Constitional Histou

Legal &
Outinesofndian

14 matter
earlier, "a more detailed disce
uUssion at this
to this as/ectof the
has heen made1
quite in onder

ENGLISH LAW British Law, a

INTRODUCTmON OF

the principles
of the
British
Constitutional

ired by him by set

acquirea
subject ca
According to own right.
Any territory Crown assume
en
foreign temitory
in his
of the
Crown. Accordingly, the
in India. u r h e rio Of Com
any possessiOns
sovereignty
falls under the India Company's position of the.
of the East
the
administration

fundamental
between the legal
distinction
settled colony
is a settlement
madi.es
e
nies Fnglish
by
acqred
casolonhetVZAne gat,e t
a A
savage peor
maintains
cession.
settlement or by
conquest
or
or has only
which is
uninhabited
of law in such
elAs a th
peopling a country or system
is, government as
hu
institutions or
are governed a
established civil
therefore, the Englishmen
who settle
law to which they
there
can resort Own matler
sheernecessity. no other the ak
with their n
is
is, the English
Law, because
there
Crown carry with them own them their
loci in such a country, the subjects of the laws, A
a lex Council case"
explained in a Privy barbarouscou
Kingsdown in uninhabited
or
established
themselves an and thoy, theey
Englishmen OI their State; own
"Where
them not only the
laws, but the sovereignty
community become also
narto who l.live
who
cary with become
members of their of, and:
them and
amongst
same laws."
subject the
to
said in thic
Lord Chancellor of Ireland,
Writing in 1720, West, afterwards
of the plantations, and all statutesi n affir egard: "The
is the common law
common law of England
antecedent to the settlement ofa colony are iman
in England
the common law passed are there in force, une in
since those settlements
no statutes made
colony, though carries as much of law and lihert. 3ecia
mentioned. Let an Englishman go,17
where he will, he him
as the nature of things will bear.

Power of Legislation
law at the date of the settlement, The E.
The Englishsettlers take with them the English English
new country. Thus, such
Common law and the eS
law becomes the common law of the be held to be of a
statutes
the date of the settlement, as might general
prevailing in England on
relations not only of the settlers but also of the inhahit
character. apply to regulate the legal abitants
who come to live among them. Australia, U.S.A. and Canada fall in this category. The basisof
this proposition is that the British subjects could not evade the sovereignty of the Crown by
absence abroad, but equally the Crown could have no greater power over them than if thev
were not promised such rights. On the other hand, in case of a settlement which is ceded to, or
is conquered by the Crown, there are already in existence a civilgovernment and an established
that the existing lex loci in such a settlement cannot
system of law. It can, therefore, be realised
or conquest, as that
be taken to have come to an end automatically merely by the fact of cession
would be highly incon venient to the people inhabiting the concerned territory because they
would be ignorant of the English law and unprepared to receive the same all at once. Theretore
the existing system of law continues to exist so long as it is not superseded or altered by tne
Wil e
Crown. Till this even the British people who come to live on this settlement
happens,
bound by the already established system of law.
The distinction between the newly discovered countries, on the one hand, and thece
conquered countries, on the other, appears to correspond almost practicaly with the ext

14. See Chapter VII.

15. Also see, Chapter XXVII.
6. Advocate General ofBengaly. Ranee Surnomoyee Dossee, 9 MIA 391, 424 (1863).
17. Chalmer's Opinions, 511, 517. 58
18. op ci,
Jennings Constiturional Laws ofthe Commonwealth, (1957); Blankard Glandy Jennings,
43 d,6 v.
ngs,

arterall Cateral, ibid. 63 Campbell v. Hall, ibid., 59-63; Yeap Cheap Neo Ong Chens v.
Freeman v. Fairlie, I MIA 305.
 Development of Civil Law: Presidency Towns
w M - N / S I C C eo f
,loci, by
o fa .lex which the British 7415
dillerence between the settled settlers might he
u e m "

icwas vell. In case of the settled

T h e
and the ceded colonies isgoverned without
heir constitutional rights alalso. Thecolonies, the subjects of thesignificant
onal rights
Crown
from
carry
greater authority
authoritv over
them than it consequence of this is that
them

e any can excrcise the Crown

jes, legislative
ettled colonies

viz., in the
power rests at the
in
England. Therefore. for
oEngland,
f
King-in-Parliament. same place where it
any, without the sanction of The Crown alone cannot rests for
rale
orsuch

ofEngland, that is, Parliament, a constitution legislate. as far

but it
to that

The ase of a ceded or conquered

representative assembly with at analeogous,
a

wn in its own
the Crown territory stands on a dlifferenmleat half ofSuchits
n y ehOmgs t o

vithout the int right. Therefore, in such a footing.

interference of Parliament. case, le Crown can
seltte any form of
any form
creae of co
constitution it likes
As a sequel to
that he Crown has
lo for such
NOWer
constlutio ceded or conquered colony a
colony. But once the Crown
one half members of which creating a representative l
having a house

havEost, unless the instrument at least are pislature. i.e..a

electd, its
Constutution
laure
creating the to
change poower
Crown such a
power. Whatever may be therepresentative legislature expressly
ment has over-riding
ies. Parliame position of the Crownn vis-a-vis
Therefore, even when the Crownpower have
to
i i e n

a
m coloni

ustamces. Theres
legislate for all purposes and under
al
of
o flegislation in all cases.
may lost its power, Parliame
ament continues
power

the
enjoy

Foregners
her newly discovered nor was it an
wasle
ne
uninhabited country at the time when the
9nish people here. It was already inhabited by civilized
came
Mablisheago
ernment."InIn the people and had a well
beginning, a few foreigners settled here and there, and. for
thhim ablshelish Crown never attempted or
thearchs who ruled over India. It is,pretended to interfere with the
therefore, clear that, accordingsovereignty
of the
n ohove, the first English settlers in India to the
princ1ple
enuncrate:

as
ought to have been
has already been noted," the British settlers governed by the native
sDhe right self-government according to their own law. If
of Surat obtained at
from the Moghul
ngish the settlement had been
ahute Enan
madei a European Christian country, the settlers would have
become subject to the laws of
auntry in which they settled. But, in
Nera D rnment within the factories. ThisIndia, English
the retained their own laws for their
Ditant privilege in India, the English did not
S1S of of some general International Law, or because the Crown of enjoy on
wn by
aCOunt
England or the laws of
Ceoland had any proper authority in India, but under permission from the Indian rulers. The
f they on for this is not far to seek. The Indian laws
existingandat were
terwOven with religious usages, institutions and beliefs,
the time were very much
inconsistent with the
to, or
ished eiets. principles, feelings and habits of the
European Christians. Moreover, in India, there had
annot Pt emerged yet the
as
concept of a uniform lex loci to regulate inheritance, succession and
aS that ter important matters of all people. The two great classes of the native inhabitants, Muslims
they End Hindus, were governed then, as they are governed now, in these matters by different laws
efore, Gcerived from their religious institutions. The native laws being unsuitable to these new settlers.
y the the Indian potentates showed them the indulgence of allowing them the use of their own laws
illbe8 was done in Surat. But the permission by the Indian rulers to the British people to use their
OWwn laws did not extend those laws to the natives for whom the English law and usages were as
d and litle suited as the native laws were to the Englishmen."
Stence
Status of Three Towns
for ageneral introduction of the English law in India, applicable not only to the British settlers
0ul also to the Indians, one should look to the evolution of the three Presidency Towns. These
DIS Constituted the first territories to fall under the sovereignty of the British Crown. English

