Answer:- The Constitution of India is a foundational document that outlines the framework for governance and the fundamental principles that guide the nation. It carries several major commitments, which can be broadly categorized as follows:
• Sovereign: India is an independent nation, free from external control, and possesses the authority to make its own decisions.
• Socialist: While not explicitly stated in the original Constitution, the term "socialist" was added in 1976. It signifies a commitment to social and economic equality, where the state plays a role in regulating the economy and ensuring fair distribution of resources.
• Secular: India is a secular state, meaning it does not have an official religion. All religions are treated equally before the law, and citizens have the freedom to practice any religion of their choice.
• Democratic: India is a democracy where the ultimate power rests with the people. Citizens exercise their power through elected representatives, and the government is accountable to the people.
• Republic: India is a republic, meaning the head of the state is an elected president, not a monarch.
• Justice: The Constitution aims to secure social, economic, and political justice for all citizens. This includes ensuring fair treatment, equal opportunities, and access to resources, regardless of social status, caste, creed, or gender.
• Liberty: The Constitution guarantees various freedoms to citizens, including freedom of speech and expression, freedom of religion, and personal liberty. However, these freedoms are not absolute and can be subject to reasonable restrictions in the interest of public order and national security.
• Equality: The Constitution strives to ensure equality of status and opportunity for all citizens. This includes abolishing untouchability, preventing discrimination on various grounds, and providing equal access to education, employment, and public services.
• Fraternity: The Constitution promotes a sense of brotherhood and unity among all citizens, emphasizing the dignity of the individual and the integrity of the nation.
• Fundamental Rights: The Constitution guarantees certain fundamental rights to all citizens, including the right to equality, freedom of speech and expression, freedom of religion, cultural and educational rights, and the right to constitutional remedies. These rights are justiciable, meaning they can be enforced by the courts.
• Fundamental Duties: Along with rights, the Constitution also lays down certain fundamental duties for citizens, such as respecting the Constitution and its ideals, cherishing national symbols, promoting harmony and brotherhood, safeguarding public property, and striving for excellence in various fields.
• The Constitution establishes a federal system of government, dividing powers between the central government and the state governments. However, it also has a unitary bias, giving more powers to the centre in certain matters.
• The Constitution upholds the rule of law, meaning that everyone is equal before the law and no one is above it. This principle ensures fairness, transparency, and accountability in governance.
These are some of the major commitments enshrined in the Constitution of India. It is a living document that continues to evolve and adapt to the changing needs of society.
Answer:- Custodial death means the death of the arrested person whether convict, accused or suspect in the custody of the legal authority due to any kind of abuse, torture or inhuman treatment. Although various legislations have been enacted under Bharatiya Nagarik Suraksha Sanhita and Indian Constitution for the protection of the rights of the arrested person but despite these hundreds of custodial deaths are reported in India every year which very evidently displays the failure of constitutional machinery and government in protection of prisoners. Every year numerous cases are reported in India of custodial torturre and death which shows the blatant abuse of powers at the hands of authorities of the government.
In the case of Saheli v. Commisssioner of Police, 1990 a teenage boy was killed by the police. The Supreme Court ordered the government to give compensation to the deceased victims family members. In another case ofPeople Union for democratic rights v. Police Commissioner Delhi headquarter a similar order was passed.
These cases are the proof that although the laws have provided various vast and elaborative rights for protection of the Prisoners but there is need for strict implementation of these rights and penal laws for punishing the concerned authorities found acting in contravention of these rights.
In the case of Sunil Batra v. Delhi Administration and Others 1978 the Supreme Court held that by virtue of Article 32 and 226, the Supreme Court and High Court have power to intervene and protect the rights of the arrested person. The court also classified that during the prisoner’s time in jail, the jail authorities have no right to punish or torture the prisoners without the permission of the court.
Answer:- The "doctrine of blue pencil" is a legal concept in contract law that allows a court to remove or revise parts of a contract that are found to be invalid or unenforceable, while still upholding the remaining parts of the contract. In the case of the Doctrine of Blue Pencil, the following provisions are relevant:
Section 24 of the ICA -The section lays down that an agreement is void, if the considerations and objects in it are unlawful in part, which means that if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object is unlawful, the agreement becomes void.
Section 57 of the ICA - The section states that where persons reciprocally promise, firstly to do certain things which are legal, and secondly, under specified circumstances, to do certain other things which are illegal, the part which is legal (first) becomes a binding contract while the rest is void.
Section 58 of the ICA - This section lays down that in the case of an alternative promise, if one branch of is legal and the other is illegal, the former alone can be enforced.
Babasaheb Rahimsaheb v. Rajaram Raghunath - This was the first case in India to give validity to the Blue Pencil Doctrine stating that “In an agreement if different clauses are separable, the fact that one clause is void, does not necessarily cause the other clauses to fail.” Herein, the Court made a distinction that the sub-clause making the award final and conclusive was clearly separable from the main clause which made reference to arbitrator imperative. Thus, the same could be blue-pencilled without affecting the rest of the contract.
Thus we can infer that the doctrine of blue pencil is a useful tool in contract law that allows courts to salvage valid portions of a contract while removing or revising invalid parts. It helps to uphold the intent of the parties and avoid invalidating entire agreements due to minor flaws.
Answer:- Hindu law is a complex and ancient system of law that has evolved over thousands of years. It is deeply rooted in Hindu philosophy and religion, and it has been influenced by a variety of sources, including the Vedas, the Smritis, and customary practices.
Nature of Hindu Law - Hindu law is primarily concerned with personal matters such as marriage, divorce, inheritance, adoption, and family matters. It also deals with some aspects of property law and criminal law. Hindu law is based on the concept of Dharma, which is a complex term that encompasses law, morality, and ethics. Dharma is considered to be the foundation of Hindu society, and it is believed to be based on divine principles.
Origin of Hindu Law - There are two main views on the origin of Hindu law. One view is that it is of divine origin, having been revealed by God to the ancient sages. The other view is that it is based on immemorial customs and usages that have been followed by Hindus for centuries.
The earliest sources of Hindu law are the Vedas, which are a collection of hymns and religious texts that are believed to have been composed between 1500 and 500 BCE. The Vedas contain some basic legal principles, but they are not a comprehensive code of law.
The Smritis are a collection of legal texts that were composed by various sages between 500 BCE and 1000 CE. The Smritis are more comprehensive than the Vedas, and they cover a wide range of legal topics.
Customary practices have also played an important role in the development of Hindu law. Many Hindu communities have their own unique customs and traditions, and these customs have often been recognized by the courts as having the force of law.
In modern times, Hindu law has been codified to some extent by legislation passed by the Indian Parliament. However, the traditional sources of Hindu law continue to be important, and they are often relied upon by the courts in deciding cases.
Hindu law is a complex and ancient system of law that has evolved over thousands of years. It is deeply rooted in Hindu philosophy and religion, and it has been influenced by a variety of sources. Hindu law is primarily concerned with personal matters, but it also deals with some aspects of property law and criminal law. The concept of Dharma is central to Hindu law, and it is considered to be the foundation of Hindu society.
Answer:- Preventive relief in law primarily achieved through injunctions, is a proactive legal remedy aimed at preventing harm or the violation of rights before they occur. By issuing injunctions, courts can order individuals or entities to refrain from certain actions or compel them to perform specific acts. This proactive approach aims to maintain the status quo, preserve the subject matter of litigation, and prevent irreparable harm.
Injunctions can be temporary or permanent, with temporary injunctions granted for a short period, often pending a full hearing on the merits of the case. Permanent injunctions, on the other hand, are issued after a full trial and intended to be long-term or permanent orders.
The court's decision to grant an injunction is discretionary and based on various factors, including the potential for irreparable harm, the balance of equities between the parties, and the public interest. By utilizing preventive relief, the legal system aims to effectively address potential harm and ensure that justice is served before significant damage occurs.
Specific Relief Act and Preventive Remedy
The Specific Relief Act, 1963 (SRA) provides for a variety of remedies, including preventive relief, which is primarily aimed at preventing a threatened wrong or injury. This form of relief, primarily granted through injunctions, seeks to maintain the status quo or restore the status quo ante.
Nature and Character of Preventive Relief:
Discretionary: The grant of preventive relief is discretionary, meaning the court has the power to decide whether or not to grant an injunction. The court's decision will depend on the specific circumstances of the case and the principles of equity. • Equitable: Preventive relief is rooted in equity, and its grant or refusal is often based on equitable principles. The court considers factors such as the balance of convenience, the potential harm to the parties, and the public interest.
Preventive: As the name suggests, preventive relief is designed to prevent future harm rather than to compensate for past harm. It is a proactive measure to safeguard rights and interests. Temporary or Perpetual: Preventive relief can be granted in two forms:
Temporary Injunction: This is a short-term order, typically granted at the interim stage of a lawsuit, to maintain the status quo until the final determination of the case. Under the Specific Relief Act, 1963, Section 37(1) governs temporary injunctions. These are interim court orders that restrain a party from performing a specific act until a final decision is reached in the case. They are crucial for preserving the status quo and preventing irreparable harm during the course of litigation.
To obtain a temporary injunction, the plaintiff must generally establish a prima facie case, demonstrate the potential for irreparable harm if the injunction is not granted, and show that the balance of hardships favors their request. The court exercises discretion in granting injunctions, carefully weighing the interests of both parties. The case of M/s. Colgate-Palmolive (India) Ltd. v. Hindustan Lever Ltd highlighted the importance of establishing a prima facie case and demonstrating the potential for irreparable harm in obtaining a temporary injunction. In State of Gujarat v. Mehta: It emphasized the need for courts to consider the public interest while granting injunctions, particularly in environmental matters.
Perpetual Injunction: This is a permanent order, granted at the final hearing of a suit that prohibits a party from doing a particular act or compels them to do a specific act. Under Section 37(2) of the Specific Relief Act, 1963, a perpetual injunction is a court order that permanently restrains a party from asserting a right or committing an act that would infringe upon the rights of another. This is a final order issued after a full trial on the merits of the case, establishing a long-term prohibition. Perpetual injunctions are granted to prevent the breach of an obligation existing in favor of the plaintiff, whether expressly or impliedly.The court carefully considers the nature of the rights involved, the potential for irreparable harm, and the balance of equities before granting a perpetual injunction. In Murlidhar Agarwal and Anr vs. State of Uttar Pradesh And Ors (1974): The Supreme Court in this case exemplified that perpetual injunctions are issued based on the specific circumstances and facts of each case.
Considerations for Granting Preventive Relief:
Prima Facie Case: The plaintiff must establish a prima facie case, meaning they must show that they have a reasonable chance of succeeding at trial. □ Irreparable Injury: The plaintiff must demonstrate that they will suffer irreparable harm if the injunction is not granted.
Balance of Convenience: The court must weigh the potential harm to the plaintiff if the injunction is not granted against the potential harm to the defendant if the injunction is granted. □ Public Interest: The court must consider the public interest in granting or denying the injunction.
Preventive relief under the SRA is a valuable tool for protecting rights and preventing harm. By understanding the nature and character of this remedy, individuals and businesses can effectively use it to safeguard their interests. However, it is important to note that the grant of preventive relief is subject to specific legal requirements and judicial discretion.
Answer:- A contract of indemnity is a legally binding agreement where one party (the indemnifier) promises to protect another party (the indemnitee) from financial loss or damage. This protection typically covers losses caused by specific events or actions, which can include the indemnifier's own conduct or the conduct of a third party. Section 124 of the Indian Contract Act, 1872: This section defines a contract of indemnity and outlines the rights and liabilities of the parties involved.
For example, a contract of indemnity might be used in a construction project where a contractor agrees to indemnify the property owner from any losses caused by the contractor's work. This means that if the contractor's work causes damage to the property or injury to someone, the contractor will be responsible for covering the costs of those losses.
• Primary Liability: The indemnifier's liability is primary and direct.
• No Default Required: The indemnifier's liability arises irrespective of any default by a third party.
• Broader Scope: The indemnity can cover a wide range of losses, including financial loss, legal costs, and other damages.
Yes a contract of insurance is essentially a contract of indemnity. The insurer promises to compensate the insured for any loss or damage suffered, subject to the terms and conditions of the policy. The insurer's liability is primary and arises upon the occurrence of the insured event, without requiring any default by a third party.
Answer:- BNSS (Bharatiya Nagarik Suraksha Sanhita) provides the court of judicial Magistrates competency to try cases and to take cognizance of the cases.
The first step in criminal justice system is to file an FIR with police or complaint with Magistrate. After the FIR is filed or police is instructed by Magistrate to start investigation on receiving complaint, police starts investigation and prepares either Police report or closure report. This report is submitted to the judicial Magistrate who then takes cognizance of offence after filing of chargesheet.
Section 210 of BNSS, 2023 empowers the judicial Magistrate of first and second class to take cognizance of the case. Chief judicial Magistrate may also empower the judicial Magistrate of Second class to take cognizance of the case which can be tried by it. Section 213 of BNSS says that Court of Session cannot take cognizance of any case and can only take for which judicial Magistrate has committed to it. However, its exception is given under Section 222(2) of BNSS which says that Court of Session can take cognizance of the cases related to defamation against Vice President, Governor or Prime Minister.
Competency to take cognizance is only to see the case and decide which court should be able to try it. The Court of Session is not empowered to take cognizance of the cases, hence it does not have competency to take cognizance except in exceptional cases.
In the case of State of West Bengal v. Abani Kumar Banerjee (1950) the Court discussed the scope of the words taking cognizance and stated that this term is not defined anywhere in CrPC but keeping in mind the circumstances of the case, it can be said that a magistrate is said to have taken cognizance when he applies his judicial mind in a case
Recently, Roshan Lal Alias v. State of U.P. and Another gained attention due to the Allahabad High Court's decision to set aside a summoning order issued by a magistrate in Azamgarh. The High Court found that the magistrate had mechanically used a pre-printed proforma, failing to apply judicial mind while issuing the order.
"Competency to try under BNSS" refers to the legal authority of a court or magistrate to hear and adjudicate a case under the Bharatiya Nagarik Suraksha Sanhita (BNSS), essentially determining which types of offenses a particular court can try based on the severity of the crime and the powers granted by the BNSS legislation; it also includes the ability to conduct a trial in the absence of the accused in certain circumstances, as permitted by the law.. Section 21 of BNSS provides that in conformity with other provisions of BNSS. High Court, Court of Session and Court of Judicial Magistrate has competency to try any cases. However, it should be read with Schedule I Column 6 of BNSS which provides the exclusive original jurisdiction of the courts to try cases. It provides the list of offences under Bhartiya Nyaya Sanhita 2023 and also provides which offence is triable by which court. High Court and Court of Session have concurrent original jurisdiction under Section 21. This section outlines the courts responsible for trying offences under the Bharatiya Nyaya Sanhita, 2023. It specifies that:
1. Offences under the Bharatiya Nyaya Sanhita may be tried by:
2. Specific sections (64-71) must be tried by a female presiding officer when possible.
3. Offences under other laws are tried based on the provisions mentioned in those laws or, if unspecified, may also be tried by the High Court or other designated courts.
It is not necessary that if Court of Judicial Magistrate First class is taking cognizance of offence of murder then he can also try the case. The trial of murder is exclusively with court of session, hence only Court of Session is competent to try the offence of murder and not Court of judicial Magistrate.
Answer:- The difference between Preliminary and Final Decree-
Preliminary decree | Final decree |
---|---|
The formal adjudication made by a judge in court of law, determining the rights of the parties involved with respect to matters in controversy in lawsuits is known as a preliminary decree. The court determines the rights of the parties involved in a suit and wait for the final decree to be rendered by the court. The preliminary decree is subject to change upon the discretion of the court if the circumstances under which such decree was made changes. There can be more than one preliminary decree given in suit. According to Phoolchand v. Gopal Lal (1967) a preliminary decree may be issued more than once. |
The final decree has the effect of disposing of the law suit entirely and leaves no issues for decisions in the future. Final decree decides the matters in controversy involved in a suit in finality. All the rights and responsibilities of their parties are established by the final decree. The final decree must always be in consonance with the preliminary decree. Ordinarily only one final decree is passed but if there are more than one cause of action arising out of a suit then more than one final decree may be passed by the court According to Shankar v. Chandrakant (1995), there may be more than one final decree |
Thus, it can be concluded that -
• Decree is a judicial determination of rights of the parties with respect to any matters of controversy in suit.
• The major difference between Preliminary decree and Final decree is that in case of Preliminary decree the Court determines the rights of the parties but does not completely dispose of the suit whereas in case of Final decree the suit is completely disposed of.
Answer:- The Indian Penal Code (IPC) does not provide a blanket exemption for crimes committed under the influence of alcohol. However, intoxication can be a factor in determining criminal liability, particularly in cases involving specific intent or knowledge. Section 85 and 86 of the Indian Penal Code deal with the Criminal responsibility of drunken persons.
Voluntary Intoxication
Generally, voluntary intoxication is not a defense under the IPC. This means that if a person voluntarily consumes alcohol or drugs and commits an offense, they will be held responsible for their actions as if they were sober. The principle is "qui peccat ebrius, luet sobrius," meaning "one who sins when drunk should be punished when sober."
Involuntary Intoxication
In contrast, involuntary intoxication may be considered a defense. This applies when a person is intoxicated without their knowledge or against their will, such as when someone's drink is spiked. In such cases, the person may not be held criminally liable if they can prove that the intoxication prevented them from understanding the nature of their actions or that they were doing something wrong.
Case Laws
Several case laws have shaped the interpretation of intoxication under the IPC. In Basdev vs. State of Pepsu, the court held that voluntary intoxication is not an excuse for a crime. However, in cases where a specific intent is required, intoxication may be considered in determining whether the accused had the necessary intent.
Therefore a person will not be liable for the act done by him, which would otherwise be an offence, if:—
(a) the act was done by him while in a state of intoxication;
(b) at the time of doing it, by reason of intoxication, he was-
(c) That the thing which intoxicated him was administered to him without his knowledge or against his will.
It should be noted that voluntary drunkenness is not excusable for the commission of a crime; The law attributes to a drunken man the knowledge as of sober man when judging of his action unless the thing which intoxicated him was administered to him without his knowledge or against as will.
Against, it should be noted that if a person is intoxicated by fraud of others or through ignorance or through any other means against his will and if all the conditions mentioned above are fulfilled then his act is excusable.
Answer:- Pardon is an act of mercy or forgiveness. Article 72 of the Constitution of India provides pardoning power to the President of India whereas Article 161 bestows the same power to the Governor of the state. The following are the differences between Article 72 and Article 161-
Basis of differentiation | President | Governor |
---|---|---|
Scope of the pardoning power | The pardoning power of the President is wider in its scope. | The pardoning power of the Governor is not as broad as that of the President of India. |
Power with respect to a punishment or sentence by a Court Martial |
The President of India has the power to grant pardon- • Reprieve • Respite • Suspension • Remission or • Commutation In respect of punishment or sentence by a Court martial. |
The Governor of a state has no such power. |
Provision under the Constitution | The pardoning power of a President is provided under Article 72 of the Constitution of India. | The pardoning power of the Governor is dealt under Article 161 of the Constitution of India. |
Power with respect to grant of a death sentence | The President of India has the sole power to grant pardon, reprieve, respite, suspension, remission, or communication in respect of a death sentence. | The Governor of India does not have the authority to pardon a death sentence. |
Answer:- The Indian Easements Act, 1882, is an essential piece of legislation that governs easement rights in India. While it provides a comprehensive framework for the regulation and enjoyment of easement rights, it is not entirely exhaustive or self-sufficient. Though it functions as a substantial code, it is supplemented by other legislative provisions to address specific aspects not covered under its purview.
The Act is considered a complete code in the territories where it is applicable. It defines easement rights in detail and regulates their use, ensuring a uniform approach to the recognition and exercise of such rights. This contributes to minimizing disputes and ensuring clarity in the law. However, the Act does not cover every conceivable scenario related to easements, necessitating the incorporation of other laws that further clarify and supplement its provisions. Some of the supplementary legislations include:
1. The Transfer of Property Act, 1872: This Act deals with the transfer of easement rights, allowing their lawful transfer with the property.
2. The Criminal Procedure Code (Cr.P.C): The Cr.P.C provides procedures for resolving disputes related to easements, ensuring a legal process for enforcement.
3. The Limitation Act, 1908: Section 25 of the Limitation Act addresses the right of easement by prescription, setting time limits for claiming easement rights through continuous use.
Thus, while the Indian Easements Act lays down the foundational framework for easement rights, its application and understanding are enhanced by these supplementary provisions.
The Indian Easements Act, 1882, although a distinct Indian statute, is heavily influenced by English law. The principles underlying the Act, particularly those related to the definition and regulation of easement rights, are drawn from the English Common Law tradition. The concept of easement, as enshrined in the Act, reflects the British colonial legacy in Indian legal thought. Furthermore, in regions where the Indian Easements Act is not applicable, English law principles, grounded in equity and good conscience, are applied to resolve disputes related to easement rights.
The recognition of easement rights predates the British era. Ancient Indian legal customs acknowledged rights relating to common streets, drainage, wells, and the flow of water—concepts that align with modern easement rights. With the establishment of British rule, English law was gradually incorporated into the Indian legal system, and courts in presidency towns began recognizing easementary rights based on these principles.
Before the enactment of the Indian Easements Act, the Limitation Act of 1871 was the first to recognize easement rights in India, though it primarily dealt with easements acquired through prescription. However, it was limited in scope and merely prescribed the time frame for the acquisition of easements. The Indian Easements Act of 1882 was introduced to provide a more comprehensive and formalized structure for the law of easements, effectively replacing the relevant provisions of the earlier Limitation Act.
In conclusion, while the Indian Easements Act, 1882, is a comprehensive and pivotal piece of legislation, it is not an exhaustive code. It is supplemented by other laws such as the Transfer of Property Act, 1872, the Criminal Procedure Code, and the Limitation Act, 1908, which enhance its application. Additionally, the Act reflects the influence of English law, as it draws heavily from the principles of Common Law and equity. Therefore, while the Act forms a crucial legal framework, its scope is broad but not all-encompassing, requiring supplementary legal provisions to address all aspects of easement rights.
Answer:- The Indian Easements Act, 1882, outlines various modes of creating easements. These include:
1. Express Grant: An easement can be acquired through an express grant, where the grantor clearly intends to grant an easement by inserting a clause in the deed of sale, mortgage, or any other transfer document. If the immovable property value is Rs. 100 or above, the grant must be in writing and duly registered.
2. Implied Circumstances: Easements can be acquired in implied circumstances in the following ways:
• Easement of Necessity (Section 13):
This arises when the owner or occupier of land cannot use their property without exercising an easement over a neighbouring property. Absolute necessity, not mere convenience, is the criterion. For instance, if 'X' sells land to 'Y' and 'Y' cannot access the land without passing through 'Z’s land, it is an easement of necessity.
• Quasi Easements:
A quasi-easement arises when, during the transfer of property, an easement is necessary for the enjoyment of the property. For example, if 'X' transfers property to 'Y', and the enjoyment of 'Y’s property is dependent on a continuous and apparent easement (such as access to water or light), the easement is implied. Similarly, in a partition of joint family property, a continuous and necessary easement can be implied between coparceners.
3. Prescriptive Easements (Section 15): Easements can be acquired through prescription when they are enjoyed continuously and openly without interference for 20 years. The requisites for prescriptive easements include:
• The right must be definite and certain.
• It must have been enjoyed independently and without agreement with the servient owner.
• It must be enjoyed openly, peacefully, and without interruption for a continuous period of 20 years. For government land, this period extends to 30 years.
4. Customary Easements (Section 18): Easements can also be acquired by virtue of local customs. Such easements arise from long-established practices within a community. For example, people in a town may have a customary right to bury their dead in a specific area or use water from a particular source.
Answer:- Decree is judicial determination of rights of parties regarding the matter in controversy involved in a suit. The final determination made by the judge need to conclusively determine the rights of the parties irrespective of the effect such decree has on a suit.
According to Section 2 (2) of the Code of Civil Procedure, 1908, Decree means-
"The formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) Any adjudication from which an appeal lies as an appeal from an order or
(b) Any order of dismissal for default"
Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final.
The following are the essentials of a decree-
In a suit whenever the judge pronounces a formal decision regarding the matter in dispute, such judicial determination is known as adjudication. For a decision of a court to be a decree, adjudication made by a judge in court of law is necessary. It can be said that any decision in an administrative proceeding does not amounts to adjudication because the decision is not judicially determined.
1. The adjudication must be done in a suit
Suit has not been defined anywhere under the Code of Civil Procedure, 1908. Suit in general sense would mean a civil proceeding instituted by presentation of plaint. It can be derived from the above mentioned statements that where no civil suit is instituted the adjudication pronounced by the officer in such cases would not amount to a decree. Certain applications instituted are to be treated as suits like proceedings under the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc. The decision given under such proceedings are to be treated as decree.
2. The adjudication must be done in determining the rights of the parties relating to all or any of the matter in dispute
The adjudication of a dispute must determine the rights of the parties with respect to all or any matters in dispute in the suit. Rights of the parties includes substantive and not only procedural rights. For example- Rights of the parties relating to status, limitation, jurisdiction, frame of suit, accounts etc. The rights in matters of procedure are not included in the category of rights under this section.
3. Such determination must be conclusive in nature
The determination passed by a Court must be final and conclusive in nature. Such decision is a decree which is final and conclusive with respect to the determination of the rights of the parties irrespective of whether the suit has been disposed of by such decision or not. For example:
4. There must be a formal expression of such adjudication.
The Court must express its decision formally in accordance with the provisions of law.
Answer:- Preventive relief in law primarily achieved through injunctions, is a proactive legal remedy aimed at preventing harm or the violation of rights before they occur. By issuing injunctions, courts can order individuals or entities to refrain from certain actions or compel them to perform specific acts. This proactive approach aims to maintain the status quo, preserve the subject matter of litigation, and prevent irreparable harm.
Injunctions can be temporary or permanent, with temporary injunctions granted for a short period, often pending a full hearing on the merits of the case. Permanent injunctions, on the other hand, are issued after a full trial and intended to be long-term or permanent orders.
The court's decision to grant an injunction is discretionary and based on various factors, including the potential for irreparable harm, the balance of equities between the parties, and the public interest. By utilizing preventive relief, the legal system aims to effectively address potential harm and ensure that justice is served before significant damage occurs.
The Specific Relief Act, 1963 (SRA) provides for a variety of remedies, including preventive relief, which is primarily aimed at preventing a threatened wrong or injury. This form of relief, primarily granted through injunctions, seeks to maintain the status quo or restore the status quo ante.
• Discretionary: The grant of preventive relief is discretionary, meaning the court has the power to decide whether or not to grant an injunction. The court's decision will depend on the specific circumstances of the case and the principles of equity.
• Equitable: Preventive relief is rooted in equity, and its grant or refusal is often based on equitable principles. The court considers factors such as the balance of convenience, the potential harm to the parties, and the public interest.
• Preventive: As the name suggests, preventive relief is designed to prevent future harm rather than to compensate for past harm. It is a proactive measure to safeguard rights and interests.
• Temporary or Perpetual: Preventive relief can be granted in two forms:
Temporary Injunction: This is a short-term order, typically granted at the interim stage of a lawsuit, to maintain the status quo until the final determination of the case. Under the Specific Relief Act, 1963, Section 37(1) governs temporary injunctions. These are interim court orders that restrain a party from performing a specific act until a final decision is reached in the case. They are crucial for preserving the status quo and preventing irreparable harm during the course of litigation.
To obtain a temporary injunction, the plaintiff must generally establish a prima facie case, demonstrate the potential for irreparable harm if the injunction is not granted, and show that the balance of hardships favors their request. The court exercises discretion in granting injunctions, carefully weighing the interests of both parties. The case of M/s. Colgate-Palmolive (India) Ltd. v. Hindustan Lever Ltd highlighted the importance of establishing a prima facie case and demonstrating the potential for irreparable harm in obtaining a temporary injunction. In State of Gujarat v. Mehta: It emphasized the need for courts to consider the public interest while granting injunctions, particularly in environmental matters.
Perpetual Injunction: This is a permanent order, granted at the final hearing of a suit that prohibits a party from doing a particular act or compels them to do a specific act. Under Section 37(2) of the Specific Relief Act, 1963, a perpetual injunction is a court order that permanently restrains a party from asserting a right or committing an act that would infringe upon the rights of another. This is a final order issued after a full trial on the merits of the case, establishing a long-term prohibition. Perpetual injunctions are granted to prevent the breach of an obligation existing in favor of the plaintiff, whether expressly or impliedly.The court carefully considers the nature of the rights involved, the potential for irreparable harm, and the balance of equities before granting a perpetual injunction. In Murlidhar Agarwal and Anr vs. State of Uttar Pradesh And Ors (1974): The Supreme Court in this case exemplified that perpetual injunctions are issued based on the specific circumstances and facts of each case.
• Prima Facie Case: The plaintiff must establish a prima facie case, meaning they must show that they have a reasonable chance of succeeding at trial.
• Irreparable Injury: The plaintiff must demonstrate that they will suffer irreparable harm if the injunction is not granted.
• Balance of Convenience: The court must weigh the potential harm to the plaintiff if the injunction is not granted against the potential harm to the defendant if the injunction is granted.
• Public Interest: The court must consider the public interest in granting or denying the injunction.
Preventive relief under the SRA is a valuable tool for protecting rights and preventing harm. By understanding the nature and character of this remedy, individuals and businesses can effectively use it to safeguard their interests. However, it is important to note that the grant of preventive relief is subject to specific legal requirements and judicial discretion.
Answer:- Affirmative Easement: An affirmative easement grants the easement holder the right to perform a specific action or use a part of another person’s property. Essentially, it allows the easement holder to do something on the servient land that would otherwise be restricted. This type of easement is commonly used to facilitate access or utility use.
Examples of affirmative easements include:
• Right of Way: The right to pass through someone else’s property, such as a pathway or road.
• Utility Easements: Allowing companies to install and maintain utility services like electricity lines, pipelines, or telecommunication cables across a property.
• Conservation Easements: The right granted to an organization to preserve natural land for environmental conservation.
In all these cases, the holder is permitted to actively use the servient land for certain purposes, such as passage or utility maintenance.
Negative Easement: A negative easement, on the other hand, restricts the property owner from performing certain actions on their land that could interfere with the easement holder’s rights or the enjoyment of their property. It is a form of restriction where the owner is prohibited from doing something on their land.
Examples of negative easements include:
• Building Restrictions: Preventing the property owner from constructing buildings above a certain height to preserve light or air flow to neighbouring properties.
• View Protection: Preventing the obstruction of a scenic view, such as blocking the view of a mountain by erecting a tall structure.
Negative easements are less common but can be found in agreements such as covenants, conditions, and restrictions (CC&Rs) in housing communities, where property use is restricted to maintain the aesthetic or functional value of the area.
Major Difference: The key difference between the two types of easements lies in the nature of the rights involved. An affirmative easement allows the holder to use or perform actions on another’s land, while a negative easement prevents the landowner from undertaking certain activities on their property. Affirmative easements generally focus on providing a right to use, whereas negative easements limit what can be done on the land to protect the easement holder’s interests.
Answer:- Section 35 of the Transfer of Property Act, 1882, codifies the doctrine of election. This doctrine is rooted in equity and aims to ensure fairness and consistency in property transactions. It essentially states that where a person professes to transfer property that they do not have the right to transfer, but also confers a benefit on the owner of that property, the owner must choose between accepting the benefit and confirming the transfer, or rejecting the benefit and refusing to confirm the transfer.
1. Transfer of Property without Title: The transferor must profess to transfer property that they do not have the right to transfer.
2. Conferment of Benefit: The transferor must confer a benefit on the true owner of the property as part of the same transaction.
3. Election by the Owner: The owner of the property must make an election:
The doctrine of election is based on the principle of equity and fairness. It prevents unjust enrichment and ensures that a person cannot benefit from a transaction while also challenging its validity.
While there isn't a single landmark judgment that exclusively focuses on Section 35, several cases have significantly contributed to its interpretation and application. Here are some notable examples:
1. Cooper v. Cooper (1874): This case is considered a foundational judgment on the doctrine of election. It established the principle that a person cannot accept a benefit under a will or other instrument without also accepting the burdens imposed by that instrument.
2. S. Krishnamurthy v. T.R. Venkataramana (1963): This Indian case applied the doctrine of election to a situation where a testator attempted to dispose of property that was not his to dispose of. The court held that the beneficiary could either accept the benefit conferred upon him or reject it or claim the property that the testator had attempted to dispose of.
3. Radha Lakshmanan v. M.S. Gurusamy (2014): This case involved a dispute over property rights. The court applied the doctrine of election to determine the rights of the parties involved, emphasizing the principle of consistency and fairness.
The doctrine of election is an important principle in property law, ensuring fairness and consistency in property transactions. By understanding the principles outlined in Section 35 of the Transfer of Property Act and the relevant case law, one can better appreciate the complexities involved in applying this doctrine to specific situations.
Answer:- The Specific Relief Act, 1963 provides for a variety of remedies, including preventive relief, which is primarily aimed at preventing a threatened wrong or injury. This form of relief, primarily granted through injunctions, seeks to maintain the status quo or restore the status quo ante.
• Discretionary: The grant of preventive relief is discretionary, meaning the court has the power to decide whether or not to grant an injunction. The court's decision will depend on the specific circumstances of the case and the principles of equity.
• Equitable: Preventive relief is rooted in equity, and its grant or refusal is often based on equitable principles. The court considers factors such as the balance of convenience, the potential harm to the parties, and the public interest.
• Preventive: As the name suggests, preventive relief is designed to prevent future harm rather than to compensate for past harm. It is a proactive measure to safeguard rights and interests.
• Temporary or Perpetual: Preventive relief can be granted in two forms:
• Prima Facie Case: The plaintiff must establish a prima facie case, meaning they must show that they have a reasonable chance of succeeding at trial.
• Irreparable Injury: The plaintiff must demonstrate that they will suffer irreparable harm if the injunction is not granted.
• Balance of Convenience: The court must weigh the potential harm to the plaintiff if the injunction is not granted against the potential harm to the defendant if the injunction is granted.
• Public Interest: The court must consider the public interest in granting or denying the injunction.
Preventive relief under the SRA is a valuable tool for protecting rights and preventing harm. By understanding the nature and character of this remedy, individuals and businesses can effectively use it to safeguard their interests. However, it is important to note that the grant of preventive relief is subject to specific legal requirements and judicial discretion.
Answer:-
The doctrine of religious efficacy is a principle of inheritance law that states that the person who provided the most spiritual benefit to the deceased is entitled to inherit their property. It is a guiding principle of the Dayabhaga School of Hindu law, which is practiced in Bengal and Assam.
Religious efficacy, in the context of Hindu law, is concerned with the fulfillment of religious duties and the performance of prescribed rituals. It underscores the belief that these religious acts are not merely ceremonial but have a profound impact on the spiritual and legal status of individuals.
The Principle of Religious Efficacy highlights the complex interplay between religious traditions and legal frameworks in Hindu law. While the performance of religious duties and rituals holds significant cultural and spiritual value, the legal system prioritizes statutory rights and principles of fairness and equity.
As Indian society evolves, the legal system increasingly faces the challenge of balancing traditional religious practices with modern legal standards. This balance is particularly crucial in cases involving women's rights, inheritance, and the recognition of non-traditional family structures. The courts have consistently upheld the importance of legal entitlements while respecting the cultural and religious sentiments of individuals.
1. In the case of Ramesh v. Suresh (2010), Ramesh, the eldest son, failed to perform the annual Shraddha rituals for his deceased father. Suresh, the younger son, performed the rituals instead. A dispute arose over the distribution of ancestral property, with Suresh arguing that Ramesh's neglect of religious duties disqualified him from inheritance. The court ruled that while religious duties are significant, they do not directly affect legal inheritance rights unless expressly stated in a will or legal document. The court upheld Ramesh's right to his share of the property but emphasized the cultural and moral obligations associated with religious duties
2. Harishankar v. Rekha (2012)- In this case, Harishankar, a nephew of the deceased, claimed the entire estate, arguing that he had performed the necessary Shraddha rituals, while Rekha, the deceased's daughter, had not participated. Harishankar contended that his performance of the religious duties entitled him to the property. The court emphasized that while performing religious duties is a respected tradition, it does not determine legal inheritance rights. The court ruled in favor of Rekha, upholding her legal right to inherit her father's estate.
3. In the case of Rajeshwari v. Laxmi Narayan (2015), Rajeshwari, the daughter-in-law, refused to participate in the Pinda-Daan ceremony for her deceased father-in-law, citing her modern beliefs. Laxmi Narayan, her brother-in-law, argued that her refusal violated family traditions and should impact her share in the joint family property.The court ruled that personal beliefs could not be grounds for denying legal rights in property. However, it acknowledged the emotional and cultural significance of such rituals, urging the family to find a harmonious solution respecting both traditional and modern values.
In conclusion, the Principle of Religious Efficacy is a testament to the enduring relevance of religious traditions in Hindu law. It challenges legal practitioners and the judiciary to navigate the delicate balance between respecting religious practices and enforcing legal standards, ensuring that the law serves the best interests of all members of society
Answer:- The Specific Relief Act, 1963 (SRA) was enacted to provide remedies for individuals whose civil or contractual rights have been infringed. Chapter II of the SRA outlines provisions for the Substituted Performance of a Contract. This concept is an exception to the specific performance of a contract, as certain contracts cannot be specifically enforced under Section 14 of the SRA.
Substituted performance is covered under Section 20 of the Act, 1963. It refers to a situation where, if a contract is breached, the aggrieved party is entitled to have the contract performed by a third party or through their own means. The party who suffers the breach can also recover the expenses, costs, and any compensation from the party who failed to fulfil their part of the contract. This provides an alternative remedy at the discretion of the party affected by the breach.
Essentials of Section 20 Substituted Performance of Contract
1. When the contract is breached due to non-performance of promise by any party to the contract, the party who suffers the loss has the option of substituted performance.
2. The contract may be performed by the third party or by his own agency, and recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing such breach.
3. The same should not be in contradiction with the Indian Contract Act, 1872 and must be done with the consent of the parties.
4. The party suffered must serve a notice in writing of not less than 30 days to the party who has breached the contract to perform his part of the contract. On refusal of such performance the party who has suffered the loss may get the substituted performance.
5. The party who suffers such a breach shall not be entitled to recover the expenses and costs under sub-section (1) unless he has got the contract performed through a third party or by his own agency.
Important Cases-
1. Mukesh Singh And 4 Ors v. Saurabh Chaudhary and Another (2019):
The party seeking specific performance must prove that he was ready and willing to perform their part.
2. M. Sakhunthala Manuelraj v. T. Anbalagan Alexandar (2023):
The Madras High court held that the party can claim under Section 20 of Specific Relief Act for substituted performance. Parties must give proper notice to claim additional cost and original contract terms remain relevant.
Answer:- Assault and battery are crimes that often occur together, but they have distinct elements. Both crimes involve the intent to harm someone, and modern laws often treat them as one offense.
• Assault happens when a person threatens or attempts to harm someone, creating a fear in the victim that harm is imminent. No physical contact is needed for assault; it’s enough to make the victim fear harm.
• Battery, on the other hand, involves actual physical contact. It occurs when someone intentionally or recklessly causes harmful or offensive contact with another person. Even minor injuries, like a push or a slap, can result in a battery charge.
Assault is an intentional and unlawful threat by word or act that gives another person reasonable fear that they will be physically harmed or offensively touched, whereas, Battery is an intentionally causing harm, to another person or offensively touching them without their consent or intentional involvement in the action.
Physical contact is not necessary in assault, whereas, physical contact is mandatory in battery.
Purpose of assault is done to threat a person, whereas, battery, is done in order to cause harm to a person.
Nature of crime in assault should not necessarily be physical, whereas, in battery it must be physically here.
Every assault does not include battery, whereas, every battery includes assault. Battery is an aggravated form of assault.
Thus, battery is when someone physically contacts another person in a harmful or unwanted way, whether or not the injury is severe, while assault is making the victim fear harm without necessarily touching them. Some states treat these as separate charges, while others group them together as assault and battery.
Answer:- Conciliation is an important method of resolving disputes amicably, helping parties avoid lengthy and costly litigation. Under Section 67 of the Arbitration and Conciliation Act, 1996, the role of a conciliator is to facilitate discussions, ensure fairness, and guide parties toward a mutual agreement. Acting as a neutral third party, the conciliator helps resolve disputes in areas like commercial, contractual, and family matters.
A conciliator is a neutral third party appointed to help resolve disputes through conciliation, a voluntary and confidential method of alternative dispute resolution (ADR). The conciliator facilitates communication, encourages negotiation, and may suggest settlement options to help parties reach a mutually acceptable agreement. Unlike mediators, conciliators can actively propose solutions.
1. The conciliator ensures smooth communication between the disputing parties. They help clarify misunderstandings and create a positive environment for dialogue.
2. Analysis the facts, issues, and positions of both parties to identify the key points of contention. It provides a neutral perspective on the dispute.
3. Encourages the parties to explore potential solutions and compromises. It Does not impose decisions but guides the parties toward a resolution acceptable to both sides.
4. Acts impartially without favouring any party. It ensures that neither party feels disadvantaged during the process.
5. It may offer suggestions or propose settlement terms based on their expertise and understanding of the dispute. It ensures that the solutions comply with applicable laws and are fair to all parties involved.
6. If an agreement is reached, the conciliator assists in drafting the settlement agreement. It ensures the agreement is clear, comprehensive, and legally enforceable.
Thus, the conciliator’s role is to act as a facilitator who aids parties in resolving disputes in a constructive and amicable manner, ensuring fairness and compliance with the law.
Answer:- Motive refers to the reason or driving force behind a person’s actions. In legal contexts, it explains why a person committed or intended to commit a particular act. While motive is not the same as intent, it provides insight into the circumstances or thought process behind the conduct.
• Intent relates to the mental state to commit an act (the purpose or determination to do so).
• Motive is to answer the question of why the person decided to act.
The Bharatiya Sakshya Adhiniyam, 2023, previously, Indian Evidence Act, 1872, serves as a comprehensive statute governing the admissibility of evidence in Indian courts. It outlines the principles determining what constitutes relevant or irrelevant evidence in both civil and criminal cases. Among its various provisions, Section 6 of the Bharatiya Sakshya Adhiniyam, 2023, previously, Section 8 of the Evidence Act, specifically addresses the relevance of motive, preparation, and the prior or subsequent conduct of individuals involved in legal proceedings. These aspects are particularly significant in cases where direct evidence is absent, and the court must rely on circumstantial evidence to establish the facts.
A is tried for the murder of B. The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.
No, motive alone is not sufficient to convict someone of a crime. While it provides an insight into the offender's mind and can help to establish a probable reason for committing the crime, it does not prove guilt on its own.
Criminal liability is determined by mens rea (intent), actus reus (the criminal act), and the connection between the two. Motive alone cannot prove these elements.
Example: A person harbouring ill will (motive) toward another cannot be convicted of murder unless it is shown they took active steps to harm them.
In the case of Kehar Singh v. State (1988), the Supreme Court emphasized that motive alone cannot establish guilt. However, it becomes significant when the case is based on circumstantial evidence, helping infer the accused's state of mind.
In the case of Nathuni Yadav v. State of Bihar (1997), the court observed that absence of motive does not absolve the accused if there is clear evidence of intent and action.
Thus, motive plays an important role in the criminal trials, helping to explain the reasoning behind the crime but it is not sufficient alone to convict and must be accompanied by evidence proving the criminal act and intent. Without these, motive remains speculative and cannot ground a legal conviction.
Answer:- A would generally not be held liable for any criminal offense because his act is included in general exception under IPC
Consent: Z willingly participated in the fencing match. This implies consent to the inherent risks involved, including the possibility of injury.
Fair Play: The key element is that the injury occurred during "fair play." This suggests that A did not intentionally or recklessly cause harm beyond the expected risks of the sport.
Lack of Malice: There's no indication that A acted with any malicious intent or a desire to cause harm to Z.
In criminal law, consent can often act as a defense to charges such as assault or battery. If Z consented to the physical contact involved in the fencing match, it can negate the element of unlawfulness required for such charges.
Section 87 talks about Act not intended and not known to be likely to cause death or grievous hurt, done by consent. “Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.”
Thus given the mutual consent, lack of intent to cause serious harm, and adherence to fair play, A is not liable for any offence under the IPC.. This conclusion aligns with the protective provisions under Section 87, which acknowledge and respect voluntary consent in cases of lawful activities involving inherent risk.898
Answer:- The first hearing of a suit in a civil court, as governed by the Code of Civil Procedure, 1908 (CPC), refers to the stage when the court applies its mind to the facts and legal issues involved in the case. Under specific circumstances, the court is empowered to dispose of the suit without proceeding to a full trial. The relevant provisions are found primarily in Order X, Order XII, and Order XV CPC, along with Section 9 and Section 11 CPC.
1. Avoids lengthy trials for cases with no substantial disputes.
2. Dismisses frivolous or vexatious suits at the outset.
3. Reduces the burden on the judiciary by focusing resources on genuine disputes.
1. Lack of Jurisdiction (Section 9 CPC): If the court finds that it does not have jurisdiction to try the suit (e.g., subject-matter or territorial jurisdiction), the suit can be dismissed at the first hearing.
2. Bar by Res Judicata (Section 11 CPC): If the suit is barred by the principle of res judicata, meaning the matter has already been adjudicated by a competent court, the court may dismiss the suit without proceeding further.
3. No Cause of Action (Order VII, Rule 11 CPC): If the plaint does not disclose a valid cause of action or is barred by any law, the court may reject the plaint at the first hearing.
4. Admission of Facts (Order XII, Rule 6 CPC): If the defendant admits the plaintiff's claim in the pleadings or through other means, the court can pass a judgment based on such admission, disposing of the suit without a full trial.
5. Settlement of Issues (Order X CPC): During the examination of parties, if the court determines there is no factual dispute requiring evidence, it may decide the case on legal grounds alone.
6. Suit Barred by Law (Order XV, Rule 1 CPC): If the court finds that the suit is barred by any law (e.g., limitation, non-compliance with statutory requirements), it can dispose of the suit at the first hearing.
7. Frivolous or Vexatious Suit: If the court finds that the suit is frivolous, vexatious, or an abuse of the process of law, it may dismiss it outright.
8. Full Agreement between Parties (Order XV, Rule 2 CPC): If both parties agree on the facts and only a question of law remains, the court can dispose of the suit without recording evidence.
Therefore, disposing of a suit at the first hearing under appropriate circumstances ensures judicial efficiency, saves time and costs for litigants, and prevents unnecessary trials. The CPC empowers courts to utilize this provision judiciously to uphold fairness and avoid delays in the administration of justice.
Answer:- The term "Costs" refer to the statutory allowance given to a party to cover expenses incurred in a law suit. They serve as a form of compensation for the successful party to recover expenses caused from the other's breach of duty. Costs are defined by law and include only those charges prescribed in the fee bill. The general rule is that the successful party is entitled to costs unless they are at fault or there is another valid reason not to award them. The principle "costs follow the event" means costs are awarded based on the outcome of the case. However, costs should be imposed cautiously and only in cases of false or frivolous defences. The Civil Procedure Code (CPC) provisions on costs (Sections 35, 35-A, 35-B, and 95) aim to deter baseless claims, but often unscrupulous parties take advantage of nominal cost awards. In Salem Advocates Bar Association v. Union of India, the Supreme Court ruled that costs should be actual and reasonable, covering time, transportation, lodging, court fees, lawyer's fees, and other relevant expenses. High Courts are responsible for setting rules to ensure fair cost assessments.
According to Black’s Law Dictionary “costs is a pecuniary allowance made to the successful party for his expenses in prosecuting or defending a suit or a distinct proceeding with a suit”.Section 35 of the civil procedure code, 1908, pertains to general costs,which are granted to litigants to cover the expenses incurred during legal proceedings. The main goal of awarding costs under this section is to compensate the successful party for the legal expenses they have incurred.
