rights of action are given in respect of the immediate and prevent
violation of the rights of property. They are an extension of the protection which
the law throws around the person."
The following are the three main reasons for providing possessory
remedies:
(i) The evils of violent self-help are deemed so serious that it must be
discouraged , by taking away all advantages which any one derives
from it. He who helps himself by force must restore it, even to a thief.
The law gives him a remedy, and with it he must be content.
(ii) The second reason providing possessory remed ies is to be found in
the serious imperfection of early proprietary remedies. In older legal
systems, it was extremely cumbersome to prove one's ownership to
recover the property on the ground of the title. Quite often, small
technicalities would defeat one's title to property.
POSSESSION 173
(iii) The third reason for providing possessory remedies is that it is always
more difficult to prove ownership than to prove possession. Therefore,
it is considered unjust that a man should be allowed by violence to
transfer the heavy burden of proof from his own shoulder to that of
his opponent. Everyone should bear his own burden. He who takes a
thing by force must restore it to him from whom he has taken it; let
him then prove, if he can, that he is the owner.
POSSESSORY REMEDIES AND ENGLISH LAW

(The Doctrine of jus tertii)
Under English law, no possessory remedies are granted ; yet it has been
possible for English law to attain the same aim as that of the possessory
remedies by providing for the following three rules :
(i) Prior possession is prima facie proof of title. He who is in possession
first in time has a better title than the one who has no possession .
(ii) A defendant is always at liberty to rebut thi s presumption that the
better title is in himself.
(iii) A defendant who has violated the possession of the plaintiff is not
allowed to set up the defence of jus tertii. Under the defence of jus
tertii, one pleads that though neither the plaintiff nor he has the title,
some third person is the true owner, and the plaintiff is not. This
defence will not be a val id defence under English law, as prior
possession is always a prima facie proof of title. Thus, if A is in
possession of a car which is stolen by B, it is not open to B to tell the
Court that although he himself (8) is not the rightful owner of the car,
nor is A, because the car actually belongs to a th ird person, C.
Though the title of a third person is not a good defence, under exceptional
circumstances, English law does consider jus fertii, as a good defence. These
circumstances are the following :
(a) When the defendant defends the action on behalf of and by the
authority of true owner;
(b) When he committed the act complained of by the authority of the
true owner; and
(c) When he has already made satisfaction to the true owner by returning
the property to him .
ADVERSE POSSESSION
Adverse possession means the possession of a person whereby he claims
an exclusive right to the land of another person . Thus, if X has openly enjoyed
an unbroken possession of Y's land for a continuous period of twelve years or
more, X gets a good title to Y's land. In such a case, the true owner's title is
extinguished by the possessor, who has exercised adverse possession for the
required period of time.
174 JURISPRUDENCE
Title by adverse possession is an instance of a title by perfect negative

prescription. Just as positive prescription creates a right, negative prescription
destroys a legal right. In other words, a legal right is completely destroyed by
negative prescription .
CASES
The following English cases on possession will serve to clarify and
exemplify the concepts discussed above.
Cartwright v. Green (Desk repair case, (1802), 8 Ves. 405) : In this
case, a desk was given for repairs to a carpenter. The carpenter discovered
some money in a secret drawer, which he kept for himself. It was held that he
was guilty of larceny. It follows that the carpenter did not obtain possession of
the money when he obtained possession of the desk, but only at the time he
discovered it and formed the intention to convert the money.
R. V. Husdon (Mistaken cheque case, (1943) K.B. 458: By a mistake
of a Government Department, X was posted a letter containing a cheque
intended for Y. X appropriated the cheque to his own use, and the Court held
that he was guilty of larceny. Although X came into possession of the letter
innocently, the Court observed that he did not acquire possession of the cheque
until he became aware of its existence.
Hibbert v. McKlernarn (Golf Ball Case, (1948) 2 K.B. 142 : Here, a
person took golf balls abandoned by the original owners while he was
trespassing on the ground of the Golf Club. It was held that he should be
convicted , because when he took the golf balls, they were in the possession of
the Club, and it was immaterial that nobody knew where they were lying, or
how many balls were lying abandoned in the Club premises.
Bridges v. Hawkesworth (Case of lost notes, (1851 ), 21 L.J.Q.B. 73) :
In this case, Xfound a parcel of notes on the floor of Y's shop. It was held that
X had a better title to them as against Y, as he was the first to acquire
possession . Y had not previously acquired possession , because he did not
know of the existence of the notes till Xfound them.
South Staffordshire Water Company v. Sharman (Gold rings' case,
(1896) 2 Q. B. 44): Sharman was given the job of cleaning out a pool belonging
to a water company and he found some gold rings in the mud at the bottom of
the pool. It was held that the water company was first in possession of the
rings, and that therefore, Sharman had not acquired any possessory title to
the rings.
Armoryv. Dalamlrle (Chimney Cleaner's case, (1722) I Strage 505):
In this case, the plaintiff, a chimney cleaner, found a jewel while cleaning a
chimney, and he took it to a goldsmith in order to ascertain its value . The
goldsmith refused to return it to him, and it was held that plaintiff had a better
title to the jewel as against the goldsmith .
POSSESSION 175
Reg. v. Riley (Lamb case, (1853) Dears, 149) : Here, a person drove off
with a lamb not belonging to him, along with his own lamb without knowing that
he was doing so. After he discovered his mistake, he sold off the lamb with his
own . The Court held that he was guilty of larceny.
000
Chapter 13
TITLES
Every ri ght involves a title or source from which it is derived . The title is
the de facto antecedent of which the right is the de jure consequent.
Write a short note Now, titles are of two kinds : original or derivative. Original titles are those
on: Title. that create a right de nova (i. e., for the first time), whereas derivative titles are
M.U. Nov. 2010 those that transfer an existing right to a new owner. Thus, a fisherman catch ing
Apr. 2011 fish is an instance of an original title of the right of ownership, as before him,
Apr. 2014
the right did not exist in anyone else. However, when the fisherman sells such
May 2018
Nov. 2019
fish , the buyer acquires a derivative title. In legal theory, no new right is created.
That right wh ich is acquired by the purchaser is identical to the one lost by the
fisherman , the vendor.
Facts establishing title are of three kinds : 1. Vestitive, 2. lnvestitive, and
3. Divestitive.
1. VESTITIVE FACTS
Definition
A vestitive fact is one which determines positively or negatively, the vesting
of a right in its owner. It is one which either creates or destroys or transfers
rights . If A gifts a house to 8 , A's right to ownership in the house is divested,
which right then vests in 8 . These two are thus what Salmond calls vestitive
facts, although Bentham prefers the term dispositive facts.
Kinds of vestitive facts

Vestitive facts are divisible into fundamentally distinct classes, according
as they operate in pursuance of the will of the persons concerned or
independently of it. In other words, the creation , transfer and extinction of rights
are either voluntary or involuntary.
Acts in the law

An act of a party, techn ically known as act in the law, is any expression of
the will or intention of the person concerned directed to the creation , transfer
or extinction , of a right, such as a contract or a deed of conveyance . Such an
act is also called an act juridique (a juristic act) .
In fact, there is a close connection between an act in the law and a legal
power. Every act in the law is the exercise of a legal power and the exercise of
any legal power is an act in the law.
According to Holland, an "act in the law" is an act, the intention of which is
directed to the production of a legal result. In his view, it is "a manifestation of
the will of a private individual directed to the origin, termination or alteration of
rights".
TITLES 177
Acts in the law are of two kinds, which may be distinguished as unilateral
and bilateral. In the former, there Is only one party whose will is effective, e.g. ,
a testamentary disposition, the exercise of a power of appointment, the
avoidance of a voidable contract, etc. A bilateral act involves the consenting
will of two or more distinct persons, as for example, a contract, a conveyance,
a mortgage, etc. Bilateral acts in the law are also called agreements.
Acts ofthe law

An act of the law, on the other hand, is the creation, extinction, or transfer
of a right by the operation of the law itself, independently of any consent thereto
on the part of the person concerned, as for example, the devolution of the
property of a person dying intestate, i.e. , without making a will. Similarly, if a
decree is passed against X by a competent Court, or if X is adjudged an
insolvent, his goods will be taken in execution by the judgment-creditor in the
first case, or will vest in the official assignee in the second case, whether X
likes it or not.
Paton's view
According to the eminent jurist , Paton, a juristic act is a voluntary
manifestation of the will of a person, and this is sometimes described as act in
the law, i.e., an act done within the legal frame-work . However, the law may
sometimes also bind a person against his will . Thus, there is a duty towards
the world at large, not to defame or assault others, and so on . Such instances
are sometimes classified under the head "acts of the law', to contrast this term
with juristic acts, which are acts in the law.
The classification of vestitive facts may be set out as under:
VESTITIVE FACTS
lnvestitive Facts Divestitive Facts

(Titles)
Original ntles Derivative Titles Alienative Extinctive

''
'' \
(Creation of rights) (Transfer of rights) (Destruction of rights)

178 JURISPRUDENCE
2. INVESTITIVE FACTS (TITLES)

Every right involves a title or source from which it is derived. Thus,
according to Salmond, "the title is the de facto antecedent of which the right is
the de jure consequent. " In other words, every right involves a title or source
from which it is derived.
Write a short note The terms used by Salmond in the above statement can be clarified as
on : Trtte.
follows : "Antecedent"is one which comes prior in time, whereas "consequent"
M.U. Apr. 2009
is that which follows something. i.e., the result. The term "de facto " means
Nov. 2009
actual or real, whereas the expression de jure means "in law". The statement
thus means that a title is the actual or real past, as a result of which a legal
Write a short note right has come into existence.
on : Derivative
title .
To take an analogy, it is well-known that crime has to precede punishment.
M.U. Nov. 2014 Thus, it can be said that crime is the de facto antecedent of which punishment
May 2019 is the de jure consequent. In other words, crime has to come prior in time to
punishment, and punishment cannot come into the picture unless a crime has
been committed prior thereto.
Going back to Salmond's statement, one can say that a sale-deed under
which X purchases a house is the actual thing which gives him a title to that
house. Thereafter, he gets a right to own and possess the house , to keep
intruders away, etc. Thus, X's title was the de facto antecedent of which his
right is the de jure consequent.
Thus, an investitive fact is one which shows how the right in question
came to be created or vested. Thus, a right may be vested in X by the law, as
for example, when he enjoyed such right because he is a Judge of a High
Court or a Member of Parliament. Again , it may vest in him by the will of the
parties to a contract. Thus, X may be given certain rights over Y's property
under an agreement between X and Y. In the former case, i.e., when the right
is conferred by the State, the investitive fact is also called a privilege, whereas
in two latter cases , the term title is more familiarly used .
3. DIVESTITIVE FACTS
Just as facts create rights, so do th ey also take them away. Divestitive
facts are those which either destroy rights or transfer them to someone else.
Kinds of divestitive facts

Divestitive facts are of two kinds, viz., extinctive and alienative. They are
extinctive when they divest a right by completely destroying it. The surrender
of a lease to the lessor, for example, divests the right of the lessee, by destroying
the lease, and therefore , it is an extinctive fact.
Divestitive facts are alienative when they divest an owner of his right by
transferring it to somebody else. Thus, if the above lessee had, instead of
surrendering the lease , transferred it to a sub-lessee, such a transfer would
TITLES 179
have been an alienative fact. It may be noted that vestitive and divestitive facts
are the opposite of each other. If X sells a book to Y, the right is divested from
X and is vested in Y.
An original title is one in which a right is created de novo, i.e., for the first
time. A derivative title is one in which there is some transfer of an original right,
so that its owner gets divested the moment the transferee gets the rights. It
means that the transferee derives his title from a derivative title. Thus, if A
builds a house himself, he acquires an original title to it, but if he purchases a
house from someone else, his title is derivative.
Derivative titles are alienative or extinctive. Thus, if a person alienates
his property by sale, then, the one who purchases that property gets a derivative
title by reason of such sale. But in case of a debt, if the debtor pays up the
debt, the creditor's right against him is extinguished by such payment. It means
that the right which the creditor had has now been extinguished as a result of
the debtor performing his legal duty.
ODO
Chapter 14
PRINCIPLES OF LIABILITY
THE NATURE AND KINDS OF LIABILITY

Liability means and signifies responsibility for an act or omission . Thus,
he who commits a wrong is said to be liable for it. Liability, in the words of
Salmond, is the bond of necessity that exists between the wrong-doer and the
remedy for the wrong. This remedy may be either civil or criminal , and thus,
liability may be civil liability or criminal liability.
In cases of civil liability, the party who is wronged is entitled to the redress
allowed by law, whereas in cases of criminal liability, the wrong-doer is made
to undergo the penalty prescribed for the wrong .
THEORY OF REMEDIAL LIABILITY

Whenever the law creates a duty, it also seeks to enforce the fulfilment of
such a duty. Therefore , the law imposes remedial liability on him who fails to
perform such a duty. But there are some exceptional circumstances when law
might accept the right of the plaintiff, and yet it may not enforce it. They are
mainly the following:
(i) Duties of imperfect obligation: In such cases, the law recognises
the right, but does not enforce it. For example, the liability of a debtor in the
case of a time-barred debt is recognised by law, but it does not enforce, through
its Courts, the claim of the creditor after the time has lapsed . Thus, Xborrows
t 500 from Y, and fails to return the amount. Y does not take any action in the
matter for a long time, and then when the period prescribed for limitation has
expired , files a suit against X. In such a case , the Court will not afford any
remedy to Y, and will not proceed with the suit as it has become time-barred.
However, this does not mean that the Court denies the fact that X owes t 500
to Y. It may accept the fact , but at the same time, point out that no remedy is
available, as the law helps only those who are diligent, and not those who
slumber and sleep over their rights.
(ii) Duty incapable of specific performance due to its intrinsic nature :
In this case, the nature of the duty or the corresponding right is such that it
cannot be specifically enforced . For example, everyone has a right to his fair
name and reputation , and therefore , there is a corresponding duty imposed on
others notto violate such right to reputation; but when once such right is violated,
it cannot be specifically enforced. At best, some compensation can be given to
the injured person.
However, this does not apply to what are known as continuing wrongs,
e.g., nuisance; in such cases, the Court may pass an injunction , and order the
wrong-doer to desist from continuing with the nuisance .
PRINCIPLES OF LIABILITY 181
(iii) Specific performance inexpedient: There are some duties, the

specific performance of which law might find inexpedient to enforce. Thus, if
Mr. X promises to marry Miss Y, and then, on second thought, feels that Miss
Z would be a better (and perhaps, even prettier) choice, the law will not interfere
to compel X to marry Y. At the most, X may be made to pay damages for
breach of his promise to Y.
PENAL LIABILITY : Penal liability, as observed above, has, as its main
purpose, either directly or indirectly, to punish a wrong-doer. Penal liability arises
when the following two conditions are satisfied, namely, when a guilty mind
accompanies a wrongful act.
Guilty Mind
The fundamental principle of penal liability is that the act alone does not
amount to crime. It must be accompanied by a guilty mind . Actus non facit
reum nisi mens sit rea. Therefore, if a person must be held accountable at
criminal law, he must have done some act, and he must have done such act
with a guilty mind (mens rea) . No person can be punished merely because his
act had led to some mischievous result. The law must inquire into the mental
attitude of the doer.
Though this is the general principle of penal liability, there may be some
exceptional cases, when the law might impose absolute or strict liability, as in
the case of liabilities created by some special statutes. For example, under
laws relating to traffic offences or under some licensing Acts or under statutes
dealing with offences against public health, such strict or absolute liability may
be imposed. In those circumstances , the mere act itself becomes punishable.
Thus, if X parks his car just under the shade of a 'No parking' board , he will not
be heard to say he was honestly and sincerely not aware of the existence of
the board, and that therefore, though his act was wrong at law, he did not have
a guilty mind.
Act
Penal liability resolves itself into two aspects : The act and the nature of
the mind behind an act. The concept of an act needs some careful consideration.
An act is an event which is subject to the control of the human will.
(1) Firstly, the act may be either positive or negative. A wrong-doer either
does that which he ought not to do or omits to do that which he ought
to do.
(2) Secondly, an act may either be internal or external. The former are
the acts of the mind while the latter are the acts of the body. To th ink
is an internal act, to speak is an external act. Every external act
usually involves an internal act which is related to it, but the converse
is not always true.
182 JURISPRUDENCE
(3) Thirdly, an act may be intentional or unintentional. An act is said to

be intended or intentional when it is the outcome of a determination
of the person's wil l directed to that end . In such cases, the act is
foreseen and desired by the doer. It is unintentional when it is not the
result of any determination of the will and when it is not desired.
Whether it is an intentional or unintentional act, it may be internal or
it may be external and it may be positive or negative.
Three aspects of an act
Every act is made up of three distinct factors:
(i) Its origin in some mental or bodily activity.
(ii) Its circumstances.
(iii) Its consequences.
For example , the act of shooting involves a// these three factors. There is
physical doing or omitting to do. Secondly, a person is in the range of the
revolver and also the revolver is loaded . Thirdly, the consequences, i.e., the
trigger falls, the bullet is discharged and the bullet enters the body of the victim .
Where the law prohibits an act, it prohibits an act in respect of its origin,
its circumstances and its consequences . Circumstances and consequences
may be relevant or irrelevant. Out of the numerous circumstances and the
endless chain of consequences, the law selects some as material, and they
alone constitute the wrongful act; the rest are irrelevant. For example, in the
case of the offence of theft, during what hour of the day it is committed is
irrelevant, whereas in the case of the offence of house-breaking , the hour
during wh ich it is committed becomes relevant in assessing magnitude of the
liability of the offender. Sec. 456 of the Indian Penal Code considers
housebreaking by night as an aggravated offence , attracting a greater
punishment, whereas mere house-breaking (i.e., during the day-time) is a lesser
offence.
TWO KINDS OF WRONGFUL ACTS

Every wrong is an act which is mischievous in the eyes of the law. An act
may be mischievous either in its actual results or in its tendencies. The law
might punish an act because the act accomplishes certain harm. The law might
also punish , in some cases , certain acts, as those acts involve a mischievous
tendency. In the case of wrongs of the first kind, actual damage must be proved.
In the case of wrongs of the second kind, no damage need be proved . For
example , in the case of malicious prosecution , damage must be proved ,
whereas in the case of libel, no damage need be proved .
Criminal wrongs belong to the wrongs of the first kind . In this case, proof
of actual damage is not necessary. Criminal liability is established by proof of
some act which the law considers dangerous in its tendencies; but in the case
PRINCIPLES OF LIABILITY 183
of civil liability, proof of the actual damage is generally necessary, though in

some cases, the Civil Courts expose the wrong-doer to liability even without
proof of actual damage.
Damnum Sine Jnjuria