58
en. of Bengal v. Ranee Surnomoyee Dossee, 9 MIA 424; supra, 392.
63- 10. See
Chapter I.
Adv. Gen.
op. cit., 425.
 Legal 4
ndian applicahl
le to all
Ontlines
of
a
g e n e r a l

diflerent
basis
under dilferent circum
the ritish peo
habitatances
nts. THe
and, there
on
to
the ceded

Mayor ofqueu
The
on c o n g u e r
l a n d
intrnduced
p e o p l e

or
on
Lyons
British

e cedcd
established
to

orime by t h
the
came

by fhal
examined
law foumded
been to
having
assimilaled observed:

purchase, fro
w e n

as judicially
hy

strugglingthanthe forNabb n
n g a n t e d be o b t a i n e d

to
came
was B r u g h a m
was
hadbeen
The Company
built,
status utta
o fCak
Lond is Th ver had ma
C.,"wherein
status

on
which

the
Cakcutta

17th
century,

also had. Till 1678 t h a a teary

c n do f
Bengthe Dutch seo
India distict

oting in they

fromobjecthe
the very
The that
the ve at
the Governmen
then

annlicd ttoo the native

Bengal..at

only
a s the Teand it was
it was
that th
and
applied

100years
ortificatagedion, ACtby in
vain
in then
trading,
they
of 1696. oniy of
tho
obtain
rower

till n was a n s w e r

to that
year, Hoogly,
and cquivocal man
natives,
he
was

from the
Empenor
factory
on
given in an afford
the
acc0ue
this
cnablcd to
their consent.

on
fortify
a
kind of
half

they
were,
thus

when
the nabob,
Company's
servante
kazi o
upon which
and
the obtained
rant of
to the more land and
subjects; M tt o r

natives, Comparny
protection
English to those lhe nai

er Emperor, or hi
the was
well as justice afierwards tribute
administer years period, Zemindars theo C h a T e or

to Some
all this
judge
from
this
pmceeding.

from
the
Empenor
during

lcave to
afterwards
trade. b a t t l e of
as

Plassey,
the
aand
ith
secu.Jafeng
Ost
first, for the Possessions
villages for French Possessions h s h la
the
naboh; memorable
the
French
Eight ye h
officer,
the year losses,
eding
ceding
other
Zemindars.

they
e n s l a t e r .

like ablishe
in
1757.
them for their like
of the
Diwani..:
ough has been
uunusteer
revenues

their ntirmb
indemnifying

them to pay a grant effected by

ve of
aSajd
to
hts of soverregularly
government, was

and binding the Native in Bengal with the

from Company invested

ise
show
received

that the
settlement ofthe
in
possession
of the
country,

of that
Government,
Calcutt.
hu.as foun
reignty,
Govemment

permission of the soil. missionnd Tha

established that by from the

owners

oh of that
exercising
its powersdistrict purchased as subjects
owing
ience, as tena is cl

part of its
and in a
fortified, the Company, a
under it by ninist
delegation, onE
the factory by
and held the char
Government.

and even as officers,

exercising,
steps, they
exchanged
with the heln of
of subie ofsubjects Eng
rendering
rent.
precise
time, and by whatthemselves, or
n. T h eC h

authority.
At what acquired by
rather, ascertained. The sovereion
for that of
Sovereign,
or
of sovereignty,
cannot be
long uhtetirstre

eltr726
Crown. the rights
for the
in the Crown... settlement
since been vested
above arguments Is to place the
ash Calcutta in the e t a n ti n

position as it had been ceded- to the British Crown by the Portuguese King in being
substance of
the was treated diocate
Bombay, too, 166126a out tosimi
them
The sum and colony.
category of a ceded or conquered 12
39 on a piece of land rented Madras had t l i t eC a l

1639
by the British in
been founded
lation to the Cro
in relat
a similar
status asit had Towns thus stood
byi n in the than
The three Presidency the Crown could Calc
by a native prince.
ceded or conquered
colonies. Accordingly,
its ty
position of the of Parliament, but subject to Cou
without the consent
and by its own charter and
Crown could have introduced the
Englich1 unn
Towns. The
control, legislate for the Presidency date English law was actually introduodin Andhe
therefore. is on what
these settlements. The question,
these settlements. A
dete
o8iNGO-n ther
Charter of 1661
introduction of the English law in these nea
on the question of
The first charter having a bearing indeed the only charter, which in express tems gr
towns is the Charter of
1661*. It is the first, and
COL

voT o1dT to eui Eng

22. Supra, 10, 22, 31. See C

23. 1 MIA 175, 272. which is See
24. For the first and Parliament claimed sovereigny in 1813 through Act 53 Geo. 3, c. 155, S. 95
time,refers 31 See
declaratory, to the sovereignty as undoubted' and as residing in the Crown. 13 G
25. See Chapter IV. See
26. See Chapter V.
G.C
27. See Chapter III.
5. 9MI
28. 13 Car. II.
o090. See
 hapterXXIN

English law Developnment

of Civil Law:
Presidency Towns
i n t r o d u c e d

settlemen to jud
udge all into the East
ons whether
causes whether CIvil persons ist Indies.
hus ght to or criminal,belonging to the Itauthorised
inuroduce English law the Governor
in according to theCompany, that should orand
live underCouncil ofa
the t i m e

fot. England. at into

till then, But, the time, India, both
laws oft he
Kingdon
dom of them, all in

Dearl on whom only Madras reception of common law and statute Fngland. The Charter
actonv cou devolved the
ae even of the had been English law law, as it
founded, in theti stoma
was more a

Obijec
om the
knowledgge
o the rudiments responsibility
of to
and the Gov
Governor and
Charter could not English law. administer justice under the members of the.
ta
said to hav
have been possibly refer toBombay and Calcuttawere Charter, had
avet f Englishintroduced
be no

law in all there these

by this Charter. settlements, and founded later than
actine aniformly in all the three cases, one Presidency Towns.InTo1661, therefore, English
the law could
by the there was no not
ases, au isthat f 1668 which transferred shouldto inevitably look forfindso out a date
which will general
law in the settlement." In 1672,Bombay hold good
the me later
kai o the Company and required the date. The next Charter
abstain Bombay Towns. The settlement of Portuguese law was application ot
nd and a date rm introduction of Calcutta had not yet substituted by the English lawEngisn
for a uniforr
the arisen,
English law in all the three nd
and sso even
1668 does not suit as
the in

Or his
Or, and Charter of 1726 places.
Al, rLmOst important charter having a beaning on the
rights Enalish was law question of the
introduced into the Presidency Towns precise date when the
like ablished a is the
said to MaVor s Court in each of the settlements of Charter of 1726. which
niform basis. The Charter did not Calcutta, Madras and Bombay.
gularly expressly on a

general provision and terms of specify

the law which these courts
administer, but the
the Charter left no doubt that the were to
eigniy, expected to administer English law." As Rankin has stated: courts were
d, and
of that "That the law intended to be applied by these courts
(Mayors Courts) was the law of England
is clear enough from the terms of the charter though this is not expressly slated; and it has
tenants
strative long been accepted doctrine that this charter introduced into the Presidency towns the law of
England both common and statute law-as it stood in 1726."54
ubjects
wn, and The Charter of 1726 was uniformly applicable to all the Presidency Towns, and, therefore
as long the first regular introduction of the English law in the three settlements is associated with the
year 1726. Accordingly, the law in England, common law or statute, civil or eriminal, as it was
in the three settlements. In the famous case
lcuta extant in that country at that time was introduced Sir Barnes Peacock, Chief Justice
in aAavocate General of Bengal v. Ranee Surnomoyee Dossee,
Ma of the Calcutta Supreme Court, observed which has been acted by this court tor on
more

and one
1 s a well recognised doctrine, generally, the first
introduction ot English law into
half a century, that, speaking the year 1726, the Mayor's
rown
n Charter of George I., by which, in that position. It
is

