Torts Affecting Movable

as well as
Immovable Property

Prof. Priyanka Majumdar,

Symbiosis Law School, Pune
 SYNOPSIS

1. Introduction

2. Slander of Title

3. Slander of Goods

4. Maintenance and Champerty

 INTRODUCTION

Torts affecting movable as well as immovable property are:

1. Slander of title
2. Slander of goods
3. Maintenance and Champerty
 Slander of Title
It comprises of :
– False and malicious statement
– Such statement must be in writing, printing or by words
of mouth
– It must be injurious to any person’s title to property
whether movable or immovable
– It must cause special damage to such person.
The term ‘slander of title’ is somewhat of a misnomer as
slander refers to that which is spoken yet the tort slander of
title also involves permanent form of publication.
A more accurate term would be "disparagement of title"
Garrard v. Dickenson, 1590 –

Land/chattels to be sold by auction – title defective/lands

mortgaged/chattels are stolen property – thus, not sold or sold at less
price thereby – amounts to slander upon title of owner & a prima facie
claim for compensation in damages.

Hargovind v. Kikabhai, 1938 –

Intending tenants dissuaded from taking a building on rent – by false

statements as to its habitability & safety – if actuated by malice – liable
in tort – analogous to SoT & under injurious falsehood
 What must the Plaintiff prove?
Nemi Chand v. Wallace, 1907 –
The plaintiff must essentially prove:
1. That the statement is false – Defendant need not prove it to be
true.
2. That statement was made mala fide and is malicious (with
intent to injure the plaintiff or with indirect or dishonest motive)
But no action lies where bona fide assertion of defendant’s own
right to the concerned property is made.
Hargrave v. Le Breton, 1769 - Bona fide notice by a person to
prevent sale on the ground that he has a claim on the estate to
be sold – No action lies.
3. that the words go to defeat/injure his title to property, wherein
plaintiff has possessory or reversionary interests.
 Whether special damage needs to be proved?
Position in England -
Before passing of Defamation Act 1952 - Necessary to prove special
damage resulting form slander of title.
After passing of Defamation Act 1952 – Not necessary to allege/prove
special damage –
1. If words upon which action is founded are calculated to cause
pecuniary damage to plaintiff & published in writing or other
permanent form; or
2. If said words are calculated to cause pecuniary damage is caused
w.r.t any office, profession, trade held or carried on by him at time
of publication.