Compensatory Costs under the Civil Procedure Code under Section 35ASection 35A of the Codeallows for compensatory costs, which are an exception to the general rule of costs under Section 35. This provision is intended to address situations where Section 35 does not provide adequate compensation, especially in cases involving false or frivolous claims or defences.
Conditions for Awarding Compensatory Costs: For Section 35A to be applicable, the following conditions must be met:
1. False or Vexatious Claim/Defense: The claim or defense must be false or vexatious, made with malicious intent.
2. Objection by the Other Party: The opposing party must have raised an objection, indicating that the claim or defense was false or vexatious, to the knowledge of the party making it.
3. Disallowed, Withdrawn, or Abandoned Claim: The claim must have been disallowed, withdrawn, or abandoned, fully or partially.
The maximum amount that can be awarded under Section 35A is Rs. 3,000. It is crucial to note that this section applies only to suits, not to appeals or revisions. This provision enables the court to impose compensatory costs on parties who misuse the legal process for vexatious purposes.
Thus, the provisions involving costs under the CPC hold significant importance within the Indian legal framework. They assist in guaranteeing equitable litigation, enable parties to recover valid expenses, and deter the abuse of the legal system. Through the resolution of false or vexatious claims, the compensation of particular litigation expenses, and the imposition of penalties for delays, the CPC plays a vital role in fostering a fair and effective legal system.
Answer:- Section 2(b) of the Indian Contract Act 1872 defines acceptance as "the offer is claimed to be accepted when the person to whom the proposal has been made signifies his assent thereto." Section 7 emphasises on that absolute and unqualified acceptance is required.Section 8 states that an offer is deemed accepted if the offeree fulfils the terms specified in the offer or accepts the compensation in exchange for a reciprocal commitment.
1. Acceptance must be unconditional and absolute
2. It must be expressed in some reasonable manner
3. Acceptance must be communicated
4. It must be within the prescribed manner as communicated by the offeror. If no such manner is prescribed, it must be during a reasonable manner that might be used within the normal course of business. But if the offeror doesn’t enforce the way after the offer has been accepted in another manner, it will be presumed he has consented to such acceptance.
In the case of Trollope & Colls Ltd. v. Atomic Power Construction Ltd., 1963, the parties agreed to form a contract based on the points they had agreed upon. However, they continued to negotiate on the points they disagreed. The question arose whether such a contract is valid. The Court ruled that since the parties had not mutually agreed on all the contract clauses, it could create future problems. Therefore, it was not considered a valid contract.
In the case of Brogden and Metropolitan Rly Co., 1877, The Court determined that a valid contract existed between the parties. Although the acceptance was not explicitly conveyed, the defendant's actions suggested acceptance. The coal has been delivered, and payment has been processed in accordance with the draft. Therefore, the contract was deemed valid.
Thus, the essentials of a valid acceptance are crucial when entering in contractual agreements. The act requires certain requirements that must be met for an acceptance to be considered as valid.
Answer:- The law of limitation defines the period during which legal proceedings must be initiated. Filing a suit after this period result in it being barred by limitation, meaning such a suit cannot proceed in court. The law of limitation sets a time limit within which a legal solution can be sought in court. This is what the principle of "limitation bars the remedy but does not destroy the right" means. If this time runs out, the solution will no longer be valid, but the right that it protects will still be there. The Act establishes deadlines for pursuing legal action to enforce rights. The schedule of the Act outlines these timelines for different claims. In order to promote more efficient judicial procedures, the main goal of this Act is to avoid protracted litigation and guarantee the prompt settlement of cases.
1. The Limitation Act, 1963, sets out time limits (limitations periods) within which legal proceedings must be initiated for various types of claims.
2. Statutory Limits: These limits vary depending on the nature of the claim (e.g., contracts, torts, property disputes) and are intended to ensure prompt resolution of disputes and prevent stale claims.
Section 3 of the Limitation Act provides with the remedy of limitation bars, which states that if a suit, appeal, or application is filed after the set time limit, the court must dismiss it as being time-barred. The law of limitation limits the ability to seek a legal remedy through the courts but does not take away the underlying right itself. In simple terms, the limitation law specifies the time within which a case must be filed, but it doesn’t stop someone from using their right as a defense if needed. While you lose the ability to enforce the right through the court after the time limit, the original right itself still exists.
The rule of limitation is a rule of procedure, a branch of adjective law. It does not either create rights or extinguish rights, except in the case of acquisition of title to immovable property by prescription under Section 27 of the limitation act, 1963.
Section 3(c) of the Limitation Act, provides with the application to a High Court by notice of motion is considered made when it is presented to the appropriate court officer. If the prescribed period for any application expires on the day when the court is closed, it may be filed on the next day the court is open, in accordance with Section 4 of the act.
Section 4 of the Limitation Act provides with the provision of Expiry period of limitation when court is closed, which stipulates that if the limitation period for filing a suit, appeal, or application expires on a day when the court is closed, it may be filed on the next day the court is open.
Section 5 of the Limitation Act allows the court to extend the time limit in certain cases. If the appellant or applicant can show valid reasons for not filing the appeal or application within the prescribed period, the court has the discretion to accept it even after the deadline.
In the case of Punjab National Bank & Ors v. Surendra Prasad Sinha (1992), the Supreme Court explained that statutory limitations are intended to block the enforcement of legal remedies after a specific time while leaving the underlying rights intact. Section 3 of the Limitation Act restricts access to legal remedies but ensures that the core rights remain enforceable, highlighting that although the ability to seek legal recourse may lapse, the basic rights continue to exist beyond the time limit.
In the case of Bombay Dyeing and Manufacturing Company v. State of Bombay (1957), the Supreme Court established that the statute of limitations restricts access to legal remedies but does not eliminate the underlying rights. In other words, while the expiration of the time limit may prevent a person from pursuing a remedy in court, it does not invalidate or erase their fundamental legal rights or claims.
Thus, the Act sets a time frame within which legal actions must be initiated, ensuring that substantive rights are preserved while barring legal remedies after the specified period expires. Recognizing the distinction between a right and its enforcement under the Act is essential for both legal professionals and individuals engaged in potential legal disputes.
Answer:- According to Winfield, ‘Negligence’ as a tort is the breach of legal duty to take care which results in damage, undesired by the dependent to the plaintiff.
When someone breaks a legal duty of care and hurts someone else, that person is guilty of negligence. To put it simple, it's when someone doesn't do what a careful or fair person would do or does something that a careful person would avoid. In essence, there are basically three types of negligence:
1. Nonfeasance is when someone doesn't do something they must have done. Nonfeasance is when a food company is hired for an event but doesn't show up.
2. If someone does something, but they do it in the wrong way, that's called misfeasance. It's not good behaviour to fix up an old house with cheap, low-quality materials that make it more likely to fall down and hurt someone.
3. People commit malfeasance when they do something they shouldn't. As an example, it is bad behaviour to fix a building with materials that aren't allowed or are flammable, which makes the building a fire risk and leads to an accident.
In Blyth v. Birmingham Water Works Co. (1856), Alderson B. defined negligence under the law of torts as, the omission to do something which a reasonable man would do, or doing something which a prudent or reasonable man would not do.
1. Duty of Care: Everyone owes a duty of care when performing acts. This duty must be lawful, not based on moral or religious grounds. In the Case of Stansbele v. Troman (1948), a decorator left a house unlocked, leading to theft. He was held liable for failing to exercise due care.
2. Duty towards Plaintiff: A legal relationship must exist between the plaintiff and defendant for a duty to arise. The scope of this duty is defined by the court. In the Case of Bourhill v. Young (1943), A woman suffered nervous shock after witnessing the aftermath of an accident. The court held the motorcyclist owed her no duty of care.
3. Breach of Duty: The plaintiff must prove the defendant failed to fulfil their duty by acting recklessly or negligently. In the Case of Ramesh Kumar Nayak v. Union of India (1994), the postal authorities were liable for injuries caused by a collapsed wall due to poor maintenance.
4. Causation (Direct Cause): The plaintiff must show that the defendant’s breach directly caused the harm. This is often tested by the "but for" principle.
5. Foreseeability/Remoteness of Damage: The defendant is liable only for damages that are foreseeable or a direct result of their actions. Remote or unforeseeable damages do not attract liability.
Answer:- The Negotiable Instruments Act 1881 is a major Indian financial legislation. It governs promissory notes, bills of exchange, and cheques, which are essential to business activities. Discharging parties from their responsibilities under negotiable instruments is important to this legislation. Enterprises must know how to effectively discharge these appliances in order to function effectively and equitably. It protects financial transaction participants and resolves problems legally. In essence, the Act creates clear and secure business regulations.
The discharge of liability on a negotiable instrument under the Negotiable Instruments Act, 1881, refers to the cessation of rights and obligations of the parties involved. It can occur through various modes, as mentioned in the Act.
Various modes in which individual liability of the maker, acceptor and endorser of Negotiable instrument is discharged are a follow:
1. Payment in Due Course under Section 10 & Section 82 of the NI Act, 1881: When the amount due on a negotiable instrument is paid in full to the holder in due course, the parties to the instrument are discharged. Section 10 of the Act defines "payment in due course" as payment made in good faith, without negligence, and to the person entitled to receive it. And Section 82 of the Act, Discusses the discharge of the maker, acceptor, or endorser upon payment.
2. Cancellation under Section 82 of the Act: When the holder intentionally cancels the name of the acceptor, maker, or indorser on the instrument, such cancellation acts as a discharge of liability. The cancellation must be intentional and apparent.
3. Release by Holder under Section 82 of the Act: If the holder of the instrument agrees to release any party from liability through an express agreement or waiver, the discharged party is no longer liable.
4. Material Alteration under Section 87 of the Act: If a negotiable instrument is materially altered without the consent of the party liable, the instrument becomes void, and the party is discharged from liability. Examples of material alteration include changes to the amount, date, or name of the payee.
5. By Negotiation Back under Section 90 of the Act: When a negotiable instrument is negotiated back to the maker, drawer, or acceptor, who becomes the holder of the instrument, the instrument is discharged, provided there are no intermediate endorsements.
6. By Allowing Drawee More Than 48 Hours under Section 83 of the Act: If the holder allows the drawee more than 48 hours (exclusive of public holidays) to consider whether to accept the instrument, the drawer and endorsers are discharged from liability.
7. Non-Presentment for Payment or Acceptance under Sections 64 & 76 of the Act
Section 64: If a promissory note, bill of exchange, or cheque is not presented for payment or acceptance within the prescribed time, the drawer or endorser may be discharged.
Section 76: Explains circumstances where the holder loses their right to present, thereby discharging the liability.
8. By Operation of Law: Discharge may also occur due to insolvency, merger, or other legal provisions, where the liability ceases by operation of law.
9. Bankruptcy of the Holder: If the holder becomes bankrupt and is unable to enforce the instrument, the liability may be discharged, depending on the circumstances.
10. Death of a Party: Upon the death of the maker, acceptor, or holder, the liability is discharged if no legal representatives pursue the case within a reasonable period.
Thus, these provisions under the Negotiable Instruments Act, 1881, provides different modes in which the individual liability of the parties to negotiable instrument is discharged. The discharge of liabilities may be either the discharge of instrument itself or the discharge of one or more parties to the instrument.
Answer:- ‘Presumption’ refers to a conclusion or inference that the law permits or directs the court to draw from particular facts, until it is disproved or rebutted. Presumptions help streamline the judicial process by shifting the burden of proof under specific circumstances.
A presumption is a rule of evidence that allows a fact to be inferred from another established fact. It is either:
• Rebuttable: Can be disproved by presenting contrary evidence.
• Irrebuttable (Conclusive): Cannot be contradicted by any evidence.
1. Presumption of Fact or Natural Presumption: Section 88-90, 92, 117 and 119 of the Bharatiya Sakshya Adhiniyam, 2023 (Previously, Sections 86 - 88, 90, 113A and 114 of the Evidence Act) lay down the provisions relating to Presumption of Fact or Natural Presumptions as stated below. these principles are generally rebuttable.
2) Presumption of law or Artificial Presumption: Presumptions of law or artificial presumptions are inferences or propositions established by law.
• Presumptions of law are of two kinds:
i) Rebuttable: These kinds of presumptions arise when presumptions of law are certain legal rules, defining the amount of evidence requisite to Support a particular allegation, which facts being proved, may be either explained away or rebutted by evidence to the contrary but are conclusive in absence of such evidence. For example, A man is presumed innocent until he is proved guilty. A child is born in a legal wedlock shall be presumed legitimate and one who questions his legitimacy must disprove it.
Section 110 of the Bharatiya Sakshya Adhiniya, 2023 (Previously, Section 107 of the Evidence Act): Burden of proving death of person known to have been alive within thirty years.
Section 111 of the Bharatiya Sakshya Adhiniya, 2023 (Previously, Section 108 of the Evidence Act): Burden of proving that person is alive who has not been heard of for seven years.
Section 105 of the Bharatiya Sakshya Adhiniya, 2023 (Previously, Section 102 of the Evidence Act): On who burden of proof lies.
ii) Irrebuttable or Conclusive: These Presumptions are those legal rules which are not outcome of any evidence that the fact is otherwise. Section 82 of Indian Penal Code is the well-known instance of an irrebuttable presumption of law which provides that nothing is an offense which is done by a child under 7 years of age. Section 115, 116 and Section 117 of the Indian Evidence Act 1872 deals with the rule Estoppel which are the examples of irrebuttable presumptions.
Section 121 of the Bharatiya Sakshya Adhiniyam, 2023 (Previously, Section 115 of the Evidence Act): Estoppel
Section 122 of the Bharatiya Sakshya Adhiniyam, 2023 (Previously, Section 116 of the Evidence Act): Estoppel of tenant and of license of person in possession
Section 123 of the Bharatiya Sakshya Adhiniyam, 2023 (Previously, Section 117 of the Evidence Act): Estoppel of acceptor of bill of exchange, bailee or licensee
3) Mixed Presumptions (Presumption of Fact and law both): Mixed presumptions of law and Fact are mainly confined to the English law of real property so it is not necessary to presume subject here. The Indian Evidence Act has made some provisions for the presumptions of fact and the presumptions of law. In certain sections of the Evidence Act, it has been provided that the court may presume certain facts. In some other sections, the court shall presume a fact has been used. There are certain sections in which it is said that a certain fact is conclusive proof of certain another fact. Section 6 of the BSA, 2023 (Previously, Section 4 of the Evidence Act) controls these sections and gives a direction to courts as to how proceed under those sections of the evidence act.
Answer:- Under Section 44 of the Indian Partnership Act, 1932, a partnership firm can be dissolved by the court under specific circumstances. These grounds ensure that the partnership is not unfairly prejudicial to any partner or the business itself. The court may dissolve a firm in the following situations:
1. If a partner becomes of unsound mind, the court may dissolve the firm upon the application of another partner. (Section 44(a))
2. If a partner becomes permanently incapable of performing their duties (e.g., due to physical disability or prolonged illness), the firm can be dissolved. (Section 44(b))
3. If a partner's misconduct adversely affects the business or its reputation, the court may dissolve the firm. For instance, fraud or criminal activities by a partner can be grounds for dissolution. (Section 44(c))
4. If a partner consistently breaches the terms of the partnership agreement or behaves in a way that makes it impossible to carry on the business, the court may dissolve the firm. (Section 44(d))
5. If a partner has transferred their interest in the firm to a third party without the consent of the other partners, the firm can be dissolved upon the application of the remaining partners. (Section 44(e))
6. If the business of the firm cannot be carried on except at a loss, the court may dissolve the firm. (Section 44(f))
7. The court may dissolve the firm on any other ground that it deems just and equitable, such as deadlock in management, loss of mutual trust, or inability to work together effectively. (Section 44(g))
Thus, these provisions under Section 44 ensures that partnership operate fairly and efficiently while protecting the interest of all partners.
Answer:- Sale under Section 4(3): A sale is a contract where the ownership of goods is transferred immediately from the seller to the buyer for a price. It is an executed contract as the transfer of ownership happens at the time of the agreement. Whereas Agreement to Sell under Section 4(4): An agreement to sell is a contract where the ownership of goods is to be transferred at a future time or subject to certain conditions being fulfilled. It is an executory contract since the transfer of ownership is postponed to a later date or upon the fulfilment of specific conditions.
For example
1. Ram agrees to sell 12 bags of sugar to Ravi for Rs. 7,000 after getting the stock. This is Agreement to sell.
2. Selling a laptop and handing it over to the buyer immediately upon payment is sale whereas, agreeing to sell a laptop with delivery after one week upon full payment is agreement to sale.
Nature of contract in Sale is executed contract or completed transaction, whereas in Agreement to sell it is an executory contract or to be completed in the future.
Risk of loss in Sale is transfers to the buyer as ownership transfers immediately, whereas in agreement to sell risk remains with the seller until ownership is transferred.
Legal Remedies in Sale where in case of breach the buyer can sue for delivery of goods or damages, whereas in agreement of sell the aggrieved party can sue for damages or specific performance.
Answer:- The Doctrine of AUL is used when the amount of the specific shares given to different children is more than one. In this case, each heir's share is cut by a certain amount so that the total of all the shares is one.
The Doctrine of AUL has two main steps to change the shares:
• Bring the shares together into a single denominator.
• Raise the denominator to equal the sum of the numerators, leaving the numerators alone.
The Delhi District Court heard the case of Sher Mohd v. Smt. Khadija (2012) and said that the Doctrine of Aul and Radd is "an important exception" to the Sharers' set shares in Muslim law of property. This decision stressed how important it is for these beliefs to change the shares proportionally when the total gift is more than or less than one. This makes sure that everyone gets an equal share.
Thus, Doctrine of AUL is an essential mechanism within Muslim Inheritance Law, which ensure a fair and balanced distribution of a deceased person’ estate. This proportionately reduces the shares when the total sum exceeds unity.
Answer:- Section 4 of the Partnership Act, 1932 incorporates that, partnership is a kind of business where a formal agreement between two or more people is made who agree to be the co-owners, distribute responsibilities for running an organization and share the income or losses that the business generates. is a form of business which enables two or more persons to co-own an organization, and they agree to share profits and losses of the company. Each member of such business is called a partner, and collectively they are known as a partnership firm.
In a partnership, every owner contributes something to the welfare of the firm these can be in the form of ideas, property, money and sometimes a combination of all these. Owners of a partnership share profits and losses in proportion to their respective investments.
a. Partners who decide to start business have to make a formal mutual contract between them. This agreement is usually written following the norms of government act.
b. The partnership act does not lay down any maximum number of partners.
c. The primary feature of partnership is to make and share equal profits among the partners as per agreed ratios.
d. All partners are subjected to liabilities. They are collectively responsible for recovering all debts of the firm, even if they have to liquidate their personal assets.
e. A partner cannot shift his interest from existing firm to others.
Thus, it provides a legal framework for individuals who wish to form a partnership and conduct business together.
Answer:- Hindu law is thought to be one of the oldest systems of law in the world. It has changed over time into new forms, but the basic tasks and requirements of Hindu law have not changed. People think that the Hindu Law came from God. It's a law about people. It's not lex loci, which means "law of the land." Lex loci are the laws that apply to everyone in a certain area, no matter their gender, tribe, race, or religion. It doesn't apply to everyone who lives in India. Hindus are the only ones who can use it. So, it's a law about people. People who are Hindu by birth or by religion are the only ones who can follow this rule. Anyone who is a Hindu, a Lain, a Sikh, or a Buddhist can follow it. However, Muslims, Christians, Parsis, or Lews who are already subject to another law cannot. Section 1(2) of the Hindu Marriage Act, 1955, covers all of India except for the state of Jammu and Kashmir. As well as Hindus who live outside of the areas covered by this law but are registered as Hindus in those areas. In other words, this Act covers the whole of India and also Hindus who live outside of India but are registered in India. This means that this Act still applies to a Hindu who has a home in India but lives outside of India. But what if there is a Hindu living in a different country who is not from India? Afterward, this Law will not cover that person.
Section 2 of this Act also makes it clear that people who are Buddhist, Jain, or Sikh are also affected by it. Not being Muslim, Christian, Parsi, or Jewish does not make it any less true. People from Schedule Tribes, as outlined in the Indian Constitution, are not affected by this act, unless the Indian government says otherwise. The Supreme Court said in Sonudar Gopal v. Sondur Rajini (2013) that the Hindu Marriage Act also applies to Hindus who live in India.
So, it's clear that Hindu Law is a personal law that only affects people who are Hindu by religion or by birth. People who are Hindu and are born in India can get married, even if they live outside of India. Section 2 of the Hindu Marriage Act, 1955 defines "Hindu." So, it's not "Lex Loci," which means "law of the land," but personal law.
Answer:- An easement is a privilege granted to the owner or occupier of one piece of property (the dominant tenement) to use or limit the use of another piece of land (the servient tenement) for a defined purpose. Easements do not transfer ownership of the servient land, but rather the right to use it in a certain manner. Easements are governed by the Indian Easements Act, 1882, which defines an easement as a right annexed to land to benefit its owner in using or enjoying the land. Example: A owns a landlocked property and has an easement to pass through B's adjacent land to access the main road.
1. Dominant and Servient tenement are two properties in Easement.
2. Dominant and servient tenements must have distinct owners.
3. The easement improves the pleasure of the dominating tenement.
4. The right is particular, for example, a right of way or access to water.
5. The dominant owner does not own the servient land.
The purpose of Easement is the right to use another’s land in a specific way, whereas, the purpose of Profit a prendre is the right to take something from another’s land.
In easement, the benefit is of a dominant tenement, whereas; in profit a prendre the benefit may exist without any land.
Nature of right: Non-possessory; no ownership of servient land in Easement, whereas, in profit a prendre includes the right to extract resources.
Thus, both easement and profit à prendre involve rights over another's land, they serve different purposes.
Answer:- The Fundamental Duties have been incorporated in the Indian Constitution to remind every citizen that they should not only be conscious of their rights but also of their duties. The statement, "Fundamental Duties do not destroy Fundamental Rights but balance them," emphasizes the complementary nature of these two fundamental frameworks in an effort to create a balanced democratic society, the Indian Constitution guarantees fundamental rights in and Fundamental Duties in Part IVA.
The fundamental rights ensure the protection of individual liberties against arbitrary state actions. They guarantee rights such as equality, freedom of speech, and the right to life and personal liberty, whereas, the fundamental duties were introduced by the 42nd constitutional amendment act in 1976 under Article 51A of the Constitution. It emphasizes the responsibilities of citizens towards the state and society. These include respecting the Constitution, cherishing the ideals of the freedom struggle, protecting sovereignty, and preserving the environment.
For the effective enforcement of these duties, it is necessary that all the citizens should have knowledge of the duties mentioned in the constitution. There should be sufficient publicity so that these duties may be brought to the knowledge of the people. It should be compulsory to teach these duties in school and colleges. In the case of M.C. Mehta v. Union of India (1983), the Supreme Court held that compulsory teaching of lessons on protection and improvement of the environment should be introduced in all education institutions of the country. In the case of Shri Sachidanand Pandey v. State of West Bengal, 1987, the supreme court has held that whenever a case relating to problem of ecology is brought to the court and the court hears it, it should keep in mind Article 48A and 51A(g).
Article 51A(J) of the Indian Constitution provides that it is the duty of a citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. The case of Subir Chaudhary v. Union of India, AIR 1984 Cal 7, is an important case on this point. In this case the Court has held that while selecting the best available talent for appointing the High Court Judges, the Chief Justice must be guided by the objective consideration.
Thus, Fundamental duties represent a responsibility that each individual must adhere to, as established by the State. In certain instances, action must be taken, while in others, it is necessary to refrain from taking any action. Fundamental duties do not influence fundamental rights, as fundamental rights are inherently those rights which are in support of individuals or citizens and in opposition to the State. The state is not permitted to infringe upon these rights. In instances where a fundamental right has been infringed, the individual affected may seek recourse through the High Court or Supreme Court via writs. However, the enforcement of duties by individuals or citizens cannot be pursued through writs; rather, it necessitates the establishment of law by the State to ensure compliance. It can be inferred that fundamental duties do not negate fundamental rights; rather, they serve to balance them.
Answer:- The maxim ‘Ubi jus Ibi Remedium’ is the foundational principle for every remedy provided under the law of torts. It favours the common man to have trust in the judicial system. The inherent principle behind this implies that if any person who has suffered any loss will be provided with the remedy under the law or with due process of law. Thus, no person or individual who does wrong can be allowed to get away with their wrong actions without facing the consequences for the actions performed.
The word ‘Jus’ means legal authority to do something to demand of something. The word ‘remedium’ means any person who has the right of action in the court of law. It is a Latin maxim which means that where there is a wrong, there is a remedy. The maxim is based on the structure where a man has a right, there must be means provided to him/her to ensure proper exercise or enjoyment of such rights. It is impractical to think about a right without a remedy.
The maxim owes its origin to the most common case law of Ashby vs. white (1703), where the court said that every right vested in the plaintiff must also have means to protect it. There must be a remedy to rectify where there is any injury or harm in exercising or enjoying the right. Thus, no wrong should be allowed to go without any compensation if it can be redressed by the court. Hence, in the case of Marbury vs. Madison (1803) the court reiterated this maxim at a very nascent stage mandating the need to have a remedy for every wrong done to a party.
1. Applies only where a right exists and is recognized by the court of law
2. There must be existence of a wrongful act or omission
3. There must be some legal damage
1. The maxim does not cover moral or political wrongs that are not legally actionable.
2. This cannot be applied if no legal damage is evident.
3. In cases of public nuisance, unless the plaintiff demonstrates that the injury is more important than that suffered by others the maxim cannot apply.
4. Personal commitments are not covered by the maxim as they lack a legal basis and are instead based on trust.
Thus, the philosophy of law centres with the legal maxim ‘ubi jus ibi remedium’. It emphasises that rights without remedies are useless. The centuries-old Roman law concept assures that court systems worldwide give remedies for legal rights violations. However, it recognises that not all wrongs are actionable in law and that constraints exist to apply this concept fairly and properly. The maxim guides the court in upholding justice as legal systems evolve.
Answer:- One way to do business is by means of a partnership, which is formed when two or more people band together to manage the company. The Indian Partnership Act of 1932 was created to regulate and direct partnerships. The Indian Partnership Act addresses the legal relationships between partners and third parties as well as the rights and obligations of partners to one another.
The mutual Rights of the partners generally depend upon the provisions of the agreement. But subject to their agreement, the law confers the following rights on partners:
1. Section 12(a) of the partnership act says that each partner is entitled to participate in the firm's operations. This is due to the fact that a partnership firm is owned and operated by the partners, who often share managerial authority. But the legal rules will only take effect in the absence of a contract between the parties.
2. Section 12 (c) of the partnership act establishes a process for the majority to resolve disputes regarding the ordinary course of business between the partners. It specifies that each companion shall be permitted to provide their opinions prior to the decision. The majority rule will not be applicable in the event of a change in the nature of the firm. In this scenario, the partners must provide their unanimous consent.
3. Section 12 (d) says that regardless of whether partners are currently active or asleep, each partner is entitled to access any of the firm's records and to inspect and extract a copy. The information that has been acquired is not to be used against the firm's interests by any of the partners.
4. Section 13(a) and Section 13 (b) provides the provision of right to remuneration and right to share profits. According to this section, no partner in a company has the right to demand payment for participating in business operations. However, if some partners have signed a contract to that effect or if the compensation is due under the firm's on-going operations, it may be given to them together with their profit-sharing interest. Whereas, partners may split earnings and losses equally. The right to share profits is unaffected by partners' uneven contributions, talents, and work.
5. Section 13(c) says that partners usually cannot claim capital. If partners agree to pay interest on capital, it will come from the firm's earnings. Because partners are adventurers, not creditors, they are not entitled to capital interest unless there is an explicit agreement or use.
6. Section 13(d) specifies that a partner is entitled to six percent annual interest on advances made to the company over the capital he pledged to subscribe.
7. Section 13(e) establishes two situations in which this section grants the right to indemnification. A partner has the right to reimbursement for any costs he incurs while doing the company in a normal and appropriate manner. When a partner has spent money in an emergency to shield the company from financial damage; nonetheless, the partner must have done reasonably. NOTE: The firm's dissolution does not negate the claim to indemnity.
Therefore, partners are free to form an agreement and decide the mutual rights and duties under the Indian Partnership Act.
Answer:- The word "quasi" comes from the Latin for "as if." Thus, a quasi-contract is considered as if it were a contract, despite the fact that it lacks the contract's defining features, such as offer, acceptance, and compensation. A quasi-contract is a legal remedy created by courts to handle circumstances in which one party is unfairly benefited at the cost of the other. Despite the lack of a formal agreement or mutual consent, quasi-contracts obligate the benefitting party to correct the imbalance.
As remarked by Anson “Circumstances must occur under system of law in which it becomes necessary to hold one person to be accountable to another without any agreement on the part of former to be so accountable on the ground that otherwise he would be retaining money or some other benefit which comes into his hands to which the law regards the other person as better entitles or on the ground that without such accountability the other would unjustify suffer loss.”
In India, quasi-contracts are provided under Sections 68–72 of the Indian Contract Act, 1872, which specify particular conditions in which obligations may exist in the absence of a formal contract.
The idea behind quasi-contracts comes from the concept of unfair gain. The legal maxim "Nemo debet locupletari ex aliena jactura" means that "No one should be enriched at another's expense." This principle makes sure that no one unfairly benefits at the expense of another.
1. A quasi-contract is made when there isn't a clear agreement or understanding between the parties. They are different from normal contracts because they don't depend on an offer, acceptance, or payment. The duties are required by law to deal with certain situations.
2. The courts make quasi-contracts to make sure that everyone is treated fairly. These duties are not based on what the parties want; they are required by law to stop unfair wealth and make sure that no one benefits at the cost of another.
3. The main goal of a quasi-contract is to put the person who was wronged back in the same situation they were in before the unfair gain. This is done through repayment, which means that the person who got the benefit has to pay the person who got the benefit back for the amount of the benefit.
4. A quasi-contract's main purpose is to stop unfair gain. It makes sure that no one gets an unfair advantage in a situation while someone else loses something or doesn't get what's rightfully theirs.
Thus, the idea of "quasi-contracts" comes from English common law. It was first used in the famous case of Moses v. MacFarlane (1760), where Lord Mansfield explained that responsibilities similar to contracts could appear to stop unfair gain. In his own words, "The main point of the action is that the defendant, given the facts of the case, is bound by natural justice and equity to return the money." Over time, quasi-contracts have grown into a separate type of duty that is accepted by many legal systems around the world.
Answer:- A Contract is done between two or more parties who are intended to bind together in a legal obligation. The parties make their own terms and conditions to safeguard themselves and their interest. Section 73- 75 of the Indian Contract Act, 1872 provides the provisions of the remedies for breach of contract. A breach of contractis a violation or failure to perform a term of the contract without lawful excuse. It occurs when a party does not perform its obligations as agreed, performance is defective or incomplete or a party expresses an intention not to perform (anticipatory breach).
1. There must be existence of a valid contract with clear terms agreed upon by the parties
2. The party alleging breach must prove that the other party was under an obligation to perform a specific act under the contract.
3. The other party failed to fulfil their obligations as per the contract terms
4. The breach must not be excused by lawful grounds such as impossibility of performance or frustration of the contract.
1. Actual Breach: An actual breach occurs when one party fails to perform their contractual obligations by the due date and performs in a manner contrary to the terms of the contract. Example: A supplier fails to deliver goods by the agreed deadline.
2. Anticipatory Breach: An anticipatory breach occurs when one party indicates in advance, either explicitly or implicitly, that they will not fulfil their contractual obligations. Example: A contractor informs a client that they cannot complete a project even before the deadline.
In India, anticipatory breach is recognized under Section 39 of the Indian Contract Act, 1872. The case of Hari Shankar vs. Anant Ram (1999) is an example where the court found an anticipatory breach of contract when the defendant refused to complete a sale of property.
1. Compensatory damages are monetary awards intended to compensate the non-breaching party for the loss suffered due to the breach.
2. Consequential damages, also known as special damages, are awarded for losses that result indirectly from the breach, provided that these losses were reasonably foreseeable.
3. Nominal damages are small monetary awards granted to the non-breaching party when a breach has occurred, but no actual loss has been suffered.
4. Punitive damages, also known as exemplary damages, are awarded in rare cases to punish the breaching party for particularly egregious conduct. Indian courts are generally reluctant to award punitive damages in breach of contract cases.
In the case of Hadley v. Baxendale (1854), Established the rule for awarding damages for only foreseeable losses arising naturally from the breach are compensable.
Answer:- The term "alibi" is derived from the Latin word meaning "elsewhere" or "somewhere else." Under the Evidence Act, the defence of alibi is used by an accused person to challenge their alleged involvement in a crime. This defence asserts that the accused was at a different location at the time the crime occurred, making it impossible for them to have been at the scene of the crime. Section 9 and 106 of this Adhiniyam, is recognized as plea of alibi defences.
The accused typically takes the plea of alibi in a criminal case. The accused must assert that they were physically present somewhere else at the time of the alleged offence.
Section 106 of this Adhiniyam, 2023, deals with the burden of proof as to any particular fact. According to this section, the burden of proof lies on the person who wishes the court to believe in the existence of that fact unless a law specifies otherwise.
To use the defences of alibi, certain conditions must be met:
• A punishable crime must have taken place.
• The accused must be charged with committing that crime.
• The accused must show they were not at the crime scene when it happened.
• They must prove they were in another place, making it impossible for them to be at the crime scene.
• This defence should be presented as early as possible during the legal process.
1. Munshi Prasad v State of Bihar 2001 (SC), The Supreme Court held in this case that the accused’s presence at a reasonable distance from the place of occurrence is necessary to prove a defence of plea of alibi, and the distance should be at least 500 meters.
2. Mukesh v. State of N.C.T. of Delhi, AIR 2017 SC 2161, In this case, the accused claimed that he was attending a musical program with his family at a park at the time of the incident. However, the court rejected the plea of alibi, considering the contradictory evidence, such as the dying declaration of the victim, DNA analysis, and fingerprint analysis. The evidence from the authorities of the park also revealed that no permission was granted for any musical program on the date of the incident.
The plea of alibi is an important defence in criminal cases that can help an accused person prove their innocence. Recognized under Section 9 of the Adhiniyam, it should be raised as early as possible in the case. The accused must provide evidence showing they were at a different location when the alleged crime occurred, while the prosecution is required to establish the accused's guilt beyond a reasonable doubt.
Answer:- A contingent contract is a type of contract where the performance of one or more obligations depends upon the occurrence or non-occurrence of a future uncertain event. These contracts are governed by Sections 31 to 36 of the Indian Contract Act, 1872.
A contingent contract is defined as under Section 31 of the Indian Contract Act, 1872, "A contract to do or not to do something if some event, collateral to such contract, does or does not happen."
In the case of Carlil v. Carbolic Smoke Ball Co. (1893), a contract offering a reward on the condition of avoiding illness was held to be a valid contingent contract.
1. The contract’s performance is conditional on an uncertain future event.
2. The event must be independent of the promises in the contract.
3. There is uncertainty of events i.e. event may or may not happen.
4. The contract must fulfil all requirements of a valid contract.
1. The contract becomes enforceable only if the contingent event occurs. (Section 31)
2. The contract becomes enforceable if the event does not occur. (Section 33)
3. The event must be beyond the control of the contracting parties. (Section 34)
4. If the contingent event becomes impossible, the contract becomes void. (Section 36)
Thus, contingent contract provides flexibility by linking performance to uncertain events.
Answer:- Section 318(1) of the Bharatiya Nyaya Sanhita2023, talks about Cheating whereas Section 314 of the Bharatiya Nyaya Sanhita, 2023, talks about misappropriation. Both are the offences against the property but they differ as mentioned in the following pointers.
In cheating, the wrong-doer induces the owner of the property to deliver it or any person to do or to omit an act, while, in criminal misappropriation, the owner of the property hands over the property innocently to the wrong-doer in good faith. Therefore, the wrong-doer misappropriates it.
In cheating, the deceitful and fraudulent act starts from the beginning and the offence completes when the wrong-door obtains the property, whereas, in criminal misappropriation in the beginning, the wrong-doer obtains the movable property from its owner with owner’s consent. Thereafter he misappropriates against the wish of the owner. When he misappropriates the property, then the offence is said to be completed.
Cheating may be done by any person while criminal misappropriation is generally done by near relatives, friends, joint owners etc.
In cheating, the wrong-doer may cause harm or injury to the deceived person in body, mind, reputation or property. While in criminal misappropriation, the wrong-doer can misappropriate the immovable property only. He does not involve the complainant in body, mind, reputation, or immovable property.
Dishonesty and fraud are the essential elements of cheating. Dishonesty is the essential element of the criminal misappropriation.
Punishment for cheating is imprisonment of either description for a term which may extend to three year or fine or both. While punishment for criminal misappropriation is imprisonment of either description for a term which shall not be less than six months but which may extend to two years or with fine.
Answer:- ‘Restitution’ means an act of restoring a thing to its proper owner. It can also be considered as restoring to a party the benefit which the other party has received under a decree subsequently held to be wrong. Section 144 of the Civil Procedure Code, 1908, contains the provision relating to restitution.
Section 144 of the CPC deals with the principle of restitution, which ensures that a party wronged by an erroneous decree or order is restored to their original position after the decree or order has been varied, reversed, or set aside. In the case of Mahjibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai (1965), the Supreme Court held that an application for restitution is an application for execution of a decree.
• This doctrine is based on the maxim that is actus curiae neminem gravabit which means that the court shall harm no one.
• It is based on the principles of equitable principles.
• This doctrine does not confer any substantive right.
• It regulates the power of the court which is not discretionary but obligatory.
• It can be granted not only against the party to the litigation but also against his legal representative.
• No separate suit shall be brought for such relief under section 144 of the CPC, when restitution could be claimed by an application.
The following conditions must be fulfilled, before restitution can be ordered under Section 144 of CPC,
1. The requested restitution must relate to the decision or order that was changed or overturned.
2. The party requesting restitution must be eligible to receive benefits under the order or decree that has been overturned.
3. The requested remedy must be appropriately related to the decree or order's reversal or modification.
The concept of restitution is a natural form of justice, and Section 144 is only a formal manifestation of that idea. In the event that a future decree renders a decree infructuous, restitution stipulates that the advantage that one party received under the decree must be returned to the other party. The court has broad authority to make whatever decisions in a reparation case that it thinks appropriate in order to achieve the goals of justice.
Answer:- The discovery of documents is a legal process under Order XI of Code of Civil Procedure, 1908 (CPC), which enables parties to a civil suit to obtain access to documents in possession or control of the opposite party that are relevant to the issues in dispute. It ensures transparency and aids in a fair trial by requiring parties to disclose material evidence.
In Raj Narain v. Indira Nehru Gandhi (1972): The court held that discovery ensures a fair trial by compelling parties to disclose material evidence in their possession.
1. Ensures that both parties have access to all relevant material, preventing surprises during trial.
2. Helps the court and parties identify the key issues by revealing relevant evidence.
3. Ensures that no party withholds crucial evidence that may affect the outcome of the case.
4. Encourages early disclosure of documents, reducing unnecessary adjournments and litigation delays.
1. Rule 12: Application for Discovery: Any party may apply to the court to compel the opposite party to disclose documents in their possession or control that are relevant to the case. The application must specify the documents sought and explain their relevance.
2. Rule 13:< Affidavit of Documents: The party required to make the discovery must file an affidavit of documents, listing all documents in their possession or control.
3. Rule 14:< Production of Documents: The court can order a party to produce specific documents if they are deemed necessary for resolving the dispute.
4. Rule 15:< Inspection of Documents: The opposite party may inspect the documents disclosed under discovery and take copies of them.
Therefore, it is a critical mechanism to promote justice by ensuring transparency and preventing concealment of evidence. It facilitates an efficient trial by providing both parties with access to relevant materials while maintaining safeguards against abuse of the process.
Answer:- Guardianship refers to the collection of rights and responsibilities that a person assumes regarding the care and property of a minor child. In Hinduism, there was no formal guardianship law, as families typically lived together, and if the parents were absent, other family members would care for the child. To establish a formal guardianship framework, the Hindu Minority and Guardianship Act, 1956 (hereafter referred to as the Act) was enacted.
A De-facto guardian is a person who assumes the role of a guardian without legal appointment, typically after the natural guardians of a child pass away. The term "de facto" is Latin for "in fact" and refers to situations that exist in reality, regardless of legal recognition. A de facto guardian means a self-appointed guardianThis person takes on the responsibility for the child’s welfare and needs but does not have formal legal authority.
While a de facto guardian may manage the child’s personal well-being or property, they do not have the right to dispose of or deal with the minor's property. Under Section 11 of the Hindu Minority and Guardianship Act, a de facto guardian cannot incur debts on behalf of the minor. Any property transfer made by a de facto guardian without court approval is considered void.
In the case of Amanat Hussain and Anr. V. Sahida Begum and Ors (2015), the Gauhati High Court ruled that property transfers made by de facto guardians are treated similarly to those made by legal (de jure) guardians under Hindu Law. If these transfers lack proper justification, they can be contested and are voidable.
Answer:- The examination of parties in a civil suit refers to the process by which the court questions the plaintiff and defendant to clarify matters in controversy and to ascertain facts. This is governed by Order X of the Code of Civil Procedure, 1908 (CPC).
The Examination of Parties is conducted usually at the First hearing of the suit after pleadings are filed. The court may examine parties at any stage if deemed necessary for clarifying issues or for the progress of the suit.
Radhey Shyam v. Chhabi Nath (2015): The court held that the examination of parties is a crucial step in identifying the real issues in controversy.
Hira Lal v. Kali Nath (1962): The Supreme Court emphasized that the purpose of examination is to facilitate the resolution of disputes effectively and efficiently.
1. Personal Appearance: The court may direct the parties to appear in person unless exempted by law (e.g., women, aged persons, or persons with valid excuses).
2. No Cross-Examination: The examination under Order X is different from cross-examination during trial; it is conducted solely by the judge.
3. Court’s Discretion: The scope, manner, and duration of the examination are at the court’s discretion.
1. The court examines the parties to identify the real disputes and narrow down the issues for adjudication.
2. Early clarification of facts can reduce unnecessary litigation and streamline the trial process.
3. By identifying issues clearly, the court may facilitate settlement or alternative dispute resolution methods.
• Ascertainment whether Allegations in Pleadings are Admitted or Denied (Rule 1):
• Appearance before the Conciliatory Forum or Authority (Rule 1B):
• The parties shall make their appearance before the authority opted under Rule 1A.
• Appearance before the Court Consequent to the Failure of Efforts of Conciliation (Rule 1C):
• Oral examination of Party, or Companion of Party (Rule 2):
• Substance of Examination to be Written (Rule 3):
• Consequence of Refusal or Inability of Pleader to Answer (Rule 4):
Therefore, the examination of parties under Order X under this Code of 1908 is a vital procedural step in civil litigation. It helps in clarifying facts, narrowing down issues, and promoting judicial efficiency. By conducting this examination, the court ensures that the trial is focused and just, reducing the chances of prolonged litigation.
Answer:- The word ‘Maintenance’ refers to the financial support a husband provides to his wife during the marriage or after divorce or separation. Its purpose is to ensure the wife maintains a decent standard of living and is not left in financial hardship. Various laws mandate husbands to pay alimony or maintenance to their wives in such circumstances. Maintenance laws aim to protect the financial rights of spouses, especially women, after divorce or separation. These laws ensure a reasonable standard of living, support for children, and sometimes legal expenses for the dependent spouse. Although traditionally focused on women, maintenance laws should be gender-neutral and promote equality. These Maintenance acts serve a social purpose, and there are provisions under various laws, including the Hindu Marriage Act of 1955. India has several laws in place that aim to protect and promote the rights of various groups, including women, children, and elderly citizens.
Section 24 of the Hindu Marriage Act allows both men and women to seek maintenance from their spouses in cases of financial incapacity. This provision ensures that neither spouse is left in a vulnerable financial position during or after the marriage. The court determines the amount of maintenance to be paid, and in case of non-compliance, legal action can be pursued. This provision provides a safety net for individuals facing financial challenges, emphasizing gender equality in claiming maintenance.
Thus, a society can only prosper when its women live in peace and security. While maintenance laws should be inclusive and applicable to both spouses, many women still face challenges in exercising their rights. Effective implementation of these laws is vital to ensure justice and promote gender equality. Ultimately, a collective commitment to upholding the rule of law is necessary to foster a more equitable and just society for everyone.
Answer:- The first hearing of a suit in a civil court, as governed by the Code of Civil Procedure, 1908 (CPC), refers to the stage when the court applies its mind to the facts and legal issues involved in the case. Under specific circumstances, the court is empowered to dispose of the suit without proceeding to a full trial. The relevant provisions are found primarily in Order X, Order XII, and Order XV CPC, along with Section 9 and Section 11 CPC.
1. Avoids lengthy trials for cases with no substantial disputes.
2. Dismisses frivolous or vexatious suits at the outset.
3. Reduces the burden on the judiciary by focusing resources on genuine disputes.
1. Lack of Jurisdiction (Section 9 CPC): If the court finds that it does not have jurisdiction to try the suit (e.g., subject-matter or territorial jurisdiction), the suit can be dismissed at the first hearing.
2. Bar by Res Judicata (Section 11 CPC): If the suit is barred by the principle of res judicata, meaning the matter has already been adjudicated by a competent court, the court may dismiss the suit without proceeding further.
3. No Cause of Action (Order VII, Rule 11 CPC): If the plaint does not disclose a valid cause of action or is barred by any law, the court may reject the plaint at the first hearing.
4. Admission of Facts (Order XII, Rule 6 CPC): If the defendant admits the plaintiff's claim in the pleadings or through other means, the court can pass a judgment based on such admission, disposing of the suit without a full trial.
5. Settlement of Issues (Order X CPC): During the examination of parties, if the court determines there is no factual dispute requiring evidence, it may decide the case on legal grounds alone.
6. Suit Barred by Law (Order XV, Rule 1 CPC): If the court finds that the suit is barred by any law (e.g., limitation, non-compliance with statutory requirements), it can dispose of the suit at the first hearing.
7. Frivolous or Vexatious Suit: If the court finds that the suit is frivolous, vexatious, or an abuse of the process of law, it may dismiss it outright.
8. Full Agreement between Parties (Order XV, Rule 2 CPC): If both parties agree on the facts and only a question of law remains, the court can dispose of the suit without recording evidence.
Therefore, disposing of a suit at the first hearing under appropriate circumstances ensures judicial efficiency, saves time and costs for litigants, and prevents unnecessary trials. The CPC empowers courts to utilize this provision judiciously to uphold fairness and avoid delays in the administration of justice.
Answer:- The recovery of possession of immovable property is governed primarily by the Specific Relief Act, 1963 in India. This law provides remedies for restoring possession of property wrongfully dispossessed, regardless of ownership. It seeks to uphold the principle that no one should take the law into their own hands to dispossess another.
1. Section 5: Recovery of Possession Based on Ownership: A person entitled to possession of immovable property (e.g., an owner) can file a suit for recovery of possession. Ownership or entitlement to possession must be established in court.
2. Section 6: Recovery of Possession without Ownership Proof: Protects a person in possession of immovable property from being dispossessed unlawfully, even if they do not own the property. The key points are:
• No one can forcibly dispossess another without legal proceedings.
• Even a person in unlawful possession cannot be dispossessed without due process.
• A suit under Section 6 must be filed within 6 months of dispossession.
• No suit can be filed against the government under this section.
The remedy of Recovery of Possession of Immovable Property under the Specific Relief Act, 1963 encompasses the possessory title of the rightful possessor through the appropriate intervention by the court; it becomes essential because the Indian Contract Act, 1872 gives only compensation in case of breach of contract.
Hence such a remedy becomes necessary where damage is not ascertainable, and compensation is not an adequate relief.
Answer:- Ex-parte proceedings refer to a judicial process conducted in the absence of one of the parties to a case. The term ex-parte is Latin for "on one side only," meaning the court proceeds without hearing the absent party, usually because that party has failed to appear or respond despite proper notice.