Wn
au
Olera
Calc
,
a s effected by the
to cite authorities in support of
Co established. It is u n n e c e s s a r y
waS antecedent to the Charter
innecessary tto go back to a period
the Charter of 1726.
And he went on to observe further as regards constituted,
does not necessarily

of justice construing the Charter ofGeorge

are
courts
A Charter or by which but in be
administered as

aue, administer, should

to law The words,
determine the law which they are intended that the English should
admit
and party,
there can be
inhabitants,

no doubt that it was

and of the between party
laws of
of the place, and pleas to the
rly as the circumstan
ances in suits according
and right,' and right,
gIve judgment acco to Justice
than justice
meaning partyandparty
could have no e r reasonable

private rights
between

Eng
ngland, so far as regulated

supra
at 426.
Surnomo)
omoyee,

Ranee
v,
0. See Ch Iv,Adv.
Gen. of Bengal
31.
Seeapter
Chapter IV.
13 Geo.
.See I,
Chaptersupra,
VBackground
36,
34 9G.Miankin, to Indian Law, l
S.. 9 MIA
See at 394.
Chapter XXI
 Outlines of Indian Legal & Consitutional Histo
418 Chapter X
Other Charters and Cases
to 1726 by the British Crown
A number of charters were issued subsequent
in the Presidency Towns, e.g., the Charters of 1753 and 1774 37odel.
A
judicial system
arose whether English law was or was
subsequent charters. The answer
not reintroduced

to this question was not

in the Presidency Tou
definite once upon a timuS by n questthieseoen gs

Fitzjames Stephen discussing the position with ref there Was

ron
a difference of legal opinion. on the questiorncetto the
conviction for forgery which depends
legality of Nand Kumar's was or was not in force in Calcutta at thother
English Statute of 1728 (2 Geo. II, c. 25), he time the
trial. stated: of his
The question is. at what time was the criminal law of England, so far as it was suitahln.. local
circumstances. introduced into Calcutta? Was it introduced in 1661 by the lettere mane
Charles I1? or in 1726 by the letters patent by which Mayor's Court was patent
established of
letters patent of 1753 which were issued when letters patent of 1726 were surrendered.r by hus
a

or in D b em

by the charter of the Supreme Court?

1774
t h ecrh a

it follows:
Having posed the question, he answered
as

l f I were to consider this question wholly apart from the later decisions bearing
in 166l, but that later upon ,
m
should say that it was originally introduced to some extent M C E
O2

1726, 1753 and 1774 must be regarded as acts of legIslative authority whereby of
reintroduced on three successive occasions, as it stood at the three periods mentioned, Vhen 0
Charne
introducedT think it would extendtoat persons locally within the jurisdiction, from the 15prop

when East India Company began infact toexercise exclusive powers.of Govemment there,time
an 774gra

at all events Trom T757, When they expelled and conguered Surajdowla, and became came
fEngla

substantiall sOverergns of Calcuta and its dependencies. Subject of course to their

eir own
e nthe

sovereign George I . whether

Thus, his view was that as regards the offences committed between 1726 and 1753. th AUthority

England, as it stond in 1726; as regards the offences committed between 1753 and i a the ablishe
law of England as it stood in 1753: and as regards the offences committed from 1774
onwa
the law of England, as it stood in 1774 would apply. In this, Stephen substantially supporte
Colony

osition adopted by Impey who treated the Statute of 1728 under which Nand kumare # uther

Sentenced to death for forgery as being in force in Calcutta. As, a matter of theory, en hus&

view could be supported on the basis of legal principles applyingtothe matter. Calcutta's f a db e e r

status
being that of a ceded settlement. the Crówn had the right to legislate for it under the substitut-

royal
prerogative. This right was exercised by the Crown in 1753 and 1774 when other Charters w uDdersta

ISsuedin the same way as the Cliarter of 1726. The Charter of 1753 which re-established th the
Crim

Mayors Court was as much a legislative act as the Charter of 1726 and so, if the Charter principl

1726 introduced the English law, there is no reason why the Charter of 1753 should not he TRere Is nc

taken to have done the same. Similar is the case with regard to the Charter of 1774 which on of the
established the Supreme Court at Calcutta. On the basis of these arguments, there was nothin
Were
to suppose that the English law was not re-introduced by the subsequent Charters after that ofed in
1726. On this view, when Nandkumar committed the offence of forgery, the Act 25 Geo. I. c n o
2 under which he was tried must be regarded to have been in force in Calcutta. Even as late asmalm
1841, there were some who advocated this view. Though the First Law Commission accepted ati
the position in the lex loci report hat no English law Wits introduced in India after 1726, there
entertain
was some dissentient voice amongst the Judges of the Supreme Courts. While commentingonmatte
the lex loci reportage Perry of the Bombay Supreme Court asserted that so far as Bombay wastof
concerned it was an open question from what date dialEnglish statutes came to be applied, and
the Judge said: "If the question are to be raised, I feel a strong impression against the decision uction
at Calcutta." Reviewing the Charters, Sir Grant stated that the Charter of 1797, establishing the
Recorder's Court and making all inhabitants subject to it, could be regarded as introducinggto
English law in Bombuy. But later the judicial opinion on this point emerged, and the viewngis
became firmly established, that the date at which the English law must be taken to have been

37. See Chapter V1

38. He was Law Member of the Governor-General's Council see, infra, Chapters XXIV and XXV.
9MMA at
See Chapt
39. See Chapter VII. See Chapt
 ChapterXXIn
wn
Development of Civil Law: Presidency Towns 419
ced
into the Presidency Towns
77437 arded as bein8 tne was 1726 and not
later. The Charter of 1726
irst and the last Charter
awns. After navVing been he
to introduce the
English law in came to
timeWISas t subseq Charters. introduced
in
An effect of this view1726, the English law was not
that
the Presidency
re-introduced by tne
th refere not apply ly to India unless extended to was
it expressly or
die British statutes ted after 1726 did
enactea
by necessary implication.
stion whet, a
Lord Kingsdown observed in the
Privy Council in Adv. Gen. v. Ranee
a at
the tine o appeal from the Calcutta Supreme Court:0 Surnomoyee Dassee
The English laW, Civil and criminal, has
been inactually
applicable to taxes. within the limits of Calcutta, the year considered have been
1725, by theto Charter, 13 Geo0.
madeI
itable to si Neither Oral nor rite subsequent Charters expressly declare that the English law shall be so
ters patent oi applied, but it seems to have been held to be to necessary consequence of the previslons
blished? orh contained in them.
endered; or It is thus a well entrenched doctrine, and the courts have acted on it for long. that the Indian law
came to be introduced by the Charter of 1726 and that it was not re-introduced subsequently by
any other charter. The origin of this rule is, however, lost in oblivion. But it can be said that the
any
only after Nandkumar's trial in 1776. Sir Edward Hyde East, formerly
ing upon i, rule took a definite,ofshape the Calcutta Supreme Court, while giving evidence before the Select
er Chanersd the Chief Justice Indian affairs in preparation
House of Lords which was collecting evidence on
iereby if wa Committee of the of 1833, said in a paper presented by him:
oned.When for the Charter Act Government that notwithstanding
the Act of 1773 and King's
Charter of
from the time to remind benefit statute law
of the This has
It is proper have not the full
it...the inhabitants of Calcutta...
ientthere,and 1774 granted under 13th of George I unless expressly named.
and beane later period than the year since his institution and
of England to a of the Supreme Court
construction of the Judges cannot depart
from it without
t o ther N
been the uniform the judges of the present day
in regard to this
originally, statute law stops
whether right or wrong at which the general when those who
Parliament. The period Court in Calcutta
authority of constitution of
the Mayors this as to a
British
and 1753,t that of the was then
first given to named.
is that British law expressly
presidency c o n s t r u c t i o n said
statute unless
subsequent
753and e s t a b l i s h e d that
could not be included in any
as a rule it
om174a Colony, and Calcutta
of
a l l ysupprte the population
having been
extent
He further observed: application
and
doubtful other legislation
Nandkumu
technical rule of Legislation,
no
difficult
to It is
benefits of
British this rule first,
theory,S e Ihus by a mere