Position in India –
Necessary to prove special damage (Mohammad Din v. Sant Ram, 1938)
 Slander of title & Defamation - Distinguished
An action for SoT differs from defamation as follows :
1. Slander of title does not disparage the plaintiff’s reputation as to moral
character, solvency, skill, business capacity, etc.
It is rather an attack on his title
2. Words are equally actionable whether written or spoken.
3. No presumption that words are untrue, onus lies on plaintiff to prove
them untrue.
4. Malice is not presumed; but plaintiff must provide prima facie evidence
of malicious act or without lawful occasion or reasonable cause.
5. Right of action for defamatory words dies with death of person defamed
but for slander to title it survives to an executor to the extant of the
damage that can be shown to the estate of deceased (Hatchard v. Mege,
1887)
Remedy:
Injunction and declaratory judgment are more appropriate than action
for damages. (R.J. Reuter Co. Ltd. v. Mulhens, 1954)
Damage:
Special damage sustained must be proved (eg., less price on sale or
other unnecessary expenses incurred) – which will be used to
determine the measure of damages
Marsh v. Billings : Unauthorised use of a hotel’s name & badge by C
on driver’s caps & coaches plying between hotel & railway station –
fraudulent interference & injury to A’s trade.
 Slander of Goods
• Also known as ‘Trade Libel’
• Hindustan Unilever Ltd. v. Reckitt Benckiser (India) Ltd., 2014 –
It consists of :
– false statement
– disparaging a man’s goods
– published maliciously
– causing him special damage
• What must the Plaintiff prove?
Western Counties Manure Co. v. Lawes Chemical Manure Co. -
1. Defendant disparaged plaintiff’s goods
2. Disparagement was false
3. It was made maliciously
Facts:
Hindustan Lever Limited(HUL) aired a TV commercial showing
liquid of the same colour being poured from a bottle similar in
shape to a Dettol bottle, producing a milky effect. Moreover, the
language used by the father of the sick child in the advertisement
emphasised on “nahane ke paani mein ‘do dhakkan’ antiseptic
liquid” – a clear indication towards Dettol. These features were
claimed by the plaintiff as exclusive features of the product. The
disclaimer added was rather vague and blurred.
Whether the advertisements were disparaging –
The Judge laid down the following principles:
a) A tradesman is entitled to declare his goods to be the best in the
world, even though the declaration is untrue.
b) He can state that his goods are better than his competitors.
c) He can even compare the advantages of the two goods. He,
however, cannot, while saying that his goods are better than his
competitor’s, say that his competitor’s goods are bad. If he says so, he
really slanders the goods of his competitors and their goods, which is
not permissible in law.
e) If there is no defamation to the goods or the manufacture of such
goods no action lies, but if there is such defamation, an action lies for
recovery of damages for defamation, then the court is also competent
to grant an order of injunction restraining them to perform such acts.  
To satisfy the test of comparative disparagement, the plaintiff has to
prove: 
a) A false or misleading statement of fact has been made about his
product; 
b) That the statement is deceiving or has the potential to deceive, the
substantial segment of prospective consumer and; 
c) The deception is likely to influence consumer’s purchasing decisions.
To be considered - the intent of the advertisement, its manner and the
effect of the telecast of such a television commercial.
The Court granted the plaintiffs an ad-interim injunction and allowed
the defendant to air the advertisement only after making the
following changes to it: 
(a)Removal of ‘toys’ in the advertisement. 
(b)Removal of the phrase “two dhakkans” and the particular portion
featuring the lady showing pouring liquid in the bucket by holding
the bottle of the antiseptic liquid in her hand. 
(c)Removal of the shot showing the cloud formation. 
(d) Since green is the colour majorly associated with ‘Dettol’,
therefore to also change the colour scheme showing the comparison
between the two products in the television commercial and change
the green colour to a different shade. 
 Whether special damage needs to be proved?
Position in England -
Before passing of Defamation Act 1952 - Necessary to prove special
damage resulting form slander of title.
After passing of Defamation Act 1952 – Not necessary to
allege/prove special damage –
1. If words upon which action is founded are calculated to cause
pecuniary damage to plaintiff & published in writing or other
permanent form
2. If such pecuniary damage is caused w.r.t any office, profession,
trade held or carried on by him at time of publication.