In legal theory, all wrongs are mischievous acts, but all mischievous acts
are not wrongs. All damage done is not wrongful. Such wrongs where damage
is done without injury are called as "Damnum Sine lnjuria." Cases of Damnum
Sine lnjuria might fall under two categories. Firstly, the harm may be done to
an individual; yet because it is not against the society at large, the law might
not consider it as a wrong. For example, competition in trade might cause a
loss to some traders, yet as it is believed that competition in general will benefit
the society at large, it is not considered to be a wrong.
Secondly, "Damnum Sine lnjuria" might include such cases, where though
some harm is done to the community, yet it might not be a wrong as the harm
done is trivial or difficult to prove, or the law considers it inexpedient to attempt
the prevention of such acts. For example, Sec. 95 of the Indian Penal Code
lays down that an act is not an offence if the harm resulting from such act is so
slight that no person of ordinary sense and temper would complain of it. (De
minimis non curat lex). Thus, in one's anxiety to board a crowded train, one
may deem it expedient to give a slight push to the man in front; yet, no lawyer
in his proper senses would advise the man so pushed to sue the other for
assault or battery.
000
Chapter 15
INTENTION AND NEGLIGENCE
1. INTENTION
The Nature of Intention
As seen in the last Chapter, a very important ingredient of criminal liability
is that the wrong-doer must have a guilty mind. The term 'guilty mind' is very
general, but in jurisprudence, it is understood in a technical sense. The guilty
mind that constitutes a condition of liability might be intention, negligence or
sometimes even knowledge , which almost always indicates intention; but this
does not mean that there should be any general kind of guilty mind which does
not come under either intention , negligence or knowledge.
Intention is the purpose or design with which an act is done. It is the fore-
knowledge of the act, coupled with the desire to do it, such foreknowledge and
desire being the cause of the act. Intention may not necessarily involve
expectation. Intention is the foresight of a desired issue, however improbable,
and not the foresight of an undesired issue, however probable. If X fires a rifle
in the direction of a man at a great distance, X might very well know that the
chances of hitting him are very dim. X may even expect to miss him; yet X
intends to hit him if he desires to do so. In the same way, expectation also
does not amount to intention. A doctor operating on a patient might expect that
the operation might result in the death of the patient; yet he does not intend the
death of the patient. He intends, in fact, to cure the patient by such operation.
Very often, one may intend a thing, not for its own sake, but as a means to an
end .
Distinction between knowledge and intention

Knowledge is the awareness, foresight or even the expectation of the
consequence of an act, whereas intention is such foresight coupled with desire.
When the knowledge is so strong that any person with common sense would
consider the result to be the inevitable consequence of the act of the wrong-
doer, the law implies desire, and such mental condition will be considered to
be intention constructively by law. This is also known as constructive do/us
(intention). The main difference between knowledge and intention is that in the
case of intention, the consequence is desired, whereas in the case of
knowledge , the consequence may not be desired.
Motive
An intention is the immediate desire and fore-knowledge behind an act.
Such desire might be a means for another desire. Such ulterior mental condition
is known as the motive of the act.
For example, A intentionally shoots at 8 , and kills him . He has done 8 to
death with the motive of removing a political rival. In this case, the act of shooting
INTENTION ANO NEGLIGENCE 185
was done with an intention, and such intention was the result of the desire of
the wrong-doer to remove his political rival. The immediate mental condition,
that is, killing the man is called intention , and the ulterior desire, to remove the
rival is called the motive. In the case of every wrongful act, these two questions
might arise: Firstly, whether the act was done intentionally or accidentally?
Secondly, if the act was done intentionally, why was it done? The first question
refers to the intention of the man, and the second refers to his motive.
Relevance of motive and intention In criminal law

Generally in English law, and particularly in criminal law, intention is often
the sole condition for liability. The general ru le is that the motive of the wrong-
doer is irrelevant, whereas his intention alone is relevant.
A legal act done with a malicious motive will not make the act illegal.
Conversely, an illegal act done with howsoever good a motive, is not tolerated
by law. In law, motive rarely plays any part; intention is what the law always
looks to . A distinction, therefore, exists, and must be made, between a man's
motive and his intention. The law takes into account only a man's intention,
and not his motive. Motive is directed to the ultimate end , good or bad , which
a person hopes to secure; his intention is concerned with the immediate effects
of his acts . Thus, A may poison B, a man suffering from an incurable disease,
his sole motive being to free 8 from further suffering . Here, the law will consider
only the intention of A In administering the poison {to secure the death of B),
and not the motive, however humanitarian such motive might be.
In judging a man's criminality, regard must be had to his primary and
immediate intention , and not his secondary or remote intention, if intention it
may be called - for in reality, it is the motive which the law ignores. A person
may act from a laudable motive, but if he intentionally causes wrongful loss ,
his crime is complete, irrespective of his motive. Where, for instance, a Hindu ,
acting under a strong rel igious imp ulse , seized some cows wh ich a
Mohammedan was taking to kill , his motive from the standpoint of a Hindu was
virtuous, but his intention being to deprive the lawful owner of the possession
of his property, and the means employed being unlawful , he was held guilty of
theft.
Motive, when relevant

To th is general principle that intention alone is relevant, and motive is
irrelevant, there are three important exceptions:
(1) The first exception is criminal attempts. In such cases, as the act in
itself has not taken place, to assess the liability of the wrong-doer, it
becomes necessary to examine the ulterior intent or the motive with
which such an attempt was made . For example , one might strike a
matchstick with the intention of setting fire to a hay stack, and thus
cause wrongfu l loss to the owner. When the matchstick Is struck and
186 JURISPRUDENCE
when it is taken near the hay stack, he suddenly sees a policeman

and is thus prevented from setting fire. To assess whether he is a
wrong-doer or not, it would be necessary to examine his motive. His
intentionally striking a match in itself is no wrongful act, as that could
have been for a number of reasons, as for instance, for lighting his
cigarette. But, if such intentional striking of the match was done with
the ulterior intent of setting fire to the hay stack, then it becomes an
attempt to commit criminal mischief. Thus , it is the motive that makes
the act wrongful, though the act in itself could not be wrongful.
(2) The second exception consists of those cases in which a particular
intent forms a part of a definition of criminal offence . For example ,
housetrespass in order to comm it an offence punishable with death,
is an offence punishable by the Indian Penal Code. In this case, the
motive w ith which the house-trespass was committed becomes
relevant. Another example is the case of the offence of forgery. The
offence comprises of two main ingredients. Firstly, making any false
document, and secondly, the intent to cause damage or injury to the
public or to any person . In the case of making the false document,
making the false document is intentional, whereas the ulterior intent
of intentionally making a false document is the motive which becomes
a relevant ingred ient of the offence of forgery.
(3) Jus necessitatis: Th ough the doctrine that necessity knows no law
is not recognised as a ground for exempting a person , yet the doctrine
Is relevant for assessing the measure of liability. (The doctrine Is
discussed at length later in th is Chapter.)
[ Note : In civil liability, motive or the ulterior intent is very seldom relevant,
but there are some exceptional cases where motive might become relevant,
as in the case of malicious prosecution .]
Four stages In the commission of a crime

Every commission of a crime has the following four stages:
(1) Intention to commit it.
(2) Preparation for its commission.
(3) Attempt to commit it.
(4) Its commission.
Intention : Mere intention to commit a crime , not followed by an act,
does not constitute an offence. The will is not to be taken for the deed, unless
there be some external act wh ich shows that progress has been made in that
direction or towards maturing and effecting it. Thus, B comes to know that A
intends to shoot C the next day in the market square at 8 p.m . B thereupon
informs the police about it. The following day, A is arrested in the market square
a few minutes before 8 p.m . and on his being searched , is found in possession
INTENTION AND NEGLIGENCE 187
of a loaded revolver. Here, A has not committed any offence (assuming that he
had a valid licence for the revolver). He had, so far, merely intended to shoot
C.
Preparation : Preparation consists in devising means for the commission
of an offence. Section 511 of the Indian Penal Code does not punish acts done
in the mere stage of preparation. Mere preparation is, however, punishable
when the preparation is to wage war against the State (S. 152), or to commit
dacoity (S. 399) .
Now, before a person passes beyond the stage of preparation, and reaches
a point at which an act is done toward the commission of an offence, he may
give up the idea of committing the crime. In that case, he is not punishable
under the Penal Code, except in the two cases mentioned above. In other
words, the law allows a locus poenitentiae, and will not hold that a person has
attempted to commit a crime, until he has passed beyond the stage of
preparation. Thus, M who contemplates murder, buys a pistol under a valid
license, and takes a railway ticket to the place where he expects to find his
victim. He has not gone beyond the stage of preparation, and therefore, is not
guilty of any offence.
Attempt: An attempt is the direct movement towards the commission of
the act after the preparations are made. To constitute the offence of attempt,
there must be an act done with the intention of committing an offence, and for
the purpose of committing the offence, and it must be done in furtherance of
the commission of the offence. An attempt can only be manifested by acts
which would end in the consumption of the offence, but for the intervention of
circumstances independent of the will of the party. An attempt is possible even
when the offence attempted cannot be committed, as when a person, intending
to pick another's pocket, thrusts his hand into the pocket, but, to his utter
surprise (- and dismay-) finds it empty.
If the attempt to commit a crime is successful, then the crime itself is
committed; but where the attempt is not followed by the intended consequences,
S. 511 of the I.P.C. applies. Thus, A stoops down behind a stack of corn and
lights a match intending to set the stack on fire, but discovering that he is being
watched, he just sits down, takes out a cigarette, lights it and blows out the
match. Here, the act of lighting a match was a direct overt act converting
preparation into attempt. A has committed an offence of attempt to set fire to
the corn.
The following are instances of attempts to commit murder:
(i) A, with the intention of causing the death of a child of tender years,
exposes it in a desert. A has committed the offence of attempting to
murder, though the death of the child does not ensue.
(ii) A , intending to murder Z, buys a gun and loads it. A has not yet
committed the offence. A fires the gun at Z. He has committed an
offence, even if the bullet does not hit Z.
188 JURISPRUDENCE
(iii) A, intending to murder Z by poison, purchases poison and mixes the

same with food which remains in A's keeping; A has not yet committed
an offence. A places the food on Z's table or delivers it to Z's servants
to place on Z's table. A has now committed an offence.
Difference between 'preparation' and 'attempt'

There is an important difference between "preparation to commit an
offence" and "attempt to commit an offence" . Preparation consists in devising
or arranging the means or measures necessary for the commission of the
offence. Attempt is the direct movement towards the commission after the
preparations are made. To illustrate, A may purchase and load a gun, with the
declared intention of shooting his neighbour; but until some movement is made
to shoot his intended victim, there is only preparation, and not an attempt.
An attempt is made punishable because every attempt, although it fails
or succeeds, must create alarm, which of itself, is an injury and the moral guilt
of the offender is the same as if it had succeeded. Moral guilt must be united to
injury in order to justify punishment, but as the injury is not as great as if the act
had been committed, only half the punishment is to be awarded under Sec.
511 of the I.P.C.
Commission
The last stage in the commission of a crime is that it is successfully
committed and the consequences of the crime materialise.
MALICE
The word "malice" is used in two different senses:
(1) In its ordinary sense, it means ill-will, spite, hatred or evil motive.
Such malice is called express malice or actual malice or malice in
fact.
(2) Legal malice or malice in law means a wrongful act done intentionally
without just cause or excuse.
(1) Malice in fact (express malice)

Except in cases of torts of (i) malicious prosecution , (ii) defamation on a
privileged occasion, (iii) injurious falsehood , and (iv) conspiracy,-malice in fact
is irrelevant. A lawful act does not become unlawful merely because it is done
with a bad motive or malice; nor is a good motive a justification for an act which
is otherwise illegal. "Where a man has a right to do an act, it is not possible to
make his exercise of such right actionable, by alleging or proving that his motive
in the exercise was spite or malice in the popular sense". (Bowen J.)
It is only in the four cases mentioned above that the Court will accept
proof of actual malice. These cases apart, malice, as the term is used in
common parlance, is irrelevant in the Law of Torts.
Mayor of Bradford v. Plckels, (1895) A. C. 587 : In this case, the

defendant sank a well on his land, and thereby cut off the underground water
from his neighbour, the plaintiff. The plaintiff's well, in consequence, was dried
up. In a suit by the plaintiff, it was held that the defendant was not liable, however,
improper and malicious his motive might be. It is not unlawful for landowner to
dig a well on his own ground , thus drying up his neighbour's- even though his
motive in so doing was not to benefit himself but to injure his neighbour. A
malicious motive per se does not amount to an injuria or legal wrong.
(2) Malice in law (implied malice)

As stated above, malice in law (also called implied malice) means a
wrongful act done intentionally without just cause or excuse. Such malice is
implied in every case where a person has inflicted injury upon another in
contravention of the /aw without just cause or excuse. Aman may therefore be
guilty of malice in law, even though he acts ignorantly or even with a good
motive.
Qu/na v. Leathern, (1901) A. C. 495 : A, without just cause or excuse,
induced B's workmen to discontinue their work in breach of their contract with
B. A did this prompted by a good motive to do good both to Band B's workmen .
It was held that nonetheless A was liable, inasmuch as the procurement of a
breach of contract without just cause was a tort and, as such, actionable.
Jus Necess/tatis
Necessitatis non habet legem, i.e ., necessity knows no law. The meaning
of this maxim is that if an act is done under dire necessity, in circumstances
where no fear of punishment would deter the person from so acting , he should
not be punished severely. On the contrary, where circumstances so warrant.
he ought not to be punished at all. In such cases, the law might take into
consideration not the immediate intent, but the ulterior intent, i.e., the motive
with which such act was committed .
Another argument in favour of recognising this defence to crime is that
punishment has a deterrent effect when the wrong-doer has a choice. If the
wrong-doer has been under the compelling influence of a motive which is of
such exceeding strength that it overcomes any fear that can be Inspired by
deterrent punishment, then punishment might be futile. Where threats are
necessarily ineffective, they should not be made . If such threats are given
effect to, it would be infliction of fruitless and uncompensated evil. Hobbes
observes that "if a man, by the terror of the person's death , be compelled to do
an act against the law, he is totally excused , because no law can oblige a man
to abandon his own preservation".
For example, where two shipwrecked persons are clinging to a plank,
which cannot bear the weight of both of them, if one of them pushes the other
off the plank, to save himself from drowning, the question would be whether
190 JURISPRUDENCE
the person who pushed the other would be justified in doing so; though he
intentionally put the other man away, would the motive of self-preservation
absolve the wrong-doer from penal liability? Following a strict application of
the doctrine of Jus Necessitatis, the person would not be liable.
Limitations of the Doctrine
However, in its practical application, this doctrine may not minimise
difficulties if the motive of temptation, compelling or otherwise, could be a
defence to a crime. It is almost a common fact that all crimes have tempting
motives behind them . The fear of punishment is necessary precisely to
counteract the motive of temptation. Does one argue that when the temptation
is greatest, and when the fear of law has to be equally great, then the law
should withdraw and yield to temptation? Therefore, English criminal law, as
well as the Indian Penal Code, do not accept this doctrine as well as the doctrine
of self-preservation , which could absolve a person of a serious crime like
murder.
For example, in Dudley and Stephens, (1884) 14 Q . B. D. 173, it was held
that if a man kills another person with the object of surviving by eating his
flesh , when the alternative was certain death by starvation , he could not be
absolved of the guilt of murder on the basis of Jus Necessitatis. Probably
English Law would consider it only as a mitigating circumstance in assessing
the measures of liability. For that matter, in the above case, though the Court
convicted the accused of murder and sentenced him to death, pardon was
recommended and granted. But, in principle, in English criminal jurisprudence,
Jus Necessitatis, though relevant for assessing the measure of liability, would
not be a ground for releasing a person from all penal liability.
In the leading English case on the subject, Dudley & Stephens (referred
to above), three shipwrecked sailors in a boat were without food for seven
days, and two of them killed the third, a boy, and fed on his flesh, under such
circumstances that there appeared to the accused every probability that unless
they fed upon the boy or themselves, they would die of starvation. In the
circumstances, the Court held that they were guilty of murder.
But take a case like this, A and 8 swimming in the sea after a shipwreck
got hold of a plank not large enough to support both; A pushes off 8, who is
drowned. This, in the opinion of Sir James Stephens, is not a crime, as A
thereby does 8 no direct bodily harm, but leaves him to his chance of finding
another plank.
Mens Rea
As seen above, the act alone does not constitute a crime. It requires a
guilty mind or Mens Rea behind it. This principle is based on the maxim Actus
non facit reum, nisi mens sit rea. The doctrine requires that a guilty mind should
be associated with the act. The guilty mind must consist of either intention or
negligence. But it might also be added that, very often, even knowledge of the
consequences will be considered as a part of the guilty mind, because the
mental condition of any individual can be ascertained only through his conduct,
and it is often difficult to ascertain whether it is done intentionally or with the
knowledge of the consequences. The guilty mind does not depend generally
on the nature of the motive behind the act. Guilt, if any, has to be the immediate
intent or negligence. It may further be noted that such Mens Rea must extend
to all the three parts of the act:
(a) the physical doing or not doing;
(b} the circumstances; and
(c) the consequences.
If Mens Rea does not extend to any part of the act, then there will be no guilty
mind behind the act.
Criticism of the Doctrine

Sir Stephens has been rather critical of the doctrine of Mens Rea. In his
opinion, this doctrine is misleading. According to him, the doctrine originated
when criminal law practically dealt with no offences which were defined. The
law gave them certain names, such as murder, burglary, or rape, and left any
person who was interested in the matter to find out what these terms meant.
Such persons found that the crime consisted not merely in doing a particular
act, such as killing a man or taking away the purse of another person , but
doing it with a particular knowledge or purpose. This principle of the mental
condition was generalised by the term Mens Rea . Therefore, Sir Stephens
was of the view that at a stage of criminal law where every offence has been
well-defined, the general doctrine of Mens Rea would be misleading and
unnecessary.
Application of the Doctrine to the Indian Penal Code
Whatever the position in English law may be, with reference to the Indian
Penal Code, such a maxim is wholly out of place. As J. D. Mayne, the learned
author of Criminal Law in India, has pointed out, "Every offence is defined, and
the definition states, not only what the accused must have done, but the state
of his mind with regard to the act when he was doing it". For example, theft
must be committed dishonestly, cheating must be committed fraudulently,
murder must be committed either intentionally or knowingly. Thus, there is no
room for the general doctrine of Mens Rea in the Indian Penal Code. Each
definition of the offence is self-sufficient. All that the prosecution has to do in
India is to prove that a particular act committed by the accused answers the
various ingredients of the offence defined in a particular section of the Indian
Penal Code.
192 JURISPRUDENCE
Mens rea when not essential