of the to who
introduced
obviously meant
to extend
been deprived discover as were the
that force
on
difficult to which
Caleuta3s
nad for it. It is Supreme
Court be given
Substituted Charters of Calcutta,
cannot

under te as towhy the it then

stood, to temitory.
in 1830 the
understand England, as in conquered 1815 and
N e r
Charnen
Law of of the Crown in 74 in
Cnminal authority what w a s IV, c.
c Legislative 9 Geo.
correctly
Act be
the the to
Principle of
Ie-establIs stated came
East and mainly of law, as
it
was
i ftheChat

There is no doubt that Sir Edward

law. Many
later
Acts,
basis of
the rule which The
Nandkumar

3 should
a a s to
the On the under
in
1728.
statute

of the judges that the w a s passed not in

53 Sh opinion ne this
p r e s u m p t i o n .

clear which
was
statute

11828 were pa p a s s e d
on

due course o off time,

it
time of
his
becomes

trial as
this
held
under a
law

time for
the
view
which

lt is
h e r ew a s

e saler
A
established in a t the
illegal
a s it
was

law at
that defensible.
Calcutta
in
tried did not
different

a to
regarded
as
being basis
Impey's
view wasin a way
s u f f i c i e n t

wholettrial may now bb e there

was theory, whole
problem
hat of legal look the
a .E v e n
force Butiit may be noted As a
matter

c a m e
to
aller124 Was entertained by inion

legal opini
I m p e y .

noted

econine
another matter that the later
42
which
has
been

Irom that of
charters.

and of
a 5Boma Impey. Two
views
propounded,
propounded. .
India by
means

Law: generally
g e n e r a l l y
in
ion of English
Towns
av
ha ve
e
urts
courts P r e s i d e n c y

the
which the into the
which
n s tt h e

, estabs Cording to the

la
view
w a s introduced
2d
ve, English law
nglish

ca
and

k e n
w

40. 9 MIA at
41. See 430XXI
apter
2 See
Chapter VI
 Constitutional History
Legal &
Outlines ofndian Chapter
420 of English laf nto
the
introduction

channel of at times
regards the
introdePresite.
propounded

one view
as theory frome
This is becn another emanates n an
However,
there has
Towns.
This argument
is that English law becar ana
app
icatleof e
Towns.

law into
the Presidencylaw." The theory the British an
and the 1
English having no settled by evnglik
settledcolony facto most forceful
were
with a as they issued.
The
wasnent
Towns ipso which
released
was
Presideney charter Report,
them before any Lex Loci
extended over In its M o h a m m e d a n law we

Was the
First Law
Commission."

the Hindu
Law and the
loci of the British Indi
law
theSe
Jaws interH
Commission 5
the lex
argued that Vaws ve
as
were not
Commission
laws different faith. The
with religious
belicfs, these
professing
a
loci in
the
British
p o s s e s s i o n s r e f o r e

,went in
not applicable
to persons
existed no
that there having loci as
Lex
soon as any
Indian
came
territory
underdia,

to the Hind.
aut} Egjih
not belonging M
reason
became ipso

British Crown.
facto the lex
That lex loci applied to all persons

judicial
view that the English
law had beenor
law having alrear.
trod usim fa
combated the that English
Commission contended
charters arose Pplied
The Commission
introduced by the
Charter of
1726. The its being
loci, no question of radical, as will
beea
India as its lex sense very , eca
later,
a
Commission was towould be the general
law not only
p
the ne the
This view of
this view, English
know
of the Commission teside
according to mofussil. The
argument
generally was that
the
Towns but
also in the acceptable
view found of1726. w
in India and the the Charter
acceptance Towns through
introduced
in the Presidency
only
ENGLISH LAW
CONTENT OF THE introduced into the three Presidens.
English law
which was
was: Was it the
whole Owns h
As regards the
arose
material question which that was introduced into Indiagish
Charter of 1726,statute, extant in England in 1726
a

be held that not

the whole of thWere
Common law or
view came to
attached thereto? The Towns but onlnglish
qualifications introduced in the Presidency
time in England
was
reasons for taking this
uchg
existing at the
as suited the
conditions of these
settlements. The
position
somewhat as follows.
settlements were placed
under the obligatory force of the Fno:.

Although the three the Europeans. There a

inhabited by the Indians as well as
1726, the settlements
were
the context ofthe peculiar
circumstanees
law which could apply only in in the settlements or
the English be applied to the Indians
or which could not justifiably much inconveniene
which d
England, It would have resulted in
not suit the conditions prevailing
therein. andgreae
been applied in these setle
law without any exception, had
injustice if the whole of EnglishAs for example, apply the rule of English law which Duniche
automatically and uncritically. to
in the lifetime of the first, to either the Hindus or the Muslims in be
marrying a second wife
institution to maryne
it as an established and recognised
Presidency Towns, who regarded and monstrous and would appear to bedoine
then one wife, would have been simply outrageous
In the like manner, the law in Englani
violence to their religious beliefs and susceptibilities.
which punished as a heinous offence, the carnal knowledge of a female under ten years ofage
could not with propriety be applied to a country where puberty commenced at a muchearlie ag
and where the custom of early marriages was in vogue. Due to the fact that thesail
environment in these settlements was very different from that prevailing in England, it cametoe
ot
recognised quite early in the day that not the whale of English law, but only so much it a
introduced in the settlements as was suitable to the peculiar circumstances prevailingthere.I

ukog10 av
43. See Chapter XXIV.
44. See Chapter XXI. 3,

45. See Chapter XXIV. 0E810AM SS

46. See Chapter XXIV
47. See Chapter XXIV.
48. Rex v. Chundicurn Bose, Ind. Dec. (0.S) 1, 1110.
 ChChapter XXI]
the h Development of Civil Law:
nec
arv. while
applying the Law of Presidency Towns
and others,
Hindus and others, to
England to the 421
donforcement oI the law subject it to
apphca some
would have resulted in such non-Chri s ti
qualitication,
an natives such the as
The principle that the intolerable in otherwise, Muslims.
ish English law was to be injustice and cruelty indiscriminate an