Ex-parte proceedings are governed by the Code of Civil Procedure, 1908 (CPC) under Order IX, which deals with the appearance of parties and the consequences of their non-appearance.
In Parimal v. Veena (2011): The court ruled that sufficient cause for non-appearance must be genuine and supported by evidence for an ex-parte decree to be set aside.
Ex-parte proceedings can occur in the following circumstances:
1. Non-Appearance of Defendant: If the defendant fails to appear in court on the date fixed for hearing, despite being duly served with a summons (Order IX, Rule 6).
2. Failure to File a Written Statement: If the defendant appears but does not submit their written statement within the stipulated time, the court may proceed ex-parte.
3. Non-Compliance with Court Orders: If a party does not comply with directions of the court, it may result in ex-parte proceedings.
1. Order IX, Rule 6: If the defendant does not appear after being served, the court may proceed ex-parte and hear the plaintiff's case.
2. Order IX, Rule 7: A defendant may seek to set aside ex-parte proceedings by showing sufficient cause for their absence. The application must be made at the earliest opportunity.
3. Order IX, Rule 13: If an ex-parte decree is passed, the absent party can apply to set it aside by showing that:
• They were not duly served with summons, or
• They had sufficient cause for non-appearance.
1. Application to Set Aside Ex-Parte Order (Order IX, Rule 7): The defendant can file an application to recall the ex-parte proceedings, showing sufficient cause for their absence.
2. Application to Set Aside Ex-Parte Decree (Order IX, Rule 13): After an ex-parte decree, the defendant can apply to have it set aside if:
• They were not served properly, or
• They had a valid reason for non-appearance.
3. The aggrieved party can appeal the ex-parte decree under normal appellate procedures.
4. The party may also seek a review or revision of the ex-parte decree, if applicable.
Therefore, Ex-parte proceedings are a mechanism to ensure the smooth administration of justice when one party fails to appear or comply with legal obligations. While they facilitate the progress of cases, safeguards like the option to set aside ex-parte orders and decrees exist to prevent potential injustice. Courts strive to balance the interests of efficiency and fairness, ensuring that no party is unjustly penalized for procedural lapses.
Answer:- The written statement is the defendant's formal response to the plaintiff's plaint. Denial in the written statement is a crucial aspect, as it determines the issues of fact and law to be decided by the court.
In the Case Badat and Co. v. East India Trading Co. (1964), The Supreme Court emphasized that evasive denials could be treated as admissions, highlighting the importance of specific denials.
The rules for denial are primarily covered under Order VIII of the Code, 1908.
1. As per Order VIII, Rule 3 and Rule 4, the defendant must specifically deny the allegations made by the plaintiff in the plaint. General Denial Not Sufficient, this simply states that "the allegations are denied" is insufficient. The defendant must specifically deny each material fact alleged by the plaintiff and provide reasons for such denial.
2. Under Order VIII, Rule 5, if the defendant does not deny a material fact alleged in the plaint, the fact is deemed to be admitted unless the court requires proof. Effect of Non-Denial: Failure to deny allegations can result in the court assuming the truth of the allegations, which could weaken the defendant's case.
3. Denial Must Be Specific to Material Facts.
• Material Facts: The defendant must deny facts that are essential to the plaintiff’s case. Trivial or irrelevant facts do not need explicit denial.
• Specific Points: Denial should address specific points in the plaint and cannot be vague or ambiguous.
4. The defendant is permitted to make alternative denials if there are multiple possibilities or if the facts are not clear.
5. A defendant can deny a claim on legal grounds, arguing that the allegations in the plaint do not constitute a valid cause of action even if the facts are true.
6. As per Order VI, Rule 15, denials must be verified in the written statement. The defendant must affirm that they believe the denials to be true to their knowledge or information. Unverified denials carry less weight.
7. Under Order VIII, Rule 3-A, if the plaintiff relies on documents, the defendant must specifically deny or admit those documents. If a document is not denied, it is deemed to be admitted unless the court requires proof.
8. When the defendant raises a counterclaim or set-off, the plaintiff must respond with specific denials. The same rules for denial apply to the plaintiff’s reply to a counterclaim or set-off.
Therefore, Denial is a critical aspect of the defendant’s written statement, as it sets the foundation for the defence. It is essential for the denial to be specific, clear, and precise, addressing the material facts and legal claims made by the plaintiff. Proper denial helps prevent deemed admissions and ensures that the issues for adjudication are well-defined. The rules governing denials, thus, ensure fairness and efficiency in judicial proceedings.
Answer:- Counterclaims are governed under Order VIII, Rule 6A to 6G of the Code of Civil Procedure, 1908 (CPC) in India. It is a legal provision that allows a defendant to raise a claim against the plaintiff in the same proceeding instead of filing a separate suit. It is a type of defence where the defendant seeks relief against the plaintiff, effectively treating the plaintiff as a defendant concerning the counterclaim.
The counterclaim has wide applicability and can address issues beyond merely offsetting the plaintiff's claim. Its scope is as follows:
1. A counterclaim can include any claim that the defendant could have brought as a separate suit against the plaintiff. It allows the defendant to raise their grievance against the plaintiff for adjudication in the same proceeding.
2. The counterclaim does not have to arise out of the same transaction as the plaintiff's claim but must fall within the court’s jurisdiction. However, if it arises out of the same transaction, it strengthens the connection between the two claims and facilitates comprehensive adjudication.
3. A defendant may seek relief that exceeds or is different from the relief sought by the plaintiff. The court can pass decrees for both the plaintiff’s suit and the defendant’s counterclaim in the same proceeding.
4. By raising a counterclaim, the defendant avoids the need for a separate suit, thereby reducing litigation and saving time and costs.
5. A counterclaim is treated as an independent suit for the purpose of adjudication. Even if the plaintiff withdraws or abandons the original suit, the counterclaim can still proceed independently.
1. A counterclaim is generally filed as part of the defendant’s written statement. The defendant must explicitly mention their claim against the plaintiff and the relief sought.
2. The court may permit the defendant to file a counterclaim even after submitting the written statement, provided it does not delay the trial or prejudice the plaintiff.
3. A defendant can seek permission to amend their written statement to include a counterclaim at any stage before the conclusion of the trial, subject to court approval.
Therefore, it is important tool for defendants to assert their claims effectively against the plaintiff, enabling comprehensive resolution of disputes. Its scope extends beyond the limitations of set-off, providing an independent avenue for the defendant to seek relief. By consolidating claims and counterclaims, the process ensures efficiency, fairness, and judicial economy.
Answer:- The concept of Iddat is rooted in Islamic law and is aimed at ensuring clarity regarding lineage and maintaining dignity and respect for the woman and her former marital bond. Iddat is a prescribed waiting period that a Muslim woman must observe after the termination of her marriage or the death of her husband, before she can remarry.
1. On Divorce (Talaq): A divorced woman must observe iddat to ensure that she is not pregnant, thereby avoiding disputes regarding paternity.
• Duration:
• Three menstrual cycles, or
• Three lunar months if she is not menstruating, or
• Until the delivery of the child if she is pregnant.
2. On Death of Husband: A widow must observe iddat as a mark of respect for the deceased husband.
• Duration:
• Four months and ten days (as per the Quran), or
• Until the delivery of the child if she is pregnant.
3. After Consummation of Marriage: If a marriage is annulled after consummation, iddat must be observed.
1. To ensure that the woman is not carrying the child of her previous husband.
2. To honour the deceased husband and give the woman time for emotional and social adjustment.
3. To avoid hasty remarriages and disputes related to inheritance and legitimacy.
• A woman does not need to observe iddat if the marriage was not consummated.
• A divorced woman who has gone through menopause need not observe iddat beyond three months.
Therefore, Iddat is a significant concept in Islamic personal law, blending practical concerns like lineage and societal respect with religious and cultural values. It ensures that transitions in a woman's marital life are handled with dignity and clarity.
Answer:- Specific Relief refers to a legal remedy under the Specific Relief Act, 1963, in which the court directs a party to perform or refrain from performing a particular act. Instead of awarding monetary compensation, the remedy enforces the actual fulfilment of an obligation or rectifies a specific legal wrong. The objective of specific relief is to enforce civil rights and prevent or remedy the violation of legal obligations.
1. Equitable Remedy: Specific relief is granted at the discretion of the court and is governed by principles of equity, fairness, and justice.2. Subordinate to Contract Law: It is primarily a remedy in cases involving contractual obligations.
2. Subordinate to Contract Law: It is primarily a remedy in cases involving contractual obligations.
3. Types of Relief:
• Specific Performance: Compelling a party to perform its obligations under a contract.
• Injunction: Restraining a party from doing an act.
• Declaratory Relief: Declaring the rights of parties without awarding damages.
• Rectification and Rescission: Correcting or cancelling documents.
• Possession and Recovery: Restoring property to its rightful owner.
Section 4 of the Specific Relief Act, 1963, clearly states that specific relief can only be granted for enforcing individual civil rights and not for penal laws. In K.K. Verma v. Union of India (1954) the court highlighted the distinction between civil and criminal remedies, affirming that the purpose of specific relief is to enforce civil rights.
Specific relief cannot be granted for enforcement of criminal law because Criminal law is intended to punish offenses against the state and society, whereas specific relief deals with enforcing civil rights and obligations. The Specific Relief Act is confined to civil disputes. The enforcement of criminal law falls under the domain of criminal courts and criminal procedure laws, such as the Indian Penal Code (IPC) and the Criminal Procedure Code (CrPC). Specific relief aims to restore or protect civil rights, not to punish or deter criminal behaviour.
Therefore, it is specialized legal remedy that enforces civil obligations or rights but does not extend to the enforcement of criminal law. Criminal law operates independently to address public wrongs and punish offenders, whereas the Specific Relief Act is designed to remedy private civil disputes through equitable means.
Answer:- Set-off is a legal remedy under procedural law that allows a defendant in a suit to claim that the plaintiff owes them an amount, which should be deducted from the plaintiff's claim. It avoids multiple suits by permitting mutual debts to be settled in the same proceeding. It is governed under Order VIII, Rule 6 of the Code of Civil Procedure, 1908 (CPC). It provides that a defendant can raise a counterclaim to offset the plaintiff's demand, provided certain conditions are met.
Legal Set-Off: It is the statutory right of a defendant to claim adjustment of a liquidated amount (fixed and certain sum of money) that is legally recoverable from the plaintiff in the same suit.
Equitable Set-Off: It is based on equity and fairness. It allows a defendant to claim adjustment even if the amount is unliquidated (uncertain) or does not meet the strict conditions of a legal set-off.
BASIS | LEGAL SET-OFF | EQUITABLE SET-OFF |
---|---|---|
Governing Law | Explicitly provided under Order VIII, Rule 6 CPC. | Based on principles of equity and fairness. |
Nature of claim | The claim must be ascertained and liquidated. | The claim can be unliquidated or uncertain. |
Connection between Claims | No requirement of a connection between the plaintiff's and defendant's claims. | Must arise from the same transaction or be closely connected. |
Legality of Claim | The claim must be legally recoverable on the date of the suit. | Legality is not strictly required; equitable considerations prevail. |
Answer:- The Criminal Procedure Code, 1973 (Cr.P.C.), empowers the police to take preventive measures to maintain public order and prevent the commission of offenses. These provisions aim to ensure that law enforcement acts proactively to avoid crimes rather than merely reacting to them. The preventive powers under the Cr.P.C., enhanced by the proposed BNSS, 2023, ensures a proactive approach to law enforcement. With advancements in crime detection and the integration of digital tools, the relevance of preventive action is magnified in maintaining peace and order in an evolving socio-legal landscape.
Key sections relevant to preventive actions under CrP.C. include:
1. Section 149: Duty to prevent cognizable offenses. Police officers can intervene to prevent the commission of a cognizable offense.
2. Section 150: Information of design to commit a cognizable offense. Officers receiving such information must communicate it to their superior.
3. Section 151: Arrest to prevent the commission of a cognizable offense. Police can arrest individuals without a magistrate’s order or warrant if it is necessary to prevent the offense.
Note: no changes have been made in the explanation of the above Section of the CrPC which now corresponds with Section 168, 169, 171 of the BNSS, 2023.
4. Section 107-110: Police, in coordination with magistrates, can take action against individuals likely to disturb public peace (e.g., habitual offenders or those engaged in dangerous activities).
Note: Section 126- 130 of the BNSS, 2023 corresponds with the above sections of the CrPC.
5. Section 144: Magistrates can issue orders in urgent cases of nuisance or apprehended danger, empowering police to enforce them.
Note: Section 163 of the BNSS, 2023, corresponds with the
These provisions enable the police to take immediate and effective steps to deter threats to public safety.
The Bharatiya Nyaya Sanhita, 2023, which is set to replace the Cr.P.C., introduces reforms to enhance efficiency and accountability in law enforcement. Under the BNSS:
1. Strengthening Preventive Frameworks: The BNSS seeks to make provisions for preventive measures more robust and technology-driven, ensuring better anticipation of crimes through modern surveillance and intelligence.
2. Enhanced Accountability: Emphasis on human rights and misuse prevention aligns preventive actions with constitutional safeguards, minimizing arbitrary use of power.
3. Focus on Public Order: The BNSS incorporates stricter measures against repeat offenders and organized crimes, ensuring preventive actions address modern challenges effectively.
Therefore, the law enforcement officer’s proactively ensure and maintain the decorum of the law and order in the judicial system.
Answer:- The Doctrine of Factum Valet is a principle of law derived from the Latin maxim "Factum valet quod fieri non debuit," which translates to "what ought not to be done, becomes valid when done." This doctrine essentially validates an act that was originally irregular or improper, provided it is not expressly prohibited by law and does not violate mandatory statutory provisions. It emphasizes the principle of practicality and social acceptance, ensuring that minor procedural irregularities do not invalidate lawful acts, especially in personal and customary matters. However, it respects the boundaries set by statutory law and does not condone outright illegality
The doctrine is often invoked in personal laws, including Hindu law, to uphold acts that are initially irregular but not void. It is particularly relevant in cases involving:
1. Irregular Marriages: If a marriage is performed without following prescribed formalities but fulfills the essential conditions of a valid marriage under the law, it may be upheld under this doctrine.
2. Customary Practices: Where customs or practices deviate from standard legal requirements but are widely accepted by a community, they may be validated.
1. The doctrine does not apply to acts that are prohibited by law or declared void ab initio (e.g., bigamy, marriage within prohibited degrees of relationship, or contravention of public policy).
2. It is only applicable where the act is irregular but does not violate essential legal requirements.
Example: In Hindu law, if a marriage is performed without observing certain ceremonies but the essential conditions under Section 5 of the Hindu Marriage Act, 1955, are met, the marriage may be validated under this doctrine, provided no mandatory legal provision is violated.
Answer:- The concepts of mortgage and gift are distinct legal transactions under property law, differing in their purpose, nature, and legal consequences.
BASIS | MORTGAGE (Section 58 of the Transfer of Property Act, 1882) | GIFT (Section 122 of the Transfer of Property Act, 1882) |
---|---|---|
MEANING | A mortgage is a transfer of an interest in immovable property by the owner (mortgagor) to another person (mortgagee) as security for a loan or a debt. The transfer is conditional, and the ownership of the property remains with the mortgagor unless default occurs. | A gift is the voluntary transfer of ownership of property by one person (donor) to another (donee) without any consideration. It must be made voluntarily and accepted by the donee. |
PURPOSE | The purpose of a mortgage is to secure the repayment of a loan or fulfilment of an obligation. | A gift is made out of love, affection, charity, or other voluntary motives without expecting anything in return. |
COSIDERATION | A mortgage involves consideration, as it is entered into for securing a financial obligation. | A gift is made without any consideration. |
OWNERSHIP TRANSFER | The ownership of the property remains with the mortgagor. Only an interest in the property is transferred to the mortgagee. | The ownership of the property is fully and irrevocably transferred to the donee. |
REVOCABILITY | The transfer is conditional and revocable upon repayment of the debt or fulfilment of the obligation. | A gift is generally irrevocable once completed, except in specific cases where conditions for revocation are explicitly stated. |
Therefore, A mortgage is a financial arrangement involving security for a loan, while a gift is a gratuitous transfer of property. The distinction lies in their purpose, nature, and the legal rights involved, making them fundamentally different transactions under the law.
Answer:- The secular character of the Indian Constitution is one of its foundational principles, ensuring the state treats all religions with equal respect and maintains a neutral stance in religious matters. This concept is rooted in the pluralistic and diverse nature of Indian society.
Secularism, in the Indian context, means Equal respect for all religions (Sarva Dharma Sambhava) where the state does not favour or discriminate against any religion. And the individuals are free to profess, practice, and propagate their religion, or to choose not to follow any religion.
1. No State Religion: Unlike some countries, India does not have an official religion. The state is neither theocratic nor anti-religious.
2. Religious Freedom: Citizens have the right to practice any religion or none at all.
3. Equality of Religions: The state treats all religions equally, without preference or bias.
4. Intervention for Social Reform: The state can intervene in religious practices if they conflict with fundamental rights or public welfare (e.g., abolition of Sati, Triple Talaq).
The secular nature of the Indian Constitution is reflected in its Preamble, Fundamental Rights, and Directive Principles of State Policy. The Preamble, amended by the 42nd Amendment Act, 1976, explicitly includes the word "secular," though the ethos of secularism has existed since the Constitution's inception. It declares India to be a "Sovereign, Socialist, Secular, Democratic Republic," emphasizing the equal respect for all religions.
Case: S.R. Bommai v. Union of India (1994), The Supreme Court ruled that secularism is part of the basic structure of the Constitution. Any law or action violating secularism can be struck down.
Therefore, the secular character of the Indian Constitution is integral to maintaining the country's unity, integrity, and diversity. While challenges exist, the judiciary, government, and civil society play vital roles in safeguarding secularism. It ensures that India remains a harmonious space for its multi-religious and multicultural population.
Answer:- The difference between a conditional transfer and a transfer with condition lies in their legal implications and the way conditions affect the operation of the transfer.
BASIS | CONDITIONAL TRANSFER (Section 25 of the TPA, 1882) | TRANSFER WITH CONDITION (Section 31 of the TPA, 1882) |
---|---|---|
MENAING | A conditional transfer is a transfer of property that becomes effective or operational only upon the fulfilment of a specified condition. The condition is an essential prerequisite for the transfer to take effect. | A transfer with a condition is a transfer that is complete and operational immediately, but the transferee must comply with a specific condition imposed by the transferor. The transfer remains valid, but failure to comply with the condition may have legal consequences. |
TIMING OF TRANSFER | Transfer occurs only when the condition is fulfilled. | Transfer occurs immediately but subject to a condition. |
NATURE OF CONDITION | Condition is a prerequisite for the transfer to take effect. | Condition is an obligation or restriction after the transfer. |
EFFECT OF NON-COMPLIANCE | No transfer occurs if the condition is not fulfilled. | The transfer remains valid, but legal consequences may follow |
LEGAL REFERENCE | Often referred to as a contingent transfer. | Often linked to a restrictive covenant or similar terms. |
Therefore, it is crucial for drafting clear property agreements. Where the primary difference lies in when and how the property transfer are completed. In a conditional transfer, the transfer hinges entirely on fulfilling the condition. In a transfer with a condition, the transfer is immediate, but the condition imposes obligations or restrictions post-transfer.
Answer:- The statement "All contracts are agreements, but all agreements are not contracts" is an important principle of contract law that distinguishes between the broader concept of agreements and the narrower concept of contracts.
An agreement is defined as a mutual understanding or arrangement between two or more parties regarding their rights and obligations. According to Section 2(e) of the Indian Contract Act, 1872, an agreement is "every promise and every set of promises, forming the consideration for each other." Whereas, A contract is a specific type of agreement that is enforceable by law. Section 2(h) of the Indian Contract Act defines a contract as "an agreement enforceable by law." To become a contract, an agreement must satisfy certain legal requirements. For an agreement to be a contract, it must have:
• Offer and acceptance.
• Intention to create legal obligations.
• Consideration (something of value exchanged).
• Legal capacity of parties.
• Free consent (not induced by fraud, misrepresentation, etc.).
• Lawful object (the agreement must not be for illegal purposes).
All agreements are not contracts because they may lack one or more of the essential elements required for enforceability. For example:
• Agreements without the intention to create legal obligations (e.g., a casual promise to meet for coffee).
• Agreements for illegal purposes (e.g., selling banned substances).
• If there is no consideration (something of value exchanged), the agreement is not enforceable.
Therefore, every contract begins as an agreement, not every agreement meets the criteria to become a contract. A contract is thus a subset of agreements that fulfil specific legal requirements.
Answer:- The Criminal Procedure Code, 1973 (Cr.P.C.), empowers the police to take preventive measures to maintain public order and prevent the commission of offenses. These provisions aim to ensure that law enforcement acts proactively to avoid crimes rather than merely reacting to them. The preventive powers under the Cr.P.C., enhanced by the proposed BNSS, 2023, ensures a proactive approach to law enforcement. With advancements in crime detection and the integration of digital tools, the relevance of preventive action is magnified in maintaining peace and order in an evolving socio-legal landscape.
Key sections relevant to preventive actions under CrP.C. include:
1. Section 149: Duty to prevent cognizable offenses. Police officers can intervene to prevent the commission of a cognizable offense.
2. Section 150: Information of design to commit a cognizable offense. Officers receiving such information must communicate it to their superior.
3. Section 151: Arrest to prevent the commission of a cognizable offense. Police can arrest individuals without a magistrate’s order or warrant if it is necessary to prevent the offense.
Note: no changes have been made in the explanation of the above Section of the CrPC which now corresponds with Section 168, 169, 171 of the BNSS, 2023.
4. Section 107-110: Police, in coordination with magistrates, can take action against individuals likely to disturb public peace (e.g., habitual offenders or those engaged in dangerous activities).
Note: Section 126- 130 of the BNSS, 2023 corresponds with the above sections of the CrPC.
5. Section 144: Magistrates can issue orders in urgent cases of nuisance or apprehended danger, empowering police to enforce them.
Note: Section 163 of the BNSS, 2023, corresponds with Section 144 of the CrPC.
These provisions enable the police to take immediate and effective steps to deter threats to public safety.
The Bharatiya Nyaya Sanhita, 2023, which is set to replace the Cr.P.C., introduces reforms to enhance efficiency and accountability in law enforcement. Under the BNSS:
1. Strengthening Preventive Frameworks: The BNSS seeks to make provisions for preventive measures more robust and technology-driven, ensuring better anticipation of crimes through modern surveillance and intelligence.
2. Enhanced Accountability: Emphasis on human rights and misuse prevention aligns preventive actions with constitutional safeguards, minimizing arbitrary use of power.
3. Focus on Public Order: The BNSS incorporates stricter measures against repeat offenders and organized crimes, ensuring preventive actions address modern challenges effectively.
Therefore, the law enforcement officer’s proactively ensured and maintain the decorum of the law and order in the judicial system.
Answer:- The Doctrine of Factum Valet is a principle of law derived from the Latin maxim "Factum valet quod fieri non debuit," which translates to "what ought not to be done, becomes valid when done." This doctrine essentially validates an act that was originally irregular or improper, provided it is not expressly prohibited by law and does not violate mandatory statutory provisions. It emphasizes the principle of practicality and social acceptance, ensuring that minor procedural irregularities do not invalidate lawful acts, especially in personal and customary matters. However, it respects the boundaries set by statutory law and does not condone outright illegality
The doctrine is often invoked in personal laws, including Hindu law, to uphold acts that are initially irregular but not void. It is particularly relevant in cases involving:
1. Irregular Marriages: If a marriage is performed without following prescribed formalities but fulfills the essential conditions of a valid marriage under the law, it may be upheld under this doctrine.
2. Customary Practices: Where customs or practices deviate from standard legal requirements but are widely accepted by a community, they may be validated.
1. The doctrine does not apply to acts that are prohibited by law or declared void ab initio (e.g., bigamy, marriage within prohibited degrees of relationship, or contravention of public policy).
2. It is only applicable where the act is irregular but does not violate essential legal requirements.
Example: In Hindu law, if a marriage is performed without observing certain ceremonies but the essential conditions under Section 5 of the Hindu Marriage Act, 1955, are met, the marriage may be validated under this doctrine, provided no mandatory legal provision is violated.
Answer:- Under the Hindu Marriage Act, 1955, the concepts of valid marriage and void marriage are specifically defined, with conditions and legal consequences explicitly laid out.
Valid Marriage: A marriage that complies with all the essential conditions mentioned under Section 5 of the Act is considered valid and legally binding.
For a marriage to be valid under the Hindu Marriage Act:
1. Neither party has a living spouse at the time of marriage (prohibition of bigamy).
2. The parties are not within the degrees of prohibited relationship, unless permitted by custom.
3. The parties are not sapindas of each other, unless permitted by custom.
4. Both parties must be of sound mind and capable of giving consent.
5. The bridegroom must be at least 21 years old, and the bride must be at least 18 years old.
6. The marriage must be solemnized following the customary rites and ceremonies of either party.
Void Marriage: A marriage that violates specific conditions under Section 11 of the Act is considered void and is treated as null from the outset (void ab initio).
A marriage is void under the Act if it contravenes any of the following conditions:
1. Bigamy: Either party has a living spouse at the time of the marriage.
2. Prohibited Degrees of Relationship: The parties are within the prohibited degrees of relationship, unless custom permits such marriage.
3. Sapinda Relationship: The parties are sapindas of each other, unless permitted by custom.
Such a marriage is treated as if it never took place, and no legal marital rights or obligations arise from it.
BASIS | VALID MARRIAGE | VOID MARRIAGE |
---|---|---|
LEGAL RECOGNITION | Fully recognized and binding | Treated as null and void from the beginning |
MARITAL RIGHTS | Spouse acquire marital rights, including inheritance | No marital rights or obligations arise. |
LEGITIMACY OF CHILDREN | Children born are legitimate and have inheritance rights | Children are legitimate under Section 16 but have limited inheritance rights. |
Therefore, these distinctions uphold the sanctity and legality of marital relationship within Hindu Law.
Answer:- The concepts of mortgage and gift are distinct legal transactions under property law, differing in their purpose, nature, and legal consequences.
BASIS | MORTGAGE (Section 58 of the Transfer of Property Act, 1882) | GIFT (Section 122 of the Transfer of Property Act, 1882) |
---|---|---|
MENAING | A mortgage is a transfer of an interest in immovable property by the owner (mortgagor) to another person (mortgagee) as security for a loan or a debt. The transfer is conditional, and the ownership of the property remains with the mortgagor unless default occurs. | A gift is the voluntary transfer of ownership of property by one person (donor) to another (donee) without any consideration. It must be made voluntarily and accepted by the donee. |
PURPOSE | The purpose of a mortgage is to secure the repayment of a loan or fulfilment of an obligation. | A gift is made out of love, affection, charity, or other voluntary motives without expecting anything in return. |
COSIDERATION | A mortgage involves consideration, as it is entered into for securing a financial obligation. | A gift is made without any consideration. |
OWNERSHIP TRANSFER | The ownership of the property remains with the mortgagor. Only an interest in the property is transferred to the mortgagee. | The ownership of the property is fully and irrevocably transferred to the donee. |
REVOCABILITY | The transfer is conditional and revocable upon repayment of the debt or fulfilment of the obligation. | A gift is generally irrevocable once completed, except in specific cases where conditions for revocation are explicitly stated. |
Therefore, A mortgage is a financial arrangement involving security for a loan, while a gift is a gratuitous transfer of property. The distinction lies in their purpose, nature, and the legal rights involved, making them fundamentally different transactions under the law.
Answer:- The secular character of the Indian Constitution is one of its foundational principles, ensuring the state treats all religions with equal respect and maintains a neutral stance in religious matters. This concept is rooted in the pluralistic and diverse nature of Indian society.
Secularism, in the Indian context, means Equal respect for all religions (Sarva Dharma Sambhava) where the state does not favor or discriminate against any religion. And the individuals are free to profess, practice, and propagate their religion, or to choose not to follow any religion.
1. No State Religion: Unlike some countries, India does not have an official religion. The state is neither theocratic nor anti-religious.
2. Religious Freedom: Citizens have the right to practice any religion or none at all.
3. Equality of Religions: The state treats all religions equally, without preference or bias.
4. Intervention for Social Reform: The state can intervene in religious practices if they conflict with fundamental rights or public welfare (e.g., abolition of Sati, Triple Talaq).
The secular nature of the Indian Constitution is reflected in its Preamble, Fundamental Rights, and Directive Principles of State Policy. The Preamble, amended by the 42nd Amendment Act, 1976, explicitly includes the word "secular," though the ethos of secularism has existed since the Constitution's inception. It declares India to be a "Sovereign, Socialist, Secular, Democratic Republic," emphasizing the equal respect for all religions.
Case: S.R. Bommai v. Union of India (1994), The Supreme Court ruled that secularism is part of the basic structure of the Constitution. Any law or action violating secularism can be struck down.
Therefore, the secular character of the Indian Constitution is integral to maintaining the country's unity, integrity, and diversity. While challenges exist, the judiciary, government, and civil society play vital roles in safeguarding secularism. It ensures that India remains a harmonious space for its multi-religious and multicultural population.
Answer:- The difference between a conditional transfer and a transfer with condition lies in their legal implications and the way conditions affect the operation of the transfer.
BASIS | CONDITIONAL TRANSFER (Section 25 of the TPA, 1882) | TRANSFER WITH CONDITION (Section 31 of the TPA, 1882) |
---|---|---|
MENAING | A conditional transfer is a transfer of property that becomes effective or operational only upon the fulfilment of a specified condition. The condition is an essential prerequisite for the transfer to take effect. | A transfer with a condition is a transfer that is complete and operational immediately, but the transferee must comply with a specific condition imposed by the transferor. The transfer remains valid, but failure to comply with the condition may have legal consequences. |
TIMING OF TRANSFER | Transfer occurs only when the condition is fulfilled. | Transfer occurs immediately but subject to a condition. |
NATURE OF CONDITION | Condition is a prerequisite for the transfer to take effect. | Condition is an obligation or restriction after the transfer. |
EFFECT OF NON-COMPLIANCE | No transfer occurs if the condition is not fulfilled. | The transfer remains valid, but legal consequences may follow |
LEGAL REFERENCE | Often referred to as a contingent transfer. | Often linked to a restrictive covenant< or similar terms. |
Therefore, it is crucial for drafting clear property agreements. Where the primary difference lies in when and how the property transfer are completed. In a conditional transfer, the transfer hinges entirely on fulfilling the condition. In a transfer with a condition, the transfer is immediate, but the condition imposes obligations or restrictions post-transfer.
Answer:- The statement "All contracts are agreements, but all agreements are not contracts" is an important principle of contract law that distinguishes between the broader concept of agreements and the narrower concept of contracts.
An agreement is defined as a mutual understanding or arrangement between two or more parties regarding their rights and obligations. According to Section 2(e) of the Indian Contract Act, 1872, an agreement is "every promise and every set of promises, forming the consideration for each other." Whereas, A contract is a specific type of agreement that is enforceable by law. Section 2(h) of the Indian Contract Act defines a contract as "an agreement enforceable by law." To become a contract, an agreement must satisfy certain legal requirements. For an agreement to be a contract, it must have:
• Offer and acceptance.
• Intention to create legal obligations.
• Consideration (something of value exchanged).
• Legal capacity of parties.
• Free consent (not induced by fraud, misrepresentation, etc.).
• Lawful object (the agreement must not be for illegal purposes).
All agreements are not contracts because they may lack one or more of the essential elements required for enforceability. For example:
• Agreements without the intention to create legal obligations (e.g., a casual promise to meet for coffee).
• Agreements for illegal purposes (e.g., selling banned substances).
• If there is no consideration (something of value exchanged), the agreement is not enforceable.
Therefore, every contract begins as an agreement, not every agreement meets the criteria to become a contract. A contract is thus a subset of agreements that fulfil specific legal requirements.
Answer:- The Preamble of the Indian Constitution serves as an introductory statement that outlines the fundamental values, principles, and objectives that the Constitution seeks to achieve. It is often referred to as the "identity card" of the Constitution, encapsulating the vision of the framers for the nation. Here are some key aspects of the Preamble:
1. Sovereign, Socialist, Secular, Democratic Republic: The Preamble emphasizes the nature of the Indian state:
• Sovereign: India is free from external control and has the authority to govern itself.
• Socialist: The state aims to reduce inequalities and promote social welfare.
• Secular: The government treats all religions equally and maintains a separation between religion and the state.
• Democratic: The country is governed by elected representatives, ensuring the participation of citizens in the democratic process.
• Republic: India has an elected head of state, as opposed to a monarchy.
2. Justice, Liberty, Equality, and Fraternity: The Preamble articulates the core values that the Constitution seeks to uphold:
• Justice: Promote social, economic, and political justice.
• Liberty: Ensure freedom of thought, expression, belief, faith, and worship.
• Equality: Provide every citizen with equal opportunities and status.
• Fraternity: Promote a sense of brotherhood and unity among all citizens.
3. Objectives: The Preamble reflects the broader goals of the Constitution:
• To secure the dignity of the individual and unity and integrity of the nation.
• To guarantee fundamental rights, and promote the welfare of all.
4. Guiding Principles: While the Preamble is not legally enforceable, it serves as a guiding framework for the interpretation of the Constitution and the laws enacted in India. It helps justify the purpose and context of the legal structure, ensuring that all laws align with these foundational ideals.
Therefore, the Preamble of the Indian Constitution is a crucial document that symbolizes the aspirations of the Indian people and sets the tone for the nation’s governance, legal framework, and social values.
Answer:- Justice plays a central role in fulfilling the purpose of law by ensuring fairness, equality, and the protection of individual rights while maintaining societal order. Law serves as the framework for governing society, and justice ensures that this framework operates in a manner that is equitable and ethical, fostering trust and harmony among individuals and institutions.
According to Salmond, laws are the bodies of principles that tribunals recognize and apply while administering justice. Even Roscoe Pound defines laws to mean principles that public tribunals recognize and enforce.
Therefore, justice generally means the recognition, application and enforcement of laws by courts. This is different from the understanding of justice in the ancient period when it was given a religious and moralistic meaning.
1. Justice ensures that the law protects fundamental rights, such as life, liberty, and property, enabling individuals to live with dignity and security.
2. By treating all individuals equally before the law and addressing inequalities, justice upholds the principle of fairness, which is essential for societal cohesion.
3. Justice holds individuals and institutions accountable for their actions, ensuring that breaches of the law are addressed and rectified, deterring future violations.
4. Justice provides mechanisms for peaceful resolution of conflicts, fostering stability and preventing the escalation of disputes that could disrupt social harmony.
5. Justice ensures that the application and interpretation of laws evolve with changing societal values and needs, making the legal system dynamic and responsive.
6. When justice is consistently and impartially delivered, it builds public confidence in the law, encouraging compliance and respect for legal institutions.
Therefore, the essence of justice translates the abstract principles of law into tangible outcomes that reflect fairness and equity. It ensures that the law is not merely a set of rules but a tool to achieve a just and harmonious society. Without justice, laws lose their moral and societal purpose, becoming rigid mechanisms devoid of the human values they aim to protect. Hence, justice acts as the moral compass of law, aligning it with the principles of fairness, equality, and societal well-being, which are the ultimate goals of any legal system.
Answer:- The purpose of law is multifaceted, encompassing the establishment of order, protection of individual rights, resolution of disputes, and promotion of justice and equity within society. Law provides a framework for regulating individual and societal conduct, ensuring predictability, accountability, and the protection of public and private interests. It embodies the principles of fairness, equality, and the rule of law, serving as the backbone of a well-functioning society.
Article 147 of the Indian Constitution defines the scope of "law" in constitutional interpretation, specifying that it includes the Constitution, constitutional amendments, laws enacted under the Constitution, and laws relating to the Government of India Act, 1935. The Supreme Court, as the apex judicial body and guardian of the Constitution, plays a pivotal role in interpreting and upholding the law under this provision.
1. The Supreme Court ensures that laws and constitutional provisions are understood and applied in line with the Constitution's principles.
2. When disputes arise over the meaning or application of constitutional provisions or laws, the Court clarifies their intent and scope.
3. The Court evaluates the constitutionality of legislative acts and executive actions, striking down those that violate fundamental rights or constitutional mandates.
4. By interpreting laws under Article 147, the Court ensures that individual rights are upheld and protected against state encroachment.
5. The Court acts as a check on the legislative and executive branches, ensuring that their actions align with constitutional principles.
In cases involving constitutional amendments, the Supreme Court has interpreted Article 147 to include the doctrine of basic structure, ensuring that amendments do not alter the core principles of the Constitution. This was most notably upheld in the Kesavananda Bharati Case (1973), where the Court ruled that while Parliament has wide powers to amend the Constitution, it cannot destroy its basic structure.
Through its judgments under Article 147, the Supreme Court:
1. Upholds the purpose of law by ensuring consistency and coherence in its application.
2. Maintains the supremacy of the Constitution by interpreting it as a living document that evolves with societal needs.
3. Ensures that laws align with justice, equity, and the public good, reinforcing the foundational principles of democracy and rule of law.
Therefore, the Supreme Court's role under Article 147 embodies the broader purpose of law: to serve justice, protect rights, and sustain the constitutional order, ensuring that laws and their interpretations remain aligned with the needs and aspirations of society.
Answer:- Yes, a suit for the right to franchise is a suit of a civil nature under Section 9 of the Code of Civil Procedure, 1908 (CPC).
Civil Nature is defined under Section 9 of the CPC which states that courts shall have jurisdiction to try all suits of a civil nature except those expressly or impliedly barred. A "suit of a civil nature" is one that involves the determination of private rights and obligations of individuals, rather than matters of public or criminal nature. The right to vote or contest in elections (franchise) is a statutory right governed by election laws. Disputes related to the right to vote, contest, or inclusion/exclusion from an electoral roll involve the adjudication of personal rights. As these disputes pertain to the legal rights of individuals, they fall under the category of civil nature. While the right to franchise is a civil right, the jurisdiction to try such cases may sometimes be specifically vested in election tribunals or other statutory bodies under election laws, such as the Representation of the People Act, 1951. In such cases, the jurisdiction of civil courts may be barred. However, if no special provision excludes civil court jurisdiction, suits for the right to franchise can be entertained by civil courts.
The Supreme Court has clarified in various judgments that the test for determining whether a suit is of a civil nature is whether it involves the assertion or enforcement of a legal right. Since the right to franchise is a legal right, disputes regarding it are civil in nature unless explicitly barred.
Therefore, a suit for the right to franchise qualifies as a suit of civil nature, though its adjudication may sometimes be restricted to specialized forums based on statutory provisions.
Answer:- The historical school of law emphasizes that law is a product of historical development and social evolution. It asserts that legal principles and rules result from the traditions and customs of a society, rather than being based solely on abstract rational principles or legislative enactments. This school values the importance of history in shaping law, arguing that understanding the past is crucial to interpreting the present legal system.
Friedrich Karl von Savigny was the founder of the historical school of law during the years 1779–1861.
The historical school of law is grounded in several key principles:
1. Law as a Product of Historical Development: This school posits that laws evolve naturally from the customs, traditions, and experiences of a society over time. Legal systems are seen as a reflection of the historical context in which they developed.
2. Emphasis on Tradition and Custom: The historical school values long-standing customs and practices, arguing that these are foundational to the legitimacy of law. Legal practices that have withstood the test of time are seen as more valid.
3. Rejection of Abstract Rationalism: Unlike schools that prioritize rational or theoretical approaches to law (like the natural law or positivist schools), the historical school criticizes the idea that law can be derived solely from abstract principles or philosophical reasoning.
4. Holistic Approach: The historical school advocates for a comprehensive understanding of law within its social, economic, and political contexts. It looks at how law interacts with various aspects of life and society.
5. Influence of Nationalism: Legal systems are often seen as expressions of national identity. The historical school highlights the ways in which laws reflect the cultural and social heritage of a nation or region.
6. Focus on Evolutionary Change: Instead of advocating for revolutionary changes in law, this school supports gradual reform and adaptation, recognizing that changes occur through a process that respects historical continuity.
These principles underscore the idea that law cannot be viewed in isolation from the society that creates and applies it, making history and social context essential to understand the legal systems.
Answer:- Under Section 22 to 24 of the Bharatiya Sakshya Adhiniyam, 2023, Confession is a statement which is made by an accused person in which they admit to commit a crime. It is treated as a special category of admissions because they directly acknowledge guilt or involvement in the offense. It is very powerful evidence but has strict rules which govern their admissibility to prevent coerced or false confessions. Previously, these sections were incorporated under Section 24-30 of the Indian Evidence Act, 1872.
1. Judicial Confession which is made before a magistrate or in court during judicial proceedings
2. Extra-Judicial Confession which is made outside of the court and are informal confessions which are not recorded by a judicial authority.
Aspect | Judicial Confession | Extra-Judicial Confession |
---|---|---|
Place of Confession | Made before a magistrate or in court | Made outside of court, typically to a third party |
Legal Safeguards | Subject to safeguards under the CrPC, especially Section 164 now incorporated under Section 183 of the BNSS, 2023. | No formal safeguards; made informally |
Reliability | Considered more reliable due to formal recording process | Less reliable; can be influenced by coercion or misinterpretation |
Admissibility | Admissible as primary evidence without corroboration | Admissible, but requires corroboration |
Nature of Recording | Officially recorded and documented | Not recorded officially; usually reported by witnesses |
Presumption of | Presumed voluntary due to judicial | Needs thorough examination |
Voluntariness | oversight | for voluntariness |
Answer:- The nature of Hindu marriage, whether it is a sacrament or a contract, has been widely discussed and debated in Indian law, especially within the framework of the Hindu Marriage Act, 1955. Traditionally, Hindu marriage has been regarded as a sacrament (samskara), but the Act introduces certain provisions that align it with elements of a contract. Here’s an analysis of Hindu marriage from both perspectives.
1. Hindu Marriage as a Sacrament
Historically, Hindu marriage has been seen as a sacred and lifelong union, involving religious ceremonies and rites. As a sacrament:
• Indissolubility: Traditional Hindu marriage is considered indissoluble. It is viewed as a bond that survives even after death, binding the couple in this life and the next.
• Religious Duty: Marriage is seen not only as a union of two individuals but also as a religious duty for procreation and continuing the family lineage. It is essential for fulfilling one’s dharma (duty) within the Hindu social structure.
• Spiritual Union: Hindu marriage is regarded as the union of two souls, not merely a physical or legal relationship. Vedic rituals, such as the saptapadi (seven steps around the sacred fire), symbolize the religious commitment the couple makes to each other.
2. Hindu Marriage as a Contract
With the codification of the Hindu Marriage Act, 1955, some elements of contract theory were introduced, including:
• Consent: Section 5 of the Act stipulates that both parties must freely consent to the marriage. This is a contractual element, as a valid contract requires the consent of both parties without coercion or undue influence.
• Capacity to Marry: The Act prescribes age limits and prohibits marriages within certain degrees of relationship (unless custom permits), similar to contractual requirements concerning the capacity of parties to enter into agreements.
• Provision for Divorce: The Act introduced grounds for divorce (Section 13), allowing individuals to legally end their marriage. This provision, absent in traditional Hindu concepts, adds a contractual dimension where marriage is no longer necessarily indissoluble.
• Restitution of Conjugal Rights: Under Section 9, if one spouse withdraws from the marriage without reasonable cause, the other can seek restitution of conjugal rights. This concept aligns with the contractual notion of mutual obligations and duties within marriage.3. Judicial Interpretations and Evolving Perspectives
3. Judicial Interpretations and Evolving Perspectives
Indian courts have often recognized Hindu marriage as a sacrosanct institution while acknowledging that certain elements of the modern Hindu marriage resemble a contract. For instance:
• In Tulsamma v. Sesha Reddy (1977), the Supreme Court observed that Hindu marriage is a sacrament but also pointed out the contractual aspects introduced by the 1955 Act.
• In Bhaurao v. State of Maharashtra (1965), the Court stated that Hindu marriage retains its sacramental character but is regulated by legal provisions.
Therefore, Hindu marriage under the Hindu Marriage Act, 1955, retains its status as a sacrament while incorporating contractual elements that align with modern legal standards. It maintains religious sanctity and social importance but now allows for aspects of personal autonomy, consent, and legal recourse. Therefore, Hindu marriage today can be seen as a unique blend of sacrament and contract, shaped by tradition and modern law alike.
Answer:- The Indian judiciary has largely embraced the principles of the Natural Law School by recognizing the inherent connection between law and morality, especially in cases involving fundamental rights, social justice, and constitutional morality. Indian courts have frequently drawn on natural law principles to ensure justice, often interpreting the Constitution in ways that uphold moral and human rights standards.
Natural Law refers to principles derived from a higher, universal source beyond political authority, based on moral ideals with global applicability. It has been used to promote change (e.g., by Locke) or maintain stability (e.g., by Hobbes). Concepts like the Rule of Law (England/India) and due process (USA) are rooted in Natural Law. Known as the Law of Reason and Universal Law, it appeals to human rationality and morality. It rejects strict separation of "is" (what law is) and "ought" (what law should be), emphasizing justice and morality as integral to law.
1. Kesavananda Bharati v. State of Kerala (1973): In this landmark case, the Supreme Court invoked the natural law principle to establish the Basic Structure Doctrine. The Court held that while Parliament has the power to amend the Constitution, it cannot alter its fundamental structure, which includes values like justice, liberty, equality, and fraternity, rooted in natural law. This doctrine limits legislative power and ensures that certain core principles are protected, reflecting natural law’s emphasis on universal moral standards that must guide law.
2. Maneka Gandhi v. Union of India (1978): In this case, the Supreme Court expanded the scope of Article 21 (Right to Life and Personal Liberty) by interpreting “personal liberty” as encompassing various aspects of human dignity and justice beyond procedural rights. The Court emphasized that laws affecting fundamental rights must be "just, fair, and reasonable," integrating natural law’s insistence on moral justice. This judgment established that laws should not only be legally valid but also morally justified, aligning with the natural law perspective that unjust laws lack legitimacy.
3. Vishaka v. State of Rajasthan (1997): The Court in this case addressed sexual harassment in the workplace, holding that it violated fundamental rights to equality and personal liberty. In the absence of specific laws addressing the issue, the Court applied natural law principles to derive guidelines from international human rights treaties, which emphasize human dignity, equality, and justice. This decision demonstrated the judiciary’s willingness to draw on universal moral standards, a hallmark of natural law, to fill legislative gaps and uphold justice.
Through these judgments, the Indian judiciary has demonstrated its commitment to natural law principles by ensuring that law aligns with fundamental moral standards, human dignity, and justice. By interpreting the Constitution and fundamental rights expansively, Indian courts have applied natural law as a means of safeguarding inherent human rights and protecting individuals from unjust laws, reflecting natural law’s enduring influence on Indian jurisprudence.
Answer:- Malicious Prosecution is a tort action that allows an individual to seek redress if they have been wrongfully subjected to a criminal or civil case. It involves the intentional misuse of legal proceedings without reasonable grounds, primarily to harm the defendant. The essential elements of malicious prosecution under tort law are:
1. Initiation of Legal Proceedings
• The claimant (plaintiff in the tort action) must prove that the defendant initiated or was actively instrumental in bringing a criminal or civil proceeding against them. The prosecution must have begun as a result of the defendant's actions, not due to independent decisions by authorities.
2. Absence of Reasonable and Probable Cause
• It must be shown that the defendant lacked reasonable and probable cause for initiating the legal action. Reasonable and probable cause refers to the genuine belief, based on facts, that there are grounds to initiate legal proceedings. If there is no solid basis or factual support for the action, this element is fulfilled. The burden is on the claimant to prove the absence of reasonable cause.
3. Malice or Improper Motive
• The claimant must demonstrate that the defendant acted with "malice," meaning there was an improper motive behind the initiation of proceedings. This could be due to personal vendetta, revenge, or any reason other than justice. Malice indicates that the primary purpose was to harm or harass the claimant rather than to bring them to justice.