Position in India –
Necessary to prove special damage (Mohammad Din v. Sant Ram,
1938)
 It is not necessary to prove actual malice, it is enough if statement is
made without just or reasonable cause or excuse.
Ratcliffe v. Evans, 1892 –
Plaintiff carried on business of the engineer and boiler-maker - for
many years - under the name of Ratcliffe and Sons. Defendant
published in his newspaper falsely & maliciously that plaintiff had
ceased to carry on his business & the firm did not then exist.
Held - Defendant liable on evidence of general loss of business.
White v. Mellin, 1895 –
W, proprietor of Vane’s food for infants bought fom Mellin & sold
to his customers Mellin’s Food.
W affixed to the wrappers on Mellin’s Food a label stating that
Vane’s food was far more nutritious & healthful than any other.
Not proved that statement untrue or that it caused any damage to
plaintiff.
Held : W’s conduct not a trade libel but a puff by rival trader.
Lyne v. Nicholls, 1906 –
Plaintiff & defendant - owners of newspapers circulated in same
locality.
Defendant published untrue statement : “The circulation of” his
newspaper “is 20 to 1 of any other weekly paper” in the district and
“where others count by dozen, we count by the hundred.”
Held – statements not a mere puff but amounted to untrue
disparagement of plaintiff’s newspaper - actionable on proof of actual
damage.
 Maintenance
• Blackstone - What is Maintenance?
– There is a suit
– There is a 3rd party without any legal interest in the suit
– Such 3rd party proffers officious assistance to either party to the
suit to enable them to prosecute or defend it
– Assistance may be by money or otherwise.
• The law of maintenance is confined to cases where a man
improperly & for the purpose of stirring up litigation & strife
encourages others to bring actions or to make defence which they
have no right to make.
• Why is it a tort?
It is against public policy that litigation be promoted & supported by
those who have no concern in it.
 Maintenance & Champerty - Distinguished
• If a person agrees to maintain a suit in which he has no interest, the
proceeding is known as maintenance; if he bargains or a share of
the result o be ultimately decree in a suit in consideration of
assisting in its maintenance, it is called champerty (Sprye v. Porter,
1856)
• Every champerty is maintenance, but every maintenance is not
champerty
• Maintenance is the genus of which champerty is a species
Bradlaugh v. Newdegate, 1883 –
• Bradlaugh had sat & voted in the House of Commons, without first
taking the oath prescribed under law.
• Newdegate thought that the law should be enforced against Mr.
Bradlaugh. He procured Clarke, a man of straw, to sue Bradlaugh to
recover a statutory penalty of 500 pounds.
• Newdegate gave Clarke a bond of indemnity against all costs &
expenses he might incur in consequence of the action.
• Clarke obtained a verdict for the amount of penalty.
• Bradlaugh appealed that Clarke, being a common informer had no
legal right to sue for the penalty & only Attorney- General on behalf
of the Crown could set the law in motion for that purpose. He
succeeded in the appeal but he realised it was impossible to recover
the costs to which he had been put.
• He brought an action against Newdegate for ‘maintaining’ Clarke’s
action & claimed as damages the expenses he had incurred in
Clarke v. Bradlaugh.
Held:
• Newdegate liable for maintenance as he and Clarke had no common
interest in the result of the action.
• Bradlaugh was held entitled to compensation for all expenses he
was put to by reason of Newdegate’s maintenance.
• Newdegate was ordered to pay costs not only between party &
party but also the costs as between attorney & client, i.e., costs as
between attorney & client of both the plaintiff & defendant in
Clarke v. Bradlaugh & also the costs of both parties the case of
Bradlaugh v. Newdegate.
 Whether proof of special damage required?
Absence of proof of special damage - no action will lie.

Whether success of maintained litigation a bar for remedy?