ofmade it necessary for the courts to applied

sed nproviSIon
of the English la
English consider,
law should be whenever aselectivelyly, and not
have to consider
would ler whether the applied or not in question
the
indiscriminately
arose, whether
:

aw1726,
s wle could be held particular provision of thePresidency Towns particular a

thes applicable to the peculiar

in
law, existing in The courts
circumstances of the setlements in England in
the earliest
cases which the Calcutta
dkumar case. Since Supreme Court had to consider India. One of
ia n A
then,
few illustrative cases inthe courts were faced with the same question was this the

which
the question over and over
courtshere. whether a particular rule
decided
authon law was enforceable in India or not may be noted of English
or Mai
atroduy Freeman's Casse
Dolied Tn 1828, in Freeman v. Fairlie," the Court of Chancery in England had determined, for the first
time. that houses and lands in Calcutta were of the nature of freehold property. The
which arose in the case was whether lands and houses in Calcutta were to be regarded asquestion
real or
personal estates? Lord Lyndhurst delivering the judgment pointed out that Engish law was the
he faw of the settlement,"" and also ruled that the estate in the instant case was "freehold of
fouinheritance, as real property according to the law of England, and notas real chatel, oras
ngipersonal chattel..." The land in the instant case was held to be "freehold of inheritance according
of England"2
to the acceptation of these terms by the law

Mayor of Lyons v. East India Co.

the Privy Council considered question
the
Lyons v. EastIndia Co.,"
in Major of
Th Next, in 1836,rule of English law which incapacitated aliens from holding land in England was

that that Martüin, a native of France.

f aWhether
ever introduced into
Calcutta." The facts of the ease were In
service of the Nawab of Oudh. the
the Company and later into the in Oudh, in
service of He left behind property
Ctered into the three witnesses. in
large investmentsthe
theb 1801, he executed a will attested by Calcutta. He
also left behind
Court to
enforce
in the City of Supreme
o r Bengal and
Doe
started in
the Calcutta Calcutta Supreme Court in
Covernment securities. Litigation as 1826,
the French born
As early
non-suited a
subject
charities. had impeached
of his will garding ejectment, was Martin
provision inrealan action for
the will
estate in
Calcutta

of
was
dem. Pouchelette v. Stansbury, hold or
convey
that although to pass
real
E and, thus, the right o f aliens to Court held
the English law
the Supreme according to

in the instant case, sufficient by

oy
AcCordingly, would be
France, and ng was understood was
understood

as
as woud iect of ruling in

uly executed in such manner

manner
prevaild Freeman
law
birth a Subje will. The English of
was by his to the he law
estates, set as the testator ass by that case
did not pass
according
uld not
death, his roperty at Calcutta system of
ienr
the Mayor
of Lyons tenure

that the
whole
wno held in tenure. tna On appeal
Court to mean
Court,
therefore,
mixed
as it

India. The Calcutta me

part and, a of Calcuta

was
incidental to, and population
with

MuPnvy Council ugret

agreed

ohold la
as the
tneds and Council
and, accordingy e d that
that Brougham

land in India argued

inconvenient.
The
Court.
Lord

the Privy Council, ethe oFrench Abe

Company

Supreme

consisted of the Portugu

most
Calcutta

would

the
introduc of the rule in quesou I e s t i o n

and
o v e r u l e d

npany's co on
*

49
50. See Chapter VIII.
1 MIA 305.
51.S2. 1bid. 342.
Ibid. 349. 0.

MIA 175 also see, infra. Geo. II,c.

9
This was the M o r t m a i n ,

I, 796
(1830).

The Martin cae P e c .Or (0.S.)

 AEUOutlines of Indian Legal & Constitutionail Histop
422
delivering the judgment of the Privy Council held the provision
in he
inapplicable to the cireumstances of a Presidency Town like Calcutta, He Juest
Sir William Grants reasons for confining the Mortmain Act to England 7 ,serveds
ion
application to this case; for though they arc mainly drawn from the Drauaveave amanifess
being adapted to the peculiar circumstances of the mother country, they nlons o
the assumption that the intention of the Legislature to contine the operati
be gathered from thence: and it should seem that such intention is even oceedhat Nes
Pro
of the Aet m
gathered from the fact that the provisions in question are manifestly r ee dire
directly to
cicumstances of the settlement. At whatever time the sovereignty WaPplicah.
power of introducing the alien law became vested in the Crown, the real neired
e to th
must have been held indiscriminately by subjects and foreigners; the suddyin
such a law, is in the highest degrec, improbable because it would work greaPplica
a
and grievous injustice.
The Privy Council went on to state further: inconvenience
"But if the sovereignty was gradually acquired, if the transition of the cos
TeTeT
state of subjects under the Mogul, to an independent authority, was l n y fto
imperceptible steps. the introduction of the Alien Law became still more improh ade

Thus, the Privy Council concluded that "the law, incapacitating aliens bable"
f
property to their own use, and transmitting it by descent or devise, has ne m hole
into Calcutta." The Privy Council also stated that the direction
in the CharteDeen
judgment "according to justice and right' in suits and pleas between party and o 126
party and Tihe

right according toparty

oth

Could have no other reasonable meaning than justice and plica

England so far as they regulated private rights between party and party. Such gerthe laws of alcutts

could not possibly refer to any law such as the Mortmain Act or the Alien av wo
Ords
reference merely to some views of public policy supposed to be appli blicable to ,which had
Engl
though private rights might be affected by them. Still less could they be supposed tond,eve
CO

nJurea

refer wholly
ofhe
tha

rights or revenues of the Crown, depending upon prerogative, and which? nd

inapplicable to a territory to which the sovereignty did not extend.

hich' were f1726

pecial

Lckene

Advocate General of Bengal v. Ranee Surnomoyee Dasee

Jamag

In Advocate General of Bengal v. Ranee Surnomoyee, the Privy Council 2se to

question whether the English criminal law principle of felo de se which nroued conside
forfeiture and attachment of personal property of a person committing isic

became extended to a Hindu committing suicide in Calcutta. A

suicide neoVIS
Hindu, a British
committed suicide in Calcutta. The question was whether his property had been forfeits UNCER
Crown because of the application of the rule of English law. The
Supreme Court at CalThe pri.
held that "the law of forfeiture in the case of felo de se, has never
been
Calcutta.."00Referring to the Charter of 1726, Sir Barnes Peacock, C.J., said introduce
that the
no the
pereesultec
words therein "could not possibly refer to
any law, such as the Mortmain Act, or the Ali rincip
laws, which had reference merely to some views of public
policy, supposed to be applicable DuTts
England, even though private rights might be affected by them." The Chief justice
that the Charter of 1726, "did not intend to render the concloute unditie
be forfeited to the Crown, even in the case of a British
goods and chattels of afelo de se liableica
General against the ruling of the subject." On appeal by the Advocamg
Supreme Court. the Privy Council agreed with the vis
expressed by the Supreme Court. Lord Kingsdown delivering the judgment of the Piy
Council pointed out that "the
application of the criminal law of England to natives n
Christians, to Hindus and Mohammedans, has been treated as subject to
which the execution of the law would have been attended with qualifications with
intolerable injushce4. 9N In
56. 1 MIA 274. In
57. Attorney-General v. Stewart, 2 Mer. 161. 208AIM
58. See Chapter VI. L
See
59. Advocate General of Bengal v. Ranee Surnomoyee, 9 M.I.A. 387; Chapter XXII.
n
60. 9 M.I.A. 387; Chapter XXII. 398 o8ls e
AM
Su
61. 9 M.I.A. 387; Chapter XXII. i
62. 9 M.I.A. 387; Chapter XXII. 9 brl w ita
 XXI
b6
manifes
hapter
,63
Development of Civil Law
cuelly