4. Favourable Termination of Proceedings
• The claimant must prove that the prior proceedings ended in their favor. This element requires that the case be dismissed or result in an acquittal or a similar favorable outcome for the claimant. If the original case is still ongoing or was decided against the claimant, they cannot bring a suit for malicious prosecution.
5. Proof of Damage
• Finally, the claimant must show that they suffered damages due to the malicious prosecution. Damages can be reputational harm, financial loss, mental suffering, or even the deprivation of liberty if they were arrested or detained as a result of the prosecution.
Suppose A files a false criminal complaint against B, alleging theft without any factual basis and solely out of a desire for revenge. B is subsequently acquitted due to lack of evidence. B could file a claim for malicious prosecution against A, provided they can establish all the above elements.
Therefore, malicious prosecution is grounded on proving that legal proceedings were wrongfully initiated, lacked genuine grounds, were motivated by malice, concluded favourably for the claimant, and caused harm. This tort is essential to prevent the misuse of judicial processes and protect individuals from baseless legal actions.
Answer:- The Bharatiya Sakshya Adhiniyam, 2023 modernizes India's evidence laws by enhancing the treatment of digital and electronic evidence, streamlining confession and admission provisions, and updating witness guidelines. Key features include:
1. The Act redefines "documents" to include digital and electronic records and recognizes digital files as documentary evidence, facilitating admissibility of electronic evidence in cases.
2. Confessions are consolidated and clarified, particularly for absconding accused, while protections against coercion are preserved.
3. Courts can now recognize certain facts, including international treaties and verified digital publications, without additional proof, adapting to modern research resources.
4. Admissibility is more selective for digital admissions, with clearer guidelines for character evidence in civil and criminal cases.
5. The Act aligns with IT Act 2000, expanding provisions for digital signature authentication, allowing expert testimony on electronic authentication.
6. Electronic testimony is allowed for remote witnesses, and witness protection measures are strengthened, with updated cross-examination rules for fair process.
Therefore, The Bharatiya Sakshya Adhiniyam, 2023, brings India’s evidence laws into the digital age, recognizing technological advancements and addressing gaps in the prior framework. By redefining documents, expanding electronic evidence, and clarifying the roles of admissions, confessions, and character evidence, the Act ensures that evidence standards are both comprehensive and adaptable to modern needs in criminal and civil proceedings.
Answer:- - In case of a breach of contract, where one party fails to perform their obligations as stipulated in the contract, the injured party has several remedies available under the law. The primary remedies for breach of contract under the Indian Contract Act 1872 include damages, specific performance, rescission of contract, and injunctions.
• Damages (Section 73 and 74): These include monetary compensation awarded to the injured party to compensate for the loss suffered due to the breach and are the most common remedy for a breach of contract.
• Specific Performance (Section 10): It is available when damages are inadequate to compensate for the loss. It is a remedy where the court orders the breaching party to fulfil their contractual obligations as originally agreed.
• Rescission of Contract (Section 39): It refers to the cancellation of the contract, which treats it as if it were never made. The injured party may choose to rescind the contract if there is a breach that deprives them of the benefit of the contract. Rescission can be done in cases of fraud, misrepresentation, coercion, or undue influence.
• Injunction (Section 36-42 of the specific relief act): It is a court order that either prevents a party from doing something (a prohibitory injunction) or compels them to do something (a mandatory injunction). Injunctions are granted when damages are not an adequate remedy, or when there is a need to prevent further harm.
• Restitution: It involves restoring the injured party to the position they were in before the contract was made, often by returning the benefits received under the contract. This remedy is closely related to rescission but is focused more on restoring property or money than on undoing the contract.
Consider a contract for the supply of unique machinery. If the supplier fails to deliver, the buyer could:
• Claim specific performance to compel delivery (if possible),
• Seek damages for losses incurred due to the non-delivery (Section 73),
• Ask for rescission of the contract if the machinery is no longer needed due to the delay (Section 39),
• Or file for an injunction if the supplier sells the machinery elsewhere.
Therefore, the Indian Contract Act provides various remedies designed to put the aggrieved party in the position they would have been if the contract was fulfilled, to the extent that compensation or specific performance can achieve this.
Answer:- He has committed sexual harassment under Section 354A IPC which corresponds with Section 75 of the BNS, 2023, by requesting for sexual favours.
Clause (1) a man committing any of the following acts-
(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) A demand or request for sexual favours; or
(iii) Showing pornography against the will of a woman; or
(iv) Making sexually coloured remarks,
Shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three (3) year, or with fine or both.
Therefore, in conclusion, a simple request could be an offense if it is unsolicited, intimidating, or demeaning. The Bharatiya Nyaya Sanhita, 2023 emphasizes protection against sexual harassment and ensures dignity, especially for women, in interpersonal interactions.
Answer:- The doctrine of pleasure originates from English law and is derived from the Latin maxim durante bene placito, meaning "during pleasure." In England, the doctrine allows that a civil servant employed by the Crown holds office at the pleasure of the Crown, meaning their services may be terminated at any time without cause. This also means that even if a civil servant has a contract with the Crown, the Crown is not bound to honour it, and the dismissed civil servant cannot claim arrears of salary or damages. This doctrine is not based on any special Crown prerogative but is instead rooted in public policy, emphasizing the need for efficient, reliable, and ethical civil services. Public interest requires that civil servants who are ineffective, dishonest or a security risk should not remain in service. In India, the doctrine of pleasure has constitutional authority under Article 310(1) of the Constitution. This article states that all members of the Union's defence and civil services, as well as all-India services or posts connected with defence or civil roles under the Union, hold office at the President's pleasure. Similarly, state civil service members or civil post holders serve at the Governor's pleasure. Unlike in the UK, India's pleasure doctrine is not subject to any law enacted by Parliament or a State Legislature but solely to what is expressly provided in the Constitution. Additionally, the exercise of this pleasure is based on the aid and advice of the Council of Ministers. As an executive power under Article 154, the authority to exercise the pleasure may be delegated to subordinate officers in accordance with rules framed under Article 309, outlining the procedure and authority for exercising this power. However, Article 311 provides procedural safeguards for civil servants, placing limits on the pleasure doctrine within its scope. Certain key positions, like those of Supreme Court judges (Article 124), High Court judges (Article 218), the Auditor General of India (Article 148(2)), the Chief Election Commissioner (Article 324), and members of the Public Service Commission (Article 317), are exempt from the pleasure doctrine. These roles enjoy specific constitutional protections regarding tenure. The Supreme Court clarified in State of Bihar v. Abdul Majid (AIR 1954 SC 245) that English common law has not been adopted in India with all its strict implications. In Union of India v. Major S.P. Sharma (2014), the Court further observed that the pleasure doctrine is a constitutional necessity, as requiring proof of misconduct in court could hinder effective public service. This doctrine allows the President to exercise it at any stage of an inquiry if an officer's continued service is deemed contrary to state security or interest.
Lastly, a distinction exists between pleasure and statutory appointments. Positions held at the pleasure of the President or Governors, such as Governor Appointments, are classified as pleasure appointments, while statutory appointments are governed by specific laws and are not subject to the pleasure doctrine.
Answer:- Under the Code of Civil Procedure in India, the courts have certain inherent powers that allow them to take actions necessary for the proper administration of justice, even if those actions are not explicitly provided for within the CPC. These powers are encapsulated in Section 151 of the CPC, which states:
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
1. Ends of Justice: The court can take any step required to ensure that justice is served, especially in cases where the strict application of procedural rules might otherwise lead to an unfair outcome.
2. Preventing Abuse of Process: Courts can intervene to prevent parties from using the judicial process for unfair advantages, vexatious litigation, or other inappropriate purposes. This can include dismissing frivolous cases, controlling misuse of procedures, or taking action against false evidence.
3. Residual Jurisdiction: The inherent power is generally exercised in situations not covered by specific provisions in the CPC. It serves as a residual jurisdiction, meaning it can fill in procedural gaps in extraordinary situations.
4. Procedural Flexibility: In certain cases, the court may use inherent powers to modify or waive procedural requirements, such as granting extensions, modifying orders, or allowing actions that are otherwise procedurally irregular if strict adherence would hinder justice.
5. Interim Orders: Inherent powers allow courts to pass interim orders that are necessary to protect the interests of the parties until the final decision is reached, even if the CPC does not specifically grant the power to do so in that situation.
• Inherent powers cannot be used to override or contradict specific provisions of the CPC.
• Courts cannot use inherent powers to create new rights for litigants or give decisions that contradict statutory laws.
• Inherent powers are intended for exceptional or extraordinary situations; they are not meant for routine application.
Examples of the Use of Inherent Powers: Staying a proceeding to prevent multiplicity of litigation, restoring a case dismissed in default when specific provisions do not apply, etc.
The inherent powers of the court under Section 151 ensure that justice remains flexible and accessible, providing remedies where procedural rules might otherwise create hardship or unfairness.
Answer:- Under the Code of Civil Procedure (CPC) in India, an indigent person (also referred to as a pauper) is defined as someone who is not sufficiently financially capable of paying the prescribed court fees. According to Order 33 of the CPC, a person may file a lawsuit as an indigent person if they meet the criteria for indigence, which include:
1. Income Level: The applicant must have an income below a specific threshold, which varies by state and jurisdiction.
2. Property Ownership: The person should not possess any immovable property or other assets (other than basic necessities) that can cover court costs.
3. Absence of Sufficient Means: Even if the applicant has income or assets, they may still qualify as indigent if those resources are inadequate to cover the court fees without compromising their ability to meet basic living expenses.
To file as an indigent person under Order 33:
1. The applicant must submit an affidavit listing their financial circumstances, assets, and income.
2. The court examines this application, often involving an inquiry into the applicant's financial status.
3. If satisfied that the applicant qualifies, the court may allow them to proceed without paying court fees.
If the court recognizes someone as indigent, they are exempt from paying court fees. This ensures that financial constraints do not prevent a person from accessing justice.
Answer:- The secular character of the Indian Constitution is a fundamental principle that ensures the state maintains neutrality and impartiality towards all religions. Secularism in India does not imply the absence of religion but rather the equal respect and treatment of all religions. This concept is enshrined in various provisions of the Constitution, reflecting India's pluralistic society. The Preamble of the Constitution reflects the secular character of the Indian state by committing to liberty of belief, faith, and worship. The insertion of the word "secular" through the 42nd Amendment formally codified the existing secular ideals of the Constitution.
The word "secular" was explicitly added to the Preamble by the 42nd Amendment in 1976, stating that India is a "Sovereign, Socialist, Secular, and Democratic Republic." However, even before the amendment, the secular essence of the Constitution was evident in various provisions. The state is required to treat all religions with equal respect, without promoting any religion or discriminating based on religion. Secularism provides equal treatment or rights of all the religions (Article 14, 15, 16) and also freedom of Religion (Article 25-28). Unlike some countries where a particular religion is given a privileged status, India does not have a state religion. The Constitution mandates that the state shall not identify with or favor any religion. The state is equidistant from all religions and ensures equal respect for all faiths.
The judiciary has played a significant role in interpreting and reinforcing the secular nature of the Constitution. Some landmark cases include:
• S.R. Bommai v. Union of India (1994): In this landmark case, the Supreme Court ruled that secularism is a basic feature of the Indian Constitution, which cannot be amended. The court emphasized that secularism implies equal treatment of all religions by the state and that no religion can claim a superior status.
• Aruna Roy v. Union of India (2002): The court upheld the introduction of value-based education in schools, clarifying that secularism does not prohibit the inclusion of religious values but opposes the promotion of any specific religion by the state.
• Shah Bano Case (1985): The Supreme Court’s decision in the Shah Bano case, involving maintenance for a divorced Muslim woman, highlighted the tension between secularism and personal religious laws. The decision was seen as a move toward uniform civil laws, which remain a contested aspect of secularism in India.
Therefore, the secular character of the Indian Constitution is deeply embedded in its provisions, reflecting India’s commitment to treating all religions equally and fostering religious harmony. Indian secularism ensures both the protection of individual religious freedom and the state’s responsibility to uphold social reform and justice, often through balancing religious practices with constitutional principles. However, maintaining this balance in a pluralistic society remains a continuous challenge, especially in light of political, social, and communal pressures. The courts and the government continue to play crucial roles in upholding the secular ethos of the Constitution.
Answer:- The Fundamental Rights and Directive Principles of State Policy (DPSP) are two key components of the Indian Constitution, and they represent two different approaches to ensuring social justice and individual welfare. While they serve complementary roles, they also exhibit a dynamic tension in how they are applied.
Aspect | Fundamental Rights (Part III) | Directive Principles of State Policy (Part IV) |
---|---|---|
Enforceability | Legally enforceable by courts if violated | Not legally enforceable in courts |
Nature | Negative in nature (imposing restrictions on state power) | Positive in nature (guidelines for the state to achieve welfare objectives) |
Objective | Protect individual rights and freedoms | Promote social and economic justice for the welfare of society |
Purpose | Purpose To limit the state’s authority over individual liberties | To direct the state in creating laws that enhance social welfare |
Scope | Ensures civil, political, and individual liberties | Aims at establishing social, economic, and cultural justice |
Binding Nature | Mandatory; citizens can approach courts to enforce them | Not mandatory but fundamental to the governance of the country |
Position in Constitution | Articles 12 to 35 | Articles 36 to 51 |
Conflict Resolution | In case of conflict, courts usually give precedence to Fundamental Rights | DPSPs guide the state in policy-making but cannot override Fundamental Rights |
Key Cases | Champakam Dorairajan Case (1951), Kesavananda Bharati Case (1973) | Minerva Mills Case (1980) emphasized the balance between DPSP and FR |
Amenability | Can be amended, but not in a way that violates the Basic Structure of the Constitution | Can be amended more freely to align with contemporary social needs |
Examples | Right to Equality (Article 14), Right to Freedom (Article 19), Right to Life (Article 21) | Equal distribution of wealth, promotion of education, public health (Article 39, 41, 47) |
Therefore, the relationship between Fundamental Rights and DPSPs reflects a balance between individual freedoms and the state’s responsibility to promote social welfare. While there have been conflicts historically, the judicial interpretation has evolved to promote harmony between the two, ensuring that neither can be ignored in the pursuit of a just society.
Answer:- Invalid Decree and Void Decree are legal concepts that refer to decrees (court orders) that suffer from some form of illegality or defect. However, there are important differences between the two:
An invalid decree is one that is irregular, defective, or passed by a court with some procedural flaw. The decree may be flawed but is not necessarily without legal effect. The defect can be cured through an appeal or revision, and if it is not challenged within the time limit, it may still become final and binding.
• Effect: It is valid until it is set aside by a higher court.
• Nature: It can still have some legal standing unless challenged in proper proceedings.
• Example: A decree passed without giving one party an adequate opportunity to be heard may be invalid due to a violation of the principles of natural justice.
A void decree is one that has no legal force from the outset because it is passed by a court that lacks jurisdiction or power to make such a decree. It is a nullity and does not need to be set aside; it can be ignored by the parties affected by it as if it never existed.
• Effect: It is a nullity and has no binding force from the beginning.
• Nature: It cannot be enforced and is automatically treated as legally ineffective.
• Example: A decree passed by a court that has no territorial or subject-matter jurisdiction would be void.
Invalid Decree | Void decree |
---|---|
An invalid decree is legally effective until set aside | A void decree has no legal status from the outset. |
An invalid decree must be challenged through appeal or revision | A void decree can be challenged or ignored in any proceedings, even collateral ones. |
An invalid decree may involve procedural irregularities | A void decree is issued by a court lacking jurisdiction or legal authority. |
Therefore, an invalid decree remains effective until it is set aside through appropriate proceedings, while a void decree has no legal effect from the beginning and can be challenged in both direct and collateral proceedings.
Answer:- The prohibition of discrimination based on sex is primarily covered under Article 15(1) of the Constitution of India, which states that "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them."
The Prohibition of Discrimination based on Sex is a fundamental principle enshrined in many national constitutions, international laws, and human rights frameworks. It refers to the legal and moral obligation to prevent any form of unequal treatment or discrimination based on a person's sex or gender. This principle ensures that individuals, regardless of their sex, are granted equal opportunities in areas such as employment, education, political participation, and access to public services.
1. Constitutional Protection: Many constitutions, including Article 15(1) of the Indian Constitution, explicitly prohibit discrimination based on sex, ensuring equality before the law and the right to equal protection.
2. International Human Rights: The Universal Declaration of Human Rights (UDHR) and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) call for the elimination of discrimination based on sex, ensuring equal rights in various social, economic, and political spheres.
3. Employment and Wages: Laws prohibit unequal treatment in hiring, pay, promotions, and working conditions based on sex, ensuring equal opportunities for men and women in the workplace.
4. Educational Access: The prohibition ensures equal access to education for all genders, promoting gender parity in enrolment, retention, and advancement in educational institutions.
5. Political and Social Participation: Governments are required to ensure that men and women have equal rights to participate in political processes, including voting, running for office, and holding public positions.
6. Legal Remedies: Many countries have established legal frameworks and bodies such as equal opportunity commissions or human rights commissions to address violations of anti-discrimination laws and provide remedies.
Hence, this article promotes gender equality by ensuring equal treatment and opportunities in all areas of life, aiming to dismantle the systemic inequalities that have historically disadvantaged certain genders.
Answer:- The Government of India Act, 1935 was a significant piece of legislation passed by the British Parliament, aimed at establishing a new constitutional framework for India. It laid the foundation for India’s federal system and set the stage for its eventual independence. Some of the salient features of the Act include:
1. Establishment of an All-India Federation: The Act provided for the creation of an All-India Federation comprising provinces of British India and the princely states. While the provinces were automatically included, the princely states could join voluntarily, which many did not, thus preventing the full implementation of this feature.
2. Provincial Autonomy: One of the key provisions was the introduction of provincial autonomy. Provinces were given more powers and responsible government, with elected representatives handling local governance. This meant that provincial legislatures were granted more freedom to govern without interference from the central government, a major step toward self-rule.
3. Diarchy Abolished at the Provincial Level: The earlier system of diarchy (introduced by the Government of India Act, 1919) was abolished at the provincial level. The provincial governments were now fully responsible to the elected provincial legislatures, and they were no longer divided between "reserved" and "transferred" subjects.
4. Introduction of Diarchy at the Centre: While diarchy was abolished at the provincial level, it was introduced at the central level. The central government’s subjects were divided into reserved (handled by the Governor-General) and transferred (handled by the Indian ministers). This division led to complexities and was not popular.
5. Bicameralism: The Act provided for bicameral legislatures in several provinces (such as Bengal, Madras, and Bombay) and also at the centre, with a Council of States and a Federal Assembly. This system of two chambers was a step towards more representative governance.
6. Extended Franchise: The Act expanded the electorate significantly, allowing more Indians to vote. However, voting was still restricted to about 10-15% of the population, based on property, tax, and educational qualifications.
7. Federal Court: The Act established the Federal Court of India (now the Supreme Court of India) to resolve disputes between the provinces and between the provinces and the central government. This was a precursor to India’s current judicial system.
8. Safeguards and Special Powers: The Act provided extensive safeguards for British interests. The Governor-General and provincial governors had significant emergency powers, including the power to veto legislation and govern in case of a breakdown in law and order, maintaining British control over key issues.
9. Indian Council Abolished: The Indian Council, which had advised the Secretary of State for India, was abolished. The Secretary of State now had direct responsibility for overseeing Indian affairs, reflecting a shift toward a more centralized form of governance.
10. Princely States: The Act sought to integrate the princely states into the new federal structure by allowing them to join the All-India Federation, although many chose not to participate, limiting the effectiveness of this provision.
Therefore, the Government of India Act, 1935 was a major step toward self-governance for India, introducing provincial autonomy and a federal structure. However, it maintained significant British control through emergency powers and the reserved subjects at the central level. Although it fell short of Indian demands for full independence, it set the stage for future constitutional developments leading to India’s independence in 1947.
Answer:- Partition in a Hindu joint family is an event that marks the end of the family’s joint status, giving rise to new joint or nuclear families. For partition to occur there must be at least two coparceners within the family, as it signifies the state of jointness that comes to an end through partition. This implies that unless a coparcenary exists in the family, a partition cannot happen. In essence, partition transforms joint ownership into separate ownership for each individual coparcener. Thus, partition can be described as the "crystallization of the fluctuating interest in coparcenary property into a specific share in the joint family estate."
The concept of partition is applied differently under the two schools of Hindu law:
• Dayabhaga School: Here, partition refers to the division of property according to the specific shares of the coparceners, meaning partition by metes and bounds.
• Mitakshara School: Partition under this school means more than just dividing property into shares. It refers to the severance of the joint family status. While a coparcenary's existence is essential for partition, joint property is not required to demand partition. Partition terminates the joint family status and ends the coparcenary. All that is needed is a definite and clear expression of intent by a coparcener to separate from the family.
1. A coparcener can demand partition at any time, without needing the consent of other coparceners.
2. A valid partition requires three key elements:
• Formation of the intention to separate from the joint family.
• A clear, unequivocal, and unilateral declaration of this intention.
• Communication of this intention to the Karta or other coparceners.
In the case of a minor coparcener, notice given to the Karta is sufficient, as the Karta acts as the legal representative of the minor.
The severance of joint status occurs from the date the intention to separate is formed and expressed, not from the date on which it reaches other coparceners. Various judicial interpretations have concluded that the partition becomes effective when the intention is clearly declared.
Partition results in the separation of a coparcener from the joint family, releasing them from all associated rights, duties, and responsibilities. After partition, each coparcener’s share in the family property is defined and no longer fluctuates due to births or deaths. Property acquired by a coparcener after partition is considered their self-acquired property and passes by succession.
Therefore, partition serves as the means by which a Hindu joint family is brought to an end. It converts joint family property into the separate, self-acquired property of each coparcener based on their share. Partition may occur through the division of property by metes and bounds, the severance of joint status, or both. True partition occurs when the joint status of a Hindu Undivided Family (HUF) is fully terminated.
Answer:- Anticipatory bail is a legal provision under Section 438 of the Criminal Procedure Code (CrPC), 1973, which allows an individual to seek bail in anticipation of being arrested for a non-bailable offense. The primary purpose of anticipatory bail is to safeguard the individual's right to liberty under Article 21 of the Constitution of India by preventing their detention in cases where the person apprehends arrest due to false or frivolous accusations. Anticipatory bail means seeking bail in anticipation of arrest. Unlike regular bail, which is applied for after an arrest, anticipatory bail is sought before any arrest is made. In simple words, the objective of anticipatory bail is to protect a person from unnecessary detention and harassment by granting them pre-arrest protection.
Section 438 of the CrPC empowers the High Court or Court of Session to grant anticipatory bail to any person who has reason to believe they may be arrested for a non-bailable offense. The provision enables a person to apply for anticipatory bail before being arrested and, if granted, prevents them from being taken into custody.
• The application for anticipatory bail can be filed in the Sessions Court or the High Court.
• The applicant must file an application under Section 438, stating the reasons for the apprehension of arrest and providing relevant details of the case.
• The court, after hearing both the applicant and the prosecution, may grant anticipatory bail with or without conditions or may reject the application.
While considering an application for anticipatory bail, the court may impose certain conditions to ensure that justice is not hampered, and the investigation is not obstructed. These conditions include:
• The applicant must make themselves available for questioning by the police as and when required.
• The applicant must not leave the country without the court’s permission.
• The applicant must not attempt to influence or threaten witnesses or tamper with evidence.
• The applicant must cooperate with the investigation and may be required to attend the police station if necessary.
Therefore, Anticipatory bail serves as an important legal safeguard to protect personal liberty and prevent harassment in criminal cases. However, it must be granted after careful consideration of the facts, ensuring that it is not misused to evade justice. The courts, while granting anticipatory bail, balance the rights of the accused with the need to maintain the integrity of the legal process, ensuring that justice is served while upholding individual freedoms.
Answer:- The Supreme Court of India, as the protector of civil liberties, plays a pivotal role in safeguarding the fundamental rights and freedoms of individuals. Established under the Constitution of India, the Supreme Court serves as the guardian of the Constitution and ensures that the rights enshrined in the Fundamental Rights (Part III of the Constitution) are protected from violations, particularly by the state.
1. Enforcement of Fundamental Rights: Under Article 32, which is itself a fundamental right, the Supreme Court can issue writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari to protect individuals' civil liberties. For instance, a writ of habeas corpus can be issued to release individuals unlawfully detained, thus protecting the right to personal liberty under Article 21.
2. Expansive Interpretation of Rights: The Supreme Court has adopted a progressive and expansive interpretation of fundamental rights, particularly under Article 21, which guarantees the right to life and personal liberty. The Court has interpreted this article to include a range of civil liberties such as the right to privacy (Puttaswamy case, 2017), the right to a fair trial, and the right to live with dignity. Through landmark judgments, the Court has extended civil liberties beyond the literal text of the Constitution, making it more responsive to the evolving needs of society.
3. The Supreme Court has the power of judicial review under Article 32, which allows individuals to directly approach the Court when their fundamental rights are violated. Through this power, the Court can strike down laws, executive actions, and administrative orders that are unconstitutional or infringe on civil liberties. The power of judicial review ensures that the government and its agencies do not act arbitrarily or infringe upon the rights of citizens.
4. Free Speech and Expression: Under Article 19(1) (a), the Supreme Court has upheld the right to freedom of speech and expression, recognizing it as a core pillar of a democratic society. The Court has struck down laws that impose unreasonable restrictions on free speech and has balanced this right with the need for maintaining public order and morality.
5. Right to Equality: The Supreme Court ensures the enforcement of the right to equality under Article 14, preventing discrimination by the state on the basis of religion, caste, gender, or other grounds. It has struck down laws or practices that treat individuals unequally or arbitrarily.
6. Public Interest Litigation (PIL): The Supreme Court has expanded its role in protecting civil liberties through the tool of Public Interest Litigation (PIL), which allows any individual or organization to approach the Court on behalf of those whose rights have been violated, particularly marginalized or disadvantaged groups. This has empowered the Court to proactively address issues such as environmental justice, human rights, and police brutality.
Over the years, the Supreme Court has delivered several landmark judgments that have significantly enhanced the protection of civil liberties. These include: Maneka Gandhi v. Union of India (1978): Expanded the interpretation of Article 21, linking it with Articles 19 and 14, ensuring that life and liberty could not be deprived arbitrarily. K.S. Puttaswamy v. Union of India (2017): Recognized the right to privacy as a fundamental right under Article 21. Vineet Narain v. Union of India (1997): Strengthened the Court’s ability to oversee and ensure transparency in governmental functions to prevent abuse of power.
Therefore, The Supreme Court of India functions as the protector of civil liberties by enforcing fundamental rights, ensuring government accountability, and expanding the scope of freedoms through progressive judgments. Its power of judicial review, ability to issue writs, and the use of PILs have made it a vital institution in upholding democratic values and protecting the civil rights of individuals against arbitrary state actions or violations
Answer:- The principle of vicarious liability holds that a master (employer) is liable for the wrongful acts committed by their servant (employee) in the course of employment, regardless of whether the acts are lawful or unlawful. This means that if a servant, while performing their duties, commits a wrongful act—even if it is in violation of the law—the master can still be held liable. The rationale behind this rule is that since the servant is acting under the authority and control of the master, any acts performed during the scope of employment are attributed to the master. It does not matter if the servant acted in a way that was illegal or beyond the specific instructions given by the master. As long as the act was done while the servant was performing duties related to their employment, the master can be held responsible. This principle ensures that the liability rests on the person who benefits from the servant's actions, even if those actions are wrongful.
Thus, even if the servant has acted unlawfully or in contravention of certain legal provisions, the master is vicariously liable for the acts of the servant as long as those acts occurred within the course of employment. The focus is on the connection between the wrongful act and the employment, rather than the legality of the act itself.
Answer:- A Trial is the judicial process to determine the guilt or innocence of the accused. The CrPC, 1973 specifies procedures for conducting trials depending on the nature of the offense.
1. Types of Trials:
• Sessions Trial (Sections 225-237): For serious offenses punishable by death, life imprisonment, or imprisonment over 7 years. Conducted in a Sessions Court.
• Warrant Trial (Sections 238-250): For offenses punishable by more than two years of imprisonment. Can be based on a police report or private complaint.
• Summons Trial (Sections 251-259): For minor offenses punishable by up to two years of imprisonment. These are faster and simpler than warrant trials.
• Summary Trial (Sections 260-265): For petty offenses with punishments of less than six months.
2. Framing of Charges (Section 228): The court examines the case and frames formal charges against the accused. If no prima facie case exists, the accused may be discharged.
3. Examination of Evidence (Sections 273-283): The prosecution and defence present their evidence, and witnesses are examined. The court cross-examines the witnesses, and relevant documents are submitted.
4. Arguments and Judgment (Sections 314-335): After evidence is presented, both sides present their closing arguments. The judge then delivers the judgment, declaring the accused guilty or not guilty.
5. Sentencing and Appeals (Sections 353-374): If found guilty, the court pronounces a sentence. The convicted person has the right to appeal to a higher court.
Therefore, trial is the process of adjudicating the case in court, determining guilt or innocence, and passing judgment based on the evidence presented.
Answer:- The principle of contribution to mortgage debt is primarily covered under Section 82 of the Transfer of Property Act, 1882. The principle of contribution to mortgage debt refers to the legal obligation of co-owners or co-mortgagors to share the burden of repaying a mortgage debt proportionally. When multiple parties are jointly responsible for a mortgage, each party is expected to contribute towards the repayment of the debt according to their respective share in the mortgaged property.
Section 82 of the TPA, 1882, elaborates about the Contribution to Mortgage Debt: This section deals with the situation where two or more properties, whether belonging to the same person or different persons, are subject to a common charge, such as a mortgage. It states that if any of the mortgaged properties are sold or foreclosed to satisfy the mortgage debt, each property owner is liable to contribute toward the debt in proportion to their interest in the property. In cases where one property is sold or a co-owner pays more than their fair share of the debt, they have the right to seek contribution from the other property owners or co-mortgagors based on their respective shares.
Therefore, this principle is rooted in equity and is particularly important when the mortgaged property is sold or when one party seeks to redeem the mortgage. Under the Transfer of Property Act, 1882, the right to contribution ensures that each party is held liable for their proportional share, maintaining balance and fairness among all parties involved in the mortgage.
Answer:- Investigation refers to the process conducted by the police or investigating authorities to collect evidence and ascertain the facts of a crime. The Criminal Procedure Code (CrPC), 1973 outlines the procedures for investigation from the filing of an FIR to the filing of the charge sheet.
1. Filing of FIR (Section 154): The investigation begins with the registration of a First Information Report (FIR) in cognizable offenses, where police can arrest without a warrant.
2. Powers of Investigation (Section 156-157): Police officers have the power to investigate cognizable offenses without the permission of the magistrate. They collect evidence, examine witnesses, and visit the scene of the crime.
3. Examination of Witnesses (Section 161): Investigators record statements from witnesses and the accused, which are documented in writing and help build the case.
4. Search and Seizure (Section 165): If necessary, police can search premises or seize items relevant to the investigation, with or without a warrant under specific conditions.
5. Charge Sheet (Section 173): After the investigation, if sufficient evidence is gathered, the police submit a charge sheet to the magistrate, listing the charges against the accused. If no evidence is found, a closure report is filed.
6. Bail and Arrest (Section 41 and Section 167): During the investigation, the accused can be arrested, and depending on the circumstances, they may be released on bail. If an investigation cannot be completed within 24 hours, the police must present the accused before a magistrate for judicial custody.
Therefore, investigation involves gathering evidence and building a case.
Answer:- Judicial review stands as a cornerstone in upholding the principles enshrined in the Constitution of India. It serves as a mechanism to ensure the supremacy of the Constitution, maintain the delicate balance of power among the organs of the state, and safeguard fundamental rights of citizens. Judicial Review empowers the judiciary to review the constitutionality of legislative and executive actions. This ensures that laws and policies conform to the principles laid down in the Constitution. For instance, in Kesavananda Bharati vs. State of Kerala (1973), the Supreme Court asserted that the Parliament cannot alter the basic structure of the Constitution, thus affirming its supremacy. One of the primary functions of judicial review is to protect fundamental rights guaranteed by the Constitution. Through landmark judgments like Maneka Gandhi vs. Union of India (1978) and K.S. Puttaswamy vs. Union of India (2017), the judiciary has expanded the scope of fundamental rights, ensuring their enforcement against both state and non-state actors.
Judicial Review acts as a check on the powers of the executive and legislative branches, preventing them from overstepping their constitutional limits. Example- In Indira Gandhi vs. Raj Narain (1975), the Supreme Court declared the election of then Prime Minister Indira Gandhi as void on grounds of electoral malpractice, asserting the judiciary's role in upholding electoral integrity.
India's federal structure is preserved through judicial review, as the judiciary adjudicates disputes between the Union and State governments. Cases like State of Karnataka vs. Union of India (1977) have delineated the respective powers of the Centre and States, fostering cooperative federalism.
Judicial review acts as a deterrent against arbitrary actions by the government, promoting accountability and good governance. In Vishaka vs. State of Rajasthan (1997), the Supreme Court laid down guidelines to prevent sexual harassment at workplaces, compelling the government to enact laws for ensuring workplace safety.
By interpreting laws and ensuring their conformity with the Constitution, judicial review strengthens the rule of law. Notable instances include S. R. Bommai vs. Union of India (1994), where the Supreme Court upheld the principle of secularism and dismissed the imposition of President's rule in states for political reasons.
Therefore, it plays a pivotal role in upholding the principles of the Constitution, ensuring governmental accountability, protecting fundamental rights, and promoting good governance. As India's democratic framework evolves, the significance of judicial review remains indispensable in preserving the ideals of justice, liberty, equality, and fraternity enshrined in the Constitution.
Answer:- The rule of burden of proof refers to the obligation of a party in a legal proceeding to prove or disprove a fact or allegation. The Indian Evidence Act, 1872, particularly in Sections 101 to 114, outlines the principles governing the burden of proof.
According to Section 101, the burden of proof lies on the party that asserts a fact. In other words, the party who wants the court to give a judgment based on the existence of certain facts must prove those facts. For example, in a civil case, the plaintiff typically bears the burden of proving the claims in the suit, while in a criminal case, the prosecution must prove the guilt of the accused. The burden of proof may shift during the course of a trial. Once the party initially bearing the burden has established a prima facie case, the burden may shift to the other party to disprove or provide contrary evidence. For example, in criminal cases where the prosecution proves certain facts, the burden may shift to the accused to prove defences such as insanity or self-defence.
Under various sections of the Evidence Act, certain facts are presumed to be true unless proven otherwise. For instance, Section 113B creates a presumption of dowry death, and Section 113A creates a presumption of abetment of suicide. In such cases, the burden shifts to the accused to disprove the presumption. In certain legal provisions, such as those relating to certain offenses under the Prevention of Corruption Act or dowry-related offenses, the burden shifts to the accused to prove their innocence once specific facts have been established by the prosecution.
Section 106 of the Evidence Act shifts the burden of proof in cases where the facts are particularly within the knowledge of a specific party. If a fact is known only to one party (such as in cases involving an alibi), the burden of proof lies on that party to explain it.
When a fact has been admitted or is not in dispute between the parties, there is no burden of proof on either party to prove that fact, as admissions are taken as true.
Therefore, the rule of burden of proof is a fundamental principle that ensures fairness in legal proceedings. It assigns responsibility for proving facts to the party making the claim or allegation. While the burden typically lies on the plaintiff or prosecution, it can shift depending on the circumstances and statutory provisions. Additionally, certain presumptions and legal exceptions may alter the usual flow of the burden of proof.
Answer:- Yes, under Indian law, the birth of a child during a valid marriage is considered conclusive proof of legitimacy, with certain exceptions. This is governed by Section 112 of the Indian Evidence Act, 1872.
Section 112 of the Indian Evidence Act states that if a child is born during the continuance of a valid marriage or within 280 days after the dissolution of the marriage (provided the mother remains unmarried), it shall be regarded as legitimate. The only exception to this is if it can be conclusively proven that the husband and wife had no access to each other during the time of conception. In the absence of such proof, the child is presumed to be legitimate, and no other evidence is generally admissible to challenge this.
Presumption as to Abetment of Suicide by Married Women: This is covered under Section 113A of the Indian Evidence Act, 1872, which deals with the presumption of abetment in the case of suicide by a married woman. Section 113A provides that if a married woman commits suicide within seven years of her marriage, and there is evidence that she was subjected to cruelty by her husband or his relatives, the court may presume that her husband or his relatives abetted her suicide. This presumption is not mandatory, meaning the court has the discretion to decide whether abetment has taken place based on the circumstances. It allows the court to draw a conclusion based on cruelty, but the accused can present evidence to rebut this presumption.
Presumption as to Dowry Death: This presumption is addressed under Section 113B of the Indian Evidence Act, 1872. Section 113B states that if a woman dies within seven years of her marriage due to burns, bodily injury, or under suspicious circumstances, and it is shown that she was subjected to cruelty or harassment by her husband or his relatives in connection with demands for dowry, the court shall presume that the husband or his relatives caused her death. This presumption is stronger than the one in Section 113A, as it is mandatory. The burden of proof shifts to the accused to show that they were not responsible for the dowry death.
Hence, Legitimacy is presumed under Section 112 unless access is proven to be impossible. Abetment of suicide by a married woman is presumed under Section 113A if she commits suicide within seven years of marriage and cruelty is proven and Dowry death is presumed under Section 113B if a woman dies in suspicious circumstances within seven years of marriage and was subjected to cruelty related to dowry demands.
Answer:- An order is a formal direction or command issued by a court. It may be related to a procedural or substantive issue and can be passed at any stage of a legal proceeding. Orders can address matters such as granting an injunction, dismissing a case, or determining interim reliefs. An order is not limited to final decisions—it can be passed during the course of the legal process. It resolves issues that may or may not conclude the case, and it can also involve procedural matters.
An Order is defined in Section 2(14) of the Code of Civil Procedure (CPC), 1908. It refers to the formal expression of any decision made by a court that does not fall under the definition of a decree. It includes both interlocutory (temporary or intermediate) orders and final orders, which may decide procedural matters or individual issues in a suit.
1. Both Are Judicial Pronouncements: Both an order and a decree are legal rulings issued by a court as part of judicial proceedings.
2. Binding Nature: Both are binding on the parties involved in the legal proceedings. They must be followed or complied with as directed by the court.
3. Enforceability: Both decrees and orders can be enforced through legal mechanisms, such as execution proceedings or contempt proceedings, depending on the type of decision or directive.
Order (Section 2(14) of the CPC) | Decree (Section 2(2) of the CPC) |
---|---|
An order may or may not decide the entire suit. It could resolve an intermediate issue or provide interim reliefs, but it doesn't necessarily determine the final rights of the parties in the suit. | A decree is a formal expression of the final decision of a court on the rights of the parties concerning a suit. It definitively settles the issues raised by the parties. |
An order can deal with both procedural and substantive matters. It may resolve procedural issues, such as discovery, | A decree generally addresses the substantive rights of the parties involved in the case, such as ownership of property or breach of |
Answer:- A decree of foreclosure and sale, or simply a decree of foreclosure, is a court order stating that a borrower has failed to repay their mortgage and that their property will be sold to recover the outstanding debt. The decree specifies how much the borrower owes and officially begins the foreclosure process.
Order 34, Rule 2 lays out the process for a preliminary decree in a foreclosure case. After the plaintiff (the one suing) proves their case, the court calculates the amount the borrower owes. This amount includes:
• The mortgage debt,
• Legal costs,
• Any other related costs.
The court then issues a decree requiring the borrower to pay this amount by a specific date, usually within six months. If the borrower doesn’t pay, the plaintiff can request a final decree for the sale of the property.
Order 34, Rule 4(4) requires that anyone benefiting from the foreclosure sale must be a party to the lawsuit. It also ensures that the rights and responsibilities of everyone involved are clearly established, following standard court forms.
Order 34, Rule 3 explains the final decree. If the borrower pays the owed amount before the property is sold, the court will order the return of the property and mortgage documents to the borrower. If the payment is not made by the deadline, the court will issue a final decree to sell the property. Once the property is sold, the borrower loses the right to redeem (recover) it. If necessary, the court will also order that the plaintiff take possession of the property.
Therefore, a decree of foreclosure and sale is a legal process initiated when a borrower defaults on their mortgage payments. It involves a court determining the amount owed and giving the borrower an opportunity to repay. If the borrower fails to do so within the specified time, the court issues a final decree, leading to the sale of the property to recover the debt. The process ensures that both parties' rights are protected, while providing a clear path for either repayment or the transfer of ownership through sale.
Answer:- Section 258 IPC lays down that whoever sells or offers for sale any stamp which he knows or has reason to believe to be counterfeit of any stamp issued by the Government shall be liable for punishment. Section 258 is Sale of counterfeit Government Stamp:
“Whoever sells, or offers for sale, any stamp which he knows or has reason to believe to be a counterfeit of any stamp issued by Government for the purpose of revenue, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
The ingredients of Section 258 are as under:
i. The stamp in question was a counterfeit of a stamp issued by the Government and
ii. The accused sold or offered to sale stamp which he knew or had reason to believe it to be a counterfeit of stamp issued by the Government for the purposes of revenue.
The offence under section 258 IPC is cognizable, non-bailable, non-compoundable and triable by the Magistrate of the First Class.
In State v. Kunwar Pal Singh, (2010) the accused was searched out by police and found carrying 12 stamps papers of Rs.5000/- each and 10 stamp papers of Rs. 1000/- each were found. Accordingly, the court found him guilty of offence under section 258 IPC.
Answer:- The Supreme Court of India has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends.
This jurisdiction is contained in Article 131. Additionally, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.
Article 32 read as under Article 131. Original Jurisdiction of the Supreme Court- Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute-
(a) Between the Government of India and one or more States; or
(b) Between the Government of India and any State or States on one side and one or more other States on the other; or
(c) Between two or more States,
Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.
While considering the precise scope of Article 131 of the Constitution it was observed by the Seven Judge Bench of the Supreme Court in State of Rajasthan v. Union of India, (1977)3 SCC 592 that the true construction of Article 131 of the Constitution is that a dispute must arise between the Union of India and a State and that it cannot be which arises out of differences between the Government in office at the Centre and the Government in office in the State. It was also explained that the purpose of Article 131 is to provide a forum for resolution of disputes which must involve a question based on the existence or extent of a legal right and not a mere political issue. Article 131 speaks of a legal right. That legal right must be that of the State. The dispute about a legal right, its existence or extent, must be capable of agitation between the Government of India and the States. The character of the dispute within the scope of Article 131 that emerges is with regard to a legal right which the States may be able to claim against the Government. For example, the States as a party must affirm a legal right of its own which the Government of India has denied or is interested in denying giving rise to a cause of action.
For the purpose of deciding whether Article 131 is attracted the subject-matter of the dispute, therefore, assumes great importance. As is evident from the ratio laid down in the above decisions, every dispute which may arise between the States on the one hand and the Union of India on the other, in discharge of their respective executive powers cannot be construed as a dispute arising between the State and the Union of India attracting Article 131 of the Constitution. It is also clear that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the legal rights flowing therefrom.
Answer:- ‘Euthanasia’, or the practice of ending a person's life in order to alleviate suffering, has a complex history in India. The right to life is an important aspect of individual autonomy and self-determination, and is considered to be a fundamental human right. The right to life is a fundamental human right, central to individual autonomy and self-determination. While the Indian Constitution does not explicitly mention the right to die, the Indian Supreme Court has interpreted it to encompass the right to die with dignity as a fundamental right. Recognizing this right is crucial because it affirms individuals' ability to make personal decisions about their own bodies and lives, especially in the context of end-of-life situations. It also imposes a duty on the government and society to respect and protect these rights. Moreover, acknowledging the right to die with dignity addresses key concerns surrounding end-of-life care. It allows individuals facing terminal illness or permanent unconsciousness to make informed choices about their medical treatment, which can help reduce suffering and ensure the ethical and compassionate use of medical resources. Additionally, this right plays a vital role in challenging societal prejudices and discrimination against people with terminal illnesses and disabilities, promoting their dignity and respect. Inclusion of the right to die with dignity in the Indian Constitution is significant not only for affirming personal autonomy and self-determination but also for safeguarding individual rights and promoting ethical end-of-life care.
The question of whether the Right to Die is a fundamental right under Article 21 of the Constitution of India has been a topic of significant legal debate. Article 21 guarantees the Right to Life and Personal Liberty, stating that "No person shall be deprived of his life or personal liberty except according to procedure established by law." The interpretation of whether this right includes the right to die has evolved over time through various landmark judgments. The right to die is not explicitly mentioned in the Indian Constitution.
However, the Indian Supreme Court has recognized the right to die with dignity as a fundamental right, in the case of Common Cause v Union of India (2017).
The court ruled that individuals have the right to make a living will, which allows them to specify their end-of-life medical treatment in the event that they become terminally ill or permanently unconscious. Additionally, the court held that passive euthanasia (withdrawing life support) is legal under certain circumstances, such as when the patient is in a vegetative state with no hope of recovery. However, active euthanasia (administering a lethal injection) is still illegal in India. There have been several landmark cases in India that have dealt with the issue of the right to die and euthanasia. Some of the most notable cases include:
Gian Kaur v. State of Punjab (1996): This was one of the first major cases in India to consider the issue of euthanasia. The Indian Supreme Court ruled that the right to life does not include the right to die, and that euthanasia is not legally permissible in India.
Aruna Ramchandra Shanbaug v. Union of India (2011): This case involved a nurse who had been in a vegetative state for over 40 years. The Indian Supreme Court ruled that passive euthanasia, in the form of withholding or withdrawing life support, is permissible under certain circumstances.
While the right to die as an absolute right is not recognized under Article 21, the right to die with dignity has been recognized, particularly in the context of passive euthanasia. The Common Cause case (2018) marks a significant shift in the legal perspective, affirming that the right to life also encompasses the right to refuse medical treatment and to die with dignity under appropriate conditions. The Court in this case also laid down the procedure for a “Living Will” or an “Advance Directive” through which terminally ill people or those with deteriorating health can choose not to remain in a vegetative state with life support system if they go into a state when it will not be possible for them to express their wishes.
Answer:- This is a landmark case on the protection of identity of adult victims of rape and children who are victims of sexual abuse.
The primary concern in this instance was safeguarding the identities of adult rape victims and minors who have been sexually abused. The court was tasked with determining the appropriate method and approach for protecting the identities of these victims in order to prevent them from being subjected to harassment, social ostracization, and superfluous derision.
The judgement was partitioned into two sections. The first section concentrated on the protection of rape victims under the Indian Penal Code, 1860 (IPC), while the second section specifically addressed victims of offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO). The court recognised the societal maltreatment that victims of sexual abuse, particularly in rape cases, suffer, which is frequently characterised by public scrutiny, stigma, and discrimination. The court emphasised the importance of confidentiality and respect, specifically Section 228A of the IPC, which prohibits the disclosure of the identity of victims. It is crucial to note that the court decided that the identity of the victim cannot be disclosed without the assent of a competent authority, even if the victim's next of kin were to concur.
There is an exception to this rule where they are permissible solely in instances where the victim is deceased or incapacitated, and even then, stringent criteria must be satisfied..
The court determined that it is evident that no one is authorised to print or publish any material related to proceedings that are within the scope of this section under subsection (3) of Section 228A IPC. These proceedings must be conducted in secret, as stipulated in Section 327(2) of the Code of Criminal Procedure, 1973 (CrPC). Attendance is restricted to the presiding officer, court personnel, the accused, their counsel, the public prosecutor, and the victim or witness, provided that they wish to be present. It is the responsibility of all parties to prevent the public from being informed of any specifics of the court proceedings.
Furthermore, authorities were directed to guarantee the confidentiality of all records and disclosures, as well as the preservation of victim identities. Additionally, provisions were made to identify social welfare institutions, and States and Union Territories were encouraged to establish "one-stop centres" in each district within a year to further improve the support infrastructure for victims.