Besides the practical value of the doctrine of mens rea being limited in
modern developed criminal law, there are some special circumstances under
which law imposes a strict liability, and such cases may be treated as exceptions
to the doctrine of mens rea.
The following are the five exceptional cases where mens rea is not required
in criminal law.
(i) Where a statute imposes strict liability, the presence or absence of a
guilty mind is irrelevant. Numerous modern legislations in the interest of public
safety and social welfare impose such strict liability. In matters concerning
public health, food, drugs etc., such strict liability is imposed, e.g., under The
Motor Vehicles Act, The Arms Act, in licensing of shops, hotels, restaurants
and chemists' establishments. Though in these cases, a strict liability is imposed,
the Courts are expected, as far as possible, to protect the liberty of the subject
and to satisfy themselves that a particular statute clearly imposes absolute
liability.
This view of the Privy Council in Srinivas Mall Bairoliya v. Emperor, (1947)
49 Born. L.R. 688 (P.C .) was relied upon by the Bombay High Court in Emperor
v. Isak Solomon Macmu/1. In these two cases, it was stated that it was not in
every case of absolute prohibition that the question of mens rea could arise. It
was only in a limited and exceptional class of offences that liability could be
imposed without the guilty mind, and according to the Privy Council, such
offences must be of a comparatively minor character.
(ii) The second case where a guilty mind need not be proved is where it
would be difficult to prove mens rea , provided that the penalties are petty fines;
where a statute has done away with the necessity of mens rea on the basis of
expediency, strict liability in criminal law may be imposed. Here, in such petty
cases, where speedy disposal of cases becomes necessary and where the
proving of mens rea is not easy, the accused may be fined even without any
proof of mens rea.
(iii) The third exception to the doctrine of mens rea is in the case of public
nuisance. The justification of this exception is the same as in the case of the
first exception. In the interest of public safety, strict liability must be imposed
and if one causes public nuisance, whether with a guilty mind or without a
guilty mind, it must be punishable.
(iv) The fourth exception to the doctrine of mens rea is in those cases
which are criminal in form, but in fact are only a summary mode of enforcing a
civil right.
(v) Another excepUon that might be mentioned is the maxim 'Ignorance
of law is no excuse'. If a person were to violate a law without the knowledge of
the law, it cannot be said that he has intentionally violated the law, though he
has intentionally committed an act which is prohibited by the law. In such cases,
the fact that he was not aware of the rule of law, and that he did not intend to
violate it, is no defence, and he would be liable before the law as if he was
aware of the rules of law.
Doctrine of Transferred Malice (Generic Intention)
This doctrine lays down that, in criminal law, what is to be considered, as
a rule , is the generic, and not the specific, intention. Thus, if A, intending to
cause the death of 8, fires at him, but kills C instead, he can be said to have
committed the murder of C. Here, the generic intention was to kill a human
being, while the specific intention was to kill a particular individual, B. The
generic intention has been carried out, though the specific intention has not
been effectuated. In these circumstances, the law holds A guilty of C's murder,
as the law looks merely at the generic (or general) intention of A. However, if A
intends to kill a tiger, and instead kills B, there is no question of holding him
guilty of B's murder, as the injury intended was of one kind and the one inflicted
was of a different kind, as A had no intention of killing any human being.
This doctrine is also referred to as that of transmigration of malice. Thus,
if A, without any reason or excuse, fires into a crowd of persons and kills one
of them, he is guilty of murder, although he may not have intended to kill that
particular individual who received the mortal shot. This is again an example of
the doctrine of transmigration of malice.
Problem : X mixes poison with some sweets and leaves it at a place
where his enemy Y is to pass by, with the intention that Y may eat them and
die. However, it so happens that his friend, Z, passes by, sees the sweets and
eats them, as a result of which Z dies. Is X guilty of murder of his friend, Z?
Ans. : Yes, because, though Xhad a specific intention to kill Y, his generic
intention was to kill a man, and it is this generic intention that the law takes into
consideration.
(S. 301 of the Indian Penal Code also deals with the doctrine of generic
intention.)
Presumption of Innocence
The rule that everyone is presumed to be innocent till he is proved to be
guilty is sometimes spoken of as if it was peculiar to the administration of
criminal law. What this rule actually means is that a person who is accused of
a crime is not bound to make any statement or to offer any explanation of
circumstances which throw suspicion on him. He stands before the Court as
an innocent man till he is proved to be guilty. It is the business of the prosecution
to prove him guilty, and he need do nothing but stand by and see what case
has been made out against him. The prosecution is bound to prove the guilt
beyond reasonable doubt, without any help from the accused.
However, if it is the defence of the accused that he falls within one or
more of the General Exceptions of the Indian Penal Code, the burden of proof
194 JURISPRUDENCE
is on him to prove that his case is covered by such exception or exceptions.

Thus , after the prosecution proves that A's death was caused by a bullet from
a gun in B's hand , it is open to B to prove that he was acting in self-defense.
The onus is on the Defence Counsel to show that when the bullet went off, B
was merely acting in self-defence.
Presumption of innocence in modern Criminal Law

The doctrine of presumption of innocence is the outcome of a particular
valued political philosophy in which individual liberty was valued very highly.
The believers in this philosophy thought that it is better that nine guilty men
escape, rather than one innocent person be hanged.
But of late, with modern emphasis on social welfare rather than the abstract
principle of the individual liberty, this doctrine of presumption of innocence has
undergone considerable modification. There are various statutes negativing
the presumption of innocence. For example, Prohibition Acts, the Weights and
Measures Act, the Prevention of Adulteration of Food Act, etc. , restrict the
application of this doctrine of presumption of innocence to a considerable extent.
Under these Acts, it is not necessary for the prosecution to prove that the
accused is guilty beyond reasonable doubt. On the other hand , once the
prosecution makes out a prima facie case , the burden will be on the accused
to prove that he is innocent.
Presumption of innocence negatived in some offences under the Indian

Pena/Code
It may be interesting to note that under the Indian Penal Code also, there
are certain offences relating to trade-mark, property-mark and currency notes,
where the burden of proof of innocence is shifted on the accused in particular,
in the following cases:
(i) Any person selling goods marked with counterfeit trade-mark or
property-mark is punishable , un less he proves that he acted
innocently and that he had taken all reasonable precautions: S. 486.
(ii) Any person making a false mark upon any receptacle containing
goods is punishable - unless he proves that he acted without intent
to defraud: S. 487 .
(iii) Any person using such false mark is punishable - unless he proves
that he acted without the intent to defraud : S. 488 .
(iv) Any person making or using of documents resembling currency notes
or bank-notes is punishable and if his name appears on such
documents, it shall be presumed that he made the document, until
the contrary is proved : S. 489E.
The measure of criminal liability
After discussing the condition of criminal liability and also the incidence
of criminal liability, the various elements wh ich must be taken into account in
determining the appropriate measures of punishment may now be discussed.

These factors will be taken Into consideration, not to ascertain the existence of
liability, but only to assess the measure of punishment. Generally speaking,
three elements are taken into account to determine the appropriate measure
of punishment :
(i) The motive of the offence: Other things being equal, the greater the
temptation to commit a crime, the greater should be the punishment. The main
object of punishment is to deter a probable wrong-doer from committing an
offence, by advancing the threat of punishment and thus neutralising his natural
motive. The stronger the natural motives are, the greater has to be threat. If
the motives are not strong, as for instance, when there has been sudden and
grave provocation , then naturally, the punishment also has to be milder in
measure.
(ii) The magnitude of the offence: Other things being equal, the greater
the evil consequences of the crime, the greater should be its punishment.
Some might argue that this consideration is irrelevant. Punishment should
be measured by the profit derived by the offender and not by the harm caused
to other person. Therefore, it can be argued that motive alone should be the
measure of punishment, and not the magnitude of the crime.
But Salmond points out two reasons for taking the magnitude of the offence
into consideration for assessing the measure of criminal liability:
(a) The greater the motive of any offence, the greater is the punishment
which it is profitable to inflict with the hope of preventing it. If theft
and murder were committed with the same motive, and if the
punishment given to them were the same, the preventive strength of
the punishment in the case of murder would be weaker.
(b) The second reason is that where there are alternatives to an offender
to commit offences of smaller or greater magnitude, if the punishment
happened to be the same for both of them, there is greater likelihood
of his committing the offence of greater magnitude . For example , If a
man has opportunity of either causing simple hurt or grievous hurt,
and if the punishment for both of them was the same, it is more likely
that he would cause grievous hurt rather than simple hurt. The fear
of greater punishment might prevent him from committing the offence
of a greater magnitude.
(iii) Character of the offender: The worse the character of the offender,
the more severe should be the punishment. In case of habitual offenders and
hardened criminals, the deterrent effect of law would have diminished , whereas
in the case of first offenders and people of good character who have
unfortunately deviated into crime, the punishment has greater deterrent effect;
therefore , a smaller measure of it would be sufficient. Juvenlie offenders and
first offenders may thus be treated leniently by law. He who kills a man merely
196 JURISPRUDENCE
to facilitate him in picking the victim's pocket, deserves to be treated without

mercy, whereas he who commits homicide in retaliation for some intolerable
insult or injury inflicted on him by the victim, deserves much lesser punishment.
2. NEGLIGENCE
Definition
Negligence essentially consists in the mental attitude of undue indifference
w ith respect to one's conduct and its consequences .
The term "negligence" has been defined by Baron Alderson as the omission
to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do. In other words
negligence may exist in non-feasance or mis-feasance.
In all cases of negligence , one can trace (i) a duty to take care, and (ii) a
breach of such a duty. Such a duty may exist as a general duty under the law,
or as a special duty under a contract between two or more persons . Thus, the
concepts of negligence and duty are co-relative. Negligence arises only when
there exists a correspond ing duty to take care.
Austin defines negligence thus - "In cases of negligence, the party
performs not an act to which he obliged, - he breaks a positive duty". Actionable
negligence consists in the neglect of the use of the ordinary care or skill towards
a person to whom the defendant owes the duty of observing ordinary care and
skill, by which neglect the plaintiff has suffered injury to his person or property.
"It is the duty of a man not to do that which will injure the house of another
to wh ich he is near. If a man is driving on Salisbury plain , and no other person
is near him, he is at liberty to drive as fast and as he pleases. But if he sees
another carriage coming near to him , immediately a duty arises not to drive in
such a way as is likely to cause an injury to that other carriage".
Temu/jiv. The Bombay Tramway Co., (1911) 13 Born L.R. 345: The
plaintiff, in attempting to board a tram-car of the defendant company, which
was in motion , set his foot on the foot-board but failed to get a firm grip of the
hand-bar; and before he could raise himself into the car he slipped and fell and
had his toes injured by the wheels of the car. It was held that the plaintiff was
not entitled to recover damages, as he himself was negligent in trying to get
into the car wh ile it was in motion.
Manchester Corporation v. Markland, (1936) A. C. 360 : The
corporation's service water pipe in a road burst, and caused a pool of water to
form in the road. The water lay unheeded for three days. On the th ird day, a
frost occurred , the water froze and on the ice so formed , a motor-car skidded
and knocked down and injured the plaintiff. The corporation was not informed
until after this accident that the service pipe had burst. It was held that the
corporation was liable in damages for negligence, in not having taken prompt
steps to attend to the leak and so to prevent the road from being dangerous to
the traffic.
Austin v. Great Western Railway, (1867) 2 Q . B. 442 : A, carrying in her
arms B, her son over three years old and consequently liable to pay half fare,
took a ticket for herself, but not for B. Due to the negligence of the Railway
Company, an accident occurred, and B was injured. When A took her ticket,
no enquiry had been made by the servants of the Railway Company as to B's
age, and there was no intention on A 's part to defraud the Railway Company. B
brought a suit for damages against the Railway Company.
It was held that any passenger who has been injured by the negligence of
the company can sue it in tort if it has invited or knowingly permitted him to
enter the train , whether or not there is also a contract for carriage between him
and the company. Thus, B is entitled to recover damages from the Railway
Company, for he had been accepted as a passenger.
Standard or degree of care: The standard by which one has to determine
whether a person has been guilty of negligence is the conduct of a prudent
man in the particular situation. The prudent man is the man who has acquired
the skill to do the act which he undertakes. If a man has not acquired the skill
to do a particular act he undertakes, then he is imprudent, however careful he
may be and however great skill in other things.
The degree of care which a man is required to use in a particular situation
varies with the obviousness of the risk. If the danger of doing injury to the
property of another by the pursuance of a certain line of conduct is great, more
care is necessary. If the danger is slight, a smaller amount of care is required.
Thus, persons who profess to have special skill or who have voluntarily
undertaken a higher degree of duty are bound to exercise more care than an
ordinary prudent man.
Dickson v. Reuters (1877) 3 C.P.D. 1 : A sent a telegram to B for the
shipment of certain goods. The telegraph company by mistake delivered the
telegram to C. C, acting on the telegram sent the goods to A. A refused to
accept the goods, stating that he had ordered the goods not from C, but from
B. C sued the telegraph company for damages for the loss suffered by him.
The Court held that C has no cause of action against the company, for
the company did not owe any duty of care to C, and no legal right of C could,
therefore, be said to have been violated.
Sorabji v. Jamshedji, (1913) 15 Born. LR. 959: The defendant was
driving a party, including the plaintiff, in his motor-car from Deolali to lgatpuri.
The road passed a level crossing. A train was timed to pass the crossing about
the time. The defendant, who was driving the car at an excessive speed, got
on the level crossing but failed to take the sharp righthand turn after the crossing.
The car left the road just beyond the crossing, jumped down the embankment
which was ten feet high and fell into the paddy field below. The occupants of
198 JURISPRUDENCE
the car, with the exception of the defendant, were thrown out with much violence,
and the plaintiff received such grave injuries as rendered him a cripple for the
rest of his life. The plaintiff sued to recover damages caused to him by the
defendant's negligence. It was held that the defendant was grossly and culpably
negligent, and that he was liable in damages .
Kinds of Negligence
Negligence can be:
1. Advertent or inadvertent.
2. Gross or slight.
3. Wilful or simple.
1. Advertent or inadvertent : Negligence is of two kinds, advertent or
inadvertent. Advertent negligence is commonly termed 'wilful negligence' or
'recklessness'. Inadvertent negligence may be distinguished as 'simple '
negligence. In the former, the harm done is foreseen as probable, but it is not
willed. In the latter, it is neither foreseen nor willed. In each case, carelessness,
that is, indifference to consequences, is present, but in the former case, this
indifference does not, while in the latter it does, prevent those consequences
from being foreseen .
2. Gross or slight: Some jurists attempt to make a distinction between
gross negligence and slight negligence, implying by the former, a higher degree
of negligence than that of the latter. No such distinction exists in English law.
3. Wilful or simple : Classifying negligence into wilful or simple is a rather
artificial distinction , and wilful negligence corresponds to advertent negligence
d iscussed above , wh ile simple negligence is almost synonymous with
inadvertent negligence mentioned above.
Theories of Negligence
Two theories of negligence are advocated by jurists:
1 . The subjective theory, and
2. The objective theory.
Attempts have also been made by certain jurists to combine both these
theories, as is discussed later.
(1) Subjective theory

According to Salmond, "Negligence essentially consists in the mental
attitude of undue indifference with respect to one 's conduct and its
consequences". This is called the subjective theory of negligence, and according
to this theory, negligence is a state of mind.
(2) Objective theory

According to the other theory, which has been advocated by Pollock,
"Negligence is the contrary of diligence. and no one describes it as the state of
mind". According to this theory, negligence is not a particular state of mind or a

form of mens rea at all, but a particular standard of conduct. It is a breach of
duty of not taking care, and to take care means to take precautions against the
harmful results of one's action and to refrain from unreasonably dangerous
kinds of act. To drive at night without lights is negligence, because having
lights is the conduct of precau tion adopted by all prudent men . He who drives
without lights in the night has failed in that conduct. Likewise , an inefficient
surgeon , however carefu l he may be subjectively, is negligent, if he does not
attain a reasonable standard of conduct required in his profession. To ascertain
whether he is negligent or not, one does not go to the state of his mind, but to
the standard of his conduct. Similarly, when a railway employee sleeps, and
thereby becomes responsible for an accident, he has failed to perform a
particu lar standard of conduct. When he is sleeping, he has no state of mind
that can be associated with the accident.
Thus, according to this school of thought, negligence is objective. It is to
be found in the standard of the conduct, and not in the state of the mind.
Salmond tried to meet both these illustrations in the light of the subjective
theory. The negligent state of the mind of the surgeon, (in the example given
above), according to Salmond, existed not at the time of carrying on the
operation, but at the time when he entered into the profession of the surgeon
without an appropriate equipment. Similarly, the negligent state of the mind of
the railway employee existed, not at the time the accident took place, but at
the time he decided to sleep .
Reconciliation of the two theories

Glanville Williams, the former Editor of Salmond's work, th inks that these
two theories are not irreconciliable; rather, they are two aspects of the same
problem . According to Glanville Williams, negligence might be subjective when
a particular consequence is to be distinguished from the intended consequence
or the negligent consequence. In th is case, the relevant question is whether
the wrong-doer intended the consequence, or he was just indifferent to the
consequence. On the other hand , when it is to be ascertained whether the
consequence is accidental or negligent, then the relevant question is whether
the wrong-doer exhibited the standard conduct or whether he fai led to do so . If
he exhibited standard diligence, then the consequence is accidental; otherwise
it is negligent. Thus, according to him, negligence can be both subjective and
objective.
Mind-behaviour theory
In this connection, one may also note the opinion of another learned author,
Dr. M. J. Sethna, who expounds a very interesting theory. He develops what
he calls a mind-behaviour theory of negligence. By talking a synthetic approach
to the question of negligence , the learned author maintains that "negligence
really is a faulty behaviour arising out of a lethargy of the mind or out of faulty
200 JURISPRUDENCE
thinking. It is both subjective and objective. It is objective, because it is

something in the nature of the external behaviour, and subjective, because it
arises from mental lethargy". According to him, one should not have
compartmental theories of negligence - subjective, objective, etc. He calls
his theory the mind-behaviour theory of negligence, - the theory of subjective-
objective synthesis.
Dr. Sethna seeks to elucidate his synthetic theory with an example.
Suppose A is driving a car and wishes, at the same time, to talk to 8 who is
sitting beside him. Here, in doing so, if he also turns his head towards 8, there
is likelihood of an accident, and in this case, A's behaviour is faulty. But what is
this faulty behaviour due to? It caused really by mental lethargy. Thus, the
Objective Theory gives only partial truth. The same may be said about the
Subjective Theory. The complete truth is to be found in a synthesis of the two.
WRONGS OF ABSOLUTE LIABILITY