tio
Council
The
f
Privy
the
Hindus. held that the Presidency Towns
anifes com

troduced SupDosin"he
duced inin India. particular
&upon h a v e

beeatives, india, an
by Wnom, n and being Owever, the lawruleof was inapplicable
forfeiture
as it did not
suit the
ct may applicable
many applicable
cases, self to
Europeans.
Europeans,
of
goods
it does not
of felo de se, to
to be
t0 the Maclean v. Cristall64 the destruction is consie
nsidered not
apply to Hindus
merely lezal.
into Bombay
In
iage introdu
nd the ma
minister ySupreme
India, had not Court held that the common law of
t in so in hoiy orders ntial.
taeut
ion a
nce
essential.import
orteddwith
with itit the Englaned
oresei

holdinga was
s that
that One of the provisions which made the
nience nresence
of a minister in
holy orders many European
would be rendered
pragmatic
marriages
r

red invalidperforn
ny a pedigree. ormed in India without the
nded In another
Tndia. In 1878, in Dorabcase, it was held that the the stain and of
English Wills
illegitimacy
applh
etween real and Ally Khan v. Abdool Act was the
difference
Referring to a sale of personal estate obtaining in Aiz did it was held that
om the
de, by
property
ide the court's territorial
by the sheriff of
the Supreme Court in England not exist in
india.
ity "in respect the sale jurisdiction, the regular execution of a
or Privy Council observed
that relating to the salemust the law relating to the sale ofthat nis
responsibility
be govermed
by by
holding aratherthan
nintrodug Theaahove are only a few
of real estate." chattels

her in
examples of the rules of English law held inapplicable to India On
1126to: hand, a large
number of eases, several principles of English law were
ahle to the Presidency Towns. 'Thus, in Bhooni Money Dossee v. Natobar
held
High Court held that "there is nothing unreasonable having regard to theBiswa.
the
lutta customs of
I words
this
n t r y in holding that that part of the common law of England which gave a person
cou
injure by slanderous words the right to recover damages in an action. has been introduced."
ich had
snd that it is by virtue of the common lawof England, introduced into Calcutta by the Charter
d,even
is maintainable." The Court held that according to the English law.
er to the of 1726 that the action
to make defamatory words actionable."" In Soodasun Sain v.
wholly Special damages must be proved between the Hindu parties, the Supreme Court held that
Lockenath Mullick,' a case of adultery law for trespass upon the
damages could be awarded to the plaintiff according to the English the
conversation between Hindus. In a
number of cases, the courts adopted
case for criminal because the Civil Procedure Code
made no

equity the England

courts in
nsidered t procedure followed by in these cases."
proViSion for matters arising
ided fat
in Engls
tish suD UNCERTAINTY OF LAW
introduced
1726, in was
the law existing in England
rfeite dprinciple discussed above, viz., that which it was applicable to the local c1rcumstances,
to Whether a paurticuiar
7atCab to the extent confused and
uncertain.
P r e s i d e n c y Towns until the
Toducet 6,

territories very answered definitively

resulted in the law in these
naking could not be tocal
L h geae
e applicable or not
suitable or unsuitable to the
principle of the English consider
law was hold it n
question and
the variation and
lack of untormuty
for
o rt h
chance to be example,
when there might English law. To
take an
PPlicabki Conddda
e conc
Conditions. Cases were
4DEs were
not wanting
of a particular
rule of
property
in the Presidency
Fairlie,

eseha Ong there

judicial views plicability
about the legal
status of
inmmovable

England
had held in
F r e e m a n v.

England.
There was a

was y uncertainty in of
Chancery the law
Court of
Towns. As early as 1828, the governed by
was
that land in and
was real property
Calcutta
f t h e

2nalfves
T O nH
s I 63.04. 9 M.I.A.
Ind. Dec. 427.
(O.S.) IV, 69.
In7Will. IV and I Vic., c. 26.
the Goods of Foy, (1839) 2 Curl.
328.
For
the

51.A. I16 (1878). 24

Cal.
08.

69. I.L.R. 28 Cal. 452.

IL.R.

See
Ramanath,

nd. also,
v.

Dec.inf
Durlabh
409. Broio
(OS.),
Suroop Chunder 1,v. 378.
Troyloko . 9 W.R,
230:

Chapter XXV;infra
N a t h ,

M.I.A. 305.dure Code, see

 Chapter X
424 Outlines ofIndian Legal & Constitutional History
73 On the
basis of this
ofin the Supreme Court at Calcutta
by W on point.
this attested 3 Es Coud
difference opinion that only a will o
it was held by the Court of Chancerv
otherwise. This matter tooK 10years
approacn,
in the nature of a fee simple
and not
on the
ransier property in the Court of Chancery in England was
collected

resolve. The case was filed deal of evidence

great
decision in 1828. A
gave his
Chancellor finally, "

question in issue.
in England Gardiner in :iste
Gardiner v. Fell
taken by the
Court of Chancery
Calcutta, the M a s t e r of the Rolk Dorab
a similar
view had been land law to was
n 1819, of English
of applicability
Fell. On the question carried out In E
stated in this case:
76 subjects havelaws should
when English hroug
discussions as to
how far, c o u n t r i e s , any
particular with
have been many in foreign of real property, ameL
There judicature o u r law
and established c o u r t s of to what e x t e n t
applicable
to other
nd eq
o u r laws,
difficulty in fixing ideas, not
here; there is great
feudal
derived from h Eng
operate refinements, chiefly England.
numerous d o m i n i o n s of f esta
its
attach to the foreign
should
countries,
and were held au
of Chancery
Naoroji Beramiji by the Court of the naur
settle the question
v.
Rogers made in England
p r o n o u n c e m e n t s
did not finally
decisions
continued to es Thus
d. Antonio dstinct
These w e r e These Towns and
uncertainty
in India.
the c o u r t s Presidency h e l d in Doe
binding o n i m m o v a b l e property in the R e c o r d e r of
Bombay,
been governed by
or the had always
of landed Anstruther,

On 31st March,
1817, Sir A immovable property in Bombay property
is wholly contrary
the law of real as it is manie
Texeira,that
for "the English as the basis,
Silveirav property, m u s t be
considered
m e r c a n t i l e people
And
nd
of personal of a
English law m e r c a n t i l e law; and
c o m m e r c e

and colonies of English commen

of plantations the p u r p o s e
principles of all distant o b t a i n e d expressly for mother-coun
object, law of the
the principal "Bombay
was
rule that the the colony.. B
a s s e r t e d that general s t a t e of
basis of "the
Recorder o n the it is fit for the original jursu
He justified
his approach
colony, except
so far as
Bombay High Court in its
concluden
Buts
not to
be carried
into a
decision, a Judge
of the
was no
basis to Towns
te
Silveira ruled that there ot it, nas ted up
the Beramji," part
himself o n
v. Naoroji property
law, or any Bombay IslandT
in Rogers real in the
w e call
in 1867 law which i m m o v a b l e property
freehold property.
branch of
English and that all no
Wanis

there w a s
to the state.
Island," that
into this e s t a t e and "unsuitable
A
APPLIC
introduced personal
real or
law was
of Bombay.
the Island
chattels
nature of real property
English others inhabiting practucenho
reasoned
that the
Muslims and been based
on the
rue pApplic
v. Rogers, a
Hindus,
of F a i r l i e , " as
having The ap
1867, in Naoroji
circumstances"