Success of maintained litigation – whether an action or a defence
– not a bar to right of action for maintenance.(Neville v. London
‘Express’ Newspaper Ltd., 1919).
 Can at any time maintenance be lawful?
Two cases where maintenance of suit is lawful :
1. Where the person maintaining has an interest in subject-matter of
action (Guy v. Churchill, 1889)
What must be the nature of interest? (Bradlaugh v. Newdegate, 1883)
– Interest must be an actual valuable interest in the result of suit itself
– Either present, or contingent or future, or
– the interest which consanguinity or affinity to the suitor gives to the
man who aids him, or
– Interest arising from connection of parties
Eg., master for a servant or a servant for master, an heir, a brother, son-in-
law, landlord defending his tenant in suit for title.
2. Where the maintainer assisted 3rd person from charitable motives,
believing that he was a poor man oppressed by rich man, or from
religious sympathy
Holden v. Thompson, 1907 –
Several children were removed by their impoverished parents from the
care of a religious institution.
A charity supporting them, employed solicitors to act for them to defend
proceedings brought by the institution.
The solicitors now sought their costs. The charity said that the
agreement had been maintenance of the proceedings and was void.
Held: The charitable motive underlying the action was such as to allow
an exception to the rule against maintenance. 
 Does the doctrine of maintenance also apply to criminal proceedings?
• Doctrine as to maintenance of civil suits is not applicable to criminal
proceedings
• Every public member may set the criminal law in motion – No liability
unless it is a malicious prosecution (Grant v. Thompson, 1895).
Position in England
The Criminal Law Act, 1967 – Maintenance & champerty abolished as
crimes & as torts. But a champertous agreement is still void for illegality
under the law of contracts
Position in India
Ram Coomar Coondoo v. Chunder Canto Mookerjee, 1876 –
• The English law of maintenance & champerty is not in force as specific law
in India either in mofussil or in the Presidency towns.
• A fair agreement to supply funds to carry on a suit, in consideration of the
lender having a share of property sue for, if recovered, is not to be regarded
as necessarily opposed to public policy, or merely, on this ground, void.
• However, in these agreements, the questions are :
a. Whether agreement is extortionate & unconscionable, so as to be
inequitable against the borrower, or
b. Whether agreement has been made, not with the bona fide object of
assisting a claim, believed to be just, and of obtaining reasonable
compensation therefor, but for improper objects, as for the purpose of
gambling in litigation, or injuring others, so as to be, for these reasons,
contrary to public policy.
In either of these cases, effect not to be given to the agreement
Conditions when such agreements shall be void
(Fischer v. Kamala Naicker, 1860) -
There must be something :
– against good policy & justice,
– tending to promote unnecessary litigation,
– Legally immoral,
– constituted with bad motive.
 Test of determination
(Chedambara Chetty v. Renja KMVP Naicker,1874)
The Court will consider –
• whether the transaction is merely the acquisition of an interest in the
subject of litigation bona fide entered into,
or
• whether it is an unfair or illegitimate transaction got up for the purpose
merely of spoils of litigation or disturbing the peace of families & carried
on from a corrupt or other improper motive.
Ram Coomar Coondoo v. Chunder Canto Mookerjee, 1876 –
• The Respondent, as attorney and mooktear of M. and his wife, managed
actions of ejectment and mesne profits against the Appellants,
– He advanced money for that purpose
– stipulated that he should be repaid all advances with 12% interest,
– should have a third part of "the clear net profits" of the suit,
– with a right to possession of the land recovered as security therefor.
• He was neither an original nor an added party to the said suits, which, on
appeal, were decreed in favour of M. and his wife by the High Court, but
were afterwards dismissed by the Privy Council with costs, which M. and
his wife were utterly unable to pay.
• Pending that appeal, the Respondent purchased the property in suit, and
thereafter conducted the appeal in his own interest.
In an action by the Appellants against the Respondent to recover the amount
of the said costs, it was averred, but not proved, that the actions were
brought or instigated by the Respondent maliciously and without probable
cause; and, failing such proof, it was contended,
(1), that the agreement and acts of the Respondent amounted to champerty,
or were otherwise illegal as being against public policy, and that the
Appellants had suffered special damage from them;
(2), that the Respondent was the real actor therein, and had an interest in
them, and was, therefore, responsible for the costs.
Held :
• The English laws of maintenance and champerty are not of force as
specific laws in India.
• A fair agreement to supply funds to carry on a suit in consideration of
having a share of the property, if recovered, ought not to be regarded as
being per se opposed to public policy.
• But agreements of such a kind ought to be carefully watched, and when
extortionate, unconscionable, or made for improper objects, ought to be
held invalid.
• Whatever the rights of the parties to this agreement, it does not constitute
a punishable offence, and cannot give to the Appellants, who were
strangers to it, a right of action against the Respondent.
• Such agreement created no legal privity between the Appellants and the
Respondent from which a promise can be implied on the part of the
Appellants to pay the Respondent his costs of the former action, on which
an action of contract can be founded; nor does it establish a legal wrong,
for the former action was brought without improper motives, and upon
reasonable cause.
• An action cannot be maintained against a third person on the ground
that he was a mover of and had an interest in a suit, in the absence of
malice and want of probable cause.