Wrongs of absolute liability are those wrongs to which the law attaches a
kind of liability which is somewhat peculiar in that a person becomes liable
without there being any fault on his part. This is called absolute liability. Here,
the wrong arises from the breach of an absolute duty. And an absolute duty
may be defined as "a duty which renders a man liable without any fault of his,
and irrespective of any consideration of intention or negligence on his part" . It
is absolute, meaning thereby that it is not necessary for the injured party to
prove any intention or negligence on the part of the injuring party, and no amount
of care and caution expended by the latter to prevent the damage done to the
forme r will excuse him.
The following four classes of torts can be classified as wrongs of absolute
(or strict) liability:
1. Cases relating to escape of dangerous things.
2. Cases relating to escape of animals.
3. Cases relating to the use of things in their nature specially dangerous
- such as fire, loaded fire arms, explosives, poisonous drugs, etc.
4. Cases relating to dangerous premises.
(For a detailed discussion of these four types of cases, a reference may
be made to any book on the Law of Torts.)
Definition
The requirement of mens rea is general throughout the civil and criminal
law, but there are numerous exceptions to the rule. The acts for which a man
is responsible, irrespective of the existence of either wrongful intent or
negligence, are described by the name of wrongs of absolute liability. They are
the exceptions to the rule, actus non facit reum, nisi mens sit rea. A man will be
punished for committing these wrongs even if he did not have a guilty mind.
The law will not inquire whether he did -them intentionally, negligently or
innocently; it will presume the presence of the formal condition of liability.
The considerations on which such wrongs of absolute liability are based
are numerous, but the most important of these is the difficulty involved from
the angle of the law of evidence, in procuring adequate proof of intention or
negligence.
Instances
The ch ief instances of wrongs of absolute liability fall into three
divisions-
1. Mistake of law
2. Mistake of fact
3. Inevitable accident.
1. Mistake of law
lgnorantiajuris non excusat is a maxim recognised by almost every legal
system. Ignorance of the law is no excuse. When a person has committed a
wrong, the law will not hear him say that he did not have a guilty mind, and that
but for his ignorance of law, he would not have done it.
2. Mistake of fact
Although a mistake of law is no cause, a mistake of fact is a good defence
to excuse a person from liability. Thus, ff A walks away with B's umbrella (which
resembles his own) thinking that it is his own , he will not be guilty of theft. So,
wherever a motive is an essential ingredient of wrong, a mistake of fact is
good excuse. lgnorantia tacit excusat.
A mistake of foreign law is treated on the same footing as a mistake of
fact, and will, therefore, afford a good defence.
In Basely v. Clarkson, (1682) 3 Lev. 37, there was an action for breaking
a close and cutting the grass therein and carrying it away. The defendant
disclaimed any title in the plaintiff's close, but said that he too had a close
adjoining and that In mowing his own land, he involuntarily and by mistake,
mowed some grass growing upon the plaintiff's land (intending to cut only the
grass upon his own land.) The Court held that the defendant was liable, for the
act was a voluntary one, though mistaken , and the knowledge and intention
with which it was done could not be ascertained or pleaded in defence.
Similarly, in Consolidated Companyv. Curits & Son, (1892) 1 a. B. 495,
the owner of certain household furniture assigned It by a bill of sale to the
plaintiff. Subsequently, the assignor employed the defendants, a firm of
auctioneers, to sell it by auction at his residence. The defendants, who had no
notice of the bill of sale, accordingly sold the furniture and delivered it to the
purchasers. The defendants pleaded that they had acted under a mistake as
to the true ownership of the property. The Court, however, held that the mistake
202 JURISPRUDENCE
of fact was no excuse for interfering with the plaintiff's property, and the
defendants were liable for the value of the property so wrongfully sold and
delivered.
3. Inevitable accident
Inevitable accident is commonly recognised as a ground of exemption
from liability, both in civil and criminal law.
An inevitable accident is that which could not possibly be prevented by
the exercise of ordinary care, caution and skill. It thus means an accident
which is physically unavoidable. If in the doing of a lawful act, a casualty (which
is purely accidental) arises, no action can be taken for the injury resulting
therefrom. As was said in an English case , "People must guard against
reasonable probabilities, but they are not bound to guard against fantastic
possibilities".
Homes v. Mather, (1857) LR. 10 Ex. 261 : The defendant's horses,
while being driven by his servant in the public highway, ran away by the barking
of a dog , and became so unmanageable that the servant could not stop them,
but tried to guide them as best as he could. At last, he failed to turn them clear
round a sharp corner, and they struck the balcony of the plaintiff's house. The
plaintiff, who was standing on the balcony, was injured. It was held that no
action was maintainable by_the plaintiff, for the servant had done his best under
the circumstances.
Brown v. Kendall, (1850) Cus. 292 : In this case, the plaintiff's and the
defendant's dogs were fighting. The defendant was beating them in order to
separate them, and the plaintiff was looking on . In so doing , the defendant
accidentally hit the plaintiff's eye, inflicting upon him a severe injury. While
giving judgment in favour of the defendant, the Court observed, "If in the
prosecution of a lawful act, a casualty purely accidental arises, no action can
be supported for an injury arising therefrom".
Nitro-Glycerine Case, (1872) 15 Wallace, 524 : The defendants, who
were carriers, received a wooden case for transmission, without being informed
of the nature of the contents. The contents were found to be leaking, and the
defendants thereupon took the case to their office for examination . While the
case was being opened, the nitro-glycerine exploded and the building was
damaged. In an action by owner against his lessees, the carriers, it was held
to be a case of sheer accident, and that the defendants were not in fault, as
they were not bound to know the nature of the contents, unless their appearance
excited suspicion. In this case , it was observed : "No one is responsible for
injuries resulting from unavoidable accident whilst engaged in a lawful business.
The measure of care against accident which one must take to avoid
responsibility is that which a person of ordinary prudence and caution would
use, if his own interests were to be affected and the whole risk were his own".
Fardon v. Harcourt, (1932) 48 T.L.R. 215 : The defendant parked his

saloon motor-car in a street and left his dog inside. The dog had always been
quiet and docile. As the plaintiff was walking past the car, the dog, which had
been barking and jumping about in the car, smashed a glass panel, and a
splinter entered the plaintiff's left eye, which had to be removed. In an action
for damages, it was held that the plaintiff could not recover, as a motor-car
with a dog in it was not a thing dangerous in itself, and as the accident was so
unlikely, there was no negligence in not taking precautions against it.
Stanely v. Powell, (1891) 1 Q . B. 86 : The defendant, who was one of a
shooting party, fired at a pheasant. One of the pellets from his gun glanced off
the bough of a tree, and accidentally wounded the plaintiff, who was engaged
in carrying cartridges and game for the party. It was held that the defendant
was not liable. The ratio decidendi in this case has been criticised as erroneous,
though the decision itself can also be supported on the grounds of volenti non
fit injuria.
Inevitable accident, however, is not a good defence when a man brings
or keeps on his land, things which by their very nature are dangerous, e.g.,
wild beasts, excessive water, etc. When a natural use is made of land, a man
will be responsible only for his negligent acts. However, for a nonnatural use,
the person is responsible for all harm caused to others, whether he was
negligent or not. Thus, if a person breeds wild animals like tigers and lions in
his compound, he will be responsible for the injury caused by their escape into
his neighbour's land, - even if such escape is not due to his negligence.
Rylands v. Fletcher : The most important case on the point is that of
Rylands v. Fletcher, (1863) L.R. 3, H.L. 330. In this case, Fletcher was working
in a coal mine under a lease. On the neighbouring land, Rylands desired to
erect a reservoir for storing water, and for this purpose, he employed a
competent independent contractor whose workmen, while excavating the soil,
discovered some disused shafts and passages communicating with old
workings and the mine in adjoining land . The shafts and passages had been
filled with loose earth and rubbish. The contractor did not take the trouble to
pack these shafts and passages with earth, so as to bear the pressure of
water in the reservoir when filled. Shortly after the construction of the reservoir,
even when it was partly filled with water, the vertical shafts gave way and burst
downwards. The consequence was that the water flooded the old passages
and also the plaintiff's mine, so that the mine could not be worked. The plaintiff
sued for damages. No negligence on the part of the defendant was proved.
The only question was whether the defendant would be liable for the negligence
of the independent contractor who was admittedly a competent engineer. In
the circumstances, the Court held that the question of negligence was quite
immaterial. The defendant, in bringing water into the reservoir, was bound to
keep it there at his peril , and was therefore liable.
204 JURISPRUDENCE
The Rule in Rylands v. Fletcher can be stated as follows : "If a person

brings or accumulates on his land anything which, if it should escape, may
cause, damage to his neighbours, he does so at his own peril. If it does escape
and cause damage, he is responsible , however careful he may have been,
and whatever precaution he may have taken to prevent the damage".
In such a case, the duty is not merely the general negative duty to refrain
from active injury, but a positive duty to guard and protect one's neighbours,
lest they suffer harm by reason of dangerous things artificially brought on one's
land, and the duty is absolute , because it is independent of any negligence on
the part of the defendant or his servants.
DOCTRINE OF VICARIOUS LIABILITY

Definition
Normally, the person who is liable for a wrong is he who does it. When
one man is made answerable for the acts of another, it is an instance of vicarious
liability.
The principle of vicarious liability is almost foreign to the present notions
of justice. At the present day, responsibility is never vicarious, except in very
special circumstances. Modern civil Jaw, however, recognises such liability in
two chief classes of cases:
1. Masters are responsible for the acts of their servants done in the
course of their employment.
2. Living representatives are liable, to a certain extent, for the acts of
the deceased whom they represent.
1. Master's liability for the acts of his servants

'Vicarious liability' means liability which is incurred for, or instead of,
another. Every person is responsible for his own acts. But, there are
circumstances where liability attaches to him for the wrongs committed by
another. The most common instance is the liability of the master for wrongs
committed by his servant. In these cases, liability is joint as well as several.
The wrong-doer himself is liable, whether he is a servant or an agent, as much
as his principal.
A servant is a person who voluntarily agrees, whether for wages or not, to
subject himself at all times during the period of service of the lawful orders and
directions of another in respect of certain work to be done. A master is the
person who is legally entitled to give such orders and to have them obeyed.
The relation of master and servant exists only between persons of whom one
has the order and control of the work done by the other.
There are three main reasons why a master is held liable for his servant's
wrongful acts:
(a) Qui facit per allum facit per se

This maxim means that he who does an act through another is deemed
in law to do it himself. Thus, a person who puts another in his place to do
certain acts for him, is answerable for the wrongs of the person so entrusted in
doing that authorized act or in the manner of do.ing such an act. From this, it
also follows that the master will not be responsible for unauthorized acts and
acts which arise from the whims or caprice of the servant.
(b) Respondeat superior

The master is answerable for every wrong of the servant in the course of
the employment, and no express authority of master need be proved . This
principle is based on the fact that in many cases, it would be very difficult to
prove the express authority of the master.
(c) Financial considerations

Another reason for making the master liable for the acts of servants is
that the master will be In a better financial position to bear the brunt of the
damages awarded by the Court to the injured party than his poor servant. If the
rule were otherwise, everyone cou ld escape financial liability by employing
servants (who would naturally not be rich enough to pay the damages awarded
by the Court), and the aggrieved parties would never be able to recover
compensation .
2. Responsibility of living representatives for the acts of the dead

The common law maxim was Actio persona/is moritur cum persona; a
man cannot be punished in his grave. It was held , therefore , that all actions for
penal redress must be brought against the living offender, and must die with
him. This old rule has been , to a great exten t, abrogated by law. Criminal
responsibilities, however, die with the wrong-doer even today.
Actlo persona/is moritur cum persona : At Common Law, if an injury
was done either to the person or property of another, for which damages only
could be recovered in satisfaction , the action died with the person to whom, or
by whom , the wrong was done. Th is was embod ied in the maxim Actio
persona/ls moriturcum persona (a personal right of action dies with the person .)
A personal action did not survive on the death , either of the person who
sustained or of the person who committed , the wrong . The Law Reform
(Miscellaneous Provisions) Act, 1934 has however, virtually abolished this
maxim.
At Common Law, in the case of the death of the person wronged , his
executors or administrators could not maintain an action for -
(i) persona/wrongs committed during his life-time, such as assault, libel ,
false imprisonment, negligence not causing his death , seduction ; or
(ii) trespass to his goods and chattels; or
(Iii) damages for his death.
206 JURISPRUDENCE
Vicarious liability in Criminal law

The doctrine of vicarious liability, though widely applicable in civil law, is
not, as a rule, applicable in criminal law. The fundamental principle of criminal
law is that each man is responsible for his own act. One must not only have
done an act, but he must also have a guilty mind to be responsible in criminal
law. If the master does not have the guilty mind generally the law does not
attribute the guilty mind of the servant to the master. However, there are some
exceptions to this general rule that there exists no vicarious liability in criminal
law.
(i) In many cases, the owner of a piece of property is bound to take
sufficient care and ensure that it does not harm others. In such cases,
the owner cannot shirk off his responsibility by proving that he himself
was not responsible or negligent, as for example, when he had
appointed a competent manager to look after the property. Similarly,
an editor of a newspaper will not be heard to say that he was not
aware of a libel which his staff had printed in the newspaper.
(ii) Under the Licensing Acts, licences are issued to specific individuals
on account of their ability or standing. They cannot, therefore, escape
liability by delegating the control or management of the licensed
business to others.
(iii) Under Sections 154 and 155 of the Indian Penal Code, the owner of
land is liable to a penalty in certain cases where the breach of duty is
actually committed by his agent or manager.
(iv) Under Section 34 of the Indian Penal Code, where a criminal act is
done by several persons in furtherance of the common intention of
all, each of such persons is liable for that act in the same manner as
ifit was done by him alone.
ODD
Chapter 16
THE LAW OF OBLIGATIONS
"OBLIGATION" DEFINED
According to Holland, an obligation Is a tie , whereby one person is bound Define "Obli ga -
to perform some act for the benefit of another. Salmond defines it as "a tion". (2 marks)
proprietary right in personam or a duty which corresponds to such a right''. M.U. Apr. 2011
Apr. 2010
Paton also describes It as that part of the law which creates rights in personam.
Dec.2018
Thus, an obligation is a duty co-relative of a right in personam. Holland regards Nov. 2019
an obligation as a tie whereby one person is bound to perform some act for the
benefit of another.
An obligation may be regarded both as a right and as a duty. It is a right
from the point of view of the person entitled to it, whereas it is duty from the
point of view of the person who is bound to respect the right of fulfil the duty.
Chose (thing) in action

A chose in action (or an actionable claim) is a kind of obligation . It is a Write a short note
right which can be enforced by legal action in a Court of Law. on : Obllgatlon.
M.U . Apr. 2009
The Transfer of Property Act defines an actionable claim as "a claim to Apr. 2010
any debt, other than a debt secured by a mortgage of immovable property or May 2015
by hypothecation or pledge of movable property, or to any beneficial interest in Nov. 2015
movable property, not in the possession, actual or constructive, of the claimant,
which the Civil Courts recognise as affording grounds for relief, whether such
debt or beneficial interest be existent, accru ing, conditional or contingent."
Equitable choses in action are those that were originally enforced by Courts
of Equity in England, e.g., beneficial interest in a partnership or a trust fund.
Legal choses in action are those that are enforced by a Court of Law,
e.g., insurance policies, bills of exchange, promissory notes, etc.
Chose (thing) in possession

The term chose in possession has now almost become obsolete. Choses
in possession are opposed to choses in action . As seen above, a chose in
action is a proprietary right in personam. All other proprietary rights are choses
in possession. Thus, money in a man's wallet is a chose in possession ; that
which was lent to his friend , and is not yet returned , is a chose in action. It will
be noticed that this distinction between chose in action and chose in possession
is based mainly on the distinction between real and personal rights .
KINDS OF OBLIGATIONS Write a short note

(SOURCES OF OBLIGATIONS) on : Kinds of
obligation.
Classed in respect of their sources or modes of origin, the obligations
M.U. Apr. 2011
recognised by English Law are divisible into four classes. These four classes May 2017
may also be said to be the sources of obligations.
208 JURISPRUDENCE
Discuss the law of 1. Contractual

obligations with
reference to A contract is an agreement which creates rights in personam between
various kinds of the parties to it. Contractual obligations are thus those which are created by
obllgatlons. agreements , which create rights in personam between the parties. The rights
M.U. Nov. 2016
so created are generally proprietary in nature, but sometimes they are not, as
for instance, in the case of a promise to marry.
2. Delictal
Define obltgatlons. By this is meant the duty of making pecuniary satisfaction for civil wrongs
What are the kinds known as torts.
of obllgatlons?
M.U. Nov. 2009 A tortious obligation is a liability to pay pecuniary damages tor a civil
wrong , which in English law is confined to those specific wrongs for which the
remedy is an action for damages, and does not include a mere breach of
contract, or of a trust or other merely equitable obligation .
3. Quasi-contractual
Define obllgatlons, There are certain obligations which are not in truth contractual, but which
bringing out the the law treats as if they were so.
sources of
obligations with Meritorious and Official Obligations
examples.
M.U. Nov. 2012 By a meritorious obligation is meant the services rendered voluntarily by
a person to some property or business or thing for the benefit of the owner,
and even without the consent of the owner, who was not present at the time
when such a voluntary obligation was made and to give his consent to the
same. In spite of this, the volunteer who rendered meritorious obligation is
entitled to a compensation for the work done or the services rendered by him.
If A, by mistake leaves goods at the door of X, and Xtakes the goods and
appropriates them, X would be liable to pay a reasonable compensation
equivalent to the value of the goods appropriated by him. Similarly, a trader
who supplies necessaries to a minor or a lunatic, is entitled to recover a
reasonable value of the necessaries supplied by him from the property of such
minor or lunatic. So also. a finder of goods can recover, from the true owner,
compensation for all the expenses properly and reasonably incurred by him,
not only in keeping the goods in a proper condition, but also in finding the true
owner. All these are instances of meritorious obligations.
Write a short note By an official obligation, Is meant an obligation or services rendered by
on ; Sources of public servants, such as Police Officers, members of the Fire Brigade,
obligation.
Inspectors ofthe Public Health Department and other servants who are bound
M.U. Oct. 2008
to help the members of the public who need their help genuinely on certain
Nov. 2009
Apr. 2014 occasions. Such obligations arise by virtue of their office and are, therefore ,
May 2018 called official obligations. These obligations are in personam, because th ey
Dec. 2018 only apply to some particu lar office or officers.
THE LAW OF OBLIGATIONS 209
Implied or Quasi-contracts
Contractual obligations are generally voluntarily created; but there are
some obligations which are not contractual but which are treated as such by
law, that is to say, there is no contract in fact, but there is one in the contemplation
of law. Such contracts are called quasi-contracts or implied contracts or
constructive contracts. Thus, if A pays a sum of money to B, believing him to
be his creditor, when, as a matter offact, he was not, he is bound to return the
money to A, on the assumption that the above sum was given to him by mistake.
Such relationships create what are called quasi-contracts. Quasicontracts
are exceptional kinds of contracts by which one party is bound to pay money in
consideration of something done or suffered by the other party; but they are
not founded on actual promises. They arise when one party has so conducted
himself that the law says that he must be deemed bound as if he made a
promise, though in fact he has not. Quasi-contracts are, therefore, obligations
which though not contracts technically, give rise to relations which resemble
those created by contracts. Quasi-contracts are based on the doctrine of unjust
enrichment.
The following five types of quasi-contracts are recognized by the Indian
Contract Act:
1. Claim for necessaries supplied to person incapable of contracting,

or on his account
If a person , incapable of entering into a contract, or any one 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.
Thus, A supplies B, a lunatic, with necessaries suitable to his condition in
life. A is entitled to be reimbursed from B's property.
A supplies the wife and children of B, a lunatic, with necessaries suitable
to their condition in life. A is entitled to be reimbursed from B's property.
2. Reimbursement of person paying money due by another in payment

of which he is interested
A person who is interested in the payment of money which another is
bound by law to pay, and who therefore pays it, is entitled to be reimbursed by
the other.
3. Obligation of person enjoying benefit of non-gratuitous act