Answer:- Sedition was previously provided in section 124A of the Indian Penal, 1860 which was first introduced in the year 1870 by English jurist James Stephen. But after the introduction of the new Criminal Law i.e. Bharatiya Nyaya Sanhita (BNS), a new offence including “acts endangering the sovereignty, unity and integrity of India” under Section 152 has been added to the Act.
According to Section 152 of BNS, “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.”
Earlier, the offence of sedition was dealt under Section 124A of the Indian Penal Code. According to Section 124A, in order to attract the offence of Sedition the following elements must exists-
The punishment under Section 124A of the IPC ranges from imprisonment up to three years to a life term, to which a fine may be added.
Section 152 of BNS, places higher priority in safeguarding national interests and acknowledging the threats to sovereignty extend beyond dissent against ruling authorities. While Section 124A of the IPC, laid emphasis on protection of the government from disaffection. Both Section 152 of BNS and Section 124A of IPC, protects legitimate dissent expressed through lawful means.
Section 124 A of IPC was introduced by the British intending to punish any criticism against them whereas the new Bharatiya Nyaya Sanhita aims at serving justice and not suppression and punishment.
The minimum punishment under Section 152 of BNS is enhanced to seven years as opposed to three years under Section 124A. Further, the offence is no longer punishable with only fine as was the offence of sedition but with both fine and imprisonment.
Thus, it can be concluded that the new Sedition law under Section 152 of BNS creates a delicate balance by ensuring the protection of individual freedoms while tackling serious threats to the nation effectively. The scope of Section 152 BNS is wider as compared to Section 124A of IPC. Section 152 of the BNS will actually have a very draconian impact on the rights of the individual. It is drafted vaguely that would violate the fundamental rights of the citizens as it includes within its ambit acts endangering the sovereignty, unity and integrity of India and this in itself it very broad and has not been catered well in the new Act.
Answer:- The Anti-Defection Law, introduced in 1985 through the 52nd Amendment of the Indian Constitution, was created to prevent political instability caused by elected representatives changing parties, commonly known as "floor crossing" or "party hopping." The law aims to enforce party discipline by disqualifying members of Parliament or state legislatures who switch parties after being elected. While the law has had a notable impact, there are still debates about how fully it achieves its goals.
The law has been somewhat successful in reducing the widespread defections that were common in Indian politics before it was passed. By discouraging legislators from changing parties without facing disqualification, it has brought more stability to governments. This has been especially important at the state level, where coalition politics often leads to unstable governments. The certainty of punishment for defection has helped reduce the frequent collapse of such governments.
However, political instability has not been completely resolved. There are loopholes in the law that allow defections in certain situations, such as when part of a political party merges with another or when a party splits. These loopholes have been used to allow mass defections that technically comply with the law. Additionally, political parties sometimes get around the law by having members resign and run for re-election, further contributing to instability.
The law has helped enforce party discipline by making it mandatory for elected representatives to follow the party's decisions, especially in important votes like those on confidence motions or budgets. This has led to greater unity within parties.
However, this has also raised concerns about limiting the independence of individual legislators. Critics argue that the law reduces democratic debate and discussion by forcing lawmakers to strictly follow party directives, which limits their ability to represent the interests of their voters. In effect, the law gives party leaders significant control over their members, leaving little room for dissent or independent thinking within parties.
Despite its benefits, the Anti-Defection Law faces several challenges:
The Anti-Defection Law has played an important role in maintaining party discipline and reducing political instability caused by frequent defections, but it is not without its weaknesses. Loopholes and delays in enforcement have allowed some defections to happen despite the law’s intent. Moreover, the law’s impact on the independence of individual legislators raises concerns about its long-term effects on democracy. Reforming the law to address these loopholes and ensure faster, impartial enforcement could make it more effective in preventing political instability and encouraging responsible party behaviour.
Answer:- According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff.
In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.
Contributory negligence means that when the immediate cause of the damage is the negligence of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the defendant can use it as a defence. This is because the plaintiff in such a case is considered to be the author of his own wrong. It is based on the maxim volenti non fit iniuria which states that if someone willingly places themselves in a position which might result in harm, they are not entitled to claim for damages caused by such harm.
The plaintiff is not entitled to recover from the defendant if it is proved that-
The burden of proving contributory negligence rests on the defendant in the first instance and in the absence of such evidence; the plaintiff is not bound to prove its non-existence
In the case of Shelton vs. L & W Railway (1946), while the plaintiff was crossing a railway line, a servant of the railway company who was in charge of crossing shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear the warning and was consequently injured. The court held that this amounted to contributory negligence by him.
2) An Act of God
An Act of God is a direct, violent and sudden act of nature which by any amount of human foresight could have been foreseen and if foreseen could not by any amount of human care and skill have been resisted. Thus, such acts which are caused by the basic forces of nature come under this category. For example: storm, tempest, extraordinary high tide, extraordinary rainfall etc.
If the cause of injury or death of a person is due to the happening of a natural disaster, then the defendant will not be liable for the same provided that he proves the same in the court of law. This particular defence was talked in the case of Nichols v. Marsland (1876 in which the defendant had a series of artificial lakes on his land. There had been no negligence on the part of the defendant in the construction and maintenance of the artificial lakes. Due to unpredictable heavy rain, some of the reservoirs burst and swept away four country bridges.
It was held by the court that the defendant could not be said to be liable since the water escaped by the act of God.
An inevitable accident can also be called as a defence of negligence and refers to an accident that had no chance of being prevented by the exercise of ordinary care, caution, and skill. It means a physically unavoidable accident.
In the case of Brown v. Kendal (1850)the plaintiff’s and defendant dogs were fighting and their owners attempted to separate them. In an effort to do so, Defendant beat the dogs with a stick and accidentally injured the Plaintiff, severely injuring him in the eye. The Plaintiff brought suit against the Defendant for assault and battery. It was held that the injury of the plaintiff was as a result of an inevitable accident.
Answer:- Answer. The legal maxim "Nemo tenetur accusare se ipsum nisi coram deo" translates to "No man is bound to accuse himself except before God." This ancient principle has deep roots in legal traditions and continues to be relevant in modern jurisprudence. It forms the basis of the right against self-incrimination, which protects individuals from being compelled to testify or provide evidence that could incriminate them.
Many jurists and courts have applied and interpreted this maxim in various legal contexts over time. It underpins the idea that no one should be forced to provide testimony that could lead to their prosecution, safeguarding the principle of fairness in legal proceedings. The maxim aligns with the Fifth Amendment of the United States Constitution, which guarantees that no person "shall be compelled in any criminal case to be a witness against himself."
In contemporary times, this principle finds application in legal systems across the world, ensuring that confessions or admissions made under coercion or duress are not admissible. The maxim, by limiting self-incrimination to divine judgment ("coram deo"), implies that only in the face of God, and not before earthly powers, can a person be compelled to confess their wrongdoing. This doctrine is a foundational part of ensuring justice and protecting individual rights within legal frameworks.
Many courts have upheld this principle to ensure that the state bears the burden of proving guilt, preventing the accused from being unfairly pressured into providing evidence against themselves. The maxim plays a crucial role in protecting the dignity and autonomy of individuals in legal matters.
1. Miranda v. Arizona (1966)
Miranda was apprehended at his house and escorted to a police station, where the complaining witness identified him. He was then questioned for two hours by two police officers, culminating in a signed, written confession. The jury saw the oral and written admissions during the trial. Miranda was convicted of kidnapping and rape and sentenced to 20-30 years in jail on each charge. Miranda’s constitutional rights were not violated in getting the confession, according to the Supreme Court of Arizona on appeal.
“The maxim nemo tenetur se ipsum accusare arose from a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which had long prevailed in the continental system, and [were] not uncommon even in England until the Stuarts were expelled from the British throne in 1688, and additional barriers for the protection of the people against the exercise of arbitrary power were erected. While prisoner admissions or confessions have always ranked high on the scale of incriminating evidence when made voluntarily and freely, if an accused person is asked to explain his apparent connection to a crime under investigation, the ease with which the questions are asked may take on an inquisitorial tone.”
2. Selvi & Ors v. State of Karnataka & Anr (2010)
The legal question that appeared before the Supreme Court of India in this present case in a batch of criminal appeals related to the involuntary administration of certain scientific techniques, namely narco analysis, polygraph examination, and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases.
“The maxim nemo tenetur seipsum accusare arose from a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons that had long prevailed in the continental system, and were not uncommon even in England until the Stuarts were expelled from the British throne in 1688, and additional barriers were erected to protect the people against the exercise of arbitrary power.”
Answer:- The Rule against Perpetuity ensures that property cannot be transferred in a way that makes it inalienable for an indefinite period. This rule is designed to maintain the free circulation of property, which benefits both commerce and the property itself. It is rooted in public policy and equity, ensuring that a person with absolute rights in property also has the right to alienate it. The rule is provided under the Legislative enactment of the Transfer of Property Act, 1882 (TPA).
Section 14 of the Transfer of Property Act, 1882 (TPA) prohibits the creation of future interests in property beyond the lifetime of living individuals and the minority of an unborn beneficiary. The rule prevents property from being locked away indefinitely, limiting the duration for which its alienation can be postponed to the life of a person alive at the time of the transfer, plus the minority (age 18) of an unborn beneficiary.
In Soundara Rajan v. C.M. Natarajan (1925), the court clarified that the minority period in such transfers is capped at 18 years unless a court-appointed guardian delays the vesting. This aligns with the principle that the property must eventually vest and become alienable.
The Rule against Perpetuity balances property rights with societal interests by ensuring that property remains transferrable and does not become indefinitely restricted. By limiting the period of inalienability, the rule promotes active circulation of property, benefiting both economic activities and the efficient use of property.
Answer:- The Protection of Children from Sexual Offences (POCSO) Act is a legal framework enacted in India in 2012 with the primary aim of protecting children from sexual abuse, exploitation, and harassment. It was introduced in response to the growing concern about child sexual abuse in the country and the need for a dedicated law to address these issues.
The POCSO Act represents a significant step in the legal protection of children in India and reflects the government's commitment to addressing child sexual abuse and exploitation. It is a vital tool in the fight against such offenses and aims to ensure the safety and well-being of children.
The act defines various forms of sexual offenses against children, including but not limited to, sexual assault, sexual harassment, and using a child for pornography. It provides a comprehensive and child-specific framework for dealing with such offenses.
The features of POCSO Act, 2012 are:
Hence, this Act is gender-neutral which places the utmost importance on the best interests and welfare of the child throughout all stages to ensure the child's healthy physical, emotional, intellectual, and social development.
Answer:- The dissolution of marriage is a legal process by which a marriage is terminated and the parties are no longer bound to each other as husband and wife. Muslim law recognises several modes of dissolution of marriage, including divorce, annulment, and khula.
Under Muslim law, the husband holds the exclusive right to divorce, and he may exercise this right without providing any justification, simply by expressing his intent to end the marriage through specific words. A Muslim wife, on the other hand, can only divorce her husband if the right to do so is delegated to her by her husband or through mutual consent, such as in cases of Khula or Mubarat.
Before 1939, a Muslim woman had limited grounds for divorce, primarily restricted to accusations of adultery, the husband’s insanity, or his impotence. Divorce in Muslim law can be categorized as follows:
Divorce by the Husband:
Talaq: Talaq traditionally signifies repudiation or rejection, but in Muslim law, it refers to the dissolution of a marriage, either immediately or eventually. It is a general term for all types of divorce, particularly when initiated by the husband.
Under Shia law, talaq must be pronounced orally, without the need for specific words, but it must be declared in the presence of two witnesses. According to Sunni law, any adult and sane man is capable of pronouncing talaq.
Talaq can further be divided in the following ways:
Answer:- Section 13 of Negotiable Instrument Act, 1881 defines the term "Negotiable Instrument" which refers to a legal term that encompasses promissory notes, bills of exchange, or cheques that are payable either to order or to bearer. An instrument is considered payable to order when it is expressly made payable to a specific person or when it is expressed to be payable to a particular person. The presence of such an order indicates that the instrument is transferable to others. Importantly, it should not contain words prohibiting transfer or indicating an intention that it shall not be transferable.
An instrument is regarded as payable to bearer when it is expressly made payable to the bearer or when the only or last endorsement on it is an endorsement in blank. In such cases, the instrument can be transferred simply by delivery, and the holder is not required to be a specific named person.
Even if a promissory note, bill of exchange, or cheque is originally expressed to be payable to the order of a specified person but is not restricted to only that person or their order, it is still considered payable to the specified person or their order at their discretion. This flexibility in the instrument's use allows for its negotiability.
The section also allows for the making of a negotiable instrument payable to two or more payees jointly or in the alternative to one of two or to one or some of several payees. This provision provides flexibility in the payment arrangements.
A key feature of negotiable instruments is their transferability. These instruments can circulate in the market, changing hands through endorsements or delivery, and the holder has the right to demand payment from the parties involved.
Answer:- The registration of a partnership is at the discretion of the partners. The Partnership Act does not demand registration as a mandatory process. However it is advisable to do so and a firm can be registered at any time during the subsistence of partnership. According to Section 58 of Partnership Act, 1932 any partner of the firm can apply to the Registrar of the area where the business is located or will be located. The application should include the firm's name, business location, and duration of the partnership, names and addresses of all partners along with their date of joining the firm. This application must be signed and verified by all partners and submitted with the required fee and a copy of the partnership deed.
Once the Registrar confirms that all requirements of Section 58 are met, they will record the firm's details in the Register of Firms and file the application.
In India, registering a partnership firm is not mandatory, and no penalty is imposed for non- registration. However, under Section 69 of the Indian Partnership Act, not registering a firm can lead to certain limitations or disabilities. In contrast, under English law, it is compulsory to register a partnership, and penalties are imposed for non-registration.
Effects of Non-Registration (Section 69)
The non-registration of a firm has some real-life legal consequences for the partners and the firm itself. So it is always advisable to draw up a written partnership deed and register the firm with the Registrar of Firms.
Answer:- Holder in Due Course is defined under Section 9 of the Negotiable instrument Act, 1881. A "holder in due course" refers to any person who, for consideration, becomes the possessor of a promissory note, bill of exchange, or cheque. This individual must meet specific criteria outlined in the section.
The definition applies to various types of negotiable instruments, including:
The characteristics of a holder in due course can vary slightly based on the type of instrument.
To qualify as a holder in due course, the instrument should be either payable to bearer or payable to order. If it's payable to bearer, the holder becomes a holder in due course by merely possessing it. If it's payable to order, the holder must either be the payee or an indorsee (a person whose name appears on the back of the instrument).
A holder in due course must acquire the instrument for consideration before the amount mentioned in it becomes payable. This means that the holder must possess the instrument before the payment is due as specified in the instrument.
To qualify as a holder in due course, the person must acquire the instrument without having sufficient cause to believe that any defect existed in the title of the person from whom they derived their title. In simpler terms, the holder must obtain the instrument in good faith, without knowledge of any legal issues or problems related to the instrument's title.
The holder must provide some form of consideration in exchange for the instrument. Consideration can be in the form of money, goods, services, or any other valuable item. It signifies that the holder has a legitimate interest in the instrument.
Being a holder in due course comes with certain legal advantages, such as having a higher degree of protection when enforcing the rights associated with the instrument. A holder in due course is not subject to certain defences that may be raised against a holder who is not in due course.
Answer:- The Bharatiya Nyaya Sanhita (BNS), 2023, replace the Indian Penal Code (IPC), 1860, which was made during the British era, with a more current criminal justice system.
"Justice for all" is one of its major ideas. This is a concept that tries to balance people's rights with the state's larger goals of keeping the peace.
Therefore, Bharatiya Nyaya Sanhita, 2023, tries to find a fine line between protecting people's rights and giving the government the power to enforce laws for everyone's benefit. As India's needs change, it meets them while supporting the rule of law by focussing on fairness for all. When there is a conflict between people's rights and the government's interests, the BNS handles it carefully by making sure that punishments are fair, increasing protections for the process, and dealing with current crime issues.
Answer:- According to Section 5 of the Negotiable Instruments Act, 1881, a “bill of exchange” is an instrument in writing containing an unconditional order, sign by the maker, directing a certain person to pay a certain sum of money only to, or to the order or a certain person or to the bearer of the instrument.”
Basis | Cheque | Bill of exchange |
---|---|---|
On whom the instrument must be drawn? | It must be drawn only on a banker. | It can be drawn on any person including a banker. |
Acceptance | Acceptance is not needed | A bill payable after sight must be accepted. |
Payable on | The amount is always payable on demand. | The amount may be payable on demand or after a specified period. |
Crossing | A cheque may be crossed. | Crossing of a bill of exchange is not possible. |
Days of grace | Cheques are not entitled to days of grace. | Bills are entitled to three days of grace. |
Notice of dishonour | No notice of dishonour is required. | Notice of dishonour is needed to hold the parties liable thereon. |
Noting or protesting | In case of dishonour no noting or protesting is to be done. | To establish dishonour a bill is to be noted or protested. |
Answer:- The Indian Contract Act, 1872, distinguishes between void contracts and voidable contracts, both of which have important implications in legal agreements.
Legal Enforceability:
Effect on Parties:
Causes:
Timeframe for Action:
Examples:
Hence, void and voidable contracts differ fundamentally in their enforceability and the options available to the parties involved. Void contracts are invalid from the outset, providing no legal remedies, while voidable contracts offer flexibility for one party to either enforce or void the contract based on specific circumstances like fraud or coercion. Understanding this distinction is important in ensuring legal clarity in agreements.
Answer:- The Limitation Act of 1963 is a significant law in India that establishes time limits within which legal actions must be initiated. Its main objective is to ensure that claims are filed within a reasonable period, preventing the unfairness associated with outdated claims and ensuring that evidence stays fresh and credible. In essence, the term "limitation' refers to a restriction or a set of rules that imposes specific time constraints
The Limitation Act came into effect on 1st January 1964 and applies to the entire country of India. It consists of 5 parts and 32 sections, and contains 137 Articles that outline the time limits within which civil cases must be filed. The purpose of the Limitation Act is to ensure that legal actions are taken without unnecessary delays, encouraging parties to seek remedies promptly.
The principle behind the Limitation Act is "It Bars Remedy, But Does Not Extinguish Right," meaning that while the Act sets a deadline for taking legal action, it does not take away the underlying right. This idea is supported by the legal maxim “vigilantibus non dormientibus jura subveniunt,” which means "the law helps those who are alert to their rights, not those who neglect them."
The goal of the Limitation Act is to bring an end to disputes in the interest of the state, as captured by the phrase “interest republicae ut sit finis lituim.” According to Section 2(j) of the Act, the "period of limitation" refers to the time limit set for filing a suit, appeal, or application, as mentioned in the Schedule of the Act. The "prescribed period" refers to the time calculated according to the rules laid out in the Act.
Objective & Aim of Limitation Act 1963
The Limitation Act of 1963 aims to ensure timely and efficient justice by setting strict deadlines for bringing legal claims. Its main goal is to prevent old claims from being revived and to encourage individuals to address their grievances promptly. By establishing clear time limits for filing suits, appeals, and applications, the Act promotes legal certainty and stability, protecting defendants interests and ensuring that evidence remains fresh and reliable.
The Act also recognizes that delays in filing claims can harm the integrity of legal proceedings and cause hardship to involved parties. It includes provisions for extending limitation periods in certain cases, such as fraud or disability, balancing the need for finality with fairness. Overall, the Act is designed to streamline judicial processes, reduce case backlogs, and improve the efficiency of the legal system.
In State of West Bengal vs. The Administrator, Howrah Municipal Corporation (1972) it was held that whether the limitation period for suits against public authorities could be extended. The Supreme Court held that the limitation period for suits against public authorities, as specified under the Limitation Act, is applicable and cannot be extended arbitrarily. This decision underscored the importance of adhering to prescribed time limits for filing suits against government bodies.
In N. Balakrishnan vs M.Krishnamurthy (1998) it was held that the case involved the interpretation of the condonation of delay under the Limitation Act. The Supreme Court held that delay in filling a petition can be condoned if the applicant shows a reasonable explanation for the delay. This case is significant as it emphasizes the need for courts to consider the reasons for delay sympathetically to ensure that justice is not denied on procedural grounds alone.
Answer:- A contract can be discharged by agreement when both parties mutually consent to terminate or modify their contractual obligations. The Indian Contract Act, 1872, outlines several ways in which a contract can be discharged by agreement between the parties:
Novation (Section 62) allows the substitution of a new contract or party in place of the original one, creating a fresh agreement that respects both parties evolving needs.
Rescission (Section 64) gives the freedom for both sides to mutually end the contract, recognizing that circumstances change and release from obligations can sometimes serve both parties better.
Waiver (Section 65) introduces the idea of one party voluntarily giving up certain rights, acknowledging that not all rights need to be enforced rigidly if a fair compromise is reached.
Alteration (Section 66) permits the modification of contract terms, allowing for adjustments without changing the fundamental character of the agreement, which helps in accommodating changing situations while maintaining the essence of the contract.
Accord and satisfaction (Section 63) provides a path where both sides agree on a different performance for the original obligation, such as settling a debt with a lesser payment, promoting practical solutions in financial matters.
Above all there is one central principle remains same i.e. consideration.
As per Section 2, both parties must give up something valuable in return, ensuring that fairness and balance are maintained.
These provisions of the Indian Contract Act, 1872 are designed not just for the sake of legal technicalities but to foster mutual respect, flexibility, and fairness in contractual relationships. Ultimately, these methods ensure that contracts evolve with the needs of the parties involved while maintaining their core values of mutual agreement and good faith
Answer:- There is a special place in the Indian Constitution for the Preamble because it encompasses the fundamental concepts and ideals that the people who drafted the Constitution had in mind for the country. It is essential in interpreting constitutional provisions and comprehending the philosophy that underpins legislation, despite the fact that it is not legally enforceable.
The Preamble's Significance in Context:
In the Preamble, the ideas of justice, liberty, equality, and fraternity are outlined. This is called the philosophical foundation. The aspirations of the people are reflected in it, and it serves as the spiritual foundation upon which the Constitution is built. When attempting to interpret constitutional clauses that are obscure, the Supreme Court of India has often referred to the Preamble as a guiding light for interpretation.
The Supreme Court of India concluded in the case of Kesavananda Bharati v. State of Kerala (1973) that the Preamble is an integral element of the Constitution and contributes to an understanding of its fundamental framework.
The case of Justice K.S. Puttaswamy v. Union of India (2017)
The right to privacy was included into the more general idea of liberty, as was mentioned in the Preamble, in this important case. The idea that the principles of dignity and individual freedom, which are outlined in the Preamble, are fundamental to democracy was reaffirmed by the Supreme Court. The Supreme Court of the United States, in the case of Sabarimala (2018), used the Preamble to uphold equality and non-discrimination as fundamental values. As a result, the court allowed women to enter the temple and emphasized that religious freedom cannot take precedence over constitutional morality.
In recent years, the idea of constitutional morality has gained support, and judges have been turning to the Preamble in order to defend ideals like as equality, justice, and liberty. As a result, every statute or executive action that is in conflict with these fundamental principles has been removed from the books.
India's legal system is still being shaped by the Preamble to this day. It has developed into a dynamic instrument to safeguard constitutional principles, guaranteeing that justice, liberty, equality, and fraternity are not only words but rather lived realities, as a result of contemporary interpretations of the document. This guarantees that the Constitution continues to be a living document, coping with changes in society while maintaining its fundamental principles.
Answer:- Section- 7 of the Transfer of Property Act specifically provides for the persons who are competent to transfer. A person who is legally competent to propose a transfer only can transfer a property.
Meaning of Transfer of Property
Section 5 of the Transfer of Property Act, 1882 defines the term transfer of property. According to this section, transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and other living persons.
Persons competent to transfer the subject of persons competent to transfer is dealt with under section 7-
“S.7. Every person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part and either; absolutely or conditionally, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force.”
Persons competent to Contract as per Contract Act Section 11 of the Indian Contract Act, 1872 defines persons who are competent to enter into contracts. It provides "Every person is competent to contract who if of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject."
There are a few exceptions to this general rule:
In conclusion, while the general rule is that persons competent to contract are also competent to transfer property, there are specific exceptions and nuances to consider.
Answer:- The passing of property in the case of specific goods under a contract of sale is governed primarily by the Sale of Goods Act, 1930 in India. This Act lays down various rules that determine when the property (ownership) in specific goods is transferred from the seller to the buyer.
Specific goods are defined in Section 2(14) of the Sale of Goods Act as goods that are identified and agreed upon at the time a contract of sale is made. This includes specific items or identifiable goods that are distinct from generic or unascertained goods.
The following rules govern the passing of property in specific goods:
Rule 1: Property Passes at the Time of the Contract
Rule 2: Transfer of Property in Certain Situations
Rule 3: Condition Precedent
Rule 4: Agreement to Sell
Rule 5: Delivery and Possession
Rule 6: Risk and Ownership
Rule 7: Unpaid Seller's Rights
Therefore, the rules regulating the passing of property in specific goods under the Sale of Goods Act, 1930, highlights the importance of the intention of the parties, the conditions set forth in the contract, and the physical delivery of goods. Understanding these rules is essential for both buyers and sellers to navigate the complexities of property transfer in the sale of specific goods effectively.
Answer:- The concepts of equitable interest and legal interest are important in property law.
Legal interest is a formal ownership right recognized by law, while equitable interest is a right based on fairness and justice. Legal interests are enforceable in a court of law, while equitable interests are enforceable in a court of equity. Legal interests provide definitive rights, while equitable interests may have limitations. Legal interests can be transferred through formal legal instruments, while equitable interests can be transferred through assignments or informal agreements. Legal interests are strongly protected by law, while equitable interests are protected through equitable doctrines. An example of a legal interest is ownership of property transferred via a deed of sale. An example of an equitable interest is a beneficiary's right in a trust property.
Aspect | Legal Interest | Equitable Interest |
---|---|---|
Definition | Recognized by law, enforceable in court | Based on principles of fairness, recognized in equity |
Nature of Rights | Definitive rights (possession, use, transfer) | Rights based on obligations or benefits |
Transferability | Transferred through formal legal instruments | Can be transferred through informal agreements |
Protection and Enforcement | Strongly protected by law; enforceable in court | Protected through equitable doctrines; enforceable in equity |
Hence, the Transfer of Property Act, 1882 distinguishes between legal and equitable interests in property. Legal interests are formal ownership rights recognized by law, while equitable interests are rights based on fairness and justice. Understanding these concepts is crucial for anyone involved in property transactions.
Answer:- Absolute liability means that someone is responsible for the harm they cause, even if they didn't mean to do it or try to be careless. This is especially true when they're doing something that's dangerous by nature, like working with chemicals or explosives.
According to Section 2 (2) of the Code of Civil Procedure, 1908, Decree means-
The rationale behind absolute liability is to ensure that those who engage in hazardous activities bear the cost of any harm caused. This principle is based on the idea that when an enterprise profits from a dangerous activity, it should also assume the risk of liability for any accidents that may occur. Additionally, absolute liability can serve as a deterrent to hazardous activities and encourage enterprises to adopt safer practices.
Key Features of Absolute Liability
Rylands vs. Fletcher (1868): Although this case originally established the principle of strict liability, it laid the groundwork for the development of absolute liability in later cases.
The concept of absolute liability emerged in India in the landmark case of M.C. Mehta v. Union of India, also known as the Oleum gas leak case. In this case, the Supreme Court of India deviated from the traditional strict liability principle, which allowed for certain defences, and established the doctrine of absolute liability. The court reasoned that when an enterprise engages in a hazardous activity for commercial gain, it should be held absolutely liable for any harm caused, regardless of whether it had taken reasonable care to prevent it.
Absolute liability ensures that those who engage in potentially dangerous activities bear the full responsibility for any resulting harm, promoting greater caution and accountability. Absolute liability serves as a crucial mechanism in tort law to protect individuals and communities from the risks associated with inherently dangerous activities. By imposing liability without fault, it ensures that those who engage in such activities are held accountable for any harm that arises, thereby promoting safety and precaution in potentially hazardous undertakings.
Answer:- Decree is judicial determination of rights of parties regarding the matter in controversy involved in a suit. The final determination made by the judge need to conclusively determine the rights of the parties irrespective of the effect such decree has on a suit.
According to Section 2 (2) of the Code of Civil Procedure, 1908, Decree means-
"The formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final.
The following are the essentials of a decree-
Answer:- It is an act which causes reasonable apprehension in the mind of the plaintiff of genuine fear of immediate physical harm or offensive contact.
The term "assault" does not necessarily involve physical contact, but rather focuses on the mental or psychological harm caused by the fear of an impending physical attack.
To establish a claim for the tort of assault, the following elements must generally be proven:
For Example, Person A and Person B are at a crowded party. Person A, with the intent to cause fear or apprehension in Person B, raises their hand and threatens to strike Person B in the face. Person B, reasonably believing that they are about to be physically harmed, experiences fear and distress as a result of Person A's actions. Person A's intentional act of raising their hand and threatening to strike Person B constitutes an assault. Even though there was no actual physical contact, Person B reasonably believed that they were about to be physically harmed based on Person A's conduct. As a result, Person B may have a valid claim for the tort of assault against Person A.
In Stephens v. Myers, The plaintiff was the chairman of a parish meeting. The defendant also sat on the same table and there were six or seven people seated between the plaintiff and defendant. During the meeting some angry discussion took place and the defendant became very vociferous, a motion was made and carried by a large majority that he should be turned out. Upon this, the defendant said he would rather pull the chairman out of the chair, than be turned out of the room, and immediately advanced with his fist clenched towards him; he was thereupon stopped by the churchwarden. The defendant was held liable for the tort of assault.
Answer:- Void marriage in Muslim Law - Due to the following reasons the marriage (Nikah) are deemed void (Batil)
But under Sunni law one can marry -
Certain kinds of marriages in Muslim law are called irregular (Fasid) though their validity is not affected. Irregular marriages exist only in case of Sunni Muslims whereas an irregular marriage, under Shia law, is void marriage. The following marriages are considered as irregular -
Answer:- The literal meaning of Res Ipsa Loquitor is ‘things speak for itself’
It is a legal doctrine often used in negligence cases to establish a presumption of negligence based on the circumstances of an event. In essence, it allows a plaintiff to rely on circumstantial evidence to demonstrate that negligence occurred without necessarily having direct proof of the defendant's actions.
Generally, the burden of proving negligence is upon the plaintiff. But there are certain cases in which the existing circumstances are pointing towards the negligence by the defendant. In such cases the court presumes that the defendant was negligent.
The general rule is that it is for the plaintiff to prove that the defendant was negligent. Initial burden of making a prima facie case against defendant is on plaintiff, but once this onus is discharged, it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff. Direct evidence of the negligence, however, is not necessary and the same may be inferred from the circumstances of the case. Though, as a general rule, the plaintiff has to discharge the burden of proving negligence on the part of the defendant, there are, however, certain cases when the plaintiff need not prove that and the inference of negligence is drawn from the facts. There is a presumption of negligence according to the Latin maxim 'res ipsa loquitur' which means the thing speaks for itself. In such a case it is sufficient for the plaintiff to prove accident and nothing more. The defendant can, however, avoid his liability by disapproving negligence on his part. Certain things regarding this maxim has to be kept in mind, these include:
If a brick falls from a building and injures a passer-by on the highway, or the goods while in the possession of a bailee are lost, or a stone is found in a bun, or a bus going on a road overturns, or death of a person is caused by live broken electric wire in a street, a presumption of negligence is raised.
In Agyakaur v. Pepsu R.T.C., a rickshaw going on the correct side was hit by a bus coming on the wrong side of the road. Held, that the driver of bus was negligent.
In Municipal Corpn.Delhi v. Subhagwati, due to the collapse of the Clock Tower situated opposite to Town Hall in the main bazar of Chandni Chowk, Delhi, a number of persons died. The Clock Tower belonged to the Municipal Corporation of Delhi. The Supreme Court explained the legal position as: "There is a special obligation on the owner of the adjoining premises for the safety of the structures which he keeps beside the highway. If these structures fall into disrepair so as to be of potential danger to the passer by or to be a nuisance, the owner is liable to anyone using the highway that is injured by reason of the disrepair. In such a case, the owner is legally responsible irrespective of whether the danger is caused by patent or latent (hidden) defect."
Answer:- -In essence, it is provided that Mortgagor’s right of redemption would not be defeated by any agreement to the contrary even though Mortgagor has himself agreed to it. The Maxim simply means that a transaction which at one time is a Mortgage could not cease to be so by having any stipulation in the mortgage deed calculated to prevent the right of redemption.
The underlying principle of this maxim was stated by Lord Henleyin the case of Veron vs. Bethell that “This court as a conscience is very jealous of persons taking securities for a loan and converting such securities into purchases and therefore I take it to be an established rule, that a mortgagee can never provide at the time of making the loan for any event or condition on which the equity of redemption shall be discharged and the conveyance made absolute and there is a great reason and justice in this rule for necessitous men or not will submit to any terms that the crafty may impose upon them.”
Thus, the well-known rule that agreement of the parties overrides the law does not apply to Indian law of right to redemption as in Section 60 of Transfer of Property Act does not contain such words “In the absence of any contract to the contrary” which means that right of redemption cannot be taken away by contract to the contrary entered into by parties to the Mortgage.
Answer:- The rule of best evidence means that it is the duty of the parties to give the best possible evidences in the case. Also it is the duty of the court to extract the best possible evidence from the parties when the court is not satisfies with the evidences given by the parties.
This is one of the rule of best evidence that when any contract has been entered into in writing then the contents of such document has to be proved by documentary evidence only and oral evidence of it cannot be given. The maxim of law is “whatever is recorded as a hard copy must be demonstrated in the form of hard copy only”
As per section 59 of the Indian Evidence Act it has been stated that oral evidence can be given for proving any fact except the contents of the document. For proving the term of the document only documentary evidence can be given.
The manifestation of this rule of best evidence can be clearly seen in section 91 and 92.
As per section 91 of the Act when the terms of the contract, grant or other disposition are reduced into writing then to prove the terms of such document only documentary evidence can be given and oral evidence shall not be admissible.
Also there may be a certain contract grants or other disposition which are reduced into writing or not but they are required by law to be reduced into writing then to prove such transaction only documentary evidence can be given. These are those transaction for which it is mandatory under law that they must be in writing for example rent agreement for more than 11 months, lease deed for an year or more, sale deed for a value above 100 rupees etc. So for proving the terms of these contracts only the documentary evidence can be given and oral evidence shall not be admissible.
Also section 92 of the act is an extension of the rule of best evidence which is given under section 91 of the act.
As per section 92 when the terms of any contract, grant or other disposition has been reduced into writing or are required by law to be in writing then for modifying, altering, adding or subtracting any such term of any such transaction only documentary evidence can be given and oral evidence shall not be admissible.
But in section 92 only six exceptional situations have been given in which it shall be allowed to give the oral evidence of the transactions.
Hence oral evidence cannot be given to prove the contents of the transactions which are duly documented and in such cases oral evidence shall not be admissible.
Answer:- There is divergence of opinion with regard to the nature of Muslim marriage. Some jurists are of the opinion that Muslim marriage is purely a civil contract while others say that it is a religious sacrament in nature. In order to better appreciate the nature of Muslim marriage it would be proper to consider it in its different notions.
Muslim marriage, by some text writers and jurists, is treated as a mere civil contract and not a sacrament. This observation seems to be based on the fact that marriage, under Muslim law, has similar characteristics as a contract. For example-
The analogy of marriag contract with contract of sale as pointed out by Justice Mahmood in the leading case of Abdul Kadir v. Salima (1886) emphasised the contractual aspect of Muslim marriage.
Justice Mahmood observed that- “Marriage among Mohammedans is not a sacrament, but purely a civil contract; and though it is solemnized generally with the recitation of certain verses from the Quran, yet the Mohammedan law does not positively prescribe any service peculiar to the occasion. That it is a civil contract is manifest from the various ways and circumstances in and under which marriages are contracted or presumed to have been contracted. And though a civil contract, it is not positively prescribed to be reduced to writing, but the validity and operation of the whole are made to depend upon the declaration or proposal of the one, and the acceptance or consent of the other contracting parties, or of their natural and legal guardian before competent and sufficient witnesses; As also upon the restrictions imposed, and certain of the conditions required to be aided by according to the peculiarity of the case.”
From the above observation Justice Mahmood could not be held to have taken the view that Muslim marriage is nothing but purely a civil contract.
Answer:- Law of Torts is based on English Common Law. It is basically the product of judicial decisions. The word "tort" is derived from the latin term "tortum" which means to twist. Generally, it includes a conduct which is not straight or lawful. Tort belongs to the branch of civil wrongs. The nature of civil wrong is different from the criminal wrongs.
Contract Law is concerned with the rights and obligations arising from agreements between parties. The contract implies any agreement which can be legally enforceable. In contract law, the damages are confined to the losses which the parties incur as a direct consequence of the breach of contract.
The following are the difference between Law of Tort and Contract:-
Basis | Tort | Contract |
---|---|---|
1. Fixation of duty | Duty is fixed by law | Duty is fixed by the parties |
2. Attribution of duty | Duty is generally attributed towards public | Duty is attributed towards parties of contract |
3. Violation of Right | Violation of Right in rem | Violation of Right in personam |
4. Need of Privity | No need of Privity | Privity between parties to be proved |
5. Motive | Often taken into consideration | Not relevant |
6. Damages | Unliquidated Damages | Liquidated Damages |
7. Intention | Sometimes relevant | Not relevant |
8. Law | Made by Judges | Codified law |
Answer:- The doctrine of ‘Legitimate Expectation’ is one amongst several tools incorporated by the Court to review administrative Action. The doctrine pertains to the relationship between an individual and a public authority so, according to this doctrine; the public authority can be made accountable in lieu of a ‘legitimate expectation’.
The Doctrine of Legitimate Expectation was firstly discussed in the Indian arena in the case of State of Kerala v. K. G. Madhavan Pillai (1988). Herein a sanction was issued for the respondent to open a new aided school and to upgrade the existing schools; however, an order was issued 15 days later to keep the previous sanction in abeyance. The order was challenged by the respondents in lieu of violation of principles of natural justice. The Supreme Court rules that the sanction had entitled the respondents with legitimate expectation and the second order violated principles of natural justice.
In another Supreme Court Case, Navjyoti Co-op. Group Housing Society v. Union of India, the principles of procedural fairness were applied. In that case the seniority as per existing list of co-operative housing societies for allotment was altered by a subsequent decision. The previous policy was that the seniority amongst housing societies in regard to allotment of land was to be based on the date of registration of the society with the Registrar. But on 20-1-1990 the policy was changed by reckoning seniority as based upon date of approval of the final list by the Registrar. This altered the existing seniority of societies for allotment of land. The Court held that the societies were entitled to a ‘legitimate expectation’ that the past consistent practice in the matter of allotment will be followed even if there was no right in private law for such allotment. The authority was not entitled to defeat the legitimate expectation of the societies as per previous seniority list without some overriding reason of public policy to justify the change.
The doctrine has undoubtedly gained significance in the Indian Courts, giving locus standi to a person who may or may not have a direct legal right. The doctrine of legitimate expectations very well leads to a procedural right i.e. right to judicial review in India but the substantive aspect of the doctrine can be said to be in a budding stage.
Answer:- Indian Judiciary has adopted a very strict approach towards plea bargaining. A crime is essentially a wrong against the society and the State. Therefore, any compromise between the accused person and the individual victim of the crime, or for that matter the State, should not absolve the accused from criminal liability. However, despite this strict approach the concept of plea bargaining is beneficial for the Indian Legal System for the obvious advantage of handling the massive criminal loads, which has afflicted the legal system for so long. In the present system, people spend a much longer time period in the judicial lock-up than the sentence they would have to serve in the event of a speedy trial. The right to speedy trial is not expressly guaranteed in the Constitution. Speedy trial is the essence of criminal justice and delay in trial by itself constitutes denial of justice. Keeping all these factors in consideration the concept of plea bargaining was given statutory recognition by Criminal Procedure (Amendment) Act, 2005.
Sections 265A to 265L of Chapter XXIA of the Code of Criminal Procedure deal with the cases in which plea bargaining is to be applied and various guidelines to be followed in such cases.
First of all it is important to note Section 265J which gives precedence to the provisions of this Chapter notwithstanding anything inconsistent therewith contained in the Code and nothing is to constrain the meaning of any provision of this Chapter.
Section 265A lays down the cases in which plea bargaining is applicable. The provisions under this chapter apply to an accused against whom:
However, this does not apply to offenders accused of offences that affect socio-economic condition of the country, or women or children below the age of fourteen years. The offence that affects the socio-economic conditions of the country shall be determined and notified by the Government.
Application Procedure for Plea Bargaining:
Section 265B enables a person accused of the applicable offences to file petition praying for plea bargaining in the court in which the offences are pending for trial. The petition should contain a description of the case including the offences. It shall be accompanied by an affidavit sworn by the petitioner stating that he has understood the nature and extent of the punishment prescribed for the offence.
Section 265C lays down the guidelines for mutually satisfactory disposition which includes
Section 265D requires that on completion of the process under Section 265C, a report shall be prepared and signed by the Presiding Officer and others who participated in the meeting. If no agreement is reached the Court after recording such fact proceed further in accordance with the provisions of this Code from the stage the application for plea bargaining was filed.
Section 265E states that when the agreement is reached and the disposition signed, the court shall dispose of the case.
According to Section 265F, the court shall deliver its deliver its judgment and Section 265G makes such judgment final and except by way of special leave petitions under Article 136 and writ petition under Articles 226 and 227 of the Constitution, there shall be no appeal.
Further, Section 265-I makes the period of detention undergone by the accused to be set-off against the sentence of imprisonment.
In State Of Gujarat vs. Natwar Harchandji Thakor, (2005), the Supreme Court in this case upheld the constitutional validity of plea bargaining. It emphasised on the value of plea bargaining and that each plea of guilt is a part of criminal process, such plea when made should be assessed on case to case basis rather than factually. The court stated that the entire purpose of the law is to give an easy, inexpensive, and quick justice by resolving conflicts, taking into account the dynamic character of law and society.
Answer:- Direct Evidence is acknowledged as the most important evidence required for deciding the matter in issue. Direct evidence directly proves a fact or disapproves of the fact by its virtue. In the case of direct evidence, a particular fact is accepted directly without giving any reason to relate to the fact.
Hearsay evidence is typically understood as a statement made by a person not called as a witness, which is offered in court to prove the truth of the matter asserted in that statement. It is that evidence which comes not from the knowledge of the persons who depose it but through some other person. Section-60 discards hearsay evidence.
The following the differences between Direct and Hearsay Evidence-
Direct Evidence | Hearsay Evidence |
---|---|
Direct evidence is that which the witness is giving on basis of his own perception. | Hearsay evidence is that which has been derived by other person. |
Direct evidence is the best oral evidence of the fact to be proved. | Hearsay evidence is secondary one and it is admitted in exceptional cases. |
The liability of veracity of direct evidence is on person who is giving its evidence. | In case of hearsay evidence the person giving evidence doesn’t take the responsibility of its validity. |
Person giving direct evidence is available for cross examination for testing its veracity. | Person giving hearsay evidence is not author of original evidence. It is derived from original author. |
The source of direct evidence is the person who is present in court and giving evidence. | In case of hearsay evidence the person giving hearsay evidence is not original source of evidence given by him. |
Answer:- Expression " Falsus In Uno Falsus in Omnibus" means false in one particular, false in all or false in one thing false in all. This well-known maxim has not received general acceptance in different jurisdiction in India nor has this come to occupy the status of Rule of law. It is merely a Rule of caution.
In Chandru v. State of U.P. 1990, it was held that "It is misconception that a witness has to be believed in toto or disbelieved in toto which in fact a Rule of English law not accepted by the courts in India. Doctrine of `Falsus in uno falsus in omnibus' is not applicable in this country for the simple reason that in good majority of criminal cases there is admixture of untruth in the statement of witnesse. In such cases the court is bound to indulge in the exercise of minutely examining the evidence of separating the chaff from the grain; once it accepts the essential part of prosecution story.
In Mahendran vs. State of Tamil Nadu (2019), it was held that the entire testimony of the witnesses cannot be discarded only because, in certain aspects, part of the statement has not been believed. The general principle of appreciation of evidence is that even if some part of the evidence of witness is found to be false, the entire testimony of the witness cannot be discarded, the Court said. The Court further added that, "The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution.”
In Gangadhar Behera vs. State of Orissa (2002), it was observed: "Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'."
Answer:-
In summary, "fact-in-issue" refers to the specific facts that are directly contested in a case and are essential for resolving the dispute, while "relevant facts" are those that, though not directly contested, are connected to the facts-in-issue and assist in proving or disproving them by providing necessary contextual or inferential support.
Answer:- Mitakshara is one of the essential schools of Hindu law. It is derived from the commentary of the Smriti written by Yajnvalkya. Except for West Bengal and Assam, Mitakshara School is applicable to the whole part of India. Dayabhaga School is primarily recognized in Assam and West Bengal. It is one of the essential schools of Hindu laws. It is considered to be a summary for the leading smritis.
Distinction between Mitakshara and Dayabhaga School
Mitakshara School | Dayabhaga School |
---|---|
Right to property arises by birth hence the son and after the Hindu Succession (Amendment) Act, 2005 daughters of a coparcener also, is a co-owner in the ancestral property with his or her father. | In Dayabhaga School, on the death of the last owner the right to property comes into existence. There is no right in ancestral property during the father’s lifetime. |
Father has restricted power of alienation. | Father has absolute right of alienation |
Son is entitled to claim partition even against his father. | Son is not entitled to claim partition or even maintenance. |
Members of joint family cannot dispose of their shares while undivided. | Members of joint family can dispose of their property in any manner even while undivided. |
The principle of inheritance is consanguinity. | The principle of inheritance is spiritual efficacy. |
Cognates come after agnates. | Some cognates, likes sister’s sons are preferred to many agnates. |
Doctrine of factum valet (a fact cannot be altered by hundred texts) is recognised to a very limited extent. | Doctrine of factum valet is fully recognized. |
Answer:- Article 143 of the Constitution of India explains about the conditions in which the President of India can seek the advisory opinion of the Supreme Court. There are two conditions under which the President may take advisory opinion of the Apex Court are-
Under Article 143(2), it is mandatory for the Supreme Court to give its opinion to the matter referred to it even if the Supreme Court has no jurisdiction on the subject matter referred to it and even it is excluded under the proviso of article 131.
In a landmark case in Re Education bill it was held that the Supreme Court has discretion to give advisory opinion and for good reason and in proper case it can refuse to give its opinion. The court also held that it is the President only who will decide that what question should be referred to the court and if the President has no doubts regarding the provisions then no other third party who have doubt can seek opinion under Art.143.
In Cauvery Tribunal Dispute, 1992, President made a reference to the Supreme Court of India, where the Supreme Court was of the view that the Ordinance passed by the Karnataka Government was in violation of the Constitution because the decision given by the Tribunal was protected under Article 262 of the Constitution of India.
In Re Sea Customs Act, the validity of the Sea Customs Bill was taken into consideration with reference to Article 288 of the Constitution. The advisory jurisdiction of Supreme Court was exercised in this case.
Thus, the advisory jurisdiction of the Supreme Court under Article 143 empowers the President to make references to Supreme Court on any matters but it cannot be considered as the jurisdiction of Supreme Court. The advisory jurisdiction of the Supreme Court is not binding on the President and the references made are also not law and not even binding on the lower courts.
Answer:- Section 8 of the Arbitration and Conciliation Act, 1996 provides:-
So Section 8 says that when a matter is pending before a Court, which is subject to an arbitration agreement, Court shall, upon application by parties to dispute, duly accompanied by original or certified copy of arbitration agreement, refer the parties to arbitration, however, such application is required to be made before submitting first statement upon substance of dispute in court. However, Sub-section (3) of Section 8 clarifies that it would not matter if such an application has been made and the issue is pending before the judicial authority, the parties may commence arbitration proceedings or continue them and an arbitral award may be made therein. This provision lefts the restrictions of lingering the matter in Court by any deceitful tactic and put off arbitration proceedings till then. So even if the judicial authority is seized of the matter, the arbitration proceedings may commence and continue and an arbitral award may be made.