Freeman v.
in in an elao
Was notte
in But,
the judgment the
as to
mode of
conveyances.

while affirming
the decree
of the Judge there wither
his view
that Conditio
oi appli
Calcutta
Court on appeal repudiated
Property
did not
up
Bombay High
nevertheless,

into 104
printed pages,
law of
Immovable
Suc
to the ld
the English to local
running and that
Bombay thert
e s t a t e in

of the Supreme
Court had
that all lands
held that the propels
ana l 0g r e a td u no exclude
two Judges
this view and ruled 308, 343
v. Ronald, from
1 M.I.A.
at
case, Joseph third Judge
dissented
chattels real." suine witn
73. In a
while the estate or in India were nossesn
property,
subjects were
"personal purchased
property commission to c r two a
British acquired in order for a by
of the which
Englishmen
the court
issued a n
interest
which the tes
that the will at
74. The rights the matter,
reported by a
to settle the
Master could pass
instant case, this case, thereof
299. In and no part renewal
o f *

1 M . I . A . n a t u r e of " f e e - s i m p l e "
75.
of the See
was
ibid., 301.
299, at
303.
Tagc
M.I.A.
76. I of an agrec
Chapter IX. performance
77. See w a s for
specific
Mor. Dig, l1, 247. The suit decreed.
78.
B o m . H.C.R.
105. Bombay. The suit w a s
79. 4 premises
in
and
house
XXII.
See Chapter
80. H . C . R . 9.

81. 4 Bom.
 int On th Chapter XXIN Development of Civill Law: Presidency Towns 425

a
his matter Court asserted that t h e e were, in Bombay, freehold estates of inheritance, in the English
of the term.***2
nd 1
in
acceptation
82
ence oother Cases
However. not all EngSh awofProperty was applied. The courts refused to appiy many rules
n g l i s h Law of Property in the Presidency Towns on the ground that the English Law
of to the wants of a state of society widely from that which prevails amonz
apduS in India." Thus, the Privy Council refuseddiffering
n
Englan n erty could be made by testator to an unborn person and to accept the
proposition
that a gift o
the8land
a
a, only a person
insisted that
MastePtence at the death of the testator could take under will.85 In
ahii.84 the High Court refused to apply the English concept ofDadabhoy Cowasj
a
estate tailFramjee v.
on the ground that
iects a s unknown to India and it would be a calamity to introduce this concept in India.
articular laws
f TEngland,
In . commonlaw and equity had developed in two separate channels and it was only
1873 that
Othrough the Judicature Act, the courts of law and equity were fused without at the
applicable
Icable beame time
fusing the two systems or
rules. In India, there were
$an ity, In the Presidency Towns, the Supreme never separate courts of law
Courts administered both law and
England, an equitable ight or estate is recognised as something different from a equity.
estate. This dichotomy was never recognised in India. As Setalvad observes: legal right
cery and we Tn effect what was applied in India
was common law
e question of liberalised by equity. In India
equity worked through and not in opposition to the common law."87
as

inty continel Thus, as early as 1872, in Tagore Tagore," the

ld in Doe d distinction between legal and equitablev.interests. The PrivyCouncil Council refused to recognise any
s been goven Privy said there:
The law of India, speaking broadly, knows
wholly conth nothing of
equitable property in the sense in which it was understood the distinction between legal and
asis, as itis the Court of when equity was administered by
Chancery in England."
ercantile pa And further:
f English om
"The anotnalous law which has
the mothera grown up in England of a legal estate which is
one set of courts, and an paramount in
thecolony equitable estate which is
exist in and ought not to be introduced paramount in Courts of Equity, does not
ts oniginal j into
Hindu Law."
But
principles
some and
E Towns by the courts. For example. concepts of equity were accepted and applied in the
the notion of trusts of various kinds Presidency
oand acted upon. In
Tagore v. Tagore, the Privy Council said on this was
recognised and
property, I I t is obvious that point:
vested, more or less
property, whether movable or immovable, must for
state, wa absolutely, in some person or persons for the benefit ofmany purposes be
other persons.
omou y,He APPLICATION OF BRITISH STATUTESs
3lafull Applicable to Local
borThe approach
elabor Circumstances" in doubt
con that
only such English law existing in
nl0f
t nolyof a s of the
Presidency England in 1726 was suitable to the as

732applicability to the
Towns was introduced there, rendered very doubtful the question
the Presidency Towns of the statutes
extant in
to the l atutes and it was not definite which of them were, andEngland in 1726. There were
which were not, applicable
localal circumstances,
Yin Calu
e sthere lo
iit COnditions. The question bristled with great difficulty. Applying the test
s,"it
C.g., the statutescould positively be asserted that some
applicable
of the statutes were obviously
l0
great
da
WItneses dealing with such subjects as avowedsons, bankruptcy, bastardy
2.
83, See
SsesS
LwO
w Chapter VIII.
gore v. Tagore, I.A.
1I.R.
85. 47Sir Bom., 349. Supp. 70 (1872).
6.1. See William S. HHo
The Chapter oldsworth, Some Makers of English Law, 208.
8. See ommonVIIL.
wal
ofs

39 Law
Chapter
Tagore v. TagVII. in India, 59.
gore, 1 IA Supp 70 (1872).
 Chpier
r

426 Oulines ofndian Legal &Constitutional History ECHapte

clergy, Commons, dilapidations, excise, forests,
XX p l a i n t i ta
t n

police, poor relief,

ualifications for the sheriffs, elections. The statutes dealing with these matters were h sewers,tithes thepenalty
v e r d i c tf o r

framed with reference to the special conditions prevailing in

England, and so could clearly
deemed to have become applicable to any part of India. Some other statutes, in course ofnot borTower
were rendered nugatory, unnecessary and inapplicable because legislation had been unde payable.
Britishs u b
in ndia on those topics, e.g., legislation relating to coroners, crimes, executors, jurors,i that, n o do
of peace, lotteries, oaths, pleading, riotous assemblies. ete. But apart from these, applicahi
of other statutes remained shrouded in doubt and difficulty. The function of declarine
o t h ef
ro r E

Statutes were in force within the Presideney Towns devolved on the Supreme Courts,and s SUch a

kater
onthe High Courts. Because of the inherent limitations of the judicial process, this funete h e C o m p

could not be performed satisfactorily. Several reasons contributed to this situation. Iction Majesty'ss

Mohammn

Reasonss having be

In the first whether t

place, declarations only in those cases which came before hem f
courts inade such
High Cou
adjudication. These cases involved comparatively a few statutes only, and, thus, vaguenes
continued to engulf the rest of the statutes which did not form the
subject-matter of any judicial
i n a p p l i c a

verdict. In the second place, all judicial decisions were not reported and so people could
i n c o nv e n