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 benefit thereof, the latter is bound to make compensation to the
former in respect of, or to restore, the thing so done or delivered.
210 JURISPRUDENCE
Thus A, a tradesman, leaves goods at B's house by mistake. B treats the

goods as his own. He is bound to pay A for them. But, if A saves B 's property
from fire, A is not entitled to compensation from B, if the circumstances show
that he intended to act gratuitously.
4. Liability of person to whom money Is paid, or thing delivered, by

mistake or under coercion
A person to whom money has been paid, or anything delivered, by mistake
or under coercion, must repay or return it.
5. Rights and liabilities of a finder of goods

A finder of goods is treated , in the eyes of law, as a bailee in respect of
those goods, and certain rights and liabilities flow from this legal fiction.
4. lnnominate
This class of obligations comprehends all those which are not included in
the first three classes, and are so called because they have no comprehensive
or distinctive title. Within this class are included the obligations of trustees
towards their beneficiaries.
SOLIDARY OBLIGATIONS
The normal type of obligation is that in which there is one creditor and
one debtor. It often happens, however, that there are two or more creditors,
entitled to the same obligation, or two or more debtors under the same liability.
Such an obligation is known as 'solidary'.
Thus, if a debt of~ 1,000 is owed by two partners, A and 8 , to X, it does
Wh at is solidary not mean that one debt of ~ 500 is owed by A to X, and another of the same
obligation?
amount by B to X. It is a single debt of~ 1,000 owing by each of them to X. If
(2 marks)
M.U. Apr. 2012
either A or B pays X the whole of it, both are discharged from the liability.
May 2018 Likewise, in such cases, the creditor can recover the full amount from only one
of the debtors, and leave that debtor to recover contribution from his co-debtor.
Obligations of this kind are called so/idary, because, in the language of
Roman Law, each of the debtors is bound, in solidum, i.e., the whole debt, and
not pro parte, i.e., only for a proportionate part of such debt. A solidary obligation,
therefore, may be defined as one in which two or more debtors owe the same
thing to the same creditor.
Solidary obligations are of three kinds - (a) Several; (b) Joint and (c)
Joint and Several.
(a) Several
In case of several solidary obligations, there are as many distinct
obligations as there are debtors. Thus, there is a distinct legal tie (vinculum
legis) in case of each of the debtors, and each debtor is liable for the full
amount of the debt.
THE LAW OF OBLIGATIONS 211
(b) Joint
When there is a single vinculum legis in respect of the entire debt, there
is a joint solidary obligation. Here, there are two or more debtors, but only one
cause of action.
(c) Joint and Several

In the case of joint and several solidary obligations, each debtor is
separately liable for the full debt, and all the debtors are also jointly liable for
the full debt.
Under the Indian Contract Act, in the case of joint promisors, the liability
is joint and several, unless there is an agreement to the contrary. The result is
that if a promise is made by A , Band C to X, X may sue, at his option, A only,
or B only, or Conly, or any two, or all three of them. In case the entire promise
is performed by, say, A alone, he can claim to be reimbursed by B and C for
their proportionate shares.
In such cases, if the creditor discharges any one of the debtors, the other
debtors are not discharged automatically. (For details, see the Indian Contract
Act, 1872.)
Joint tort-feasors (i.e. persons who jointly commit a tort) are likewise liable,
jointly and severally, to pay damages under the law of torts.
Examples
How does the law, one may ask, determine as to which of the above
three categories a particular obligation is to be classified? The general rule is
that such obligations are several when they have the same subject-matter, but
have different sources. Such obligations are distinct in their origin. But they
are joint if they have the same subject-matter and the same source. Joint and
several obligations are those which are joint obligations, but which the law
treats as if they were also several in some respects.
Examples of solidary obligations that are several are:
(a) The liability of the principal debtor and an independent surety.
(b) The liabilities of two sureties who guarantee the same debt
independently of each other.
(c) The liability of independent tort-feasors whose acts cause the same
damage.
Examples of joint obligations are :
(a) Debts of partners.
(b) A joint contract by two debtors, where the agreement does not provide
that the liability would be joint and several.
212 JURISPRUDENCE
Examples of obligations which are joint and several are :

(a) Liability of those who jointly commit a tort.
(b) Liability of those who jointly commit a breach of contract.
(c) Contractual obligations, where the agreement expressly provides for
joint and several liability.
000
Chapter 17
THE LAW OF PERSONS
DEFINITION
"A person is any being whom the law regards as capable of rights or Explain the term
duties." (Salmond) "person".
M.U. Apr. 2007
In law, there may be men who are not "persons". Thus, for instance,
formerly, slaves were destitute of legal personality in a system which regarded
them as incapable of rights or liabilities. Like cattle, they were looked upon as Identify the kinds
things and the objects of rights, not persons and the subject of any rights. of legal persons.
(2 marks)
Conversely, there are in law persons who are not men or women. A joint-stock
M.U. Nov. 2015
company, for example, is a distinct person in the eyes of law, though not a
human being .
Under the Indian Penal Code, the word 'person' includes any company or
association, or body of persons, whether incorporated or not.
"So far as legal theory is concerned, a person is any being whom the law
regards as capable of rights or duties. Any being that is so capable is a person,
whether a human being or not, and no being that is not so capable is a person ,
even though he be a man. Persons are the substances of which rights and
duties are the attributes. It is only in this respect that persons possess juridical
sign ificance , and this is the exclusive point of view from which personality
receives legal recognition." (Salmond)
KINDS OF PERSONS
Persons are of two kinds - Natural and Legal.
1. Natural
A natural person is a being, to whom the law attributes personality in
accordance with reality and truth. Natural persons are human beings, and
consequently persons in fact as well as in /aw.
2. Legal
"A legal person is any subject-matter other than a human being to which
the law attributes personality." (Salmond). A legal person is thus any being,
real or imaginary, to whom the law attributes personality by way of a legal
fiction where there is none in fact. They are persons in law, but not in fact.
Who are natural
They are also described as fictitious, juristic or artificial persons, as for instance,
persons and who
a company. are artificial
The extension of the conception of personality beyond the class of human persons? Give
examples.
beings is one of the most noteworthy feats of legal imagination. Personification (2 marks)
conduces so greatly to simplicity of thought and speech , that its aid is invariably M.U. Apr. 2007
accepted , and the thing personified is called the corpus animus of a fictitious Nov, 2010
personality.
214 JURISPRUDENCE
Write a short note Although it is true to a great extent that legal personality involves
on : Legal person-
ality of nonhuman
personification, the converse is not true. Personification is a mere artifice of
beings. speech, whereas legal persona1lity is a definite legal conception. In common
M.U. May 2015 parlance, one speaks of the estate of a deceased as if it were a person ; it
owes debts and is a creditor, but the law does not recognise legal personality
in such a case. The rights and liabil ities devolve upon the heirs and executors,
Write short notes
and not upon the estate . In other cases, a group of persons is personified as a
on : Artificial Legal
Person . single person , even though the law recognises no body corporate, e.g. , a firm
M.U. May 2018 is a collection of the individuals who have formed it; this is a personification,
but there is no personality. One talks of the judges as the Court, of the jurors
as the jury, yet the jury is not a corporation , though personified for the sake of
convenience. Legal persons , being arbitrary creations of the law, may be of as
many kinds as the law pleases, e.g., corporations are undoubtedly legal persons,
and registered trade unions and friendly societies are also legal persons, though
not regarded as corporations.
Kinds of legal persons

Legal personality is divided into three varieties, by reference to the different
kinds of things which the law selects for personification :
1. Corporation: The first class consists of corporations . A corporation
is a group or series of persons which , by a legal fiction, is regarded
and treated as a person.
2. Institution : The second class is that in which the object selected for
personification is not a group or series of persons, but an institution,
for example, a church or university.
3. Fund or Estate: The third class is where the corpus is some fund or
estate devoted to special uses-a charitable fund, for example, ora
trust estate.
CORPORATION
Definition
A corporation is a group or series of persons which, by a legal fiction, is
regarded and treated as a person.
Discuss the legal Kinds of Corporation
status of corpora-
tions and explain Corporations are of two kinds : Corporations aggregate and corporation
the different kinds sole .
of corporations.
M.U. Nov. 2014 (a) Corporation aggregate
Nov. 2017
It is a group of co-existing persons. Corporations aggregate have several
members at a time. Examples are a registered company, and a municipal
State two kinds of
Corporation? corporation . Such a corporation, e.g., a company, is in law something different
(2 marks) from its members. The property of the company is not the property of the
M.U. Nov. 2019 shareholders . The debts and liabilities of the company are not attributed in law
THE LAW OF PERSONS 215
to its members. A shareholder may enter into a contract with the company, for Write a short note
on : Corporate
the two persons are entirely distinct from each other. Sole
M.U. May 2019
(b) Corporation sole
Nov. 2019
A corporation sole consists of an incorporated series of successive
persons. Corporation sole has only one member at a time. Examples are the Define a corpora-
Sovereign, the Postmaster-General, the Solicitor to the Treasury, the Secretary tion sole, giving
examples.
of State for War, the Attorney-General of India, the Advocate-General of
(2 marks)
Maharashtra, and so on. M.U. Apr. 2012
In the case of a corporation sole, the element of legal fiction involved is
that the law assumes that, in addition to the natural person administering for
the time being the duties and affairs of the office, there is a mythical being who What is a corpora-
tion sole?
is, in law, the real occupant of the office and who never dies or retires. The
(2 marks)
living official is merely an agent or representative through whom this legal M.U. Apr. 2014
person performs his functions. The human official comes and goes, but this
offspring of the law remains forever.
State Kelsen ' s
The uses and advantages of incorporation theory of corpo-
By incorporation is meant a group or series of persons to be treated as a rate personality.
(2 marks)
person by legal fiction, as for instance, a company. This has the following
M.U. Nov. 2017
advantages:
(1) When a large number of individuals have a common interest vested in
them, and therefore, have to act in common in the management and protection What are the theo-
ries of corporate
of such interest, incorporation serves a useful purpose. It would be impossible
personality?
for the large multitude of individuals, probably scattered over vast distances, M.U. Apr. 2008
to act in a concerted manner in the management of their common interest. In Apr. 2009
such circumstances, incorporation, by attributing a personality by legal fiction
to the multitude, enables the fictitious personality of the corporation to act
promptly and decisively in the best interests of the management and protection State two advan-
tage of incorpora-
of the common interest. A modern commercial venture, with the aid of the tion. (2 marks)
capital of large number of people, would be impossible but for the device of M.U. Nov. 2011
incorporation.
(2) Independent corporate existence is one of the most important
advantages of incorporation. Unlike a partnership, which has no legal existence
Write short note
apart from its partners, a company is a distinct legal person in the eyes of law. on : Advantages of
By incorporation, a company is vested with a distinct corporate personality, incorporation.
which is distinct from the members who compose it. A well known illustration of M.U. May 2017
this legal principle is the decision of the House of Lords in Salomon v. Salomon
Co. Ltd., (1877 Appeal cases, 22).
(3) Similarly, if a series of persons, not all existing at the same time, but
having successive existence one after the other, have a common interest, and
if there need be the continuity of management and protection of interest,
incorporation becomes a useful device.
216 JURISPRUDENCE
Perpetual succession is thus another advantage of incorporation .

Members may come and members may go, but the Company goes on forever.
(4)Another advantage of incorporation is that this device is used to enable
traders to trade with limited liability; but for incorporation , those who participate
in a commercial adventure would be personally liable to an unlimited extent. In
modern times, where people invest their money, without being able to exercise
effective control and management over the commercial adventures, the risk
they would be assuming would be enormous. The device of incorporation
enables them to invest their money in a commercial adventure without taking
any risk greater than the investment they have made.
(5) Yet another advantage is that a company, being a legal person , is
capable of owning , enjoying and disposing of property in its own name . The
shareholders are not the private and joint owners of the company's property.
Thus , incorporation helps the property of the company to be clearly
distinguished from the property of its members (shareholders). In a partnership,
on the other hand , the distinction between the joint property of the firm and the
private property of its partners is often not so clear and distinct.
(6) The freely transferable nature of the shares of a company is yet another
advantage of incorporation . A shareholder (except a shareholder in a private
company) can freely sell his shares in the market and get back his investment
without going to the company to withdraw his money.
(7) Lastly, a body corporate can sue, and be sued, in its own name.
Acts and liabilities of a corporation

A legal person is incapable of conferring authority upon an agent to act
on its behalf. The authority of the agents and representatives of a corporation
is therefore conferred, limited and determined, not by the consent of the
principal, but by the law itself. It is the law that determines who shall act for a
corporation and within what limits his activity must be confined .
A corporation cannot be sued, unless (i) the act done was within the scope
of the agent employed by it; and (ii) the act done was within the purpose of the
incorporation. The same principles which govern the vicarious liability of a
principal for the torts of his agents, or of a master for torts of his servants,
govern the liability of a corporation for the torts of its agents and officials.
Explain : Acts and But a corporation can sue and be sued , for (i) defamation , (ii) deceit, and
liabilities of a (iii) malicious prosecution . When the suit is against the corporation for any of
corporation.
these torts , the plaintiff, in addition to the necessary ingredients, must prove
B.U. Nov. 2009
that the servant or agent was acting in the course of the employment and the
act complained of was done by him in the course of the employment, and for
the benefit of the corporation and within the scope of his authority. If the act is
ultra vires, the corporation is not liable .
A corporation cannot maintain an action for personal wrongs, for by their

very nature, such injuries cannot be inflicted on a corporation.
A corporation may sue for a libel or any other wrong affecting property or
business. It cannot maintain an action for a personal wrong, e.g., libel charging
the corporation with corruption, for it is only individuals, and not the corporation
in its corporate capacity, who can be guilty of such an offence.
A corporation is liable for torts committed by its agents or servants to the
same extent as a principal is liable for the torts of his agent or an employer for
the torts of his servant, provided the tort is committed in the course of doing an
act which is within the scope of the powers of the corporation. It may thus be
liable for assault, false imprisonment, trespass, conversion, libel or negligence.
It was thought at one time that a corporation could not be held liable for
wrongs involving malice or fraud, on the ground that to support an action for
such a wrong, it must be shown that the wrong-doer was actuated by a motive
in his mind and that "a corporation has no mind". But it is now settled that a
corporation is liable for wrongs even of malice and fraud . A corporation,
therefore, may be sued for malicious prosecution or for deceit.
In connection with the topic of corporations in India, an idol of a Hindu
temple stands in the same position as a corporation. So also does a mosque.
They are recognised as juristic persons capable of owning property. An idol
can, therefore, be sued in respect of tort committed by its shebait, manager or
trustee.
A corporation , however, will not be liable if the act of its servants is not
authorised by the articles of its incorporation.
The leading case on the subject is Poulton v. London and S. W. Rly. Co.
In that case, a station-master, in the employ of the defendant company, arrested
the plaintiff for refusing to pay the freight for a horse that had been carried on
the defendant's railway. The railway company had authority, under an Act of
Parliament, to arrest a person who did not pay his fare, but none to arrest a
person for non-payment for the carriage of goods. It was held that the railway
company was not liable. The company, having no power itself to arrest for
such non-payment, it could not give the station-master any power to do the
act. The plaintiff's remedy for the illegal arrest in such a case would be against
the station-master only.
Unincorporated associations: An unincorporated association of persons
has no legal entity and cannot sue or be sued as such. Thus , no action will lie
against a trade union, whether of workmen or masters, or against any members
or officials thereof on behalf of any trade union or its members as a body, in
respect of any tortious act alleged to have been committed by or on behalf of
the trade union in any Court : S. 4, Trade Disputes Act, 1906. The provision
confers immunity on Trade Unions in respect of any tort, whether connected
with a trade dispute or not, but the individual tortfeasors remain personally
218 JURISPRUDENCE
liable. It is to be noted , however, that immunity does not extend to any act done
in contemplation or furtherance of any illegal strike or lock-out : S. 1, Trade
Disputes and Trade Unions Act, 1927.
Creation and extinction of corporation

The birth and death of legal person are determined , not by nature, but by
law. They come into existence at the will of the law and they endure during its
pleasure. They are , in their own nature, capable of indefinite duration, but they
are not capable of destruction. The extinction of a body corporate is called its
dissolution.
Theories of Corporation
There are many theories relating to the legal personality of a corporation,
the main three being the following:
1. The fictitious theory
2. The realistic theory
3. The bracket theory or the symbolist theory.
1. The fictitious theory

According to this theory, a corporation is a group of persons which, by a
legal fiction, is regarded, and has treated itself, as a person. The personality of
a corporation is fictitious being which is quite distinct from, and stands over, its
corpus , namely, shareholders or members. The fictitious being is without a
soul or body, not visible, save to the eye of law, as in the case of a company.
2. The Realistic theory

Write a short note According to the realistic theory, a corporation is nothing more, in law or
on : Theories of in fact, than the aggregate of its members conceived as a unity, and this
corporated per-
organisation of human beings is a real person possessed of a real will of its
sonality.
M.U. Apr. 2010 own and capable of actions and of responsibility. The realistic theory maintains
Nov. 2012 that the corporation has a real psychic personality recognised, and not created,
bylaw.
The reconciliation of the Fictitious Theory and the Realistic Theory of

the personality of the Corporation
Though of these two theories, the fictitious theory of the corporation is
more acceptable, yet there are some judicial decisions which hold to the
contrary. For example, in R. v. /.C.R. Houlegh, it was held that a limited company
can commit an offence such as the offence of conspiracy to defraud, in spite
of the fact that it can form its intention only through its human agents. The
implication of this decision is that a corporation, though it has no mind or will of
its own , can be guilty of an offence involving mens rea, but at the same time,
such mens rea can be entertained by the company only through its human
agents. This result can be achieved by the application of the Doctrine of Lifting
the Corporate Veil.
In conclusion, one might agree with Dr. Sethna and say that the personality
of the corporation is neither truly real nor truly fictitious; it is quasi-real or quasi-
fictitious.
3. The bracket or the symbolist theory