Under the Arbitration Act, 1940, there were four circumstances where the matter could be referred to the Arbitration, however, in the present Act, there is no provision where the party can apply to the Court for reference to the arbitration in respect of matter which is covered in the arbitration agreement. The Court can only refer the matter to the arbitration when the matter is pending before it.
Section 8 of the new Act intends that if there is an arbitration agreement between the parties, let them go for arbitration. Thus, Section 8 covers that at first instance the Court should not determine the validity of an arbitration agreement and should encourage arbitration. Although under Section 8(1) the Court cannot adopt on its own motion to avail this provision, the parties have to apply with request, however while considering such request, the Court cannot go into the merits of the dispute.
In the case of Gujarat Composite Limited vs. A Infrastructure Limited & Ors . (2024) SC, The Apex Court dismissed an application to refer to arbitration. The bench observed that the reliefs claimed in the suit fell outside the arbitration clause contained in the agreement executed between the parties. The court reckoned that the issue raised in the civil suit involved multiple transactions, involving different contracting parties and different agreements, all of which, except for one, did not contain an arbitration clause.
While noting that the reliefs claimed in the suit involved subsequent purchasers of the suit property, which were not signatories to the arbitration agreement, the court held that the case did not involve any “doubt” about the non-existence of arbitration agreement in relation to the dispute in question.
In the case of Sharad Gupta & Ors Vs Shri Vinayak Infraland Pvt. Ltd. & Ors. (2024) Del.HC, the Court in its judgment authored by Justice Jasmeet Singh held, that under the Arbitration and Conciliation Act, 1996 there is no provision for splitting of parties and referring part of the subject matter to arbitration. It held that where a suit encompasses matters outside the arbitration agreement and involves parties not party to the said agreement, Section 8 of the Arbitration and Conciliation Act, 1996 does not apply.
Section 8 of the Arbitration and Conciliation Act, of 1996 deals with the "Power to refer parties to arbitration where there is an arbitration agreement." According to this section, a judicial authority before whom an action is brought in a matter which is the subject of an arbitration agreement shall if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
Answer:- The term ‘Admission’ as defined under Section 17 of the Indian Evidence Act, means- “A statement whether oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons.” Thus, admission can be generally understood as- a statement of fact which waves or dispenses with the production of evidence by conceding that the fact asserted by the opponent is true.
On the other hand, the term ‘Confession’ has no where been defined in the Evidence Act. It generally means a statement made by a person charged with a crime suggesting an inference as to any facts in issue or as to relevant facts. Section 24 of the Indian Evidence Act identifies certain confessions as irrelevant. These include confessions obtained as a result of inducement, threat or promise, particularly when made to a person in authority
Though both ‘Confession’ and ‘Admission’ acknowledge the existence of a fact in issue, yet there are fundamental differences between the two. Admissions and confessions in Evidence Act play significant roles in the legal landscape, particularly in civil and criminal cases. While both admissions and confessions in Evidence Act involve relevant statements, they have distinct characteristics and implication as follows-
Answer:- If several properties belonging to several persons are mortgaged to secure a debt due to taking of a loan, the law says that each property should contribute towards the debt in proportion to its value. This is called the doctrine of contribution.
A, B and C having common share in a property mortgages it to X for securing loan of Rs 50 lakhs. Here, mortgaged property belongs to 2 or more persons having different shares each of such shares is liable to contribute to the death according to his respective share. This is doctrine of contribution.
Thus, contribution means providing money for a common, under Section 82 of TPA and Section 43 of Indian Contract Act. This is rule based on the principles of Equity, good conscience, justice.
If there is any conflict between marshalling and contribution then marshalling supersedes contribution. In marshalling the subsequent mortgage revive that prior mortgage shall recover his debt out of the property not mortgaged to him, on the other hand, contribution require a property equally liable to pay the debt shall not escape because the creditors has paid out of that other property alone. [Fakir Chand vs. Aziz Ahmad 1939]
Answer:- Section-141 defines “Leading questions”. It lays down that if a question suggests an answer which the person putting the question wishes to receive it is a leading question. A question is leading one when it indicates to the witness the real or supposed fact which the examiner expects and desires to be confirmed by the answer. Whether a question is leading is to be determined by the circumstances in which the question arises. Is the plaintiff your brother? Do you reside at Mumbai? Etc. are examples of leading question.
Section-142 lies down that leading questions should not be put in examination-in-chief or Re- examination if they are objected to. There is an exception to this rule leading questions may be put in examination-in-chief or re- examination by the order of the court in following matters:
Besides these exceptions under Section- 154, a Court can also allow a party examining his own witness to put leading questions by way of cross-examination.
Section-143 lays down that leading questions may be put in cross- examination. But no misleading question should be asked in cross-examination. The question must relate to matter in fact only.
Example- Suppose, the case of a wife against her husband is that he misbehaves and beats her but the husband denies the allegation. In court the cross-examiner cannot put a question “May I ask if you have left abusing and beating your wife?” Such questions are misleading. Company Ltd. vs. R. (1905).]
Thus, the very purpose of a cross-examining is to test the accuracy, creditability and general reliability of the witness. That is why leading questions are permitted in it.
In Sri L.P. vs. Inspector General of Police, 1954 it was held that if the court makes a general order that no leading questions would be allowed in cross-examination, such an order is illegal and vitiates the trial.
Answer:- Essential elements of Custom-
There are four essential ingredients which are required for formation of customary rule:
(i) Evidence of a General Practice accepted as law.- Long duration is an essential element of a custom in Municipal Law. But this is not sufficient for an international custom. Article 38 of the I.C.J. directs the world court to apply international custom as evidence of a general practice accepted as law.
(ii) Uniformity and consistency- The custom should also be uniform and consistent.
(iii) Generality of Practice – For a valid international custom it is necessary that it should be proved by satisfactory evidence that the custom is of a such nature that it has received general consent of the States and no civilized state shall oppose it. [West Rand Central Gold Mining Company Ltd. vs. R. (1905).]
(iv) Opinion juris necessitates. - As pointed out by the International Court of Justice in North Sea Continental Shelf cases, (I.C.J) Rep. 1969, p. 3), ".......... customary practice, even when it is general and consistent, is not customary law unless an opinion juris is present, that is to say, States must recognize the custom as binding upon them as law.
Importance of custom as a source of International Law. - There has been a marked decline in the importance of customs as a source of International law in the modern times. This is mainly due to the fact that the process of development of a new custom is very slow. However, in modern time also the development of new custom is possible and at times customs have developed with accelerated speed. Principle relating to sovereignty over air space and continental shelf are its glaring examples. But in view of the accelerated speed of the changes in International Community, custom has become an inadequate means for bringing about the desired changes and development of international law.
Thus, though the custom has been relegated to second place in importance, it still occupies an important position as a source of law.
Answer:- ‘A’ contracts sale of land to ‘B’ the contract is in writing, stamped, attested but not registered by ‘A’. ‘B’ has paid the half prize or is willing to perform his part of contract and on the basis of that he takes possession of land. Now, ‘A’ sells land to ‘C’ through a registered deed. So, ‘C’ having title wants to reject ‘B’ from possession. Since ‘B’ has no legal title, law may not protect his possession, but equity shall help him from being dispossessed based on the maxim- “Equity looks on that as done which ought to have been done”. This is known as Doctrine of Part performance incorporated in Section- 53A of Transfer of Property Act.
Elements of Doctrine of Part Performance
The English equity of Part performance is well illustrated in Maddison v. Alderson, 1883 Lord- Selvourne explained it as “In a suit founded on such part performance the defendant is really charged upon the equities resulting from the acts done in execution of contract and not upon the contract itself. If such equities were excluded, injustice of a kind which the statue cannot be thought to have had in contemplation would follow”
Answer:- Money Bill –
Procedure to pass Money Bill
Answer:- Yes, the party committing bigamy will be guilty under Section-17 because under Section-10 marriage still subsist after getting decree of Judicial Separation. Section 13 1A (i) provides that after the lapses of statutory period of one year from the decree, if the parties are still not willing to continue as husband and wife, either party can seek divorce. Object of Section-10 of Hindu Marriage Act is to preserve marriage bond, as the parties may regret action taken in haste or anger during the period of 1 year. Thus, Judicial Separation either leads to reconciliation or to divorce. It is thus viewed as a lesser evil than a divorce.
After 1976 amendment grounds for both judicial separation and divorce are same courts have now discretionary power to grant Judicial Separation instead of divorce in a petition for divorce founded on the same grounds, even though no such prayer made in the petition. But under Section- 13A of Hindu Marriage Act if a divorce petition is filed on the ground of conversion, renunciation of world or presumption of death, court has no power to pass decree of judicial separation in place of divorce decree.
Answer:- When the condition necessary for the applicability of this section is fulfilled the result is that, transferee is bound by the decision of the court.
For example- In a suit between A & B in a disputed house of B transfers house to C during pendency of suit. If judgment came in favor of B then C would be entitled to the house. If judgment passed against B, C cannot be allowed to take the plea that he had no notice of pending litigation. So, C & B will get nothing.
Thus, it may be noted that under this principle of lis pendens, a person who purchase during pendency of suit, is also bound by the decree made against that party from whom he has purchased.
In Madhukar Nivrutti Jagtap and others v. Smt. Pamilabai Supreme Court observed that the effect of doctrine of Lis Pendens is not to a null all the transfers affected by party to suit but only to render them subsequent to the right of the parties under the decree or order which may be made in that suit.
Thus, the doctrine of Lis Pendens is a legal safeguard to prevent parties from disposing of property in a manner that might undermine the outcome of a pending lawsuit. It is designed to maintain the status quo of the property until the legal dispute is resolved, thereby ensuring fairness and protecting the rights of all parties involved in the litigation.
Answer:- According to Section 10 of the Indian Contract Act, 1872, agreements are considered a valid contract if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. This Section lays down the essentials of a valid contract. Thus, consideration is an integral part of the contract.
“An agreement without consideration is void” except-
Thus, it is clear that an agreement without consideration is void except in the conditions mentioned above. There is also a general rule “No consideration no contract” which is clearly expressed from the above summary.
Answer:- The Evolution of Capital Punishment Jurisprudence in India: The application of capital punishment in India has been a subject of intense legal and moral debate, with the Supreme Court playing a pivotal role in shaping its jurisprudence. Central to this jurisprudence is the 'rarest of rare' doctrine, which has become the cornerstone for determining when the death penalty should be imposed. The development involves the following cases:
In Jagmohan Singh v. State of Uttar Pradesh (1973) the foundation of India's capital punishment jurisprudence was laid in Jagmohan Singh v. State of Uttar Pradesh (1973). In this case, Jagmohan Singh was sentenced to death for murder, and the Supreme Court was tasked with determining whether the death penalty was constitutionally valid. The Court upheld the constitutionality of the death penalty, stating that the right to life under Article 21 of the Indian Constitution is not absolute and can be deprived through a procedure established by law. The judgment emphasized that the sentencing judge must consider the facts and circumstances of each case to ensure that the punishment is proportionate to the crime.
In Bachan Singh v. State of Punjab (1980) the turning point in the jurisprudence of capital punishment in India came with the landmark case of Bachan Singh v. State of Punjab (1980). Bachan Singh, convicted of multiple murders, challenged the constitutionality of the death penalty under Article 21. The Supreme Court, while upholding the death penalt's constitutionality, introduced the 'rarest of rare' doctrine, a significant departure from earlier cases. The Court ruled that the death penalty should only be imposed in cases where the alternative punishment of life imprisonment is 'unquestionably foreclosed.' This doctrine required courts to balance aggravating and mitigating factors meticulously, ensuring that the death penalty was reserved for the most heinous and egregious crimes.
In The Machhi Singh v. State of Punjab (1983) case further clarified the application of the 'rarest of rare' doctrine. The Supreme Court provided detailed guidelines on what constitutes such cases, emphasizing factors like the manner of commission of the murder, the motive behind the crime, the magnitude of the offense, and the personality of the victim.
In Shatrughan Chauhan v. Union of India (2014), the Supreme Court dealt with the issue of delays in executing death sentences and the mental agony caused to death row convicts. The Court commuted the death sentences of several convicts to life imprisonment due to inordinate delays in the execution process, setting a precedent that prolonged delays could be grounds for commuting the sentence. This case highlighted the importance of human dignity and the rights of convicts in the administration of capital punishment.
In The Mukesh & Anr. v. State for NCT of Delhi & Ors. (2020) case, famously known as the Nirbhaya case, involved the brutal gang rape and murder of a young woman in Delhi. The Supreme Court upheld the death sentences of the convicts, citing the case as a 'rarest of rare' instance.
The evolution of capital punishment jurisprudence in India reflects a careful balancing act between the need for justice and the principles of fairness, human dignity, and the right to life. The Supreme Court has consistently emphasized the importance of considering both aggravating and mitigating factors, ensuring that the death penalty is imposed only in the most exceptional cases. The 'rarest of rare' doctrine, established in Bachan Singh and refined in subsequent cases, remains the guiding principle for determining when the death penalty should be applied, safeguarding against its arbitrary and capricious use.
Answer:- ‘A’ mortgages property X, Y and Z to ‘B’ for securing a loan of Rs. 50 lakhs later on, ‘A’ mortgages property Z to ‘C’ for securing another loan of Rs. 10 lakh. Here, ‘B’ is termed as prior mortgagee. So, right given to ‘C’ under section 81 of TPA is Rs. 10 lakh which should be satisfied out of sale proceeds of property X and y only and not from Z which has been mortgaged to ‘B’.
However, in case X and Y could be sold for less than Rs. 10 lakhs. Property Z may be sold to complete the amount. In this manner, although ‘C’ is a subsequent mortgagee and his claim is not prior to that of ‘B’ but he has right of marshalling or arranging the securities in his favour as for as possible. According to the right given to the subsequent mortgagee under this section is called Right of marshalling securities.
In Barness v. Rector, W mortgaged two of his properties A and B to X. W then mortgaged property A to Y and property B to Z. Here, the court held that X’s mortgages will be apportioned proportionately between properties A and B and the surplus of A will go to Y and surplus of B will go to Z.
The right under this section provides simply a convince to a subsequent mortgagee but he is not allowed to avail his benefit at the cost in which any other person interested in transaction.
Limitations on the right of Marshalling-
Aldrich v. Cooper, 1803 Lord Eldon under this case foundation of equitable doctrine of marshalling is laid down. The principle stated in this case is “It shall not depend on the will of one creditor to disappoint another. It must be exercised when the mortgagee seeks to realise his security.
Answer:- Furiosi Nulla Voluntas Est, i.e. no culpability can be fastened upon insane persons as they have no free will. The insanity of a person is to be proved in the court. For easing the procedure, the courts have time and again devolved certain tests to arrive at a certain conclusions, for example- Arnold’s, Bowlers test, etc. Mc Naughten’s test is the most successful test in this area.
However, it is only the legal insanity that the court takes into account. Medical insanity barely plays a role in deciding the guilt of the accused. Mere unsoundness of mind does not bring a case within the exception of Section 84. If a fact of a particular case show that the accused knew that he had done something wrong, it did not matter how, though he might be insane from the medical point of view, he could not be exonerated under Section-84.
Legal insanity recognizes only the impairment of the cognitive faculities of the mind at the time of doing the act, i.e. the impairment of rationality, logic, decision-making in the mind of the offender.
Medical insanity holds no ground of defence but legal insanity holds a good ground of defence from criminal liability. Whether a person is previously medically insane, cannot be pleaded as a defence if it is proved that at the time of crime, he was able to apprehend the consequences of his act or that the act done by him was either wrong or contrary to law.
In Queen Empress v. Kader shah it was held that where the accused was suffering from some mental illness after the destruction of his house. He killed the son of his friend kept in his company. In this case, the court clearly brought out the differences between legal insanity and medical insanity and held that the courts are not concerned with ‘’emotions’ and ‘will’ but only the impairment of cognitive faculities to ascertain the guilt of the accused.
The Apex Court in the case of Surendra Mishra vs. State of Jharkhand (AIR 2011 SC 627), have clarified the nuisances surrounding legal insanity. The court emphasises that every person suffering from a mental disease is not automatically exempted from criminal liability. The accused bears the responsibility of proving legal insanity and the onus can be discharged by demonstrating their conduct with reference to their medical condition.
Answer:- Consideration is essential for a valid contract. It is the price for a promise – A Quid Pro Quo. It is the value received as incentive for the promise. A contract without consideration is not binding on the parties.
Pollock took consideration as “the price for which the promise of the other is brought, and the promise thus given for value is enforceable.”
Blackstone defined consideration as “the recompense given by the party contracting to the other.”
Section 2(d) of the Indian Contract Act, 1872 defines consideration- “When at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstained from doing, or promises to do or abstain from doing something, such act or abstinence or promise is called a Consideration for the promise”
The consideration of a contract may be an act or abstinence that has already been done at the desire of the promisor, is in progress or is promised to be done in the future. On this basis, consideration can be categorised as past, present, or future.
Essential features of a valid consideration in accordance with Section-2(d)-
In Durga Prsad v. Baldeo it was held that a shop was constructed at the desire of the collector and not at the desire of defendant. So, the action of plaintiff to recover the commission was not accepted.
Thus, consideration plays a very vital role under contract law by assisting us in distinguishing a contract from a mere promise. Consideration is an important element to fulfil the entire requirements of a legitimate contract. The failure of consideration would cause the cancellation of the whole agreement. But the statutory exceptions also cannot be ignored.
Answer:- The condition is void under section 10 T.P.A because ‘C’ may be chosen as a person who may never purchase the property. The restrain on alienation is absolute if it totally takes away or curtails the right of disposal.
Condition Precedent is that condition which is prior to the transfer of property and whether the transfer would take place or not is itself dependent on that condition.
Condition Subsequent is a condition which is required to be fulfilled after the transfer of property has already taken place.
Section 10 states that if the person receiving the property is entirely prohibited from transferring it to someone else due to a condition set at the time of the transfer, that condition becomes void. However, the original transfer from the giver to the receiver remains valid.
In Mohd. Raza v. Abbas Bandi Bibi AIR 1932 condition restraining the transferee from transferring the property to strangers i.e. outside the family of the transferor, the Privy Council held that the condition was mainly a partial restraint which was valid and transferable.
Answer:- Here, in above case- ‘A’ entered the house of ‘B’ for committing theft but during the ‘A’ was committing theft ‘B’ and other members of the family has seen ‘A’ and they attacked ‘A’ with lathis because they know that if they will leave him he can provide harm to their body and property both. So, they started beating him with lathis then ‘A’ being finding his life in danger taken out his revolver fired on ‘B’ causing his death. Although the act done by ‘A’ was done in the right of his private defence but then also he will be liable for punishment because he has exceeded his limit using revolver.
As, it was provided in Section- 300 Exception- 2 culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of person against whom he is exercising such right of defence without any intention of doing more harm than is necessary for the purpose of such defence.
So, in this case ‘A’ is not guilty of murder under Section- 302 but he can be made liable for culpable homicide. Therefore, ‘A’ can be punished under Section- 304 of IPC which provides for the punishment of imprisonment for life, or imprisonment which may extend to 10 tears and also be liable for fine.
Answer:- Article 14 of the Indian Constitution is a cornerstone of the fundamental right to equality. It states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 14 does not imply absolute equality but rather ensures that all individuals are treated equally before the law and receive equal protection of the laws. Article 14 explicitly prohibits "class legislation." Class Legislation means making of improper discrimination by conferring certain privileges upon a class of persons arbitrarily selected from a huge number of people but, Article 14 does not forbid classification. The principle of equality does not mean that every law must have universal application to all persons who are not by nature, attainment or circumstances in the same position. Article 14 permits Reasonable classification.
1. Intelligible Differentia:
2. Rational Nexus to the Object:
3. Not Arbitrary:
4. Consistency with the Objective:
Answer:- All Juristic person are not necessarily living persons. An idol is a juristic person capable of holding property but it is not a living person within the meaning of section- 5 of T.P.A.
In Pamatha Nath Mullick v. Pradyuman Kumar Mullick, 1925 it was observed that “A Hindu idol is, according to long, established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a ‘juristic entity’.
Though one cannot transfer property to himself but he can transfer property to himself in some other capacity. Where a person makes any settlement of its property in a trust and appoints himself as a sole trustee.
Here, transferor and transferee are physically the same but a transferor; he has the legal status of settlor whereas as transferee has legal status is that of a trustee.
Answer:- Court issue summon for the appearance of any person in the court if that person’s appearance cannot be compelled in the court by his own. But in some cases court can also issue warrant in lieu of summons in Chapter- VI under Section- 87.
According to Section- A court may, in any case, empowered by this code, to issue a summons for the appearance of any person, issue a warrant for his arrest after recording its reason in writing-
In Indira Devi v. Sarnagat Singh it has been held that if reasons are not recorded for the issue of warrant in lieu of summons then it will be unlawful.
Answer:- The concept of Strict Liability in torts is also referred as “No-Fault Liability”, which means “that liability would exist irrespective of any fault”. This principle was first applied by House of Lords in the case of Ryland v. Fletcher, 1868.
In this case Justice Blackburn laid down that “The person who for his own purpose brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and if he does not do so is prima facie answerable for all the damage which is the natural consequences for its escape. He cannot escape himself by showing that the escape was owing to the plaintiff’s fault, consequences or his major acts or act of God.” Thus, the court held that building such a reservoir was at the risk of defendants and in course of it, if any mishap occurred, defendants would be liable for such escape of materials.
Essentials of Strict Liability-
Exceptions to the Strict Liability-
The principle of strict liability in torts is often criticized because of the existing exceptions which eventually help the defendant to doze off the liability. In the case of Strict Liability, there are some exceptions where the defendant wouldn’t be made liable.
Answer:- A retracted confession is a statement made by an accused person before the trial begins, by which he admits to have committed the offence, but when he repudiates at the trial. Retracted confession can be used against the person making it if it is supported by independent and corroborative evidence. Sections 24, 25, 26 and part of Section 27 of the Indian Evidence Act, 1872 deals with irrelevant confession. It is unsafe to base the conviction on a retracted confession, unless it is corroborated by trustworthy evidence.
Evidentiary value of retracted confession-
In Subramania Goundan V.State of Madras it was held that the accused was tired for murder. He made a confession giving full details as was not taken into account. However, his confession was supported by other pieces of evidence.
A confession is the most indispensable part of evidence against a person. However, once it is retracted, whether it takes the person days or months to do so, a doubt is created as to its authencity. The law laid down by the courts in relation to retracted confessions has formed a test to judge its validity. Elements such as fear, threat, punishment that are involved in such a criminal case make it very difficult to completely prove that a statement was made voluntarily, and freely. Therefore, the researcher believes that retracted confessions should be given very less evidentiary value.
Answer:- Nuisance is derived from the Latin term ‘Nocere’ means ‘to harm’ from French word ‘Nuire’ and in English it is ‘Nuisance’. Nuisance is anything which annoys hurts or that which is offensive and is there for a continuous period of time.
Salmond defines it as- The wrong of nuisance consists in causing or allowing without lawful justification the escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff. Example- Water, Smoke, Gas, Fumes, Noise, Heat etc.
Pollock defines it as- Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property, or in some cases, in the exercise of a common right.
Stephen defines it as- Anything done to hurt or annoyance of the lands, tenements of another and not amounting to a trespass.
There are 2 types of Nuisance-
In Dr. Ram Raj Singh v. Babulal (1928) it was held that if special and particular injury is there then private nuisance is there and damages are awarded.
Essentials of Private Nuisance-
Defenses for Nuisance-
There are 3 kinds of remedies available in case of nuisance, these are-
Answer:- To restrict a person’s liberty is ultra vires to the Constitution of India and the same has also been made punishable under the Indian Penal Code.
Section- 340 of the Indian Penal Code, 1860 defines ‘Wrongful confinement’ as- Whosoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said to ‘wrongfully to confine’ that person.
The following are the essential ingredients of the section:
Illustration- A causes B to go within a walled space, and locks B. B is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines B.
Section 342 of the Indian Penal Code states that whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both the classification of this offence is that it is cognizable, Bailable and triable by any Magistrate. Further, it is Compoundable by the person confined with the permission of the court.
The following are the key difference between Admission and Confession-
Types of Wrongful Confinement-
Wrongful Confinement is a circle, therefore it includes all forms of restraints that take place within a defined area, like being prohibited from leaving a room, park, building, house etc. Thus, it involves all sorts of restraints that happen in circumscribed limits.
Answer:- The term ‘Admission’ is defined under section-17 and the term ‘Confession’ has no where been defined in the Indian Evidence Act.
Admission has been defined as a voluntary statement by the accused regarding the existence or truth related to facts in issue. The statements may be oral, written, or contained in electronic form and have to prove an inference relating to a fact in issue or relevant fact.
A confession can be described as a statement from the accused person acknowledging his or her guilt with respect to the crime that has been allege.
Though both ‘confession’ and ‘admission’ acknowledge the existence of a fact in issue, yet there are fundamental differences between the two.
The following are the key difference between Admission and Confession-
ADMISSION | CONFESSION |
---|---|
Every admission does not result in confession. | Every confession is an admission. |
It includes every statement whether it runs in favour of or against the party making it. | It is an admission of guilt in reference to a crime, therefore, invariably runs against the interest of accused. It should necessarily be of inculpatory nature. |
An admission made to any person is relevant be it a policeman, person in authority or whether it was the result of inducement, promise, etc. | Confession to a policeman or in police custody is irrelevant. It’s relevant only when made to a Magistrate. It must be free and voluntary. |
Admission is a statement oral or written, which gives inferences about the liability of the person making it. | It is a statement, written or oral which is the direct admission of the guilt. |
The statement of certain persons who are not even party to the case can be taken in admission. (Section 18, 19, 20). | It always proceeds from the accused or the suspected persons. |
They are generally used in civil proceedings, yet they may also be used in criminal proceeding. | It finds place in criminal proceedings only. |
Answer:- Right of a mesne mortgagee i.e. summed up in well-known maxim- redeem up, foreclosure down where ‘A’ transfers his property Y to ‘B’ for securing a loan amount of Rs 10 lakh also. ‘A’ mortgages his property Y to ‘C’ for Rs 5 lakhs further ‘A’ mortgages his property Y to D for Rs 3 lakhs.
‘C’ is entitled to redeem ‘B’ (prior mortgagee), ‘D’ is entitled to redeem C and B (prior mortgagees). This is known as redeem up under section 91 of TPA. Here, ‘C’ cannot redeem ‘D’ and B cannot redeem ‘C’ and ‘D’. But, ‘C’ can foreclosure ‘D’ (subsequent) and B can foreclosure against C & D, (who are below than B). This is known as foreclosure down under Section- 94 of TPA.
This rule says that in cases of successive mortgagee, the latter can always redeem the earlier but the earlier cannot redeem the latter except by consent. As regards foreclosure, the rule is that earlier can foreclosure latter but the latter cannot foreclosure the earlier. Earlier the rule was embodied in Section- 75 of TPA, but was repealed by the TPA amending Act no. 20 of 1929.
The repeal however does not effect the rights of mortgages intersay for Section- 91(1) confers on puisne mortgagees, while Section- 94 which has been newly added, provides for the rights of prior mortgagees as against subsequent mortgagees. Thus, sub section (1) of 91 embodies of Section of redeem up while 92 embodies the principle of foreclosure down.
Answer:- Robbery is only a more serious form of offence of theft or extortion. In robbery there is use of violence of death, hurt or wrongful restraint. Violence must be in the course of theft. Thus, it is not necessary that the violence should actually be committed but even an attempt to commit violence is punishable. Robbery is given in Section- 390. According to it- In all robbery there is either theft or extortion.
A holds collar of B and takes B’s money and all accessories which he was wearing without B’s consent and A also slapped B to give accessories as soon as possible. So, here A has committed theft, in order with the theft he has voluntarily caused hurt to B. A, has therefore committed robbery and is liable for punishment.
A. a lady was going to market. B meets A and showed a knife to her asked her to give all his jewellery. A in the fear of death or instant hurt gave his jewellery to B. Here B extorted the jewellery from A by putting him in the fear of instant death or hurt and at the time of committing extortion in his presence A has, therefore committed robbery.
Answer:- Where the question is as to the existence of any right or custom Section- 13 of Indian Evidence Act, 1873 the following facts are relevant-
Sectio-13 deals with the proof of existence of any right or custom. Therefore, before discussing the section we have to know as to what is meant by ‘custom’ and ‘right’.
Custom- A ‘custom’ is a particular rule which has existed from the time immoreial and has obtained the force of law in a particular locality. The chief characteristic of a custom is that it cannot extend to the whole realm nor it can embrace the whole of the public.
Kinds of custom-
Rights- Rights under section-13 must be understood as comprehending all rights recognized by law, and therefore including a right of ownership and not being confined to incorporeal rights only. A right may be public or private, corporeal or incorporeal.
This section lays down as to what facts are relevant and may be proved when the question at issue is whether any right or custom exists. The section has 2 parts- Clause (a) and clause (b).
Clause (a) deals with Transaction. Any transaction by which the right or custom in question was created claimed, modified, recognized, asserted, or denied or which was inconsistent with its existence.
Clause (b) deals with Instances. Particular instances, in which the right or custom was claimed, recognized, or exercised or in which its exercise was disputed, asserted, or departed from.
Example- The question is whether ‘A’ has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbors, are relevant facts.
Answer:- Section 26 of the Sale of Goods Act, 1930, deals with the important principle of when the risk associated with goods passes from the seller to the buyer.
This principle is crucial in determining who bears the responsibility for any loss or damage to the goods during the course of a sale transaction.
The key aspects of Section 26:
Answer:- Section 148 of the CPC states that where any term is fixed or awarded by the Court for the doing of any act provided by CPC, it is the discretionary power of the Court that Court may enlarge such period from time to time, even though the term originally fixed or awarded may have departed. This section confers the power to the civil court in the nature of inherent powers whereby the court can solve the crisis of expiry of time as fixed by the code or as allowed by the code itself. Therefore, enlargement of time cannot be claimed by any party as a matter of right. Civil court has no power to enlarge time under other statue i.e. Limitation Act, 1963.
In Johri singh v. Sukhpal Singh 1989 before exercising the power under Section 148 the court may take into account all the facts and circumstances including the conduct of applicant.
In Smt. Periyakkal v. Smt. Dakshyani 1983 it was held that “of course, time would not be extended ordinarily not for the mere asking. It would be granted in rare cases to prevent and manifest justice”
In simpler terms, if the law sets a deadline for doing something, the court can give you extra time, up to 30 days, if there’s no other rule that says otherwise. However, the court has the freedom to decide whether or not to grant this extra time and the extension can only apply to the originally set time frame. It’s a discretionary power and cannot be claimed as a right.
Answer:- Section 2(6) C.P.C. says `Foreign Judgment' means judgment of foreign court. "Foreign court" means a court situated outside India and not established or continued by the authority of Central Govt.
BINDING NATURE OF FOREIGN JUDGEMENT (Section 13)
Section 13 provides "foreign judgement" shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title.
According to Section 13 of the CPC, a foreign judgment will be inconclusive if it:
In terms of Section 44A of the CPC, a foreign judgment/ decree of any of the superior Courts of any reciprocating territory may be executed in India as if it had been passed by a District Court in India.
In M/s International Woollen Mills v. M/s Standard Wools (U.K.), AIR 2001 SC 2134, it was observed section 44-A C.P.C. says where a certified copy of decree of any superior court of any reciprocating territory has been filed in District Court along with certificate from such superior Court stating the extent if any to which the decree had been satisfied or adjudicated, decree may be executed in India as if it had been passed in India. Court observed regarding section 13(b) C.P.C. that it cannot be said that expression 'Foreign Judgment on merit' implies that it must have been passed after contest and after evidence had been let in from both the side. An Ex parte foreign decree and judgment in favour of plaintiff may deem to be judgment given on merit if some evidence is adduced on behalf of plaintiff and judgment is based on consideration of that evidence."
Answer:- Section 52 of the Transfer of Property Act, 1882, is an expression of principle of the maxim 'pendente lite nihil innovetur' i.e. pending litigation, nothing new should be introduced.
Section 52 provides that pendente lite, neither party, to the litigation, in which any right to immoveable property is in question, can alienate or otherwise deal with such property so as to affect his opponent. So Section 52 is intended to protect the parties to litigation against alienations by their opponents during the pendency of the suit. It is important to point out here that wherever the T.P. Act is not applicable, the doctrine of 'Lis pendens' which is based on justice, equity and good conscience, principles as contained in Section 52 would still apply.
In Abdul Aziz v. District Judge, AIR 1994 All. 167, it was observed that Section 52 comes into existence from the point of the institution of suit and continues to survive till the satisfaction of the decree.
Essentials of this section
Effects of the Doctrine:
When a property is transferred pending the suit is not 'Ipso Facto' void, but it is only voidable at the option of the party. It means the party can transfer the property pending the suit, but the transfer will not affect the rights of any party thereto under any decree.
Exceptions:
Answer:- In Section-41 a police officer may arrest a person without an order from a Magistrate and without a warrant. According to section-41 a police officer can arrest any person-
If the following conditions are satisfied:-
And the police officers shall records the reasons in writing while making such arrest.
Person for whose arrest any requisition has been received from another police officer whether written or oral, provided that the requisition specifies that the person to be arrested for the offence and the offence is such that it appears that the person might be lawfully arrested without a warrant by officer who issued the requisition.
Thus, it has been provided that in all the above cases police officer may arrest a person without an order from a magistrate and without a warrant.
Answer:- Doctrine of Caveat Emptor as contained in Section 16 of Sales of Goods Act literally means that `buyer bewar. It implies that it is for the buyer to satisfy himself that the goods which he is purchasing are of the quality which he requires or if he is buying them for a specific purpose, that they are fit for that purpose. If the goods are subsequently found to be unsuitable for purpose, he cannot blame the seller for the same, as there is no implied undertaking by the seller that he shall supply such goods as to suit buyer's purpose.
Rule of "Caveat Emptor" is contained in Section 16 of Act as "Subject to provisions of this Act and of any other law for the time being in force, there is no implied condition as to quality or fitness for any particular purpose of goods supplied under a contract of sale..." The provision however provides for two implied conditions.
Exceptions to the Rule of Caveat Emptor:
Sub-sections (1) and (2) of Section 16 of the Act lay down the following exceptions to the
rule of "Caveat Emptor" and which are implied conditions in a contract of sale:
Answer:- A contract is an agreement between two or more persons or parties subject to certain terms and conditions for a lawful consideration. The general rule is that only those persons who are parties to a contract may sue and be sued on that contract. Any person other than the parties or persons to a contract is called “Stranger to the contract”.
There are 2 consequences of this rule:-
In Tweddle v. Atiknson ‘Doctrine of privity of contract’ has been laid down. It was held that third person to a contract cannot sue even though if he has benefit in the contract.
In Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd the House of Lords accepted that it was a fundamental principle of English law that only a party to a contract who had provided consideration could sue on it.
Exceptions to the Doctrine of Privity of Contract:
Thus, it can be said that strangers to a contract cannot sue except in the conditions mentioned above. So, if a person is not a party to a contract, he is called a stranger to contract. This is a cardinal principle of law that only a party to a contract can sue.
Answer:- The law relating to ‘necessity’ is enumerated in Section-81 of IPC. Under chapter 4 i.e. general exceptions.
According to Section-81 Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.
Section 81 excuses the doing of an evil so that good may result. It permits the infliction of a lesser evil in order to prevent greater evil. It is intended to give legislative sanction to the principle that where on a sudden and extreme emergency, one or other of the two evils is inevitable, it is lawful so to direct events that the smaller only shall occur.
Thus, to avail the defence under this section it is necessary that the criminal act is done without any evil intention.The law relating to necessity is somewhere based on the ‘Doctrine of self-preservation’.
In R v. Dudley and Stephens (1884) In this case it was held that there was no chance of saving life except by killing someone for others. But the accused were made guilty of murder because it was held that there was no such necessity as could justify the accused in killing the boy. Thus, it was proved in this case self-preservation is not an absolute necessity.
Cases in which necessity can be claimed as a ground of excuse are:-
Thus, it is clear that law relating to ‘necessity’ can be claimed as an excuse from criminal liability. It can also be expressed by a common proverb i.e. Quod necessitas non habet legem means that the violation of a law may be excused by necessity.
Answer:- Abetment is an act of encouraging, approving and supporting any person to do any offence or crime. Abetment is defined in Section-107 of the IPC. According to section- A person abets the doing of a thing who instigates any person to do that thing or engages with one or more person or persons in any conspiracy for the doing of that thing or intentionally aids by any illegal act or omission the doing of that thing.
A person who commits the offence of abetment is called Abettor (Section- 108). Thus, therefore it is not necessary that for the offence of abetment, the real offence has been committed. Abetment is in itself is an offence or crime. The punishment for abetment is outlined under Section- 109 of Indian Penal Code. This section states that if someone abets the commission of a crime and that crime is committed in consequence of the abetment, then the abettor shall be punished with the punishment provided for that crime.
Abetment can be committed by various methods i.e.
Illustration- A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z and commits that offence in consequence of B’s instigation. B is liable to be punished for the offence with the punishment for murder and as a instigates B to commit the offence, A is also liable for the same punishment.
In Queen v. Mohit 1871 Sati is a historical Hindu practice where if a woman’s husband dies, she shall die too by setting herself on fire so women prepared herself to become Sati in the presence of the accused person. They followed her up to the fire and stood by her stepsons crying Ram Ram one of the accused also admitted that he told the women to say Ram Ram.
It was held that all those persons who follower her to the fire and stood by her and kept chanting Ram Ram would be guilty of abetment as the actively abetted her.
Therefore, it is concluded that abetment is a serious offence because it involves actively facilitating the commission of a crime. So we can say that abetment as an offence enhances the principles of natural justice.
Answer:- Section 11 of Civil Procedure Code embodies the doctrine of Res judicata which is based on the need of giving finality to judicial decisions. It is a Rule of finality of judgment as to the points decided either of facts or of law or fact and law, in every subsequent suit between the same parties. It simply enacts that once a matter is finally decided by a competent court; no party can be permitted to reopen it in subsequent litigation.
• The doctrine of res judicata is based on three maxims:-
In Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332 it was held that & It is not every
matter decided in a former suit that will operate as 'res judicat' in a subsequent suit. To
constitute a matter res judicata under section 11 the following conditions must be satisfied:-
Article 13(1) is prospective in nature that is, they operate from the date of the commencement
of the Constitution and not retrospectively. It implies that the Existing Laws shall remain
valid and will be void only if they are inconsistent with the Fundamental Rights. Article 13(1)
had no retrospective effect but only prospective in its operation.
Answer:- The doctrine of severability, also known as the separability doctrine or the severability clause, is a legal principle that addresses the issue of whether a contract or a law can remain valid and enforceable even if certain parts of it are found to be invalid or unconstitutional.
Article 13 of the Constitution lays down, under Clause 1 and Clause 2, as follows:-
• Effect on existing laws :-
Article 13(1) is prospective in nature that is, they operate from the date of the commencement
of the Constitution and not retrospectively. It implies that the Existing Laws shall remain
valid and will be void only if they are inconsistent with the Fundamental Rights. Article 13(1)
had no retrospective effect but only prospective in its operation.
• Doctrine of Severability
The question then arises that if a provision of a Statute is found to be void, whether the whole
of the Statute thereby becomes void or the voidability shall be limited only to the inconsistent
part of the Statute?
The Court answered that, it is not the whole Act which would be held invalid by being
inconsistent with Part III of the Constitution but only such provisions of it which are violative
of the fundamental rights, provided that the part which violates the fundamental rights is
separable from that. But if the valid portion is so closely mixed up with invalid portion that it
cannot be separated without leaving an incomplete or more or less mingled remainder the
court will declare the entire Act void. This process is known as doctrine of severability or
separability.
• Case laws
The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, A.I.R.
1950 S.C. 27 and held that the preventive detention without section 14 was valid as the
omission of the Section 14 from the Act will not change the nature and object of the Act and
therefore the rest of the Act will remain valid and effective. The doctrine was applied in
Union of India v. Rajendra Shah, 2021 SCC Online SC 474, where the 97 th Amendment
was quashed in parts and the part which applied to ‘Multi State Cooperative Societies’
remained valid because it was severable from the rest of the Amendment Act.
• Rules for determining Severability
The doctrine of severability has been elaborately considered by the Supreme Court in
R.M.D.C. v. Union of India, AIR 1957 S.C. 628, and the following rules regarding the
question of severability has been laid down:
The doctrine of severability creates a legal fiction that permits the courts and tribunals to separate the invalid part of the law from the valid and lawful part. Thus, the courts are able to declare the invalid provisions as ultra vires while retaining the overall statute.
Answer:- The Indian Penal Code, 1860 has been drafted to regulate the criminal system in India. This code tells us about the various types of crime and the punishment for those crimes.
Here in this case ‘A’ dies in possession of some money and ‘B’ the servant of ‘A’ takes the money and used it for his own purpose before the money comes into the possession of any person legally entitles to such possession. ‘B’ as a servant of ‘A’ has a responsibility to be faithful towards his master but here ‘B’ cheats his master and dishonestly uses his money for which he is not entitled to use. It was ‘B’ duty to handover the money of ‘A’ to the person who was legally entitled for his possession. Thus, ‘B’ would be liable for punishment.
In the case of State of Orissa v. Bishnu Charan Muduli[1985 Cr LJ 1573(SC)] , the Supreme Court held that where the Head Constable who had forcefully taken the articles to his custody from a boatman, who had previously recovered those articles from a dead body of a drowned person, keeps those articles in his possession dishonestly. Then, the officer who was holding the articles of a deceased person dishonestly was held guilty of an offence under section 404. Section 404 does not specify as to the nature of property whether it must be movable or immovable. The Courts have unanimously observed that the section shall apply only in cases of the movable property while deciding many cases.
In this case ‘B’ has committed crime under Section-404. Which states dishonest misappropriation of property possessed by deceased person at the time of his death. In this section whoever dishonestly misappropriates or converts to his own use, knowing that property is in possession of deceased person at the time of his death for which he is not legally entitled to such possession.
Thus, here ‘B’ the servant has fulfilled all the elements of Section- 404 by taking the money of ‘A’. So, ‘B’ is liable for punishment under Section- 404 for imprisonment which may extend to 7 years and also be liable for fine.
Answer:- Every kind of claim in a movable property which could be enforced through courts is an actionable claim. Section 3, 130, 131, and 132 of the Transfer of Property Act, 1882 contains provisions in related to actionable claim.
Section-3 of TPA defines it as-
If there is no security of any movable or immovable property, the debt is unsecured. A ‘Debt’ is defined as a sum of money which is payable or will become payable in future by reason of a present obligation. There are different kinds of debt-
Any claim to beneficial interest not in possession of a claimant is also an actionable claim. Here the beneficial interest or right of possession is recognised by the court. It is an intangible movable property. Therefore, actionable claim can be regarded as property and can be transferred.
Illustration- A lends money to B, and B promises to repay the loan with interest. In this case, A has an actionable claim to demand payment of the loan and interest from B.
Some examples of actionable claims are:
Following are not regarded as actionable claim-
In Doraiswami Mudaliar v. D. Aiyangar 1925 it was held that even through section 130 of TPA does not prescribe any language or wording of transfer from the language used, the intention must be clearly discernible.
Section 136 of the Transfer of Property Act, 1882 declares certain groups of people who cannot deal in the transfer of actionable claims. This Section bars Judges, legal practitioners or officers of Court from receiving any share or interest in any actionable claim, and hence they cannot be the transferee in transfer of actionable claim.
Therefore, it is concluded that actionable claim is an intangible movable property, and it is transferable. It mainly refers to the types of claims that can be recovered through proceedings in court.
Answer:- Doctrine of Eclipse – Article 13 of the Constitution of India, 1950, provisions under clause 1 and clause 2 as:
Laws inconsistent with or in derogation of the fundamental rights
The doctrine involves two issues to be interpreted in the light of Art 13(1) and Art 13(2) of the Constitution of India, 1950.
We will address each issue one by one in the answer.
The Doctrine of Eclipse is based on the principle that a law which violates fundamental rights is not nullity or void ab initio but becomes; only unenforceable i.e. remains in a moribund condition. It is over-shadowed by the fundamental rights and remains dormant, but it is not dead. Such laws are not wiped out entirely from the statute book. They exist for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution.
It is only against the citizens that they remain in a dormant or moribund condition but they remain in operation as against non-citizens who are not entitled to fundamental rights.
Answer:- Contingent Interest: - Section 21 of the Act provisions:
Constitutionalism recognises the need for government with powers but at the same time insist that limitations be placed on those powers. It is a mechanism that provides legitimacy to be a democratic government. The principal of Constitutionalism includes Separation of powers, Responsible and accountable government, popular sovereignty, independent judiciary, individual rights and Rule of law.
"Where on a transfer of property an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain even, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest in the former case on the happening of the event, in the latter, when the happening of the event becomes impossible."
Exception - Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.
The Section explains that an interest, created on a transfer of property in favour of a person,is contingent when it is expressed to take effect:
Such interest becomes a vested interest, in the former case (case a) on the happening of the event and, in the latter case (case b) when the happening of the event becomes impossible.
Answer:- The underline difference between the two concepts is that the constitution ought not merely to confer powers on the various organs of the government but also seek to restrain those powers. Constitutionalism recognises the need for the government but insist upon limitations being placed upon governmental powers. The problem is that the constitution cannot interpret itself and has to be interpreted by the men who hold power. The institutions that were the bulwark of Constitutionalism are either crumbling or have been effectively rendered wear and incapable.
Constitutionalism recognises the need for government with powers but at the same time insist that limitations be placed on those powers. It is a mechanism that provides legitimacy to be a democratic government. The principal of Constitutionalism includes Separation of powers, Responsible and accountable government, popular sovereignty, independent judiciary, individual rights and Rule of law.
Thus, only when the constitution of a country seeks to decentralise power instead of concentrating it at one point and also imposes other restrains and limitations there on does a country have not only constitution but also constitutionalism.
Answer:- In the law of torts, ‘Remoteness of Damage’ is an interesting topic. The general principle of law requires that once damage is caused by wrongful act, liabilities have to be assigned. When a wrongful act is committed damages have to be paid but the question is to what extend the defendant should be held liable. No person can be made liable for endless consequences (Ad Infinitium).
In Haynes vs. Harwood 1935 it was held that the defendant was liable even though the horses had bolted when a child threw a stone on them. Because such mischief anticipated on the part of children. One of the defences pleaded by the defendant was remoteness of consequences i.e. the mischief of the child was the proximate cause and the negligence of the servants was a remote cause.
Test to determine Remoteness-
The Test of Reasonable foresight- According to this test, if the consequences of a wrongful act could have been foreseen by a reasonable man, they are not too remote.
The Test of Directness- According to this test, a person is liable for all the direct consequences of wrongful act whether they are foreseeable or not; because consequences which directly follow a wrongful act are not too remote.
In Re Polemis and Furness, Wilthy Co. it was landmark case on the test of directness. The Privy Council held the owners of the ship entitled to recover the loss, although such a loss could not have been foreseeably seen by the defendants. It was held that since the fire (and the subsequent destruction of the ship) was a direct consequence of the defendant’s negligence, it was immaterial whether the defendant could have reasonably foreseen it or not.
In Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd. it was held that the test of directness that was upheld in the Re Polemis case was considered to be incorrect and was rejected by the Privy Council 40 years later in this case. Further in this case defendant can only be liable for reasonable foreseeable injury. And it was also popularly known as the Wagon Mound Case.
Therefore it is concluded that, the term remoteness refers to the legal test of causation which is used when determining the types of loss caused by a breach of contract or duty which may be compensated by damages award. Damages which are too remote are not recoverable even if there is a factual link between the breach of contract or duty and the loss.