(2 always know what the courts had held on a particular point. not
Cases
Thirdly, rulings differed from court to court and even the views of the judges in the same
court underwent changes with the A few ot
lapse of time. To take an example, at first, it was doubtfil
whether the Statute of Limitations (21 Jac. I, c. 16), which barred be noted
six years from the date the cause of action arose,
filing of a suit after a lapse of c. 10, wa
applied to the Presidency Towns at all. On this
question, the Calcutta Supreme Court appears to have changed its views several times. pplicab
In 1778, in Gyanchund Show v. Mirza Mohd. Cazim,"" the Calcutta India. I
view that the Act did not apply to Calcutta because, as observed Supreme Court took the I c. 7,:
by Hyde, J., the words of the
statute excepted the cases of persons out of England and also because Won at
doubt w
the intention and reason of the law did not
apply, for in
law is regular, delay in making the demand furnishes a England where the course of the England
demand, hut here the course of justice had not been presumption against
so clear. Many cases
the truth of the
to which the The plai
jurisdiction of the Supreme Court extended, were not within the jurisdiction of the Mayor's argued t
Court, and in the country courts, against many persons, Ought te
few years later, the Court no justice could have been had..
then the view underwent a
expressed a doubt whether the statute applied to Calcutta. But interpre-
Towns.3
change and it was held that the Act applied to the Presidencyy on a bi

question
Fourthly, it times, doubtful whether the declarations of the courts were
was, at
always ngnt. The
and, in many eases, the rulings of the
Supreme Courts or the High Courts
by the Privy Council. Fifthly, even when the rulings were certainly came to be reversed
correct, the rulings ot one British
Supreme Court or High Court were not binding on the other. Lastly, even when a Statute
operative mà Presidency Town, it was not always clear whether it applied to all statute wa rauds
only to the Europeans. An example in point was the Statute of Elizabeth inhabitants o Statute
Eliz., c. S) Act, 6
conveyances. It was thought generally that it was applicable to all therelaug
to fraudulent (13
Presidency Towns, but, while in Calcutta it was held to be applicable n
well as Europeans," in Madras the generally to all, naves
judiciary seemed to think that it applied only to the B
subjects other than the Hindus and Muslims. Thus, it was held that the
Muslim to a Muslim in Madras was to be decided validity of a gift trou
according to this statute. A similar doubt arose withaccording Muslim law and
to the
respect Statute 13 Geo.
against usury which prohibited taking of interest of more than on loans. It was II, C
to

Calcutta amongst the British subjects. Thus, where the appc

defendant had lent Rs. 16,960
90. Ind. Dec. (O.S.), 1. 1096: I Mor. .
91. Impey, C. J. and Chambers, J.
Dig. 337 (1778).
agreed with this view.
92. Horry Verelst v. Levett, Ind. Dec.
93. Trelochurn
(O.S.), J. 1098.
Chatterjee
94. Charles Johnston v.
v. Thomas
Phillips, ibid., 1099. Also see. infra, 415.
95. H.H. Azim-unnissa
Edmund Morris, Ind. Dec. (O.S.) I. 1110.
Begum v. Clement Dale, 6 Mad. H.C.R. 455, 474 (1870-71).
 ChapterXXIm Development of CivilLaw: Presidency Towns 427

. atiff and from whom an

interest at the rate of 40% had been recovered, the Court awarded
jalnenalty as prescribed by the Act, viz.,three times the amount lent, and so the plaintiff had a
pla,

e Pfor Rs. 50,880. The Supreme Court of Calcutta refused to apply the Act when the
was a British subject and the lender a Hindu and the agreed rate of interest was held
e r d i c t

0f
the law prohibiting the usury applied only to thee
b o r r o w e

2 In another case, it was held that

subjects. The Court stated that this proposition was seitled long ago. The Court noted
ayable.

Britusdoubt, there was an absurdity in having one law as to interest for the natives and the
no
that,
for Britis subjects but still the Court refused "to unsettle what has been so long settled.
other
ch a course
would lead to perpetual fluctuation." It was further held that persons born in
and as sue
Company's territories, of Christian parents who were also born there, were not Her
cts within the meaning of this Act and so it did not apply to them.A
the Company's

Majesty's subject
N mmedan ade debtor was arrested on Sunday. The question arose whether the arrest was illegal
on a Sunday. The answer to this question depended on the further question
having b e e n m a c
Towns. The Madras
n e r the Lord's Day Act (29 Car LI, c. I applied to the Presidency the Act was wholly
in
Paam dnooK
aHigh Court helda non-Christian
DOss
v. Rasheed, that the policy of
be manifestly
i nnlicable to country. The application of the Act circumstances.
would
as between natives and would be unsuitable to
their
oinconvenient in India

Cases also
the sc of applicability of specific statutes were raised may
cases in which questions
A few other the Statute of Enrolments, 27 Hen. VIII.
dou Doe dem. Savage v. Bancharan Tagore,
be noted. In India. Statute 8 and 9 Vict., c. 109 against wagers was
held not
held not to extend to
0
c. 10, was
Uses was held to be applicable to the
lands of the British subjects in
applicable." The Statute of Court whether Statute 16 Car.
arose before the Calcutta Supreme
India. In 1781, the question
Here the action was filed to money
r e c o v e r
was applicable in India.
toxkt II. c. 7, against gaming as the plaintiff was non-suited on evidence. A
But the matter was left open not local and confined to
riswon at a game. by the Court whether the statute was
doubt was however expressed was left undecided."
extend to Calcutta. Again, in 1794, the question
England and would the balance lost at play. It
not was
the The to recover 31 gold mohurs, being it
the plaintiff was allowed determine the question of the applicability
of the statute as
to could be
the argued that it was not necessary pleaded. In another case next year, the decision
ught to have been specifically
The Court gave judgment
for the plaintiff
that the statute did not extend. So, the
preted as deciding for a gaming dent.
to have been given
proved
Bul which was
dD1 of exchange did not come to be specifically decided.
of applicability of the statute of
three witnesses to a will of realty
on

Charles II, c. 3) requiring Merbai," S. 7 of the

riatute of Frauds (29 Bai Maneckbai v. Bal
extend to India." In and checking of
Statubjects was held to so that the public benefit
rauds was held applicable to
Bombay were held exempt
from the
fradr settlement. But wills
made by Hindus Bubble
in the without attestation.The
Statute promoted held "valid instruments were held
enacted against popery.
as
Act, 6 s by Hindus" were laws of England
,C. 18," the penal

1105.
e B n

2FForbes
Essen v. Geo. Day, Ind Dec. (O.S.),
Chunder I1, 831.
,

3. FT. Biddle, Ind. Dec. (O.S.),

V.
4. Hullodhur Ghose
Walter v.
v. noyloll, Ind.
Dec.(0.S.), I, 889.

Anundo Moy, Desanto, Ind. Dec. (O.S.), II, 870.

M.H.C.R. 285ibid.,(1874).
Ind. Dec. (O.S.), I,
1106.
413.
729; infiu,
OU
Romloll
Supra, Thackoors 65. Soojunmull Dhondmnull,
18 E.R. 18.

R note sreydass
note 5, 4005.
v.
Ind. Dec.
(O.S.), I. I107
Ledrn Chuckerburtyr t y v. Radhamohyn
Radhamo
Chuckerbury,
.WV. Jones, u
WiliaJones.
ibid., 1108.
v.

14 Leom S Henry Swinhoe, Ind. Dec.

(O.S.), 1,1108.
note 7.
Bancharan
Man881 Room. 363, Tagore, supra,
lMancherji 369
Pestanji v.
rsley v. Cotton Lakshunanii, 1 B.H.C.R..
1 (1863).

tton, Ind.NaDec. (O.S.), I,

ayan
15.