The bracket or the symbolist theory was developed by Jhering. Basically, What Is the
this theory is quite similar to the fictitious theory (above). It postulates that only "bracket theory"
(2 marks)
human beings can have interests and rights of a legal person. According to
M.U. Apr. 2011
Jhering, the corporate personality is merely an economic device to simplify the
task of coordinating the legal relations of a corporation . Hence, whenever
necessary, the law should look behind the corporate entity to discover the real
state of affairs - which is, in fact, the application of the doctrine of lifting the
corporate veil.
State as a corporation or legal person

Man is a social and community-building animal, and he has given
expression to many aspects of this human characteristic by setting up various
associations. Perhaps, from the human point of view, of all the forms of human
society, the greatest is the State. A modern State today performs multifarious
activities, which would cover up the entire life of an individual. In the words of
Edmund Burke, it is a partnership in every art, and a partnership in all science
and a partnership in every virtue. The question is, whether the State is endowed
with a real personality and are the members who owe allegiance to it entitled
to the protection of the State?
In England, the State is an organised society, but it is, in no way, a person
or a body corporate . It owns no property, is capable of no acts, and has no
rights nor any liabilities imputed to it by the law. In India, on the other hand, the
State being the ultimate sovereign through its electorate, the legal opinion is in
favour of considering the State as a corporate body consisting of three distinct
departments, the legislature, the executive and the judiciary.
In the same manner, the question is whether the Commonwealth Is a
body politic and corporate, and is it endowed with personality? With regard to
England, one knows that the King is, in law, no mere mortal man. He has a
double capacity not only a natural person but also a body politic, i.e., a
corporation sole. The King is merely the outward visible wearer of the Crown ,
merely the living representative and agent of the invisible and underlying persona
ficta in whom are vested the powers and prerogatives of the Government by
the law of the realm . It is, therefore, quite proper to speak of the Crown, rather
than of the King. Therefore, the Empire as a whole could not be recognised as
a personality corporate under law, so also, the constituent self-governing States
would not be considered as corporate bodies.
220 JURISPRUDENCE
DOUBLE CAPACITY AND DOUBLE PERSONALITY

According to English Law, a man may have different capacities. For
example, he may have power to do an act in an official or representative
capacity, or he may have power to do an act in his private capacity or on his
own account. Thus, if a person is acting as a trustee, he may at times have the
capacity to act as the trustee, and at other times, the capacity to act on his own
account.
But double capacity must not be mistaken for double personality. Double
capacity does not connote double personality. English common law did not
recognise double personality of the individual. Under common law, one could
not sue himself; one could not contract with himself, but of late, some exceptions
have been introduced by statute whereby a man may be able to convey property
to himself, as in the case of creation of a trust. It must be noted that such
cases of double personality are exceptional, and the main principle is that a
person cannot enter into a legal transaction with himself. That means English
law generally does not recognise double personality, though it recognises double
capacity.
LEGAL STATUS OF ANIMALS, UNBORN PERSONS

AND DEAD MAN
1. Lower animals
Discuss the legal In law, the lower animals are not regarded as persons, but are regarded
status of I ower as things. They have no natural or legal rights. According to Salmond, they are
animals, dead men
and unborn merely things - often the objects of legal rights and duties, but never the
persons. subjects of such rights and duties.
M.U. Apr. 2005
It is true that in archaic codes, animals were punished with death if they
Nov. 2005
were guilty of homicide. Thus, Dr. Havelock Ellis gives the instance of the trial
Apr. 2007
May 2018 of cock for witchcraft. (Incidentally, the unfortunate cock was found guilty, and
condemned to death.) In ancient Hindu Jurisprudence also, the killing or
molestation of harmless animals like bulls, cows, oxen , swans, squirrels and
Discuss the legal pigeons was made punishable with fine.
personality of
lower anlmals. To-day, however, an animal cannot be punished, although certain laws
M.U. Apr. 2009 allow an animal to be shot if it is absolutely dangerous. So also, even under
modern law, a trespassing beast may be distrained damage feasant, and kept
until its owner or someone else interested in the beast pays compensation.
Discuss 'Personal- Thus, in India, under the Cattle Trespass Act, the occupier of land, over which
ity' and examine
the personality of another's cattle have trespassed, can have such cattle sent to the public cattle
{i) minors, {Ii) per- pound.
sons of unsound
mind and (Iii) dead
A beast, therefore, is incapable of possessing legal rights as also legal
persons. duties, and no legal system in the world recognises its rights. No animal can
M.U. Nov. 2011 be the owner of any property, even through the medium of a human trustee,
Dec. 2018 though a person may make a valid bequest to trustees in favour of a particular
Nov. 2019 animal like a dog, a parrot or a cat. But, such a bequest must be in the nature
of a charitable and not a private bequest, and is valid only if it does not offend Are animal legal
persons? Give
against the rule of perpetuity. A bequest in favour of a particular animal is void, reasons .
if perpetual, because only a charitable bequest may be made in perpetuity. (2 marks)
Thus, "The Beaumont Animal Benevolent Society", a charitable institution for M.U . Apr. 2012
promoting such activities such as opposing all cruel sports involving pursuit of
animals like deer, slag, fox, rabbits, birds, fish etc., was held to be void, because What Is the legal
personality of
it was created in perpetuity and was a private trust. (Grove v. Lawrence, 1929
animals?
1 Ch . 557) (2 marks)
But in another case, where a testator gave£ 50 per annum to trustees for M.U. May 2019
the maintenance of his favourite mare, to last until the mare's death, it was
held to be a valid bequest. (Pettingall v. Pettinga/1, 11 L.J. Ch. 176)
A charitable trust is for the advancement of human beings. So, a trust for
the benefit of animals generally or a class of animals is void, if it is to last for
perpetu ity. But a trust created for the welfare of cats and kittens needing care
and attention was held to be valid, for it was meant to develop the emotions
and the finer sense of human nature, of which care of old and sick animals
was a manifestation. Similarly, a trust for the welfare of animals such as cows,
buffaloes, etc., is a good charitable trust, in so far as it leads to the advancement
of religion.
There are two cases in which beasts may be thought to possess legal
rights. In the first place, cruelty to animals is a criminal offence; secondly. a
trust for the benefit of particular classes of animals, as opposed to one in
favour of individual animals, is valid and enforceable as a public and charitable
trust. For example, a provision can be made for the establishment and
maintenance of a home for stray dogs or broken-down horses.
2. Unborn persons
An unborn person has a contingent or a qualified kind of legal personality. Examine the legal
personality of the
There is nothing in law to prevent a man from owning property before he is unborn, dead and
born. His ownership Is necessarily contingent, for he may never be born at all, drunk persons.
but it is nonetheless a real and present ownership. Though it is possible to M.U. May 2015
settle property on an unborn person, yet certain restrictions are placed on the Nov. 2015
vesting of property in favou r of unborn persons, so that property may not be Nov. 2016
too long withdrawn from the use of living men for generations to come.
In this connection , it may be noted that a child in its mother's womb is, for
certain purposes, regarded , by a legal fiction, as already born. In the law of
property, there is a fiction that a child en ventre sa mere is a person in being for
the purpose of (1) the acquisition of property by the child itself, or (2) being a
life chosen to form part of the period in the rule against perpetuities.
The recognition of the legal personality of a child in the womb of the
mother is illustrated in the rule of procedure , which lays down that a pregnant
woman condemned to death cannot be executed until she has delivered her
ch ild. So also , the Criminal Law protects the unborn child by declaring abortion
to be a criminal offence. (However, the Indian law on this point has recently
222 JURISPRUDENCE
been relaxed). Similarly, it has been held that a posthumous child is entitled to
compensation for the death of his father. ( George and Richard, (1871) L.R. 3
Ad. and ECC. 446)
In another English case, it was , however, held that a Railway Company
was not liable on a claim made by an infant against the Company for damages
for injuries sustained by her due to a collision on the railway line caused by the
negligence of the servants of the Railway Company, while she was en ventre
sa mere, on the ground that the Railway Company was under no duty to take
care of a child whose existence it was not aware of. (Walker v. The Great
Northern Rly. of Ireland 1890 28 L. R. Ire. 69)
It should be noted that the personality of an unborn person is contingent
on his birth, and if he dies in the womb or is still-born, no right will be deemed
to have been vested in such child. If, however, the child is born alive and
survives, even for a very short time, he will acquire the property given to him,
and his heirs can claim it after his death.
3. Dead men
Write a short note In law, dead men are ' things ' and not 'persons'. They have no rights and
on : Personality of no interests. A dead man's corpse is not 'property' in the eyes of the law. It
the dead. cannot be disposed of by will or by any other instrument. Thus, a permanent
M.U. Apr. 2010 trust for the maintenance of a man's tomb is illegal and void. If a testator leaves
in his will a direction that a certain part of his property shall be utilised for the
maintenance of his tomb , such a direction is void and of no effect.
What is the legal Though the dead have no rights, the criminal law regards a libel upon the
personality of a dead as a crime, but that too only when its publication is in truth an attack upon
dead person?
the interests of living persons. Offering indignity to a human corpse is, likewise,
(2 marks)
M.U. Nov. 2014 an offence.
As regards a dead man's reputation, the same is protected to a limited
extent. It is a general rule that with regard to deceased persons, one must not
speak anything but good : De mortuis nut nisi bonum. If, therefore, some person
speaks evil of the deceased person, his relatives can have a very limited
protection under the law for such a defamation . The law does not protect the
deceased person or his reputation , in so far as he has no rights or dealing with
this world , but the interests of the relatives of the deceased person are taken
into account by law. Under section 499 of the Indian Penal Code, it may amount
to defamation to impute anything to a deceased person, if the imputation would
harm the reputation of that person, if living, and is intended to be hurtful to the
feelings of his family or other near relatives . So, it is only for the protection of
the members of the family of the deceased person that the law provides such
a remedy.
Under ancient Roman Law also, any insult to the body of the deceased at
the time of the funeral gave a right to the heirs of the deceased to sue for the
injury. So also, under French law, the relatives for the defamed deceased can
successfu lly sue for damages, if they can prove that some injury (even moral
injury) resulted from the defamation .
Moreover, the law of succession permits the desires of the dead to regulate
the actions of the living . For years after a man is dead , his hand may continue
to regulate and determine the enjoyment of the property which he owned while
he was alive.
In law, a deceased human being is not regarded as a legal person, because
with his death , his personality comes to an· end . Whatever he has left behind to
be distributed as gifts or given in charity are respected by law, and enforced
according to his wishes laid down in his will. The law protects his body after
death , as also his reputation and the property left behind by him .
A deceased person's corpse is supposed to be a thing belonging to nobody
and cannot be the object of a theft, though it is a criminal offence to offer
indignity to a corpse or to a grave-yard. With the leaving of the soul, the
personality of the individual van ishes, and the body becomes a mere thing,
though religious susceptibilities of the deceased himself and the members of
his family may consider it a sacred object around wh ich ceremonies are to be
performed .
In Williams v. Williams (1882-20 Ch. D. 659), it was laid down that a
person cannot, during his life-time make a wi ll disposing of his body, e.g.,
giving his brain to the museum or giving any part of his body to the medical
college. To-day however, the trend is changing , and it would be perfectly legal
to, say, donate one's eyes after death. Likewise, transplant of other organs of
the human body after death Is also regulated by statute.
A person can , by his will or otherwise , make a val id trust for the repair of
all the graves in a grave-yard , because that would amount to a public or
charitable trust. But one cannot make a trust for perpetual repair of one's own
grave or the graves of his ascendants and descendants, because such a trust
would be a private trust and would infringe the rule against perpetuity. Even if
a bequest is for the benefit of one's soul or the souls of one's ancestors or
descendants, then such a bequest is to be regarded as a public or charitable
bequest, because it is likely to advance the cause of rel igion by attracting other
persons who are strangers to that particular place on the day or days on which
such ceremonies are performed . If such ceremonies are to be performed for
the benefit of the priest, then such a bequest can also be perpetual.
It has been held in Jamshedji v. Soonabai (33 Born. 122) that muktad
ceremonies of the Parsees tend to advance the religion of the followers of the
Prophet Zoroaster, and that therefore , trusts and bequests for the purpose of
such ceremonies are valid. Similarly, in the Advocate-General v. Yusufali, (24
Born . L.R. 1060) it was held that a gift for the perpetual upkeep of the tomb of
St. Chandabhai was a charitable gift, and therefore valid, even though perpetual.
DOD
Chapter 18
THE LAW OF PROPERTY
1. GENERAL
'Property' defined
State the definition The whole of the substantive civil law can be divided ir:,to three main
of 'property'.
parts : the law of property, the law of obligations, and the law of status. This
(2 marks)
Chapter deals with the first main division, viz., the law of property. The term
M.U. Nov. 2016
May 2018 property is applied to a number of different concepts, of which the most important
are:
1. All legal rights : It includes a person's legal rights of whatever
description. A man's property is a// that is his, in law. This ordinarily
What do you
understand by
im plies complete ownership of all things - material as well as
rights to property? incorporeal .
(2 marks) 2. Proprietary rights : This is a narrow use of the term , and in this
M.U. Nov. 2011
sense, it includes, not all of a person 's rights , but only his proprietary,
as distinguished from his personal, rights. Used in this sense, the
Explain the con-
cept of property term covers a man's lands, chattels, debts and shares, but not his
and discuss the liberty or his reputation.
kinds of property.
M.U. Apr. 2014
3. Proprietary rights in rem : This is an even narrower sense in which
Nov. 2015 the term is used , and it covers not even all proprietary rights, but only
May 2018 those that are proprietary rights in rem, excluding totally all proprietary
May 2019 rights in personam. Thus, in this sense, whereas a patent or a
copyright is property, a debt or the benefit of a contract is not.
Define property
and explain the
4. Corporeal property: This is the narrowest use of the term , and
different kinds of includes only corporeal property, i.e., the right of ownership in a
property a person material object, like a house or a car, or that object itself. Bentham
can own lawfully?
prefers to use the term property in this sense .
M.U. May 2017
Nov. 2017
KINDS OF PROPERTY
What different 1. Corporeal and incorporeal
kinds of property
All property is either corporeal or incorporeal. Corporeal property (res
can a person own
under the law? corpora/is) is the right of ownersh ip in material things; incorporeal property
M.U. Nov. 2006 (res incorporalis) is any other proprietary right in rem in an abstract form of
Oct. 2008 property, e.g., a patent right or right of way. Corporeal property is always visible
and tangible; incorporea l property is not. If Xmortgages his house to Y, he has
Write short notes a right to get the house back when he has paid off his debt. The right of
on : Incorporeal
Property. redemption is incorporeal (it cannot be seen or felt) , but the house itself which
M.U. May 2017 X has mortgaged is corporeal. Both are valuable, inasmuch as they are legal
rights - recognised and enforced by law.
THE LAW OF PROPERTY 225
2. Movable and Immovable (Bona Mobilia & Bona lmmobilia)

Among material things, an important distinction is that between movables Write a short note
on : Kinds of
and immovables, or to use terms more familiar in English law, between chattels property.
and land. M.U. Apr. 2012
"Immovable property" includes land, benefits to arise out of land, and
things attached to the earth , or permanently fastened to anything attached to
Explain kinds of
the earth - section 3(25), General Clauses Act, 1897.
property and
The term is also defined in the Indian Registration Act thus : "Immovable modes of acquir-
property" includes land, buildings, hereditary allowances, rights to ways, lights, ing property.
M.U. Nov. 2019
ferries, fisheries or any other benefits to arise out of land and things attached
to the earth or permanently fastened to anything which is attached to the earth,
but not standing timber, growing crops, or grass.
The following are judicially recognised as immovable property : (a) Right Define " property"
and bring out the
of way: (b) Right to collect rents of immovable property; (c) Right to collect
different meanings
dues from a fair on a piece of land; (d) A right of ferry; (e) Office of hereditary in which the term
priest of a temple; (f) A right to officiate as a priest at funeral ceremonies of " property" is
Hindus; (g) A Hindu widow's life interest in the income of her husband's understood.
M.U. Nov. 2006
immovable property; (h) A mortgagor's right to redeem the mortgage; (i) A hat
(market); 0) Right to possession and management of Saranjam; (k) Right to
levy rate or cess on all exports and imports; (I) Right to the assessment payable
on a sub-tenure; (m) The interest of a mortgagee in immovable property; (n)
Right of fishery; (o) Right to collect lac from trees; (p) A factory; (q) Annual
allowance or varshasans charged on immovable property; (r) A mortgage-debt,
etc.
The following are not immovable property : (a) A Right of worship;
(b) Right of a puchaser to have the lands registered in his name; (c) Royalty;
(d) A machinery which is not permanently attached to the earth and which can
be shifted from one place to another; (e)Adecree for sale of immovable property
on a mortgage; (f) A right to recover maintenance allowance, even though
charged on immovable property; (g) Government Promissory notes; (h) Standing
timber; (i) Growing crops; U) Grass, etc.
3. Real and personal property

Closely connected with the distinction between movable and immovable What is " real
property" ?
property is the classification recognized by English law of real and personal
(2 marks)
property. Real property corresponds to immovable property, whereas personal M.U. Nov. 2010
property corresponds to movables. This classification is thus not very much
different from the one seen above, and is due mainly to the course of legal
development in England. What do you
understand by
4. Proprietary rights in intangible things personal and real
property?
There are many intangible things which can be owned by human beings. (2 marks)
Abstract rights are of various kinds. Thus, A 's right to pass through B's garden M.U. Apr. 2012
226 JURISPRUDENCE
orto graze his cattle in B's field are rights, though invisible. These are intangible
rights. They cannot be seen, touched or felt, as is the case with tangible things,
like a car or a horse.
Define "property" . Now, many intangible things are the product of human skill and labour
Explain rights in re and the law recognises them. These are of five chief kinds :
propria and rights
in re atiena. (i) Patents : The subject-matter of a patent right is an invention. Patent
M.U. Apr. 2010 right. - Patent right is a privilege granted by the State to the first inventor of
any new product or invention, that he and his licensees have the sole right of
making and selling such product or invention during a particular period of time.
This branch of law has been codified, and the rights of a person who is
responsible for a new invention are protected by the Patents and Designs Act,
both in English and in Indian Law.
A person who has registered a patent gets the exclusive right to make,
use, or sell the patented invention for a period of fourteen years. Any person
who, whether with or without the knowledge of the existence of the patent
right, infringes the same, may be restrained by injunction, and if he knowingly
infringes the patent, he will also be liable for damages.
(ii) Literary Copyright : The subject-matter of this right is the literary
expression of facts or thoughts.
(iii) Artistic Copyright : Artistic design in all its various forms, such as
drawing, painting, sculpture and photography is the subject-matter of a right of
exclusive use, analogous to literary copyright.
(iv) Musical and dramatic copyright.
Copyright : Copyright is the sole exclusive liberty of printing or otherwise
multiplying copies of any book. This right now exists under Copyright Acts. A
copyright exists in books, letters, lectures, dramatic works, musical works and
works of art.
(v) Commercial goodwill: This includes trade-marks and trade-names.
5. Right in re a/iena (Encumbrances)