Answer:- By the term "Asylum" we generally mean the Shelter and active protection which is extended to a political refugee from another State by a State which admits him on his request. According to Starke, asylum comprises two essential components:
Right to Asylum –
According to Article 14 of the Universal Declaration of Human Rights, Everyone has a right to seek and enjoy in other countries asylum from persecution. It may, however, be noted that the Declaration simply recognizes the right of asylum, it does not grant right to receive asylum. Thus although everyone has a right to seek asylum yet there is no corresponding duty of States to grant asylum.
Types of Asylum –
Asylum may be classified into two categories –
In The Haya Dela Torra case (I.C.J. Reports, 1951, p. 71) illustrates the complexities of diplomatic asylum.
Facts: Haya Dela Torra, a Peruvian citizen charged with rebellion, was granted asylum by Colombia in its embassy in Peru. After granting asylum, Ambassador of Columbia requested Peruvian Government to provide facility to enable Columbia to take Haya Dela Torra outside Peru. This request stem from the Bolivian Agreement, 1911 and Pan American Havana Convention on asylum, 1928. Columbia on the other hand defended the Asylum as it was granted for political crime. Peru disputed it and the matter was referred to the International Court of Justice.
Judgment: The Court held that Columbia as the State granting asylum is not competent to qualify the offence (as political) by a unilateral and definitive decision, binding on Peru. However, the Court held that Peru had failed to prove that Haya Dela Torra was accused of an ordinary crime, and not a political crime. The Court added that asylum to Haya Dela Torra had been irregularly granted because three months had passed after the suppression of the military rebellion which clearly showed that the urgency prescribed by Havana Convention as a condition for the granting of asylum had ceased to exist. But since Haya Dela Torra was a political offender the court held that despite the fact that asylum had been irregularly granted, Columbia was not bound to surrender Haya Dela Torra. The International Court of Justice held: to infer an obligation to surrender a person to whom asylum has been irregularly granted would be to disregard both the rule of the extra-legal factors involved in the development of asylum in Latin America and the spirit of Havana Convention.
In summary, while territorial asylum is a direct exercise of a state's sovereignty and can be granted more readily, diplomatic asylum involves intricate legal considerations, and often requires a clear legal basis to avoid conflict with the host state's jurisdiction and international law.
Answer:- The word ‘Muta’ literally means ‘Enjoyment’. Muta marriage is for temporary enjoyment or use but a period is fixed after specifying dower. The specified period may be a day, a month or a year or terms of years. It is generally followed by Ithna Ashari School under the Shia Muslims. It is considered as void under Sunni Law.
Essential of Muta Marriage-
Effects of Muta Marriage-
In Shoharat Singh vs. Musammat Jafri Bibi (1914) In this case, it is mentioned that if the period is not specified then it should be considered as a permanent union even if the parties called it as Muta. This type of marriage does not confer any right to the woman on the property of the husband. Dower is a key component of such marriages.
Thus, Muta marriage is for temporary period of time. In India, Muta marriages are not recognised under the Special Marriage Act, 1954 or any other legislation. For the betterment of society and to empower women, it is crucial to take a step ahead and discourage such types of marriages.
Answer:- There is no specific or precise definition of Hindu mentioned in any ancient and modern text but from time to time described by the courts in India. The terms Hindu, Hindutum, Hinduism have been described by the honourable courts.
Former C.J. Gajendra Gadgar in Shastri case 1956 SC expressed his views on the term Hinduism, Hindutum saying “that Hindu is not a religion like other religion where ritual are being followed in a set pattern but on the contrary it is practised in a different way by different sects in India. So, it can be considered as a way of life.”
Section-2 of Hindu Marriage Act, states that this act applies to any person who is a Hindu by birth or who has changed his/her religion to either any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
Under those who are category following persons comes under preview of Hindu Marriage Act are-
Under the category those who are not-
In ChandraSekhar v. Kulandaivelu 1963 S.C. a person does not cease to be a Hindu if he becomes an atheist or desents or deviates the central doctrine of Hinduism, or lapses from orthodox religious practices, or adopts western way of life, or eats beef.
The word ‘convert’ can be proved before the court of law only when it is shown that the person has renounce his faith and adopted another.
The Supreme Court of India in the landmark case of Sastri Yagnapurushadji And Others vs Muldas Brudardas Vaishya And Another (1966) expressly defined the term ‘Hindu’. This case is related to the Swami Narayan temple in Ahmedabad. There is a group of people called the Satsangi who were managing the temple and they restricted non-Satsangi Harijans from entering the temple. They argued that Satsangi is a different religion and they are not bound by Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis and Radhaswami, all these belong to the Hindu religion because they originated under Hindu philosophy.
Thus, if a person is born from a Hindu family, he/she is a Hindu. When one of the parents of a child is Hindu and he/she is brought up as a member of the Hindu family, he/she is a Hindu. If a child is born form a Hindu mother and a Muslim father and he/she is brought up as a Hindu then he/she can be considered as a Hindu.
Answer:- Article 32 of the Constitution (Right to Constitutional Remedies): It is a fundamental rights, which states that the individuals have the right to approach the Supreme court seeking enforcement of other fundamental rights recognised by the constitution.
Article 226 is enshrined under Part V of the constitution which puts power in the hands of the High court to issue the writs including Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-warranto for the enforcement of the fundamental rights of the citizens and for any other purpose.
Basis of Difference | Article 32 | Article 226 |
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Right | Article 32 is a fundamental right. | Article 226 is a constitutional right. |
Ambit of Writ Jurisdiction | High Court has more power in regard of writ jurisdiction. | Supreme court has less power than high court. |
Scope | Article 32 has a narrow scope as it is applicable only in case of violation of a fundamental right. | Article 226 has a broader scope as it is applicable not only in the case of violation of a fundamental right but also of a legal right. |
Suspension | Article 32 can be suspended if an emergency has been declared by the President. | Article 226 cannot be suspended even at the time of emergency also. |
Discretion | As Article 32 is a fundamental right, so the same cannot be refused by the Supreme Court. | This Article confers discretionary power to the High court which means it is at the discretion of the High Court to issue writ or not. |
Jurisdiction | Supreme Court can issue writs against a person or government throughout the territory of India. | High court can only issue writs against a person or government residing within its territorial jurisdiction. |
However, it is concluded that Article 32 which is known as the heart and soul of the constitution. Supreme Court is called the grantor and defender of fundamental rights. Whereas, Article 226 being a constitutional right gives discretionary power to the High Court. Thus, with the difference in powers both the article ensures that the rights of the citizens are protected and secured.
Answer:- Sharing in the profits of a business does not provide conclusive proof of partnership. While it may be a strong indication of existence of partnership but other factors have to be taken into consideration for determining the same. Share of profits is certainly an important piece of evidence that helps to determine the existence of a partnership, but not the ultimate test.
Under the law, a partnership is defined as a relationship between two or more persons who carry on a business together with a view to making a profit. However, the mere fact that profits are shared does not automatically create a partnership.
In Cox vs. Hickman (1860), it was held that actual conduct of partnership cannot be determined only by sharing of profits of the business. Mutual Agency is regarded as the conclusive proof of partnership.
It is clear from Section 6 that the sharing of profits is not the ultimate test for determining whether a partnership exists. The existence of a partnership depends on the actual intention of the parties and the contract drawn up by them. In some cases, an alleged partner might have a share in the profits of the business, but that does not by default make him a partner.A person may be entitled to a share of the profits of a business as an employee, contractor or creditor but they would not be considered a partner in the business firm.
In conclusion, while sharing in the profits is a significant factor in determining the existence of a partnership, it is not conclusive evidence on its own. Other factors such as the intention to carry on a business together and the degree of control over the business must also be considered to determine the existence of a partnership. The sharing of profit is just a prima facie test of partnership. The conclusive test is that of mutual agency.
Answer:- Apportionment means distribution in proper shares or division of a common fund between several claimants.Section 36 and 37 of the Transfer of Property, 1882 (TPA) deals with apportionment. There are two aspects to it:
In absence of any specific mention of what portion of income of transfer of property remains with the transferor and what goes to the transferee and from which particular date, the distribution or apportionment of the periodical income between transferor & transferee is governed by rules of-
Therefore it is concluded that apportionment means the division or sharing out according to plan or ownership. In law this term is used in various senses even various statues define it in various ways and as per the laws regulating these apportionment the process to determine the apportioned amount also changes.
Answer:- De Facto refers to the actual state of affairs or the practical reality. It's less official but more realistic. This is regardless of its legal recognition or legitimacy. It signifies the factual or effective existence of something, even if it may not have the formal or official endorsement.
On the other hand, De Jure pertains to the legal or rightful state of affairs, indicating the status or condition as recognized by law. De Jure Recognition, often called formal recognition, is official. It is granted when the newly formed state acquires permanent stability and statehood. It grants the permanent status of a new born state as a sovereign state.
The following are the key difference between De Facto and De Jure Recognition-
DE-FACTO | DE-JURE |
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It is temporary & provisional recognition | It is a formal & definite recognition |
It is dependent on condition, can be withdrawn | It is final, cannot be withdrawn |
It is given to state which is formed through revolt | It is given to state which is formed by peaceful & constitutional means |
It is a lesser degree of recognition | It is fullest kind of recognition |
In de facto full diplomatic relation cannot be established, full immunities to diplomats may not granted | In de jure full diplomatic relation can be established, full immunities granted to diplomats |
They cannot make claim in the recognising states property | They can make such claim |
The state with de facto cannot undergo state succession | The state with de jure recognition can undergo state succession |
For example- A learning driving license is a de facto recognition | For example- A permanent driving license is a de jure recognition |
Answer:- Section 41 of the Transfer of Property Act, defines an ostensible owner. An ostensible owner is one who has all the indicia of ownership without being the real owner. He is the person who is apparently a full and unqualified owner, such as a mortgagee or a hirer of goods. He may be any person, a co-sharer, manager agent or even a complete stranger.
The general rule says that a person cannot convey a better title than he himself has in a property. This statement represents an English maxim- “nemo dat quad non habit” (No one can confer a higher right on property than what he himself possesses) Section-41 of TPA is an exception of this Maxim which says that where with the consent of the real owner another person (ostensible owner) transfers that property for consideration. Such transfer shall not be voidable on the ground that the transferor was not authorized to make it. But for the application of this section it is necessary that transferee:-
The doctrine of holding out protects the transferee from an ostensible owner and comes into play when the rights of two innocent parties come into conflict. Thus, the transfer by ostensible owner underlines the doctrine of holding out.
In Raj Kumar Koondoo V. Macqueen, 1872, it was observed that it is a principle of natural equity which must be universally applicable that where one man allows another to hold himself out as the owner of the state & a third person purchases it for value, from the apparent owner in the belief that he is a real owner, the man so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing that he had direct notice of the title, or something which amounts to constructive notice of the real title or that there existed circumstances which ought to have put him on an enquiry that, if prosecuted, would have led to discovery of it.
Thus, an ostensible owner is a person who has all the indications of ownership in a property and looks like the owner of a property but is not a real or genuine owner. He is a person who's name appears on the records and is in the possession of the property but he/she never intended to own the property.
Answer:- According to Section 58(d) of the Transfer of Property Act-
“Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.”
The following are the essentials of usufructuary mortgagee-
Thus, it can be concluded that a usufructuary mortgage is a distinctive form of mortgage which enables borrowers with a means to secure loans while retaining ownership of their property. It allows the mortgagor to transfer possession and usage rights to the mortgagee, who enjoys the income and produce from the property until the mortgage debt is repaid fully.
Answer:- The following are the rights of Bailor-
The following are the Rights of the Bailee-
Answer:- According to Section 3 of the Transfer of Property Act, a person is said to have notice of a fact, which he would have known, but for his gross negligence or wilful abstention from making an enquiry or search does not know. However, it is such knowledge which a person with ordinary prudence ought to have known. In other words, constructive notice of facts are those facts which a person ought to have known, but because of gross negligence or wilful abstention does not know it. In Constructive notice, there is a legal presumption, that a person should have known a fact as if he actually knows it.
For Instance, A sells the house by a registered document to B. He later enters into a contract with C to sell him the same house. Law imposes a duty upon C to inspect the registers at the Registrar’s office, and if he does that, he would come to know about the sale in favour of B. A failure to inspect the register will be detrimental to the interests of C, as he would be imputed with constructive notice of the registered transaction.
Therefore, it can be concluded that Constructive notice is knowledge of those facts which a court imputes on a person. If the circumstances indicate that a reasonably prudent person ought to have known a particular fact related to the transaction of transfer, then he will be deemed to know it.
Answer:- Section 391 defines dacoity as follows: “When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt amounts to five or more, every person so committing, attempting, or aiding is said to commit dacoity.”
On the other hand, Robbery is defined under section 390 in Indian Penal Code. It is an aggravated form of theft or extortion. In all robbery there is either theft or extortion. Taking someone’s property through force, without their consideration and using violence and intimidation is said to be robbery.
The following are the differences between Robbery and Dacoity-
ROBBERY | DACOITY |
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Robbery can be defined as taking someone’s property through force, without their consideration and using violence and intimidation. For robbery to happen there must be either extortion or theft present. | Dacoity can be explained as two or more people working together to commit robbery. It is considered as serious crime as it involves use of weapons and large no. Of people ranging from 5 or more in order to threaten the people. |
Defined under section 390 of the Indian Penal Code, 1860 | Defined under section 391 of the Indian Penal Code, 1860 |
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Imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. | Imprisonment for life or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. |
Robbery is graver but not more than dacoity. A robbery is an advanced form of either theft or extortion. | Dacoity is an aggravated and more serious form of robbery. Therefore it is a serious crime. |
Answer:- Section 2(10) of Sales of Goods Acts provides that "Price means money consideration for sale of goods." In a contract of sales of goods consideration must be money which is called price of goods. As in case of any other contract, in contract of sale, Price is essential. If the goods are transferred without price, then it will not amount to sale. In a contract of sale, price is one of the important essentials. Price may be paid or promised to be paid in future but it should always be in form of money.
In a contract of sale of goods price of goods can be ascertained in the following ways-
Thus, a sale is concluded when there is a transfer of property from seller to buyer for a consideration of money or promise for the same. Consideration of money is essential for a sale. Price in a sale can be determined by the contract itself, left to be fixed by an agreed manner or determined in the course of dealing between the parties.
Answer:- Crime is defined as any act performed or omitted which constitutes an offence and is penalised by law. On the other hand, a tort refers to a civil wrong that causes harm or injury to another person or on their property, which can give rise to a legal claim for compensation.
The following are the differences between Tort and Crime-
Nature of Wrong | A civil wrong that causes harm or injury to another person or their property, giving rise to a legal claim for compensation | A violation of criminal law that is considered to be an offense against society as a whole, punishable by the government |
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Seriousness | The wrongs which are comparatively less serious are considered to be private wrongs and known as civil wrong | The wrong which are more serious are considered to be public wrongs and are known as crimes |
Objective | The objective is to re- compensate the plaintiff for the loss suffered by him | The objective is to punish the accused if convicted |
Legal Codification | Law of tort is un-codified | Law of crime is a codified law |
Burden of Proof | The plaintiff must prove their case by a preponderance of the evidence (more likely than not) | The prosecution must prove their case beyond a reasonable doubt (almost certain) |
Remedy | Monetary damages | Fines, imprisonment etc. |
Intention | In tort, intention generally is not relevant | Intention is always relevant in case of crime |
Examples | Negligence, product liability, defamation, etc. | Murder, theft etc. |
Answer:- Abetment is defined under Section 107 of the Indian Penal Code. According to the section, “A person abets the doing of a thing, who-
Criminal Conspiracy is defined under Section 120A of the Indian Penal Code. It provides that “When two or more persons agree to do, or cause to be done-
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.”
The following are the key differences between Abetment and Criminal Conspiracy-
Abetment | Criminal Conspiracy |
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Where one person instigates, conspires with or intentionally aids another person to commit an offence | Where two or more persons agree to commit an illegal act or a legal act by illegal means. |
Section 107 of IPC deals with Abetment | Section 120 A of IPC deals with Criminal Conspiracy |
Involves at least two persons i.e. Abettor and Principal Offender | It involves two or more persons |
Abetment is the Genus | Conspiracy is the species |
No overt act is necessary. The agreement itself constitutes the offence. | In criminal conspiracy, the mere agreement between the conspirators is sufficient. No overt act is necessary to constitute the offence. |
The punishment for an abettor may not be the same as that for the principal offender, depending on the nature of the abetment. | In a criminal conspiracy, all conspirators are liable to the same punishment as if they had committed the offence themselves. |
Answer:- Relevancy and Admissibility are not co-extensive terms in the context of Indian Evidence Act, 1872. Relevancy determines whether a particular piece of evidence is logically connected to the fact in issue. On the other hand, Admissibility basically means that only the facts which are relevant are admissible in the court of law. The following are the differences between Relevancy and Admissibility-
Relevancy | Admissibility |
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When facts are so related as to render the existence or non-existence of other facts probable according to common course of events or human conduct, they are called relevant. | When facts have been declared to be legally relevant under Indian Evidence Act, they become admissible. |
It is founded on logic and human experience. | It is founded on law not on logic. |
The question regarding relevancy has been enunciated in Sec.5 to Sec.55 of Indian Evidence Act. | The question of admissibility is provided in Sec.56 and the following sections. |
It signifies as to what facts are necessary to prove or disprove a fact in issue. | It is a decisive factor between relevancy and proof. |
It merely implies the relevant facts. | It implies what facts are admissible and what are not admissible. |
Relevancy is the cause. | Admissibility is the effect. |
The court may apply its discretion. | There is no scope for the court to apply discretion. |
All admissible facts are relevant. | All relevant facts are not admissible. Only legally relevant facts are admissible. |
Relevancy is a sub-specie of admissibility | Admissibility is the genre |
In Ram Bihari v State of Bihar, AIR 1998, the Supreme Court observed that relevance and admissibility are synonyms to each other but their legal implications are different from each other, and the admissible facts may not be relevant.
Answer:- Criminal Misappropriation of Property is defined under Section 403 of the Indian Penal Code, 1860 as “Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
On the other hand, Criminal Breach of Trust is defined under Section 405 of the Indian Penal Code, 1860 as “Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers another person so to do, commits criminal breach of trust.”
The following are the key difference between Criminal Misappropriation of Property and Criminal Breach of Trust-
Basis | Criminal Misappropriation of Property | Criminal Breach of Trust |
---|---|---|
Provision under the Indian Penal Code | The offence of Criminal Misappropriation is provided under Section 403 of the Indian Penal Code, 1860. | The offence of Criminal Breach of Trust is provided under Section 405 of the Indian Penal Code, 1860. |
Transfer of Property | The property comes into the possession of the accused naturally. | The property comes into the possession of the accused either by an express entrustment or by a contractual manner. |
Nature of Property | In Criminal misappropriation the property is always movable in nature. | In criminal breach of trust, the nature of property can either be movable or immovable property. |
Relationship | There is no contractual relationship between the owner and the accused. | There is a contractual relationship between the owner and the accused. |
Misappropriation | In cases of criminal breach of trust, the person unlawfully uses the property for their personal benefits. | In criminal breach of trust, the property is misappropriated for his own personal use. A breach of trust includes criminal misappropriation, but the converse is not always true. |
Nature of Offence |
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|
Punishment | The offence of Criminal Misappropriation is punishable with imprisonment of either description for a term which may extent to 2 years or with fine, or with both. | The offence of Criminal Breach of Trust is punishable with imprisonment of either description for a term which may extent to 2 years or with fine, or with both. |
Thus, the primary distinctions between Criminal misappropriation of property and Criminal breach of trust lie in the fact that, in the latter, the person acquires possession of the property through the owner's trust. It implies that the criminal breach of trust involves a kind of contractual bond between the person and the owner. On the contrary, there is no such contractual relationship exist in case of criminal misappropriation of property. Moreover, the Criminal Misappropriation of property deals with movable property whereas Criminal Breach of trust encompasses both movable and immovable property.
Answer:- The right against double jeopardy under Article 20 (2) of the Constitution is a fundamental right and under Section 300 of Criminal Procedure Code is a statutory right. The ambit of Article 20 (2) is narrower than that of Section 300. But there are certain differences between Sec. 300 and Art. 20(2) which are as follows-
Basis of difference | Article 20(2) | Section 300 Cr.P.C |
---|---|---|
Purpose | Article 20(2) bars the re-trial of a person for the same offence when he has been convicted and sentenced for the same offence | Section 300(1) specially incorporates the principle which gives effect to the pleas of autrefois acquit as well as autrefois convict. |
Ambit | The ambit of the sub-article is narrower than the protection awarded by Sec. 300 of the Criminal Procedure Code. | The ambit of the section is broader than in the sub section of the Article 20(2) |
Application | Article 20(2) is only applicable to same offence | Protection under Sec. 300 is also applicable to cognate offences for which charge could have been framed in the previous trial under Sec. 220(1). |
Answer:- The following are the differences between Pledge and Bailment-
Thus, the scope of bailment is very wide whereas Pledge is limited in nature. Bailment involves the temporary transfer of goods for safekeeping or repair, while the pledge is the transfer of goods as collateral for a debt payment.
Answer:- Section 216 and Section 217 of the Criminal Procedure Code, 1973, deals with alteration or addition of the charges. Section 216 empowers the court to alter or add to the charge during the course of trial. It is provided that any court may alter or add to any charge at any time before the judgment is pronounced. Every such alteration or addition shall be read and explained to the accused.
According to Section 217 of Criminal Procedure Code, 1973, whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-
Answer:- The following are the differences between Estoppel and Waiver-
S. No. | Estoppel | Waiver |
---|---|---|
1. | Estoppel cannot be the cause of action although it can facilitate or aid the enforcing of a cause of action by preventing the defendant from not denying what was earlier said by him. | Waiver is contractual i.e. it is an agreement to release somebody out of an agreement by waving the previous set policy or to assert a right. Therefore, a waiver can be a cause of action. |
2. | In case of Estoppel, the injured party will have to prove that injury, loss or harm occurred. | No such requirement is there in the waiver. |
3. | It is not necessary for the parties to know the truth or have the knowledge of the reality. | In the case of waiver, the parties involved have the knowledge of the real facts and they know the truth. |
4. | There might be situations where acquiescence would amount to estoppel. | In case of waiver, along with acquiescence, some act or conduct is also necessary. |
5. | Parties use the doctrine of estoppel as a defence in a court of law and not as a cause of action. | Waiver can be used as a cause of action for claiming damages. |
Answer:- Section 24 of the Sales of Goods Act says & When goods are delivered to the buyer on approval or on sale or return or other similar terms, the property therein passes to the buyer-
When the goods are sold on approval basis or sale or return basis, property in goods does not pass to buyer, on delivery of goods it passes –
Section 42 of Sales of Goods Act provides "The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them or when the goods have been delivered to him and does any act in relation to them which is inconsistent with the ownership of seller..."
In the present case, ‘B’ after having taken the delivery of jewellery from seller on approval basis started using the jewellery which implies the ‘B’ has adopted the transaction, the property in goods passes to ‘B’. Therefore, if jewellery is stolen, then ‘B’ has to sustain the loss and ‘A’ can recover the price of jewellery.
Answer:- Section 218(1) of Code of Criminal Procedure provides the general Rule that "for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately."
It is important to note that the provisions of Sections 219, 220 and 221 are exception to general Rule as provided by Section 218.
Section 219 provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. The proviso to Section 219 explains that for the purposes of this Section, an offence punishable under Section 379 of the Indian Penal Code shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the Code.
Thus, an accused in the present case can only be charged and tried at one trial for any number of offences of the same kind not exceeding three committed within one year. An accused cannot be tried for more than three offences at one trial. Consequently, there cannot be any joinder of four offences of theft at one trial.
Answer:- An Estoppel is a principle whereby a party is precluded from denying the existence of fact which he has formerly admitted. In other words, Estoppel is a rule of law by which a person is held bound by presentation made by him or arises out of his conduct.
Section 115 of the Evidence Act, 1872, incorporates the ‘Law of Estoppel’ and provides-
"When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing."
In Chaitanya Charan v. Manik Chandra, AIR 1972, the Court observed that "Section 115 of Evidence Act lays down that when one person by making false representation either by his words or by conduct has intentionally caused another to believe a thing to be true which actually is not true and to act upon such belief, than neither such person nor his representative in a subsequent proceeding will be allowed to say that the representation is false."
In the case in hand, A made a representation to B to the effect that the land belongs to A. This representation of A at that time was false and was made by A to B with the intention to induce B to purchase that land. B believing the representation of A to be true, purchased that land, so B acted upon the representation of A and paid purchase consideration to A when A was not lawful owner of that land. Now, subsequently when A has actually becomes owner of that property, cannot deny the earlier sale of land made by him A to B. He will be estopped from saying that at the time of said sale, he was not owner of land and thus, sale was not binding. But A had made representation to B that land belongs to A and B believing that representation to be true has acted upon such representation by paying sale consideration to A, presuming him to be owner of land. It is important to note that A has already taken some advantage at the cost of B. Thus, A will be estopped from denying such advantage.
Answer:- Section 151 of Indian Contract Act says that in all cases of bailment, the bailee is bound to take as much care of goods bailed to him as a man of ordinary prudence would under similar circumstances take of his own goods of same bulk, quality and value as goods bailed.
Section 152 of Act further provides that bailee in the absence of any special contract is not responsible for any loss, destruction, deterioration of thing bailed, if he has taken the amount of care as described in Section 151 of the Act.
In the case in hand, Goldsmith had kept the gold in his safe and has taken due care by posting watchman outside the room in which safe was kept, so goldsmith took as much care as a man of ordinary prudence would have taken in his own case under similar circumstances so goldsmith is not liable to pay anything for Gold of 'A' which has been taken away by dacoits along with other properties of goldsmith.
Answer:- Section 7 of Indian Limitation Act is supplement to Section 6. Section 6 of Act excuses-
to file a suit or make an application for the execution of a decree, within the time prescribed by law and enables him to file suit or make an application after the above said disability has ceased counting the period of time from the date on which disability ceased.
"Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability and a discharge can be given without the concurrence of such person, time will run against them all. But where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased."
In the case in hand ‘B’, ‘C’ and ‘D’ are partners. Every partner being an agent of every other partner for purposes of firm's business can give a valid discharge for debts of Partnership. Here, ‘B’ and ‘C’ are under disability and cannot give a valid discharge in respect of debt due to firm. But ‘D’ can give a discharge without the concurrence of ‘B’ and ‘C’, thus, time would run against all of them.
Answer:- The concept of dying declaration finds its root in the legal maxim “Nemo moriturus praesumitur mentire”, which means a man will not meet his maker with a lie in his mouth. A dying declaration refers to the statements made by a deceased person before his death where the person states the cause of his death or as to circumstances that leads to his death. Now, the question arises whether a dying declaration form the basis of conviction?
So, if the truthfulness of a dying declaration is accepted, it can always form the basis of conviction of the accused and if a dying declaration is acceptable as truthful event in the absence of corroborative evidence, the court may act upon it and convict. A truthful, coherent and consistent dying declaration needs no corroboration and conviction may be based on it. The Supreme Court in Panneerselvam v. State of Tamil Nadu (2008) held that it cannot be laid down as an absolute rule of the conviction unless it is rule of prudence.
The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused.
In Atbir v. Government of NCT of Delhi (2010), the Supreme Court held that the conviction of the accused can be sustained solely based on the dying declaration if the declaration made by the victim inspires the confidence of the court and proves to be trustworthy i.e., the victim was in a conscious state of mind to make such a dying declaration.
Recently, the Supreme Court in Naeem v. State of U.P (2024) observed that the Court is required to satisfy itself that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. It has further been held that, where the Court is satisfied about the dying declaration being true and voluntary, it can base its conviction without any further corroboration. The Court has observed that if after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
Thus, it can be concluded that if the dying declaration passes the test of scrutiny it can be relied on as the sole basis of conviction.
Answer:- When on a transfer of property , an interest therein is created in favour of a person
such interest is vested , unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession.
An intention that an interest shall not be vested is not to be inferred merely from a provision
When a transfer depends on an event that is guaranteed to happen, the transferee gains a vested interest in the property. This indicates that the transfer is complete, even if the property has not yet been possessed. A vested interest provides an immediate right, whether that right is for current or future enjoyment of the property. Hence, an interest that does not depend on any preceding condition is known as a vested interest.
When an interest is set to take effect only after a specific condition is met, this is known as a condition precedent. Conversely, a vested interest is unconditional and becomes effective as soon as the interest is transferred. Although the enjoyment of a vested interest may be postponed, the interest itself is immediate. If the transferee dies, their vested interest passes to their legal representatives, regardless of whether they had taken possession before death. Therefore, a vested interest remains valid even if the transferee dies.
An interest created on a transfer of property is said to be vested where
A vested interest is nonetheless a vested interest even where the transfer deed contains a provision whereby
Answer:- A Wakf is generally managed by a Mutawalli. He is the Superintendent. The Mutawalli does not own wakf property. He is only manager and supervisor. Though his functions resemble that of a trustee but he is not a trustee. The Mutawalli has to protect the wakf property, and must discharge his duties with diligence, care and honesty. He cannot alienate the wakf property except when he is allowed expressly by the wakf deed. A mutawalli also cannot create a permanent lease of the wakf property except with the express provision of the wakf deed or permission of Court. He can grant a lease not exceeding 3 years. If it is a non-agricultural property, it can to be leased for more than one year. The remuneration of a Mutawalli is fixed in the Wakfnama. If it is not specified, the Court can fix his salary, not exceeding 1/10 of the income of the wakf property.
The wakf appoints the first Mutawalli. The wakif can also name the persons who should succeed the first mutawalli. Sometimes the power to nominate the succeeding Mutawalli is given to the first Mutawalli, if the method of succession is not mentioned in the wakf deed. If the office of the Mutawalli falls vacant, the wakif or his executor can appoint a successor. If the above chance is not there even the mutawalli vacating the office can appoint his successor. The office of mutawalli is not hereditary, but if it is customary, then such heredity is recognized. A mutawalli cannot transfer his office to another person. The wakf cannot dismiss a Mutawalli already appointed, except if it is mentioned in the wakf deed. The person to be appointed as a mutawalli should be a major and of sound mind. Generally, a female can also become a Mutawalli, but if the wakf is for religious purpose, a woman is not appointed as Mutawalli. The Mutawalli, generally is a Muslim, but in exceptional cases, even non-muslims are appointed as Mutawalli.
Answer:- ‘Necessity’ is an important general defence to the criminal liability recognized by the Indian Penal Code under Section 81. Necessity as a defence means unavoidable circumstances or situations critical in nature leaving no choice in action. In other words, necessity means an act which can in no possible manner be avoided. Section 81 of the Indian Penal Code protects the cases where an act is done voluntarily but in good faith and without any criminal intention to cause harm, for the purpose of preventing a greater evil.
Section 81 of IPC provides that “Nothing is an offence merely by reason of its being done with the knowledge that it is lively to cause harm, if it be done without any criminal intention to cause harm and in good faith for the purpose of preventing or avoiding other harm to person or property”.
For Example- ‘A’ in great fire, pulls down houses in good faith of saving human life or property. ‘A’ is not guilty of any offence.
In R v. Dudley Stephen (1884), defendants were charged with murdering a fellow person who has also been cast adrift in a boat with food and water under an extreme necessity of hunger. The Court in this case held that the act of killing a fellow person to preserve one's own life cannot be justified. Therefore, the defense of necessity cannot be used in such cases.
Under Section 81 of Indian Penal Code, it will be a question of fact in each case whether the harm prevented was so imminent as to justify the risk of doing the act with knowledge that it was likely to cause harm.
Answer:- The following are the differences between Contract of Sale & Hire Purchaser-
CONTRACT OF SALE | HIRE-PURCHASER |
---|---|
In it, the seller transfer or agrees to transfer the property in the goods to buyer for a price, whether paid at once or later in installments | In it, there is no such agreement. It is a contract of hire and it may eventually ripen into a sale. |
Buyer become owner of goods and has all rights of owner. | A hirer is only a bailee of goods (i.e. in possession of goods for some time). |
Ownership transfers immediately from seller to buyer. | Ownership transfers only when certain number of installments paid, and at the option of hirer. |
Buyer cannot terminate a contract and is bound to pay price. An agreement to buy imports a legal obligation to buy. If there was no such obligation, there cannot properly be said to have been an agreement. | Hirer cannot be compelled to buy. Hirer may terminate bailment by returning the article to its owner, without any liability to pay remaining installments. If hirer defaults in payment, owner has a right to immediately resume possession of goods, without any liability to refund amount received till then. |
If the seller or buyer sold goods to a third party, then such a person gets a good title, if he was acting in good faith and unaware of previous sale or any lien or right of original seller. | If a hirer assigns his right to a third party (or make a sale/pledge of goods to him), then such person won't get a good title, as a hirer is not the buyer. |
Answer:- The following are the differences between False Imprisonment and Malicious Prosecution-
False Imprisonment | Malicious Prosecution |
---|---|
There is total restraint on personal liberty without lawful justification | There is the element of causing damage by means of an abuse of the process of court |
The actual damage need not be proven | The actual damage has to be proved |
The onus of proving the existence of probable and reasonable cause as justification lies on the defendant | In this case, the plaintiff is to allege and prove affirmatively its non-existence |
It is actionable per se | It is not actionable per se |
It is not necessary to prove malice. | It is necessary to prove malice |
A mistake of fact would not be a good defence | A mistake may be a good defence |
It is not necessary that there be an absence of a reasonable or probable cause | It must be proved that the criminal proceedings were made without reasonable and probable cause |
Answer:- Ans. The offence of kidnapping has been defined by Section 361 of the Indian Penal Code as under:
"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation: The words "lawful guardian" in this Section includes any person lawfully entrusted with the care or custody of such minor or other person.
Explanation: This Section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
So one of the essentials to constitute this offence is that minor must have been taken or enticed out of keeping of lawful guardian of such minor without the consent of such guardian.
If the husband and wife live separate and children are given in the custody of the wife under an order of an court, the father cannot take away the children from the mother. If he does so he will be guilty of kidnapping. But if there is no order of the Court, the removal by the father of his child from the custody of its mother, who has been deserted by him, will not amount to kidnapping from lawful guardianship because a Hindu father in preference to the mother is recognized as the legal guardian of all his legitimate male or female minor children.
In the present case, if the minor girl was in the keeping of her mother under the orders of a court, the father is liable to be convicted for an offence of kidnapping. But if there is no such order, the removal of the minor out of the keeping of her mother by father would not amount to any such offence since the father is the natural guardian of the minor, and he cannot be said to have removed the minor from the keeping of lawful guardian
Answer:- The general principle is that if there is a right, there must be a remedy for its violation though the injury does not cause actual or pecuniary damages. This principle is expressed by "injuria sine damnum". The main gist of the maxim is that it refers to the violation of a legitimate right without causing any harm, loss, or injury to the aggrieved party. Whenever a legal right is infringed, the person in whom the right is vested has the right to take legal action.
Rights are of two kinds:
A violation of absolute right will furnish a cause of action, without proof of actual damage and this case is not with qualified right. Therefore, in their violation law does not presume damage without actual proof.
A classification of rights into absolute and qualified, gives rise to similar classification of torts. In this way torts are of two kinds-
In Ashby v. While, (1703), the plaintiff succeeded in his action, even though the defendant's act did not cause any damage. The plaintiff was a qualified voter at a parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff's vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won in spite of that. It was held that the defendant was liable.
The following observations made by the court aptly clarify the principle of the maxim:
"If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment 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. Every injury imports a damage, though it does not cost a party one farthing (or paisa), the damage being that the person is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of speaking them yet he shall have an action. A man shall have an action against another for riding over his ground, though it does him no damage, for it is an invasion of his property, and the other has no right to come there."
In Bhim Singh v. State of J & K, (AIR 1986), the petitioner, an M.L.A. of J & K Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. Thus, he was deprived of his fundamental right to personal liberty and constitutional right to attend the Assembly session. The court awarded exemplary damages of Rs. 50,000 by way of consequential relief.
In case of injuria sine damnum the loss suffered by the plaintiff may be relevant only as regards the measure of damages. Generally nominal damages are awarded by the court. If, however, the court feels that the violation of a legal right is owing to mischievous and malicious act, as had happened in the case of Bhim Singh, the court may grant even exemplary damages.
Thus, Injuria sine damnum is a legal principle that recognizes the violation of a legal right without the need for actual loss or harm. It emphasizes the importance of protecting and upholding individual rights, ensuring that individuals are not unjustly deprived of their legal entitlements.
Answer:- The following are the differences between Set-off & Counter Claim-
Basis | Set-Off | Counter Claim |
---|---|---|
Nature | Statutory defence | Cross-action initiated by the defendant |
Basis | Must be an ascertained sum or arise from the same transaction as the plaintiff’s claim | Not required to arise from the same transaction |
Purpose | Defence against plaintiff’s claim | Offensive measure against the plaintiff’s claim |
Pleadings | Pleaded in the written statement | Treated as a separate claim |
Scope | Generally cannot exceed the plaintiff’s claim | Can exceed the plaintiff’s claim |
Jurisdiction limits | Claims must not exceed the court’s pecuniary jurisdiction limits | Claims must not exceed the court’s pecuniary jurisdiction limits |
Answer:- The following are the differences between Extortion and Criminal Intimidation-
Extortion | Criminal Intimidation |
---|---|
Extortion is defined in Section 383 of the IPC. | Criminal Intimidation is defined in Section 503 of the IPC. |
Extortion means that an individual places another individual in a state of apprehension or threat to injure him or dishonestly persuade him so that he can deliver the property or any other valuable security to another person. | This offence is committed when someone poses a threat to another with harm to his person, property, or reputation, and the other person is forced to perform or omit something he is not legally required to do or omit. |
The main motive of extortion is to obtain money or any other valuable security. | In case of Criminal Intimidation, the main purpose is to threaten someone to do any act that he is not bound to do or to induce someone not to do anything that he is legally bound to do. |
In extortion, both actual and constructive forces are used. | In criminal intimidation, only constructive force is used. |
Delivery of the property is essential under this offence. | There is no delivery of property, money, or valuable security in criminal intimidation. |
The maximum punishment for extortion is 3 years. | The maximum punishment for criminal intimidation is 2 years. |
Extortion is a more serious nature. | Criminal Intimidation is less serious as compared to Extortion. |
Answer:- According to Section 56 of the Indian Contract Act, 1872-
"A contract to do an act which after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful."
It means that every contract is based on the assumption that the parties to the contract will be able to perform the same when the due date of performance arrives. If because of some event the performance has either become impossible or unlawful, the contract becomes void.
In Satyabrata Ghose v. Mugneeram, 1954, the Court noted that if fulfilling a contract becomes impossible not only due to literal physical impossibility but also when the contract's object becomes impractical to fulfil, it falls within the scope of Section 56 of the Indian Contract Act.
In the present case, the female singer, A, ate ice cream a day before her scheduled performance, which caused her voice to crack. If A knew that eating ice cream would cause her voice to crack, then her action would constitute self-induced frustration. She would be liable for breaching the contract. However, it is evident from the facts that she was unaware of the consequences of eating ice cream.
Thus, B has failed to prove that A intentionally caused her voice to crack, the defence of frustration is valid, and the contract is discharged. Therefore, B is not entitled to recover any damages from A.
Answer:- According to Section 20 of the Code of Civil Procedure, “Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction --
If a suit is filed against a Corporation on the ground of its carrying on business, then in view of Explanation to Section 20, a suit will lie where the Corporation has its head office even if no part of cause of action arises there or branch office where cause of action has arose.
In the present case, the suit against the Company can be filed at Chandigarh where it has its head office, or at Chennai where the Company has its branch office and cause of action has arisen at Chennai. No suit can be entertained by a Court at Jaipur or Mumbai, although the company has its branch offices at those places, because no part of the cause of action arose either at Jaipur or Mumbai.
Answer:- The following are the differences between Kidnapping and Abduction-
Kidnapping | Abduction |
---|---|
Section 359 of IPC states the two
types of kidnapping.
|
The definition of Abduction is given in Section 362 of IPC. |
The offence of kidnapping is committed against a minor that is 16 years in the case of males and 18 years in the case of females. | There is no provision specifying a minimum age which puts a bar on the age of the person abducted. |
In kidnapping, the person is taken away or enticed. The means of doing these is irrelevant to constitute the crime. | In abduction, force, deceit or compulsion is used to take a person from a place. |
In Kidnapping, lawful guardian refers to a person who is legally authorised to take care of a minor or a person of unsound mind. For kidnapping, it is essential that the victim is taken away from their lawful guardian. | In abduction, there is no concept of taking a person away from his/her lawful guardian. |
Consent of the person kidnapped is immaterial. It is important to note that the consent of the guardian can be material. | In case the person abducted gives his/her consent, it is considered that there is no offence. |
Kidnapping is not a continuing offence. | Abduction is a continuing offence because it does not end when a person is moved from a particular place, rather continues with every movement from one place to the other. |
The offence is completed as soon as a person is taken away from the country or from his/her lawful guardianship. | It is a continuing offence and involves forcibly or deceitfully taking a person from one place to another. |
Answer:- Section 115 of Civil Procedure Code, 1908, vests the High Court with revisional jurisdiction. Revision, in its literal sense means reviewing, re-examining, and scrutinizing a matter to ensure its accuracy and correctness. The main purpose of Section 115 is to prevent arbitrary, capricious, illegal, or irregular conduct by Subordinate Courts in the exercise of their jurisdiction.
Section 115 of Civil Procedure Code lays down all the conditions when the High Court can exercise its revisional jurisdiction:
The following are the differences between Revision and Review-
Revision | Review |
---|---|
Revisional jurisdiction can be exercised only by the High Court. | A review is done by the court who has passed the order or decree itself. |
Revisional power is exercised when no appeal lies to the High Court. | Review of an order or decree can be done even if an appeal lies to the High Court. |
The High Court can exercise the revisional power even suo moto (by its own motion). | For review, an application is required to be filed by the aggrieved party. |
The grounds for revision are mainly on jurisdiction errors. | The grounds for the review are
as follows:-
|
The order passed on exercising revisional jurisdiction is not appealable. | The order granting the review is appealable. |
Answer:- The word Presumption, in Law of Evidence, means an inference, affirmative or negative of the existence of some fact, drawn by a Court through the process of probable reasoning. The following are the differences between Presumption of Fact and Presumption of Law-
Presumption of Fact | Presumption of Law |
---|---|
Presumption of fact is based on logic, human experience and law of nature | Presumption of law is based on provision of law. |
Presumption of fact is always rebuttable. | Presumption of law is conclusive unless rebutted as provided under rule giving rise to presumption. |
The position of presumption of fact is uncertain and transitory. | The position of presumption of law is certain and uniform. |
The Court can ignore presumption of law irrelevant of the fact that how strong it is. | The Court cannot ignore presumption of law. |
The presumption of fact are
derived on the basis of –
|
Presumption of law is derived on established judicial norms and they have become part of legal rules. |
The Court can exercise its discretion while drawing presumption of fact i.e. presumption of fact is discretionary presumption. | Presumption of law is mandatory i.e. the court is bound to draw presumption |
Answer:- The following are the differences between Res Judicata and Estoppel-
Thus, the doctrine of Res Judicata limits a plaintiff's ability to recover damages from the defendant on the same injury more than once. In contrast, the doctrine of Estoppel safeguards people from fraud or misrepresentation.
Answer:- The following are the grounds under which plaint can be rejected-
Thus, it can be concluded that if a plaint is defective on any of the grounds under Order VII Rule 11, the court has the authority to dismiss it.
Answer:- Primary evidence, which is also known as best evidence, refers to the actual documents produced for the inspection of the court. Primary evidence is the most reliable proof of the existence of an object since it is the original document itself.
Secondary evidence refers to evidence that is presented in the absence of primary evidence. It is considered a substitute for the original or primary evidence.
The following are the differences between Primary Evidence and Secondary Evidence-
Primary Evidence | Secondary Evidence |
---|---|
Section 62 of the Act defines Primary Evidence. | Section 63 of the Act defines Secondary Evidence. |
Primary Evidence is an original document that is presented before the court of law for inspection. | Secondary Evidence is not an original document. |
Primary Evidence is the main source of evidence. | Secondary Evidence is not the main source of evidence but an alternative source. |
The value of the evidence is the highest. | It is not the best evidence and is used under exceptional circumstances. Thus, it is not a general rule to present such evidence. |
Notice is not required to present such evidence. | Notice is required to present such evidence. |
Primary Evidence is itself admissible. | Secondary Evidence is admissible only in the absence of Primary Evidence. |
Answer:- Sections 87, 88 and 89 of the Indian Penal code provides the circumstances under which a valid consent can be claimed in defence of a charge for an offence. The acts which would otherwise be offences shall cease to be so in the following circumstances-
According to Section 87 of the Indian Penal Code, “Nothing is an offence which is not intended to cause death on grievous hurt; if the person to whom such hurt is caused being above the age of 18 years has expressly or impliedly consented to suffer harm, or to take the risk of any harm.”
For Example- A and Z agree to fence with each other for amusement; this agreement implies the consent of each to suffer any harm which in the course of such fencing may be caused without foul play and if A while playing fairly hurts Z, A has committed no offence.
Section 87 applies to injuries during games, sports, or similar activities.
In Poonai Fattemah v. Emp, the accused who professed to be a snake charmer, induced the deceased to believe him that he has the power to protect him from any harm caused by the snake bite. The deceased believed him and got bitten by the snake and died. The defence of consent was dismissed.
It is important to note that Section 87 will not provide any protection where the act by itself is one which is prohibited by law.
According to Section 88 of the Indian Penal Code, “Nothing is an offence what is not intended to cause death by reason of the harm that has resulted from that act, if it is done in good faith for benefit of another who has given his consent, express or implied, to suffer that harm or to take the risk of that harm.”
For Example- A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death and intending in good faith with Z's consent, performs an operation. A has committed no offence, even if it turns out that the operation is unsuccessful.
In R.P Dhanda V. Bhurelal, the appellant, a medical doctor, performed an eye operation for cataract with patient’s consent. The operation resulted in the loss of eyesight. The doctor was protected under this defence as he acted in good faith.
According to Section 89 of the Indian Penal Code, “Nothing is an offence which is in good faith for the benefit of person under twelve years of age, or of unsound mind or by consider, either express or implied, of his guardian or other person having lawful charge of that person by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause, to that person:
Provided -
It is important to note that Section 89 of the Indian Penal Code protects acts done in good faith for the benefit of a child or an insane person or with their guardian’s consent.
Answer:- A man’s reputation is considered valuable property and every man has a right to protect his reputation. This right is acknowledged as an inherent personal right and is a jus in rem i.e., a right good against all persons in the world. Defamation refers to any oral or written statement made by a person which damages the reputation of another person.
According to Prof. Winfield - "Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generality or which tends to make them shun or avoid that person."
In S.N.M. Abdi v. Prafulla Kumar Mohanta, AIR 2002, it was observed that the publication in order to be defamatory, a publication must tend to lower the plaintiff in the opinion of men whose standard of opinion, the court can properly recognise or tend to induce them to entertain an ill opinion of him.
The following are the kinds of defamation-
The following are the differences between Libel & Slander-
Answer:- Under the Islamic law, temporary marriage, known as Muta marriage or nikah is a contractual arrangement. It involves a mutual agreement between a man and a woman to live as spouses for a predetermined duration, with an agreed-upon dower (mahr). Muta marriages automatically dissolve at the end of the specified term or upon the death of either party.
The following are the conditions of a Muta Marriage-
Answer:- The doctrine of Privity of contract is a fundamental principle in contract law which governs the rights and obligations of parties to a contract. It means that only the parties to a contract can enforce the terms of that contract. When a contract is made between two or more parties upon certain terms and conditions, it is only those parties to contract are entitled to initiate suit.
Thus, the doctrine of Privity of contract means that only those persons who are parties to the contract can enforce the same. A stranger to the contract cannot enforce a contract even though the contract may have been entered into for his benefit.
The following are the exceptions to the doctrine of Privity of contract-
Therefore, it can be concluded that only parties to contract can sue each other and no stranger is allowed to enter between the parties to sue.