A right in re aliena or an encumbrabce is one which limits or derogates
from some more general right belonging to some other person in respect of
the same subject-matter. The chief classes of encumbrances are four in number,
namely, (1) Leases, (2) Servitudes, (3) Securities, and (4) Trusts. (This has
been fully discussed later in this Chapter.)
2. MODES OF ACQUIRING PROPERTY

What are the Of the various existing modes of acquiring property, the following four are
modes of acquir- of primary importance : 1. Possession; 2. Prescription; 3. Agreement; and
ing property?
4. Inheritance.
(2 marks)
M.U. Apr. 2012
1. Possession What are the two

elements of pos-
By possessing a material object, the owner may acquire a legal title to it session?
in two ways, - by occupation or by possessory ownership. (2 marks)
M.U. May 2019
(a) By occupation
When property, of which possession is taken by the claimant, does not as
yet belong to any one else (res nullius, as the Romans said), the possessor
acquires a title good against all the world. Th is mode of acquisition is known in
Roman law as occupation or occupatio.
Res nul/ius means things belonging to none, and things that cannot be Write a short note
possessed exclusively by anybody, e.g., fishes in the sea. Res nullius belongs, on : Modes of ac-
quiring property.
by absolute title, to him who first obtains possession of it. Res nullius are things M.U. Nov. 2014
capable of ownership, but so far, unappropriated, such as undiscovered land,
precious stones burried under ground , treasure trove, etc. Things were also
termed res nullius if their owners relinquished possession of them with the
intention of abandoning all ownership thereof, e,g., enemy property captured
in war.
Occupatio is the taking possession of a res nullius with a view to owning What Is res
it. Ownership could be acquired , for example , over wild animals (when nu Iii us? (2 marks)
captured), the property of enemies taken in war, and treasure troves. M.U. Nov. 2014
Wild animals in enclosures belong to the owner of the enclosure, e.g.,

monkeys. But once they gain their liberly, they can be acquired by occupatio.
Animals and birds which disappear only to return, such as deer, hens and fowl,
cannot be acquired by occupatio and they belong to the owner. The same is
the case with domestic animals, e.g. dogs or cats.
Thus , A had a swarm of bees . The swarm remained the property of A, so
long as they continued thei r habit of returning to his hive. But having ceased
this habit, and settled on a tree of S, the bees , which are by nature wild are
deemed to have regained their natural freedom . They have escaped from the
sight of A or, even if they are still in his view, it is hard for him to follow them up.
The swarm of bees, therefore, becomes the property of him who first hives
them, and in this case, the bees belong to S, so long as they continue the habit
of returning to the tree of S.
Wild animals were res nullius, and thus could become, by occupatio, the
property of the first person who took or caught th em. A wild animal remained
the property of the taker so long as he guarded it and kept it in. Once it escaped,
it was deemed to regain its natural freedom and become the property of any
one who first seized it. When a man wounded a wild beast, it did not become
his until he actually took it; if another happened to take it first, that other became
owner, although he had not struck the blow.
Likewise, an island which springs up in the sea is deemed to be the
property of no one (res nuflius). It becomes the property of the first occupier.
228 JURISPRUDENCE
Things wilfully abandoned are called derelicts. These can be acquired by

occupatio. Things negligently left or abandoned on account of necessity (e.g.,
jettison) always remain the property of the owner. It is theft if a person takes
them having reason to know whose they are.
(b) By possessory ownership
When the thing, of which possession is taken, is already the property of
someone, the title acquired by possession is good against all third persons,
but is of no validity at all against the true owner. This is known as acquiring
property by possessory ownership. Thus, A is in possession of B's book, rightly
or wrongly. As against B, A has neither a right nor a title. If, therefore, B claims
the book, A has no answer to B 's claim . But as against all other persons, A has
a good title. It will not lie in the mouth of others to say that A got possession of
it wrongfully. In other words, the defence of just tertii will not be allowed.
The underlying reason behind the doctrine of possessory ownership is
quite evident. If this doctrine did not exist, force and fraud would be able to
determine all cases of disputes as to possession , where both the parties to the
dispute could not show an unimpeachable title (of ownership) in respect of the
disputed property.
2. Prescription
The second mode of acquiring rights is by prescription. Prescription may
be defined as the effect of lapse of time in creating and destroying rights. It is
the operation of time as a vestitive fact.
Section 26 of the Limitation Act lays down the law as to acquisition of
easements by prescription . The section can be analysed as follows :
1. Where the access and use of (i) peaceably, (ii) as an easement,
light or air to and for any building (iii) as of right, (iv) without interruption,
have been enjoyed- and (v) for 20 years (or, in the case of
Government property, for 60 years)-
and
2. Where any way of watercourse, (i) peaceably, (ii) openly, (iii) by a
or the use of any water or any person claiming title thereto, (iv) as an
other easement (whether easement, (v) as of right, (vi) without
affirmative or negative) has been interruption, and (vii) for 20 years (or,
enjoyed - in the case of government property, for
60 years)-
the right to such access and use of light or air, ways, watercourse, use of
water, or other easement shall be absolute and indefeasible.
The above period of 20 years (or60 years, as the case may be), should
be a period ending within two years just preceding the institution of the suit in
which the claim to which such period relates is contested.
As stated above, such a right should be enjoyed for the prescribed period,
without interruption. S. 26 of the Limitation Act clarifies that nothing is an
interruption -
(i) unless there is an actual discontinuance of the possession or
enjoyment, by reason of an obstruction by the act of some person
other than the claimant; and
(ii) unless such obstruction is submitted to or acquiesced in for one year
after the claimant has notice thereof and of the person making or
authorising the same to be made .
Illustrations : (a) A suit is brought in 2004 for obstructing a right of way.
The defendant admits the obstruction, but denies the right of way. The plaintiff
proves that the right was peaceably and openly enjoyed by him , claiming title
thereto, as an easement and as of right without interruption from 1st January,
1983 to 1st January, 2003. The plaintiff is entitled to judgment.
{b) In a like suit, the plaintiff shows that the right was peaceably and
openly enjoyed by him for twenty years. The defendant proves that the plaintiff,
on one occasion during the twenty years, had asked his leave to enjoy the
right. The suit will be dismissed.
Positive and negative prescription

Prescription is of two kinds : viz., (i) positive or acquisitive, and (ii) negative
or extinctive . The former is the creation of a right, whereas the latter is the
destruction ofone, by the lapse of time. In other words, long possession creates
rights and long want of possession destroys them .
Acquisitive and extinctive prescription

The extinctive aspect of prescription , that is, prescription as extinguishing
a right, has been seen above. But, prescription has also an acquisitive aspect,
which must also be considered. It may also create rights , that is to say, by long
enjoyment of a thing, one may get an absolute right and title to it. The same
period of time which extinguishes one person's right may create rights in favour
of another person ; rather, the operation of prescription is to transfer the rights
of the former in favour of the latter.
Basis of prescription
The laws of limitation and prescription are based upon the principles that
the law aids the diligent and not the indolent, that a man who has negligently
slept over his rights for an undue length of time will not be allowed to litigate in
respect of them, and that a person who (without any fraud or breach of trust)
has been in the enjoyment of property, or of a right, or of an immunity, for a
period of time which the law has prescribed , will be allowed to enjoy that property,
right or immunity in peace and quiet even thereafter, and will not be harassed
by unexpected litigation cropping up at distant dates, or exposed to stale
230 JURISPRUDENCE
demands, perhaps when witnesses of the fact are dead or the evidence of the
title lost.
"All statutes of limitation or prescription", said Lord St. Leonards, "have
for their object the prevention of the rearing up of claims at great distance of
time when evidences are lost, and in all well-regulated countries, the quietening
of profession is held an important point of policy." These laws have also variously
spoken of as "statutes of repose" and as "statutes of peace", because by their
operation, they lay at rest claims and demands which might otherwise have
disturbed the peace of the community by giving rise to quarrels and litigation.
Their operation in this respect is well expressed by Lord Plunkett in the following
words : "Time holds in one hand a scythe; in the other an hour-glass. The
scythe mows down the evidence of our rights, the hour-glass measures the
period which renders the evidence superfluous."
The doctrines of limitation and prescription are founded on consideration
of public policy and expediency. To secure the quiet and repose of the
community, it is necessary that the title to property, and matters of right in
general, should not be in a state of constant uncertainty, doubt and suspense.
The old maxim of law in interest reipunlicase us sit finis litium. The interest of
the State requires that a time-limit should be prescribed for litigation. Another
consideration is that a party who is insensible to the value of civil remedies and
who does not assert his own claim with promptitude, has little or no right to
acquire the aid of the State in enforcing it : Vigilantibus non dormientibus jura
subveniunt. The law assists the vigilant, and not those who sleep over their
rights.
The object of the Legislature in passing statutes of limitation is to quiet
long possession and to extinguish stale demands. A ground of defence cannot,
however, be stale or barred by limitation, and it would therefore be open to a
defendant to put forward any defence, though such defence as a claim made
by him may be barred on the date it is put forward. The statutes of limitation
are statutes of repose. At the same time, they are a means of ensuring private
justice, suppressing fraud and perjury, quickening diligence and preventing
oppression.
Macaulay, in a debate in the House of Commons, vividly described what
the consequences to society would be if there were no laws of limitation or
prescription. "Suppose," he said, "you had no statute of limitations, so that any
man amongst us might be liable to be sued on a bill of exchange accepted by
his grandfather in 1760; or suppose you imagine the case of a man in
possession of an estate, occupying a manor-house which has been held by
his grandfather and his great grandfather before his being turned out of that
possession because some old will or deed made in the time of Charles I had
been discovered in some forgotten chest or cranny - should we not exclaim
that it would be better to live under the rule of a Turkish Pasha, and should we
not all feel that the enforcement of an absolute right was nothing less than an
inflication of the foulest of wrongs? Should we not feel that this extreme rigour
of law without a limit of time, would be nothing less than a grave, systematic
and methodical robbery?"
Custom and prescription distinguished

Custom is a long practice operating as a source of law, while prescription
is a long practice operating as a source of rights. Historically, the law of
prescription is merely a branch of the law of custom. A prescription was originally
conceived as a personal custom, i. e. , a custom limited to a particular person
and his ancestors in title. It is to be distinguished from local custom, which is
not limited to an individual person, but limited to a particular place. Prescription
is a right acquired by the use for a particular period of time, e.g., by use of a
path, bridge, well, or any other property, the user acquires a right if he constantly
uses it for a period of twenty years or more. Similarly, the right to light, right to
air, are rights which can be acquired by user for twenty years or more.
For a very long time, prescription and custom were regarded as similar,
and were essentially governed by similar riJles of law. The requisites of a valid
prescription were in a sense the same as those of valid custom. The requisites
are (1) immemorial antiquity, (2) reasonableness , and (3) consistency with
statutory enactment. It was only by a slow process of differentiation that the
requisites of prescription came to be narrowed down and the requisite , viz.,
immemorial antiquity ceased to have validity for a prescriptive right. Law has
now laid down different requirements and rules for the creation of prescriptive
rights. The right is acquired by the unbroken enjoyment over a passage of a
time, viz., for 20 years or more . A user during this period becomes at common
law is still possible if the statutory rules are of no assistance .
3. Agreement
The third method by which proprietary rights are acquired is by agreement.
Agreements are of two kinds : assignment and grant. By the former, existing
rights are transferred from one owner to another, by the latter, new rights are
created by way of encumbrance upon the existing right of the grantor.
Nemo dat quod non habet

The general rule is that the seller cannot give to the buyer of goods a
better title to those goods than he himself has. This is expressed by the maxim
"nemo dat quod non habet" (No one can give who possesses not.) In other
words, the general rule is that the buyer cannot acquire a better title to the
goods than the seller has. So, if a person acquires possession of property by
theft, and sells it to another, the buyer acquires no title, though he may have
acted honestly, and may have paid value for the goods; and the real owner of
the goods is entitled to recover possession of the goods without paying anything
to the buyer. It is wellestablished that a thief has no title, and he can therefore,
confer none, even on an innocent buyer. This may cause hardship to the
232 JURISPRUDENCE
innocent buyer, but the rule is deemed necessary in the larger interests of
society and for security of property.
But to the rule that a seller of goods cannot give to the buyer a better title
than he himself has over them, there are the following exceptions :
Exception 1 : Title by estoppel - The exception to the general rule that
a person cannot pass a better title than he has, occurs in case where the
owner of the goods is, by his conduct, precluded or estopped from denying the
seller's authority to sell . So, where the owner, by his words or conduct, causes
the buyer to believe that the seller was the owner of the goods or had the
owner's authority to sell them, and induces him to buy them in that belief, he
cannot afterwards set up the seller's want of title or authority to sell.
Exception 2 : Sale by a mercantile agent - Where a mercantile agent
is, with the consent of the owner, in possession of the goods, or of a document
of title to the goods, any sale made by him in the ordinary course of business
is binding on the owner, provided that the buyer acts in good faith and has not,
at the time of the contract of sale, notice that the seller has no authority to sell.
Thus, where a blank transfer form and a share certificate of a company
are delivered by a registered shareholder of the share to his broker for sale in
the market, and the broker sells the same as the agent of the registered holder
to a bona fide purchaser for value, the purchaser gets a good title to the share
and can insert his own name in the transfer form and procure himself to be
registered as the owner.
Exception 3 : Sale by one ofjoint owners- If one of several joint owners
of goods has the sole possession of such goods with the permission of the
other co-owners, the property in goods is transferred to any person who buys
them from such a joint owner in good faith, and has not, at the time of the
contract of the sale, notice that the seller has no authority to sell.
When A and Bare joint owners of certain goods, and B allows A to remain
in exclusive possession of the goods, A can make a valid sale of them to any
one who buys them in good faith.
Exception 4 : Sale by a person in possession under a voidable contract
- When the seller of goods has obtained possession thereof under a voidable
contract, but the contract has not been rescinded at the time of the sale, the
buyer acquires a good title to the goods, provided he buys them in good faith
and without notice of the seller's defect of title.
Exception 5 : Sale by a seller in possession after sale- Where a person,
having sold goods, continues to be, or is in possession of goods (or of a
document of title to the goods), the delivery or transfer by that person, or by a
mercantile agent acting for him, of the goods (or documents of title to the
goods) under any sale, pledge or other disposition thereof, to any person
receiving the same in good faith and without notice of the previous sale, has
the same effect as if the person making the delivery or transfer were expressly
authorised by the owner of the goods to make the same.
Thus, A sells goods to 8, who for his own convenience, leaves the goods
with A. Later, A fraudulently sells the goods to C, who buys them in good faith
and without notice of the sale to 8. In these circumstances, C gets a good title
to the goods. The delivery of the goods by A to C has the same effect as if A
was expressly authorised by 8 to deliver the goods to C.
Exception 6 : Sale by a buyer in possession after the contract of sale -
Where a person having bought, or agreed to buy the goods, obtains, with the
consent of the seller, possession of the goods (or documents of title to the
goods), the delivery or transfer by that person or by a mercantile agent acting
for him , of the goods (or documents of title to the goods) under any sale,
pledge or other disposition thereof, to any person receiving the same in good
faith and without notice of any lien or other right of the original seller in respect
of the goods, has effect as if such lien or other right did not exist.
Inheritance
The last method of acquiring proprietary rights is by inheritance.
In respect of the death of their owner. All rights are divisible into two classes,
being either inheritable or uninheritable. A right is inheritable , if it survives the
owner; uninheritable, if it dies with him. Proprietary rights are usually inheritable ,
whilst personal rights are not, save in exceptional cases.
3. ENCUMBRANCE
Definition
Ajus re aliena or encumbrance is a right which limits or derogates from Write a short note
some more general right belonging to some other person in respect of the on Encum-
brances.
subject-matter. M.U. Apr. 2011
Nov. 2017
Kinds of encumbrances
The following are the four main kinds of encumbrances Leases,
Servitudes, Securities and Trusts.
1. Lease
A /ease is the encumbrance of property vested in one by a right to the What is property?
What do you
possession and use of it vested in another. A lease is that form of encumbrance
understand by
which consists of a right to the possession and use of property owned by some encumbrances?
other person . It is the outcome of the rightful separation of ownership and M.U. Nov. 2012
possession. Thus, Xis the owner of a house, and he leases it out to Y. What in
effect takes place is that X 's ownership is detached from his possession . For
all purposes, Xis the owner, but he does not have its possession . Y has What Is an
encumbrance?
possession of the house, and yet he is n ot its owner. Give an example.
A lease of immovable property is a transfer of a right to enjoy such property (2 marks)
for a certain time (express or implied), or in perpetuity, in consideration of (i) a M.U. Apr. 2014
price paid or promised, or (ii) of money, (iii) a share in crops, (iv) service or,
234 JURISPRUDENCE
(v) any other thing of value, to be rendered, periodically or on specified occasions

to the transferor by the transferee, who accepts the transfer on such terms.
Examine rights In
The 'price' is called the premium, and the money, share of produce or
re aliena, bringing service rendered is called the rent, the transferor is called the lessor and the
out the chief transferee is called the lessee.
classes of
encumbrances. The essential elements of a lease are :
M.U. Nov. 2015 1. The lessor : He must be competent to contract and he must have
title or authority.
2. The lessee : He also must be competent to contract at the date of
execution of the lease. A sale or a mortgage to a minor is valid. But a
lease to a minor is void, as a lease is to be executed both by the
lessor and the lessee.
3. Subject-matter of the lease, which must be immovable property.
4. Transfer of a right to enjoy such property.
5. Duration of the lease : A lease must be made for a certain time,
express or implied, or in perpetuity.
6 Consideration, which may be premium plus rent, or premium alone, or
rent alone. Premium is the price paid or promised in consideration of a transfer
by way of lease. Any payment by the lessee that is part of the consideration of
the lease is rent.
7. The lessee must accept the transfer.
8. It must be made by a registered instrument in certain cases.
2. Servitude
What is "servi- A servitude is the form of encumbrance which consists of a right to the
tude". limited use of a piece of land without the possession of such land, as for
(2 marks) instance, a right of way over it.
M.U. Nov. 2011
A servitude, therefore, is a right to the limited use of a piece of land,
Dec.2018
unaccompanied either by the ownership or by the possession of such land, as
for example, a right of way, or a right to the passage of light or water across
adjoining land.
Dominium or ownership is the term employed to denote comprehensively
all possible rights in a thing - the sum total of rights known to a man. The
rights of ownership may be separated into as many fragments as the owner
chooses. Some rights may be given to some, and other rights to some other
persons. Fragments of ownership, detached from the rest of ownership, and
vested and enjoyed by persons other than the owner of the thing itself, are
called servitudes. They are limited and defined rights over a thing belonging to
another. Hence the term, jura in re aliena.
From this definition of servitude, it follows that no one can have a servitude
over his own thing. Servitude is then merged in ownership. Hence, the maxim
nu/Ii res a sua servit. Servitude is not the thing itself, but a right. It is, therefore,
incorporeal. Servitudes are either private or public.
Full ownership (dominium) consists of mainly of three parts- Jus utendi,
the right to use, jus fruendi, the right to enjoy its fruits and jus abutendi, the
right to destroy it. These rights of ownership can be separated. Some may
remain with the owner, and some of them may be with others. Fragments of
ownership detached from ownership and vested and enjoyed by persons other
than the owner of the thing, are called servitudes.
Kinds of servitudes
Servitudes can be classified in two ways. One classification is between
servitudes appurtenant and servitudes in gross, as under:
(a) Servitudes appurtenant : A servitude appurtenant is one which is
not merely an encumbrance of one piece of land, but is also accessory to
another. It is a right to use one piece of land for the benefit of another,- as in
the case of a right of support for a building. The land which is burdened with
such servitude is called the servient tenement, that which has the benefit of it
is called with dominant tenement. A servitude runs with each of the tenements
in the hands of successive owners and occupiers.
(b) Servitudes in gross : A servitude in gross is one which is not so
attached and accessory to any dominant tenement for whose benefit it exists;
a public right of way or of navigation are examples of this kind of servitude.
The second classification is between private servitudes and public
servitudes, as under:
(a) Private servitudes : A private servitude is one which is vested in a
determinate individual. Thus, A may have a right of way vested in him as owner
of a piece of land over an adjoining land belonging to B. Likewise, X may be
granted a right by Yto fish in Y's pond or remove minerals from Z's mine.
(b) Public servitude : A public servitude is one which is vested in the
public at large - or in some class of indeterminate individuals. Thus, the public
may have the right to use a highway over land which is privately owned. Likewise,
the inhabitants of a Parish may have a right to use a private playground for
purposes of recreation.
Lease and servitude distinguished - It is an essential characteristic of a
servitude that it does not involve the possession of the land over which it exists.
This is the difference between a servitude and a lease. A lease of land is the
rightful possession and use without the ownership of it, while a servitude over
land is the rightful use without either the ownership or possession of such
land.
3. Security
A security is an encumbrance vested in a creditor over the property of his
debtor for the purpose of securing the recovery of the debt, a right for example,
236 JURISPRUDENCE
Write a short note to retain possession of a chattel until the debt is paid. Security on immovable
on : Security.
property is called a 'mortgage'; one created on, movable property is called a
M.U. Apr. 2008
Oct. 2008
'pledge'.
(a) Mortgage
Where immovable property is secured to another for consideration , the
Define "security". transaction is a mortgage. It becomes a pledge if the property is movable.
(2 marks) Thus, if A gives B his house worth ~ 40,000 as security for a loan of ~ 30,000
M.U . Nov. 2015 advanced by 8 to A, the transaction is a mortgage. The property will revert to A
if and when A repays the loan, i.e., when the mortgage is redeemed by A. To
put it in legal parlance, -
A 'mortgage' is the transfer of an interest in specific immovable property
for the purpose of securing -
(a) the payment of money advanced or to be advanced by way of loan,
or
(b) an existing or future debt, or
(c) the performance of an engagement which may give rise to a pecuniary
liability.
The transferor is called the mortgagor; the transferee is called the
mortgagee, the principal money and interest of which payment is secured for
the time being is called the mortgage money; and the instrument (if any) by
which the transfer is effected is called a mortgage-deed. (It may be noted that
the words 'mortgagors' and 'mortgagees' include persons deriving title from
them respectively.)
There are six kinds of mortgages. They are:
1. Simple mortgage.
2. Mortgage by conditional sale.
3. Usufructuary mortgage .
4. English mortgage.
5. Mortgage by deposit of title-deeds {also called an equitable mortgage).
6. Anomalous mortgage. (This is one which does not fall within any of
the other five categories .)
(The different kinds of mortgages are dealt with in the Transfer of Property
Act.)
(b) Lien
Lien is a right of one man to retain that which is in his possession but
belonging to another, until certain demands in respect of the person in
possession are satisfied. Thus, a finder of goods has a right to retain the goods
against the owner till he receives from the owner compensation for the trouble
and expenses incurred by him, and also any specific reward which the owner
may have offered for the return of such goods. The finder is said to have a
'lien' upon the goods found . Lien is the right to 'retain ' possession of goods;
and hence, it can be exercised only so long as the person claiming lien is in
possession . Lien is also lost by satisfaction of the debt, or by a contract
inconsistent with its existence. Lien is a mere right of retention , and does not
include a right of sale.
A lien can only arise in one of three ways- (i) by statute, (ii) by express
or implied contract, and (iii) by the general course of dealing in the trade in
which such lien is claimed.
Liens are of two kinds : General and particular. A general lien is the right
to retain the property of another for a general balance of accounts. General
lien is available only to bankers, factors, wharfingers, attorneys-at law and
policy-brokers. A particular lien, which is available to all bailees, is a right to
retain the property of another for a charge on account of labour employed or
expenses bestowed upon the identical property detained.
A lien may come to an end (i) by satisfaction of the debt; (i i) by
abandonment of the possession of the thing bailed; or (iii) by a contract
inconsistent with its existence.
Possessory lien consists in the right to retain possession of chattels or
other property of the debtor. Examples are pledges of chattels, and the liens of
inn-keepers, and vendors of goods.
Agent's lien : In the absence of any contract to the contrary, an agent is
entitled to retain goods , papers and other property, whether movable or
immovable, of the principal, received by him, until the amount due to himself
for commission , disbursement and services in respect of the same has been
paid or accounted for to him . This lien is particular. It entitles an agent to retain
goods, papers, etc., which are received by him as agent and in the course of
that agency relating to which he is entitled to his commission. Again the property
on which he claims his lien must not have been received by him by a wrongful
act. This lien of the agent is , as a general rule, lost by his parting with the
possession . But where possession is obtained from the agent by fraud , or is
obtained unlawfully and without his consent, his lien is not affected by loss of
possession. An agent's lien is extinguished by his entering into an agreement,
or acting in any character, inconsistent with its continuance, and, may be waived
by conduct indicating an intention to abandon it.
Unpaid vendor's lien : The unpaid seller of goods who is in possession
of them is entitled to retain possession of them until payment or tender of the
price in the following three cases, namely :
(i) where the goods have been sold w ithout any stipulation as to credit;
or
(ii) where the goods have been sold on credit, but the term of credit has
expired; or
(iii) where the buyer becomes insolvent.
238 JURISPRUDENCE
The seller may exercise his right of lien notwithstanding that he is in

possession of the goods as agent or bailee or the buyer.
Difference between:
Mortgage Lien
1. It is an independent and principal 1. It is only a security for a debt; i.e.,

right, and not a mere security. a right to retain possession of a
chattel until payment or right to
receive payment out of a certain
fund .
2. Right of a mortgagee is vested in 2. Right of the person who exercises
him conditionally and by way of a lien is vested in him absolutely,
security only. and not merely as security.
3. It is created either by transfer or 3. It is created by way of encum-
by encumbrance. brance only.
4 . Right of redemption is an infallible 4. There is nothing to 'redeem '. It is
test of a mortgage. merely the shadow of the debt
cast on the property.
5. Encumbrance is created indepen- 5. Its duration is dependent on and
dently of the debt. coincident with the debt secured ,
e.g., pledge, vendor's lien .
6. In a mortgage by way of transfer, 6. A lien leaves the full legal and
the debtor is the beneficial or equitable ownership in the debtor,
equitable owner. The right to but vests in the creditor such
reconveyance is more than a rights and powers (e.g., sale,
personal right of the debtor. possession, etc.) as are required
according to the nature of the
subject-matter, to give the creditor
sufficient protection .
7. There is a double ownership of 7. Lien lapses ipso jure with the
the mortgaged property, the discharge of the debt secured.
mortgagee being merely a trustee Mortgage Lien
for the morgagor on the extinction
of the debt.
(c) Pledge
The bailement of goods as security for payment of a debt or performance
of a promise is called "pledge" . The bailor is in this case called the "pawnor" .
The bailee is called the "pawnee". Where a person pledges goods in which he
has only a limited interest, the pledge is valid to the extent of that interest.
The essential element of a valid pledge is the actual or constructive delivery

of the goods pledged. There can be no valid pledge of goods unless delivery
takes place. It is, however, sufficient if the delivery takes place within a
reasonable time of the lender's advance being made.
A pledge can be made of movables alone. A transfer of possession is
necessary to constitute a complete pledge. It must be juridical possession.
Mere physical possession is not sufficient. The bailee under a contract of pledge
does not become owner but, as having possession and right to possess, he is
said to have a special property.
Difference between 'Pledge ' and 'Lien' - (i) Lien gives a right to possession
until the claim is satisfied. Pledge is a bailment of goods as security for a debt
or for performance of a promise. (ii) Lien is not sufficient to warrant a sale.
Pledge gives the right to sell without agreement after default. (iii) Lien is a right
which arises out of seller's possession , and is lost with the loss of possession,
while pledge is not necessarily lost by the return of the goods to the owner. (iv)
Lien is a creation of law independent of the contract, pledge is a creation of
contract only.
4. Trusts
A trust is an encumbrance in which the ownership of property is limited.
The owner can deal with it only for the benefit of someone else. The legal
owner of the encumbered property is the trustee, but he is bound to use the
property for, and on behalf of, another person, called the beneficiary.
000
Chapter 19
THE LAW OF PROCEDURE
SUBSTANTIVE AND PROCEDURAL LAW

Statute law is either substantive or procedural. Ordinarily, the former
confers rights, and the latter deals mainly with procedure. Thus, it can be said
that in the field of criminal law, the Indian Penal Code is a substantive enactment,
whereas the Criminal Procedure Code is mainly procedural.
Distinction between substantive and procedural law

1. The law of procedure may be defined as that branch of the law which
governs the process of litigation. It is the law of actions, using the
term 'action' in a wide sense to include all legal proceedings, civil or
criminal. All the residue is substantive law, and relates , not to the
process of litigation , but to its purpose and subject-matter.
2. Substantive law is concerned with the ends which the administration
of justice seeks; procedural law deals with the means and instruments
by which these ends are to be attained.
3. Procedural law regulates the conduct and relations of Courts and
litigants in respect of the litigation itself; substantive law, on the other
hand, determines their conduct and relations in respect of the matters
litigated.
The distinction between substantive law on the one side and procedural
law on the other is a very narrow one. But for the purpose of jurisprudence, a
distinction is made particularly from the point of view of administration of justice,
which consists in the application of remedies to the violation of the rights of the
citizens. Substantive law is that which defines the rights of the citizens, while
the procedural law lays down remedies for the breach of these rights. But this
application of the distinction between a law and remedy is inadmissible because
there are many rights which belong to the sphere of procedure, e.g., a right to
appeal , a right to give evidence, a right to interrogate the other party, etc.
Secondly, rules which define remedies are substantially part of the substantive
law, as those which define the right itself. The suggestion to abolish capital
punishment is in no way a suggestion to change the law in the criminal
procedure. In the Penal Code of any country, the substantive part of the Code
deals not with crimes alone but with punishment also . Similarly, in civil law, the
rules as regards the measure of damages pertain to the substantive law of the
land.
Thus, broadly, speaking , civil law is either substantive or procedural.
However, this is not a water-tight distinction. Thus , Company Law, which is
mainly a substantive law, also contains a lot of procedure, e.g., the procedure
of forming companies, procedure for reducing , increasing or re-organising share
THE LAW OF PROCEDURE 241
capital, the procedure for transferring shares, for holding meetings, for passing
resolutions, sending notices, etc. On the other hand, the Criminal Procedure
Code is principally a procedural enactment. Yet it contains several substantive
provisions, e.g., the right to maintenance of a wife, the right to appeal , the right
of Habeas Corpus, etc.
Where procedural law differs from the substantive law, the latter will prevail
over the former, because the procedural law deals with the form, and not with
the substance or the spirit of the law. The law Courts will always maintain the
true spirit behind the law, and in many cases, the Courts may even go beyond
the procedural law. There can be no estoppel against the statute, and the rule
of estoppel cannot be allowed to prevail over the substantive provisions of the
substantive law.
KINDS OF EVIDENCE
1. Judicial and extra-judicial
(a) Judicial evidence is that which is produced before the Court, e.g.,
facts brought to the personal knowledge and observation of the
tribunals. Extra-judicial evidence is that which does not come directly
under judicial cognizance. It is an intermediate link between judicial
evidence and the fact requiring proof.
(b) Judicial evidence includes testimony of witnesses, documents
produced, and all things personally examined by the Court. Extra-
judicial evidence includes all evidential facts known to the Court only
by way of inference from judicial evidence, e.g., testimony known
through a witness who heard it, a copy of a document or a report of
a witness who read it, and so on.
(c) Judicial evidence requires production only; extra-judicial evidence
stands itself in need of proof.
2. Personal and real

Personal evidence, which is otherwise termed " testimony", includes all
statements verbal or written, judicial or extra-judicial, so far as they are
possessed of probative force. Real evidence, on the other hand, includes all
the residue of evidential facts. Anything which is believed for any other reason
than that someone has said so, is believed on real evidence.
3. Primary and secondary

Primary evidence is evidence viewed in comparison with any available
and less immediate instrument of proof. Secondary evidence is that which is
compared with any available and more immediate instrument of proof. Thus, A
stabs B. B's statement that A stabbed B is direct and primary evidence. But,
C's statement that C heard B complain about the stabbing is secondary
evidence.
242 JURISPRUDENCE
4. Direct and circumstantial evidence

Direct evidence is testimony relating immediately to the principal fact. All
other evidence is circumstantial. In the first case, inference is to be drawn
from testimony to the truth of fact. In the second case, inferences are drawn in
successive steps.
Thus, if X saw A killing 8 , this would constitute direct evidence. However,
if 8 was found dead and killed by a knife, the facts that the knife belonged to A,
that A was the only person seen in the vicinity, and further that A was B 's
enemy and had threatened to kill him, would all fall under circumstantial
evidence.
VALUATION OF EVIDENCE
The probative force of evidence or the value of evidence lies in several
factors. The demeanour of a witness in the box, the test of cross-examination
and the manner in which the witnesses are in a position to answer volleys of
questions fired by the lawyers, the discrepancies noticeable in the evidence of
the witnesses and whether such discrepancies are material or otherwise, the
corroboration of evidence, the conclusive character of inferences that could
be drawn from circumstantial evidence, the effect made on the jury and the
judicial discretion used by the Courts in coming to its own conclusion-all these
important and vital points which govern the reliability and value of evidence.
Salmond has divided the rules relating to valuation of evidence declaring
certain facts which are relevant, as follows :
1. Conclusive proof : that is, conclusive presumption.
2. Presumptive proof : that is, rebuttable presumption.
3. Insufficient evidence : namely, that which does not amount to a proof,
raises no presumption and is inconclusive or conditional.
4. Exclusive evidence : that is, certain facts which, in respect of the
matter in issue possess only probative force and nothing else.
5. No evidence : that is, facts are devoid of any evidential value.
KINDS OF PRESUMPTIONS
Presumptions are mainly of two kinds : Conclusive or rebuttaable. (These
have already been discussed earlier.)
000

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1l :St' ,, I'- ,1

[ NOTE : Jurisprudence deals with law from the philosophical point of

THE SCIENCE OF JURISPRUDENCE

Three branches of Jurisprudence

The six schools of Jurisprudence

accidents and other pleasant and unpleasant processes. It is only when a

2. All positive law is deduced from a clearly determinable law-giver,

tend to reduce analytical jurisprudence to a system of rather arid formalism;

This school of jurisprudence attempts to arrive at a harmonious blend of

Jurisprudence and Sociology

Every law-reformer is necessarily interested in the sociology of law. A

The Sociology of Law

Jurisprudence and Economics

Jurisprudence and Psychology

Ethics and Jurisprudence

Uses and Value of Jurisprudence

(i) A study of those fundamental principles which are common to a//

English and Foreign Jurisprudence

BENTHAM remarks "Law or the law, taken indefinitely, is an abstract or

The Law and a Law

Territorial Nature of Law

8. Public International Law (or Law of Nations)

1. Physical or Scientific Law

6. Natural or Moral Law

Natural and legal justice

Explaln the This can be illustrated as follows : Z is a notorious cheat. He borrows

7. 'General law' and 'Special law'

Kinds of Special Law

6. Autonomic law : Autonomic law is that species of enacted law which

Martial Law and Military Law distinguished

8. Public International Law (or Law of Nations)

10. Common law

LAW AND EQUITY

Meaning of the term 'Equity'

The distinction between Constitutional law and ordinary law, according to

The procedure for the amendment of the American Constitution is a highly

12. Administrative and Municipal Laws

II. IMPERATIVE (or POSITIVIST) THEORY OF CIVIL LAW

Critically examine (a) Historical criticism

(b) Moral criticism

(c) Permissive laws

Attempts to meet Salmond's criticism -Authority of Law

(d) Other Criticisms

Ill. LAW AS THE PRACTICE OF THE COURT

(1) Legal situations are not predictions

(2) The theory represents a fraction of the situation

(3) The theory of uncertainty of language not is always correct

IV. LAW AS A SYSTEM OF RULES

State how H.L.A.

Hart's analysis and Austin's theory compared

Kelsen's theory of Legal System

According to Ke/sen , every system of law is based on a grundnorm or

V. LAW AS A SYSTEM OF SYNTHESIS

VI. THE FUNCTION AND PURPOSE OF LAW:

Judicial Process and Reasoning

The following seven topics are considered in this Chapter :

A. SALMOND'$ DEFINITION OF CIVIL LAW

applied by the State in the administration ofjustice." This definition, therefore,

Criticism of the Definition

B. THE CHARACTERISTICS OF CIVIL LAW

C. PLACE OF LAW IN THE ADMINISTRATION OF JUSTICE

is the maintenance of right or justice within a political community by means of

Meaning of 'Justice according to law'