Answer:- Under the Indian Evidence Act, the documents have been divided into-
Public Documents has been defined under Section 74 of the Indian Evidence Act.
According to Section 74, the following documents are Public documents-
Answer:- Volenti non fit injuria is a settled principle of law that no man can sue for a tort which he had consented either –
For example - injuries received in course of a lawful game or sports are not actionable.
The latin maxim Volenti non fit injuria means a harm suffered voluntarily does not constitute legal injury and as such it is not actionable.
The following are the ingredients of the maxim volenti non fit injuria-
Thus, volenti non fit injuria is one of the defence under the law of torts in which the person who has committed a wrong is exempted from liability.
Answer:- Pardon is an act of mercy or forgiveness. Article 72 of the Constitution of India provides pardoning power to the President of India whereas Article 161 bestows the same power to the Governor of the state. The following are the differences between Article 72 and Article 161-
Basis of differentiation | President | Governor |
---|---|---|
Scope of the pardoning power | The pardoning power of the President is wider in its scope. | The pardoning power of the Governor is not as broad as that of the President of India. |
Power with respect to a punishment or sentence by a Court Martial | The President of India has the
power to grant pardon
|
The Governor of a state has no such power. |
Provision under the Constitution | The pardoning power of a President is provided under Article 72 of the Constitution of India. | The pardoning power of the Governor is dealt under Article 161 of the Constitution of India. |
Power with respect to grant of a death sentence | The President of India has the sole power to grant pardon, reprieve, respite, suspension, remission, or communication in respect of a death sentence. | The Governor of India does not have the authority to pardon a death sentence. |
Answer:- The following are the differences between Muta Marriage and Nikah-
Answer:- The following are the powers of the President-
Answer:- The term ‘Partnership’ is defined under Section 4 of the Indian Partnership Act, 1932 as-
"Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all."
According to Section 4 of the Indian Partnership Act, 1932, the following are the essential elements which are necessary to constitute a Partnership-
Therefore, the above mentioned elements must be present in order to constitute a Partnership.
Answer:- In the case in hand, ' A' entered into a contract to marry with 'X' while'A's wife (W) was still living. Later, when 'W' died 'X' filed suit against 'A' for breach of agreement and for damages. It is important to find out whether such agreement between 'A' and 'X' is enforceable or not?
Now the question arises whether after the death of A's wife 'W', is this contract enforceable or not?
Section 23 of Indian Contract Act comes into the picture which lays down that:
The consideration or object of an agreement is lawful unless:
In each of these cases consideration or object of an agreement is said to be unlawful. Every agreement of which object or consideration is unlawful is void.
In the present case, making agreement to marry with other woman during the life time of a wife is prohibited by society as well as by law being immoral and opposed to public policy. Thus, agreement between 'A' and 'X' is void being its object is unlawful.
Answer:- Section 3 of Transfer of Property Act defines Immovable Property as, Immovable property does not include standing timber, growing crops or grass.
The definition of Immoveable property under Section 3 of the Transfer of Property Act does not clearly state the real nature of the term.
According to Section 3(26) of General Clause Act, Immovable property shall include land benefits to arise out of land and things attached to earth or permanently fastened to anything attached to the earth.
The definition of Immoveable property as given in General clause Act 1897 is also not comprehensive. However, merging the above definitions, immovable property can be summed as-
To sum up, it can be said that everything attached to the earth with the intention of permanently fixing the same comes under the purview of immovable property. Apart from this, everything else falls into the category of movable property.
Answer:- The following are the differences between Shia Sect of Schools and Sunni Sect of Schools -
Basis of Difference | Shia | Sunni |
---|---|---|
Law of marriage | Temporary Marriages (Muta) is lawful. | Temporary Marriages (Muta) is unlawful. |
Dower | Under Shia law, there is no minimum limit fixed. But under the Shia law ‘proper’ dower should not exceed 500 dirhams. | Ten Dirhams is the minimum amount of dower, under Sunni law. |
Talaq | The Shia law does not recognise divorce pronounced under such circumstances. | Under Sunni law, where the words of divorce used by the husband are ‘express’. The divorce is valid even if it was pronounced under compulsion or in a state of voluntary intoxication. |
Maternity | The Shia law distinguishes between child of fornication and child whose mother was validly married before conception but her husband disavowed its parentage. | Maternity under Sunni law is fixed in the woman who gave birth to the child whether from the adulterous intercourse or of a valid contract of marriage. |
Gift | Under Shia law, a gift of an undivided share is valid, though it be a share in property capable of partition. | A gift of undivided share (mushaa) in a property which is capable of division is irregular under the Sunni law, unless some special conditions are satisfied. |
Inheritance | Under Shia law, there are
only two classes of heirs,
|
According to Sunni law,
there are three classes of
heirs, namely,
|
Answer:- Section 4 of the Limitation Act provides:
"Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens."
Explanation added to Section 4 of the Act states that:
"A court shall be deemed to be closed on any day within the meaning of this Section if during any
part of its normal hours it remains closed on that day."
For Example, if a Court reopens on 1st January and the time for filing the appeal expires on 31 st December (the day on which the Court remains closed) then the appeal can be preferred on the 1 st of January when the Court reopens.
In Maqbool Ahmed v. Omkar Pratap Singh, AIR 1935, it was held that Section 4 of the Limitation Act merely permits the filing of the suit etc. on the date beyond the period of the limitation i.e. where the period of limitation expires on the day when the Court is closed, then in such case, an application may be made on the day when the court re-opens.
Thus, Section 4 of the Act does not extend the period of the limitation. Section 4 merely embodies a rule of elementary justice that if the time allowed by statute to do an act or to take a proceeding expires on a day when the court is closed, it may be done on the next sitting of the Court.
Answer:- The Risk prima facie passes with property is the general rule of Contract of Sale as incorporated under Section 26 of Sales of Goods Act which provides that:
Unless otherwise agreed the goods remain at the selles risk until the property therein is transferred to buyer but when the property therein is transferred to buyer, the goods are at the risk of buyer whether delivery has been made or not.
Provided that where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of party in default as regard any loss which might not have occurred but for such fault.
Provided also that nothing in this Section shall affect duties or liabilities of either seller or buyer as bailee of goods of other party.
Thus, in case of either contract of sale or an agreement to sell after the parties have entered into contract, whoever is the owner of goods, the goods shall be at his risk, he may not be in possession of or delivery of goods may not be made to him.
The rule ‘Risk prima facie follows with property’ has the following exceptions-
Answer:- An Attestation means witnessing of execution of deed such as Will, Mortgage, Gift or sale etc. In case of attestation, it is necessary to prove that the executant of deed signed in presence of attesting witnesses and witnesses signed the deed in presence of the executant. Section 3 of the Transfer of the Property Act defines the term attested “in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction on the executant, or has received from the executant a personal acknowledgement, of his signature or mark, or of the signature of such other person and each of whom has signed the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no form of attestation shall be necessary.”
In Kumar Harish Chandera Singh Deo v. Bansidhar Mohanty and Others, AIR 1965, it was observed that the object of the attestation is to protect the executant from being required to execute a document by the other party there to by force, fraud or undue influence.
In Abdul Jabbar Sahib v. H. Venkata Sastri, 1969, the Supreme Court observed that to attest is to hear witness to a fact. For attestation it is essential that witness should have put his signature "animo attestendi" that is for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose for example to clarify that he is a scribe or identifier or a registering officer, he is not an attesting witness.
In order to constitute valid attestation, the following essentials are required:-
Answer:- Dower is anything whether money or other property which the wife is entitled to get from her husband in consideration of entering into marriage contract. According to Muslim Law, Marriage is a civil contract and dower is necessary result of it being a part of the consideration of her agreement to become her husband's wife by consummating the marriage.
According to Amir Ali, “Dower is a consideration for his wife's sole and exclusive use and benefit.”
According to Wilson, “Dower is a consideration for the surrender or person by the wife.”
Thus, Dower is a sum of money paid by husband to his wife in consideration of marriage at the time of marriage, before or after the marriage.
The dower may be classified into:-
Under Shia Law, the Proper Dower should not exceed 500 dirhams.
Answer:- Sedition was previously provided in section 124A of the Indian Penal, 1860 which was first introduced in the year 1870 by English jurist James Stephen. But after the introduction of the new Criminal Law i.e. Bharatiya Nyaya Sanhita (BNS), a new offence including “acts endangering the sovereignty, unity and integrity of India” under Section 152 has been added to the Act.
Earlier, the offence of sedition was dealt under Section 124A of the Indian Penal Code. According to Section 124A, in order to attract the offence of Sedition the following elements must exists-
The punishment under Section 124A of the IPC ranges from imprisonment up to three years to a life term, to which a fine may be added.
On the other hand, under the Bharatiya Nyaya Sanhita (BNS), Sedition has been replaced by a new offence defined under Section 152. According to Section 152 of BNS, “Whoever,purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.”
Section 152 of BNS, places higher priority in safeguarding national interests and acknowledging the threats to sovereignty extend beyond dissent against ruling authorities. While Section 124A of the IPC, laid emphasis on protection of the government from disaffection. Both Section 152 of BNS and Section 124A of IPC, protects legitimate dissent expressed through lawful means.
Section 124 A of IPC was introduced by the British intending to punish any criticism against them whereas the new Bharatiya Nyaya Sanhita aims at serving justice and not suppression and punishment.
The minimum punishment under Section 152 of BNS is enhanced to seven years as opposed to three years under Section 124A. Further, the offence is no longer punishable with only fine as was the offence of sedition but with both fine and imprisonment.
Thus, it can be concluded that the new Sedition law under Section 152 of BNS creates a delicate balance by ensuring the protection of individual freedoms while tackling serious threats to the nation effectively.
Answer:- Section 5 of Limitation Act provides that Any appeal or any application other than an application under any of the provisions of Order XXI of Code of Civil Procedure 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had Sufficient Cause for not preferring the appeal or making the application within such period.
It means that any appeal or application (other than one made under Order XXI of C.P.C.) may be admitted after prescribed period if appellant or applicant as the case may be shows Sufficient Cause for not preferring appeal or making application within the prescribed period. The court has a discretion to admit or refuse the proceeding even if sufficient cause is shown.
Explanation to Section 5 states that The fact that the appellant or the applicant was misled by any order, practice or judgement of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section.”
In Balwant Singh v. Jagdish Singh, the Court held that a party seeking condonation of delay must show that they were acting bona fide and had taken all possible measures within their power and did not approach the court with any unnecessary delay.
Recently, in Sabarmati Gas Limited v. Shah Alloys Limited (2023), the Supreme Court observed that Sufficient Cause is the cause for which a party could not be blamed.
In Collector of Land Acquisition v. Mst. Katiji AIR 1987, the Supreme Court laid down following principles for dealing the application under Section 5 of the Limitation Act:
It was pointed out that the Courts should adopt liberal approach in the matter of condonation of delay keeping in view the above principles. Hence, it can be concluded that the remedy provided under the Limitations Act to condone the delay where a sufficient cause has been provided for the same should be construed liberally in order to meet the ends of justice.
Answer:- The following are the differences between the Contract of Indemnity and Contract of Guarantee-
Answer:- Section 5 of Hindu Marriage Act, 1955 lays down essential conditions for a Marriage under Hindu Marriage Act. Section 5 of the Hindu Marriage Act provides that A marriage may be solemnized between any two Hindus if the following conditions are fulfilled which are as follows-
Thus, Section 5 prescribes the essential requisites for a Hindu Marriage such as –
It is important to note that these conditions of marriage are supplemented by certain ceremonies as provided under Section 7 of the Hindu Marriage Act.
Answer:- The following are the key features which are introduced by the new Bhartiye Nyaya Sanhita-
Thus, the BNS marks a step forward toward a modernized legal framework, it not only amends existing Indian Penal Code but also introduces various new provisions that may improve efficiency, fairness, and transparency in the legal process.
Answer:- Section 22 of Indian Evidence Act provides that Oral admissions as to contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained or unless genuineness of document produced is in question.
Section 22 of Act contemplates basic principle of law of evidence that when there has been a document, nobody can be permitted to prove oral admission about the contents of that document. For example-
A executed a deed of mortgage in favour of T. T files a suit for possession of property mortgagee on the basis of that mortgage. During the trial, A denied the execution of mortgage. Now in this case, T cannot prove by oral evidence that he had admitted before some persons that he had mortgaged the property to him. T can prove the execution of mortgage and can get possession of property only when he files that deed of mortgage in court and proves it.
It is important to note that there are two exceptions to Section 22-
Answer:- The general Rule is that all persons interested in the suit should be joined as party to it so that matter involved in it may finally and completely be adjudicated upon and fresh litigation over the same matter may be avoided. Order I Rule VIII of Civil Procedure Code is an exception to above said general rule. It provides that when there are number of persons commonly interested in a suit, one or more of them can with the leave or upon the direction of court, sue or be sued on behalf of themselves and other. It is important to Plaintiff in representative suit need not to obtain previous consent of persons whom he represents.
A Representative Suit may be defined as suit filed by or against one or more persons on behalf of themselves and others having same interest in the suit.
Order I Rule VIII of Civil Procedure Code has been enacted in order to save time and expense to ensure that a single comprehensive trial of question in which numerous persons are interested and also to avoid harassment to parties by multiplicity of suits.
However, Order I Rule VIII of Civil Procedure Code contains only enabling provisions and does not compel any one to represent many. Order I Rule VIII also does not vest a right of suit in a person, if he by himself has no right to sue. It is necessary to bring the case within the provisions of Order I Rule VIII all the members of a class should have common interest in a subject matter and a common grievance and relief should in its nature be beneficial to all.
The following conditions must exist for application of Order I Rule VIII of Civil Procedure Code-
Answer:- Section 125 of Indian Contract Act is relevant which provides indemnity holder can bring an action against indemnifier to recover damages and costs etc. The Indemnity holder acting within the scope of his authority has following rights-
Answer:- The following are the differences between limitation and laches-
The doctrine of laches is applied in India in the following cases-
Answer:- Section 73 of Indian Penal Code deals with Solitary Confinement. Section 73 of the Indian Penal Code provides -
"Whenever any person is convicted of an offence for which under this code, the court has power to sentence him to rigorous imprisonment, the court may by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of imprisonment to which he is sentenced not exceeding three months in the whole, according to following scale, that is to say -
In Ramanjulu Naidu v. State, 1947, it was observed that solitary confinement should not be ordered unless there are special features appearing in evidence such as extreme violence or brutality in the commission of offence.
Section 74 of the Indian Penal Code provides limit of solitary confinement-
"In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time with intervals between the periods of solitary confinement of no less duration than such periods, and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded with intervals between the periods of solitary confinement of not less duration than such periods."
Thus, it can be concluded that Solitary confinement is a complete isolation of prisoner from the society. Section 73 and 74 of the Indian Penal Code gives lawful recognition to solitary confinement and puts certain limits due to its severe character.
Answer:- Section 6 of the Indian Evidence Act makes the constituent incidents of a transaction relevant, if a part of the transaction is a fact in issue. These constituent incidents may be –
In the present case, each delivery to the intermediate persons successively is a part of the same transaction. (Illustration (d) of Section 6 of the Act)
Therefore, it is relevant under Section 6 of the Indian Evidence Act.
Answer:- Section 76 of Indian Penal Code is a well-established from a Common law maxim ignoratia facit excusat ignoratia juris non excusat which means in criminal law mistake of fact is a good defence while mistake of law is no defence. Every man is presumed to know law. The reason why ignorance of law is never a defence is that if it were a defence, it would screen offenders and lead to endless complications.
Section 76 lays down:
Nothing is an offence which is done by a person who is or who by reason of mistake of fact
and not by reason of mistake of law in good faith believes himself to be bound by law to do
it.
Section 79 of Indian Penal Code provides:
Nothing is an offence which is done by any person who is justify by law or who by reason of
mistake of fact and not by reason of mistake of law, in good faith, believes himself to be
justified by law, doing it.
In R. v. Tolson, it was observed Honest and reasonable mistake stands on the same footing as absence of reasoning faculty as in infancy. In this case, Accused had gone through the ceremony of marriage within seven years after she had been deserted by her husband. She believed in good faith and on reasonable grounds that her husband was dead. It was held that a bonafide belief on reasonable grounds in the death of the husband at the time of second marriage afforded a good defence to the charge of bigamy.
Similarly, in Chiranji v. State, A father kills his own son believing in good faith, him to be a tiger. It was observed that a hunter mistakes a man for an animal and fires, here through a mistake a man intending to do a lawful act, has done that which is unlawful. There has not been that conjunction between his act and his will, which is necessary to form a criminal act. If there was no mens rea, there was a mistake. Therefore, it may be no crime.
Answer:- Section 23 of Indian Contract Act provides that the consideration or object of an agreement is lawful unless the Court regards it an immoral or opposed to public policy.
The term Public Policy cannot be defined with any degree of precision. The certain class of acts are said to be against public policy or against the policy of law when the law refuses to enforce or recognise them on the ground that they have mischievous tendency so as to be injurious to the interest of State of public. Giving or agreeing to give bribe for securing public office is against public policy. Therefore, in case in hand agreement between A and B is void on the ground of being against public policy under Section 23 of the Act
Thus, A cannot recover Rs. 1,000 from B.
Answer:- Section 304A of Indian Penal Code provides that Whoever causes the death of any person, by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or both.
In order to apply Section 304 A the following conditions must be fulfilled-
In the case in hand, the accused drove the bus on a kacha road at a high speed. Further, the iron sheets were placed on the top of the bus without taking any precaution to avoid their fall. Therefore, driving the bus at a high speed on such a path and not taking of precaution while placing iron sheets on the top of the bus amount to criminal rashness and negligence. B died due to injuries received by him on being hit on his head with the iron sheets. Therefore, there is a direct nexus between the death of B and the rash and negligent act of A. Hence, A is guilty under Section 304A of the Indian Penal Code.
Answer:- Section 7 of the Transfer of Property Act provides that “Every person competent to contract and entitled to transferable property or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed prescribed by any laws for the time being in force.”
In Balai Chandra Mondal v. Indu Rekha Devi, 1973, it was observed that a person's conduct in collecting rents and managing an estate of the landlord does not empower him to transfer the land as the landlord's agent.
Section 7 of the Act does not deal with the question as to who can be transferee of property. Section 6(b) provides that no transfer can be made to a person legally disqualified to be transferee. According to that provision, a minor is not disqualified to be transferee although a contract with a minor is void. Under Section 7 there is nothing which prevents a person not competent to contract from being transferee of property. It means that if a minor enter into contract through guardian or next friend he can be purchaser or mortgagee, otherwise not.
Answer:- Section 146 of Indian Penal Code defines offence of Rioting as Whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Section 159 has defined offence Affray as When two or more persons by fighting in a public place, disturb the public peace, they are said to commit any affray.
The following are the differences between Riot and Affray-
Answer:- The general rule of law of contract is that an agreement without consideration is void.Section 25 of Indian Contract Act provides that:
An agreement made without consideration is void unless
In any of these cases, such an agreement is a contract.
In the case in hand, A was treated during his illness by his friend B. Further, B has refused to accept any payment for such professional services rendered by him to A. In other words, this act of B was voluntary and gratuitous. It is also important to note that after treatment, A never made any promise to compensate B within the meaning of Section 23(2) of the Act. However, A promised B's son X, to pay him Rs. 1,000. For this promise, there was no consideration at all. Therefore, the promise with X being without consideration does not create any legal obligation, and is void.
Answer:- Section 4 of Indian Partnership Act defines `Partnership as:
Partnership is a relation between persons who have agreed to share profits of the business to be carried on by all or any of them acting for all.
Section 4 makes it clear that the following essentials must exist to form partnership-
It is to be noted that an agreement of sharing profits of the business is one of essential element of partnership. Moreover Section 6 of Partnership Act says
In determining whether a group of persons is or is not a firm or whether a person is or is not partner in a firm, regard shall be had to real relation between the parties as shown by all relevant facts taken together.
Explanation II to Section 6 makes it clear that receipt by a person of share of profit as remuneration, does not of itself make the receiver a partner in the firm.
In the case in hand, A has been shown a partner in the partnership deed and 'A' manages the business of firm and paid Rs. 2000 P.M. However, A shall have no share in profits of firm. The evidence taken together shows that when he is not entitled to share profits of the firm, he cannot be said to be partner in the firm because sharing profits of the firm is one of the essential condition for partnership relation. A at the most can be called Manager of business of the firm taking salary of Rs. 2000/-.
Therefore, A's plea that he is not partner and as such not liable for losses is sustainable.
Answer:- Section 301 of Indian Penal Code provides that if a person by doing anything which he intends or knows to be likely to cause death commits culpable homicide by causing death of any person whose death he neither intends nor knows himself to be likely to cause the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.
Section 301 I.P.C. embodies the doctrine of transfer of malice or transmigration of motive. The basic idea behind the provision is that where an act is in itself criminal the doing of the act is an offence irrespective of the individuality of the person harmed.
In Jagpal Singh v. State of Punjab, 1991, accused when aims at one and kills another, he would be punishable for murder under the doctrine of transfer of malice as embodied in Section 301 of the Indian Penal Code.
Therefore in problem in hand, A is guilty of murder.
Answer:- Every Contract create certain right in favour of one party to it and certain obligation upon other party and each party is to perform this part of obligation. When each party fulfils his promise, the contract is said to be discharged.
Answer:- The following are the differences between Limitation and Acquiescence-
Answer:- Section 4 of the Partnership Act defines Partnership as A relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.
The following are the essentials conditions in order to determine whether partnership exists or not:-In determining whether a group of persons is or is not a firm or whether a person is or is not a partner in a firm, regard shall be had to real relation between the parties as shown by all relevant facts taken together.
Explanation 1 to Section 6 makes it clear that The sharing of profits or of gross returns arising from property by persons holding a joint or common interest in that property does not by itself make such persons partners.
In the given problem, A, B, C and D different motor owners though agreed to ply their respective motors between Delhi to Agra on fixed fare and to divide the proceeds equally but are not partners in view of Explanation 1 of Section 6.
Moreover, A, B, C and D do not possess all elements which are necessary to create partnership. Though they might have agreed to divide profits equally but they have not apparently agreed to carry business by all or any one of them acting for all. Thus, trade combination does not amount to partnership. Therefore, A, B, C and D are not partners.
Answer:- According to Section 463 of the Indian Penal Code, “Whoever makes any false document or false electronic record or part of a document or electronic record with intent cause damages or injury to the public or to any person or to support any claim or title, or to cause any person to part with property or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”
The ingredients of an offence of forgery are as follows:A signs his own name to a bill of exchange with an aim that it may be believed that another person of the same name drew the bill. A has committed forgery.
The offence of forgery has something to do with the making of a document. It is important to note that the making of a document is not an offence in itself. It will amount to an offence if the document or any part thereof is false. In other words, facts are contrary to what they appear in such writing or inscription. A false document must be coupled with a criminal intent to constitute the offence i.e. intent of a dishonest and fraudulent character.
Thus, it can be concluded that a criminal intention is the most important essential in proving an act of a forgery.
Answer:- A wager means a bet, the subject matter of the bet may be anything. It is a game of chance by which one will either gain or lose which is wholly dependent upon some future uncertain event.
According to Justice Hawkins - A wagering contract is one by which two persons, professing to hold opposite views touching the issue of future uncertain event, mutually agree that, dependent on the determination of that even, one shall win from the other and that other shall pay or hand over to him, a sum of money or other stakes, neither of the contracting parties have any other interest in that contract that the sum or stake so won or lost, there being no other real consideration for making of such contract by either of the parties. It is essential to a wagering contract that each party may, under it, either win or lose, whether he will win or lose being dependent on the issue of the event, and therefore, remaining uncertain until that issue is known. If either of the parties may win but cannot lose, or may lose but cannot win, it is not a wagering contract
Section 30 of Indian Contract Act, 1872 deals with wagering agreements. It provides -“Agreement by way of wager, are void and no suit shall be brought, for recovering anything alleged to be won on any wager, or entrusted to any person to abide by the result of any game or other uncertain event on which any wager is made.”
The following are the essentials of Wagering Agreement-Answer:- Section 16 of the Code of Civil Procedure provides that suits relating to immovable property are to be instituted where the subject-matter is situated. Its proviso also provides that if the relief sought can be entirely obtained through the personal obedience of the defendant, the suit may be instituted either in the court within the local limits of whose jurisdiction the defendant resides or carries on business, or personally woks for gain. Proviso to Section 16 C.P.C. will not be attracted in present case. X, Y and Z are joints owners, X lives in Bombay, Y lives in Delhi and Z lives at Jaipur. Therefore, in the case in hand suit for partition of property can be filed at Jaipur, i.e. where the suit property is situated.
Answer:- Section 120A of Indian Penal Code defines Criminal Conspiracy as:
When two or more persons agree to do or cause to be done-
Provided that no agreement except an agreement to commit an offence shall amount to
criminal conspiracy unless some act besides the agreement is done by one or more parties
to such agreement in pursuance thereof.
The following are the essentials of Criminal Conspiracy-
In accordance with the proviso, the distinction is drawn between an agreement to commit an offence and an agreement of which either object or means employed are illegal but does not constitute the offence. In case of an agreement to commit offence mere agreement is sufficient but in case of an agreement to do an act which would not amount to an offence, some overt act besides the agreement must be proved to establish the charge of criminal conspiracy.
In the given problem, A and B reached to an agreement to commit the murder of C, which is offence, so in this case, it is sufficient to prove that A and B made agreement to commit offence of murder of C, even though no overt act subsequently done by either A or B. Offence of criminal conspiracy is committed.
Answer:- A firm may be dissolved in the following ways:
Answer:- Sections 7 and 8 of Sales of Goods Act deals with the effect of goods being perished in case of contract of sale or in case of agreement to sell.
Section 7 of the Sales of Goods Act lays down:"Where there is a contract for sale of specified goods the contract is void if the goods without the knowledge of the seller have, at the time when the contract was made, perished or become so damaged as no longer to answer to their description in the contract."
Section 8 of Sales of Goods Act lays down:"Where there is an agreement to sell specific goods and subsequently the goods without any fault on the part of the seller or buyer perishes or becomes so damaged as no longer to answer to their description in the agreement before the risk passes to the buyer the agreement is thereby avoided."
So, Section 8 of Act is applicable when the goods to be sold are specific and there is merely an agreement to sell.
The question involved in the present case is that whether agreement to sell the grain that may be produced on his farm, is specific or unascertained?
In Howell v. Coupland (1876), the Department in the month of March agreed to sell to plaintiff 200 tons of potatoes, grown in land belonging to Defendant at particular price and to be delivered in the month of October. Defendant had 68 acres of land which was sown, but without fault on the part of the defendant, in August, the crop was attacked by the potato disease and defendant could not deliver the whole quantity of product. In this case it was observed that & This is not like the case of contract to deliver so many goods of particular kind, where no specific goods are sold. Here, there was an agreement to sell and buy particular crop to be grown on specific land. It is an agreement to sell specific things and therefore, neither party is liable, if the performance becomes impossible.
Thus, it can be concluded that in accordance with Section 8 of the Sales of Goods Act, the agreement is void and A has to suffer the loss.
Answer:- Section 460 Cr.P.C. deals with irregularities which do not vitiate proceedings. Section 460 states & If any Magistrate not empowered by law to do any of the following things, namely,
Answer:- Section 106 of the Indian Penal Code provides that & if in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.
In the case in hand, A was attacked by a mob who attempted to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence when by so firing he harms or kills any of the children.
Answer:- Section 8 of the Evidence Act provides that the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 2 to the Section 8 provides that when the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. Thus, the conduct of the accused soon after the incident plays an important part in determining the guilt of the accused and is a corroborative piece of evidence. The conduct of a person in absconding after the commission of the offence is an evidence to show that he was connected to the offence. It may be clarified that absconding is equally consistent with innocence and guilt.
Illustration (f) to Section 8 of the Act.-
The question is, whether A robbed B?
The facts that, after B was robbed, C said in A's presence - "the police are coming to look for the man
who robbed B", and that immediately afterwards A ran away, are relevant.
Therefore, in the present case the statement made by X and the conduct of A in running away are relevant under section 8 of the Evidence Act.
Answer:- Section 181(1) of the Code of Criminal Procedure provides that any offence of being a thug, or murder committed by a thug, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found. In the present case, the offence of dacoity was committed at Punjab and the dacoits were arrested at Delhi. Therefore, the offence of dacoity can be inquired into or tried either at Punjab or Delhi.
Answer:- An interpleader suit is a suit in which the real dispute is not between the plaintiff and the
defendant but between the defendants only and the plaintiff is not really interested in the subject-
matter of the suit. In other words, in an interpleader suit, the defendants interplead, i.e., plead
against each other instead of pleading against the plaintiff as in an ordinary suit.
Section 88 of CPC provides that where two or more persons claim adversely to one another the
same debt, sum of money or other property, movable or immovable, from another person who does
not claim any interest in it except the charges or costs and is ready to pay or deliver it to the rightful
claimant, such person may file an interpleader suit.
For Example-
E is in possession of the property claimed by A and D adversely. E does not claim any interest in the
property and is ready to deliver it to the rightful owner, he can file an interpleader suit.
The following conditions must be satisfied before an interpleader suit can be instituted -
Thus, it is clear that an interpleader suit is actually between the defendants. The plaintiff cannot claim any interest in the subject matter of such suit except the charges and the costs as admissible to him under the law.
Answer:- According to Section 23 of the Indian Contract Act, if the consideration or object of the agreement is not lawful such agreements are void ab initio. Even the agreements of which the object or consideration in part is unlawful, the agreement as a whole is void ab initio as per Section 24 of the Act. Therefore, it is necessary to know as what considerations and objects are lawful and what not. Section 23 specifically lays down the consideration or object of an agreement as lawful unless it is:
Thus, in each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
Answer:- Section 378 of the Indian Penal Code defines theft as-
“Whoever, intending to take dishonestly any movable property out of the possession of any person
without that person’s consent, moves that property in order to such taking, is said to commit theft.”
The following are the essentials of the offence of theft-
For Example-
A finds a ring on a table in Z’s house. The ring belongs to Z as it is in his possession. If A removes that
ring without Z’s consent. A commits theft.
In Pyare Lal Bhargava vs. the State of Rajasthan, 1963, it was held that removing of a file from the office and giving it to a third person who is not an employee, for personal profit, constitutes the offence of theft. It is immaterial, for what duration or time period the file was moved. The moment a thing is moved from its place with dishonest intention, out of a person’s possession, without his consent, establishes the offence of theft.
In K. N. Mehera v. State of Rajasthan, AIR 1957 SC 369, it was held that absence of the person’s consent at the time of moving and the presence of dishonest intention in so taking at the time of moving and the presence of dishonest intention in so taking at the time are essential ingredients of theft.
In the given problem, the accused A, who flew the aeroplane without the permission of authorities has caused loss to the authority due to deprivation or dispossession. Here, the accused A has committed an offence of theft as defined under Section 378 of the Indian Penal Code. It is important to note that it is immaterial that he intended to return the aeroplane at later point of time.
Answer:- Section 415 and Section 405 of the Indian Penal code deals with the offences of Cheating and Criminal Breach of trust. Both these offences are committed against the property. The following are the differences between the two-
Answer:- The following are the secondary sources of Muslim Law-
Therefore, the secondary sources of Muslim Law are those sources that are advancements in the establishment set somewhere around the primary sources. These sources are not essential sources of Muslim law but rather the strengthening source of Muslim law.
Answer:- The Muslim law has been derived from various primary sources which are as follows-
Therefore, the primary sources of the Muslim law are based on religious and spiritual values and is of great value and importance.
Answer:- The differences between Res Judicata and Res Sub Judice are as follows-
Thus, the main difference between the Res Judicata and Res Sub Judice lie in their applicability, conditions and exceptions. Res Judicata is applicable when a case has reached a final decision while Res Sub Judice is relevant when a case is still pending before a court.
Answer:- The following is the difference between DPSP and Fundamental rights-
Basis | Fundamental Rights | DPSP’s |
---|---|---|
Provision | Part III of the Constitution of India contains the Fundamental Rights guaranteed to the citizens of India. (Articles 12-35) | Part IV of the Constitution contains the DPSP. (Articles 36-51) |
Provision | Part III of the Constitution of India contains the Fundamental Rights guaranteed to the citizens of India. (Articles 12-35) | Part IV of the Constitution contains the DPSP. (Articles 36-51) |
Meaning | Basic rights that are guaranteed to Indian citizens by the Constitution are Fundamental Rights | DPSPs are the guidelines to be followed by the Government while framing policies. |
Democracy | Political Democracy is established in India that is to the people, for the people and by the people. | Economic and Social Democracy is established with the help of the DPSPs. |
Goal | The welfare of each and every citizen is promoted | The welfare of the entire community is fostered |
Penalty | Infringement of FR is punishable | DPSP’s violation is not punishable as these are guidelines to the govt. |
Enforceability | Fundamental Rights are justiciable as they can be enforced legally by the courts in cases of a violation. | Directive Principles are not justiciable as the courts cannot enforce them in cases of a violation. |
Power of the court | If there is a law which is in violation of fundamental rights then the courts can declare it as unconstitutional. | If there is a law in violation of Directive Principles, then the courts do not have the power to declare it as unconstitutional. |
Suspension | Fundamental rights can be suspended during a national emergency except for Arts. 20 & 21. | Directive Principles of State Policy can never be suspended under any circumstances. |
Borrowed from | Fundamental Rights was borrowed from the USA’s Constitution. | Directive Principles of State Policy was borrowed from the Irish Constitution. |
Thus, Fundamental Rights confer individual rights and freedoms whereas DPSP provides a roadmap for the state to ensure social and economic justice, promote the welfare of the people and create a just society. The relationship between the two involves balancing and harmonising their objectives to achieve a balanced constitutional framework.
Answer:- A temporary injunction is a court order that is given while a case is ongoing to keep things the way
they are until the case is finally decided. Its main purpose is to stop someone from causing serious
harm to another party during the legal process.
The temporary injunction is granted by the Court when the Defendant is about to the make some
injury to the property of the Plaintiff or threatens the Plaintiff to dispossess the property or creates a
third party interest in the property, then in such condition the Court may grant a temporary
injunction to restrain the Defendant to do such an act or issue order to prevent the dispossession of
the plaintiff or prevent the causing of injury to the plaintiff in relation to any property in dispute or
creating any third party rights in the property.
Order XXXIX Rule 1 enumerated various grounds for which an order of injunction may be issued. The
following are the conditions under which temporary injunction can be granted-
Therefore, it can be concluded that a temporary injunction is an order issued by the Court that temporarily restrains a party from taking specific actions or compels them to do certain things for a limited period until a final decision is passed. The grant of temporary injunction cannot be demanded by the party as a question of right nor can be rejected by the Court subjectively.
Answer:- The following are the features of Constitution of India-
Thus, it can be concluded that Constitution is a living document and its horizons are ever expanding. It is the supreme law of land that lays down the framework of governance and defines the rights, powers and duties of the government and the citizens of the country.
Answer:- The following are the differences between Judicial Separation and Divorce-
Thus, Judicial Separation refers to release from matrimonial duties or obligation for certain period of time whereas Divorce is a legal process where the marriage is dissolved and both parties are no longer legally bound to each other. It is important to note that Judicial separation can be divorce but divorce can never be a judicial separation.
Answer:- The term ‘divorce’ derives from a Latin word ‘divortium’ which means ‘to turn aside’ or ‘to separate’. Divorce is the legal cessation of a matrimonial bond. All rights and mutual obligations of husband and wife ceases. There are three theories of divorce under Hindu Law-
Thus, the Hindu Marriage Act recognizes different theories of divorce under Hindu Law such as fault or guilt theory, mutual consent theory and irretrievable breakdown theory.
Answer:- The oldest existing legal system in the world is the Hindu system of jurisprudence. The authority from which the law has been derived is referred to as the source of Hindu law. It indicates the origins of Hindu law, and these sources are regarded as evidence of Hindu law.
The following are the Modern Sources of Hindu Law-Thus, these sources provide the foundation for the legal framework that governs various aspects of Hindu personal law.
Answer:- The following are the differences between Wrongful Restraint and Wrongful Confinement-
Thus, when a person is restrained from moving forward despite having the option to move back, left, or right, this is known as Wrongful Restraint. Wrongful confinement, on the other hand, encompasses a wide range of restrictions imposed over a period of time, such as the ban on leaving a room, building or park etc.
Answer:- The following are theories of punishments:
Thus, it can be concluded that punishment is primarily used as a method of protecting society by reducing the occurrence of criminal behaviour.
Answer:- The oldest existing legal system in the world is the Hindu system of jurisprudence. The authority from which the law has been derived is referred to as the source of Hindu law. It indicates the origins of Hindu law, and these sources are regarded as evidence of Hindu law.
The following are the Ancient Sources of Hindu Law:Thus, the sources of Hindu law in India are ancient texts, customs, judicial precedents, and legislative enactments. These sources provide the foundation for the legal framework that governs various aspects of Hindu personal law.
Answer:- According to Section 4(1) of the Sale of Goods Act 1930, a contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price.
The following are the essentials of a Contract of Sale-Answer:- The following are the differences between Sale and Agreement to Sell-
In order to apply Section 56, the following conditions must be fulfilled-Thus, it can be concluded that the major difference between sale and agreement to sell is that in a sale, ownership of goods transfers immediately from the seller to the buyer, with accompanying risks and benefits. In contrast, an agreement to sell sets the stage for a future transfer, conditional upon certain conditions.
Answer:- The term Evidence is derived from the Latin term ‘evident’ or ‘evidere’ which means to show clearly, to discover, to ascertain or to prove. According to Section 3 of the Indian Evidence Act, 1872, evidence means and includes-
In order to apply Section 56, the following conditions must be fulfilled-According to Sir Taylor “Law of Evidence which branches out of the Law of the procedure means
through argument to prove or disprove any matter of fact. The truth of which is submitted to judicial
investigation.”
The following are the types of evidences-
Further Documentary Evidence is divided into two types i.e. Primary and Secondary evidence.
Thus, Evidence is an imperative part of every case, whether it is a criminal case or a civil suit as it validates a fact. In simpler terms, it would be impossible to determine the results of a case without having any evidence in the case.
Answer:- Section 56 of the Indian Contract Act, 1872 deals with the doctrine of frustration. According to Section 56 of the Indian Contract Act, an agreement that is impossible to perform is itself void. In addition to that, Section 56 also mentions that when a contract to perform an act becomes impossible or for some reason of some event which neither the promisor nor the promisee can prevent, it becomes unlawful and the entire contract becomes void. Section 56 is based on the maxim “les non cogit ad impossibilia” which means that the law will not compel a man to do what he cannot possibly perform.
In order to apply Section 56, the following conditions must be fulfilled-The following are the grounds of frustration of contract-
Thus, the doctrine of frustration deals with those cases where the performance of contract has been frustrated and the performance of it has become impossible to perform due to any unforeseen reason or situation.
Answer:- According to Section 383 of the IPC:
“Extortion is the act of dishonestly inducing any person to transfer property, valuable security or
anything that can be transformed into a valuable security to another person by deliberately causing
fear of harm to themselves or others.”
In order to constitute the offence of extortion, the following essentials must be satisfied-
For example- A person threatens to file a false criminal case against another person unless he pays him a sum of money.
Theft and extortion are two distinct offences under the Indian Penal Code as both the offences involve unlawful taking of property. The following are the differences between theft and extortion:-
Thus, it can be concluded that the main difference between theft and extortion is that theft is the act of taking someone’s property without their consent while extortion is the act of using force or threat of force to compel someone to give up their property.
Answer:- The following are the difference between acquittal and discharge:-
Therefore, it can be concluded that the major difference between the two is that a person cannot be arrested for the same case in which he has been acquitted by the court whereas a person who has been discharged can be re-arrested for further inquiry.
Answer:- The following are the difference between Coercion and Undue influence-
Therefore, it can be concluded that Coercion involves use of force or threats to obtain consent while undue influence is the improper use of power to manipulate to enter into an agreement.
Answer:- The following are the differences between Decree and Order:-
Thus, it can be concluded that both decree and order represent formal expression of decisions by a court but they differ in various aspects. A decree is passed in suits that have commenced before the presentation of the plaint and conclusively determines the rights of the parties involved. On the other hand, an order can originate from a suit or through petition-based proceedings but it may or may not provide a final determination of rights.
Answer:- The following are the difference between the Summon Case and Warrant Case-
Thus, it can be concluded that summons case refers to an offence that does not fall under the category of a warrant case. These offences typically carry less severe penalties as compared to warrant cases whereas warrant case involves offences that are punishable with death, life imprisonment, or imprisonment exceeding two years. These offences are considered more serious and grave in nature.
Answer:- MITAKSHARA SCHOOL: Mitakshara is one of the essential schools of Hindu law. It is derived from the commentary of the Smriti written by Yajnvalkya. Except for West Bengal and Assam, Mitakshara School is applicable to the whole part of India. Even though Mitakshara has a wide jurisdiction, different part of the country practices law differently due to different customary rules followed by them.
Mitakshara is divided into five sub-schools namely:These law schools comes within the scope of Mitakshara law school and enjoys the same fundamental principle but priority is given to certain treaties and commentaries which is under the authority of Mitakshara.
DAYABHAGA SCHOOL:Dayabhaga School is primarily recognized in Assam and West Bengal. It is one of the essential schools of Hindu laws. It is considered to be a summary for the leading smritis. It primarily focuses on ways to deal with partition, inheritance and joint family.
In Dayabhaga School, various other commentaries were followed such as:Thus, it can be concluded that the Schools of Hindu law are considered to be the basic source of Hindu law which constituted in the development of the Hindu law from its roots. These schools have widened the scope of Hindu law and explicitly contributed in its development.
Answer:- The following are the distinction between Void and Voidable Marriages:-
Thus, it can be concluded that the main distinction between void and voidable marriages lies in the fact that a void marriage is void from the beginning, whereas voidable marriage is first valid but may be annulled under certain legal situations.
Answer:- On the plain reading of the factual situation given it appears that A has not committed any offence but on analysing the facts properly it can be seen that an offence of attempt to murder has been committed.
The factual situation in the question attracts the legal maxim of “Actus non facit reum nisi mens sit rea”, which means that an act does not makes a man guilty of a crime, unless his mind is also guilty.
So, the facts given in the question paints a very clear picture that an offence of attempt to murder has been committed by A.
As pointed above for an act to be punishable either for attempt to commit crime or for actual commission of crime, the existence of a guilty or criminal intention to commit crime (mens rea) is necessary along with an overt act forming part of a series of act which would constitute the actual commission of the offence if it were not interrupted.
Thus, the problem in hand where, A mixed sugar, mistaking it as poison, with milk and then placed the glass on Z’s table, it means A had an intention to murder Z. A did everything on his part to implement his criminal intention to kill Z, therefore even if there was sugar and not poison in glass of Z, A is still guilty of attempt to commit murder of Z.
Answer:- A Decree is judicial determination of rights of parties regarding the matter in controversy involved in a suit. The final determination made by the Judge need to conclusively determine the rights of the parties irrespective of the effect such decree has on a suit.
"The formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final.
Thus, it can be concluded that decree is a judicial determination of rights of the parties with respect to any matters of controversy in suit.
Answer:- In light of the given facts there is an issue arising from the problem that-
Whether the act done by A would amount to attempt to murder or is it mere
preparation not punishable by law?
The answer to this issue lies in the understanding of the concept of attempt. What constitutes
an “attempt” is a mixed question of law and fact, depending largely on the circumstances of
the particular case. An “attempt” to commit a crime can be defined as the last proximate act,
which a person does towards the commission of an offence, the consummation of the offence
being hindered by circumstances beyond his control.
Thus, it is clear from the discussion that before there can be an attempt to commit the crime, there has to be an intention to commit the crime which may be making preparation for committing the offence. Attempt would be a final assault towards the commission of the crime, which may be prevented by some unforeseen events.
Considering the factual situation presented in the question, where A intending to murder Z mixes poison, with the milk and then places the glass on Z’s table. It means A intended to murder Z and for implementing his intention he did what he could have done by mixing poison in milk glass of Z and also placing it on table.
In this case the act of A's mixing of poison in the milk would amount to mere preparation for committing the offence of murder, which would alone not amount to an offence punishable by law. The overt act done by A where he places the poisoned milk glass on Z’s table would amount to attempt. Thus, A has committed the offence of attempt to commit murder of Z.
Answer:- An attempt is an overt act done with an intent to commit such act which would amount to a criminal offence, but it is more than merely making preparation to commit a crime. Attempt is a part of series of acts, which would constitute to actual commission of a crime, if such acts done were not interrupted. Attempt construes of mens rea + actus reus, as it is an overt act done with an intention towards the commission of a crime. Liability begins at a stage when the offender has done an act towards the commission of an offence. The point at which such a series of acts begins cannot be defined but depends upon the circumstances of each particular case.
Attempt has not been defined under Indian Penal Code, 1860, only punishment for attempt has been given under section 511. According to Stephen:
“An attempt to commit a crime is an act done with an intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted.
Thus, an act done with intent to commit a crime the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime.
The following are the essentials of an act amounting to attempt of a crime-
For Example:
A, intending to murder Z, buys a gun and loads it. A is not yet guilty of an
attempt to commit murder. A fires the gun at Z, he is guilty of an attempt to
commit murder.
In Abhayanand Mishra v. State of Bihar, (1962), there is a distinction between ‘preparation’ and ‘attempt’. Attempt begins where preparation ends. Anyone who commits the offence of “attempt to commit a particular offence” when:
So it can be concluded from the aforesaid that before there can be an attempt to commit the crime, there has to be an intention to commit the crime. Attempt would be a final assault towards the commission of the crime, which may be prevented by some unforeseen events.
Therefore, it can be said that an overt act committed with an intention to commit a crime which is interrupted by happening of some unforeseen events. Such overt act would amount to the offence of attempt punishable under Indian Penal Code, 1860.
Answer:- Section 68 to 72 of the Indian Contract Act (hereinafter referred as the Act) deals with the obligations which the law creates in the absence of the agreements. These are known as quasi contracts as these are such agreement which resembles the ordinary contracts. These are those contracts which do not contain the formalities of a contract but the obligations that these contract create is similar to the one created by the contract.
The essence of these contracts lies in the theory of unjust enrichment. It has been based upon the principle “nemo debet locupletari ex aliana jactura” i.e. no person must enrich himself at the cost of the other.
Types of quasi contracts under the Act-
Answer:- Negligence means carelessness amounting to the culpable breach of a duty also, failure to do something that a reasonable or prudent man (i.e. an average responsible citizen) would do or doing something that a reasonable man would not do. It can sub-categorized as Professional Negligence involving someone with a special skill and expected to show the skill of an average member of his profession.
Under the Indian Penal Code, 1860 Medical Negligence is covered under Section 304A which states that “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.
In general, for an offence to fall under section 304A there has to be recklessness in the act meaning the person should be indifferent to the consequences of his act the act must be rash and negligent. When such negligence is committed by any medical professional then it is considered to be a medical negligence. Broad principles under medical negligence as tort have been laid down in the celebrated case of Jacob Mathew Vs State of Punjab and Another.
In this case it was held that in the technical profession basic freedom of action should be given as there are many line of treatments, he chooses one and if that fails then he can switch to another one So he must be given that freedom of action The court held that a medical professional shall be held liable only for Gross Negligence. As per the guidelines of the court the Gross Negligence would include the following situations-
It was also held that in medical negligence the police shall not immediately arrest the doctor rather shall first take the opinion of the District Health Officer or any other qualified doctor and if he gives opinion that it was the case of gross negligence then only the arrest can be made. Similar ruling was given in the case of Dr Suresh Gupta v Government of NCT of Delhi (2004 SC).
Answer:- The offences against property are given under chapter XVII of the Indian
Penal Code (hereinafter referred as IPC). The offence of theft has been defined
under section 378 and it is punishable under section 379 of IPC.
As per section 378 IPC when any person moves the movable property of the
other out of the other person’s possession and without that person’s consent
then he is said to have committed the offence of theft. Also for the offence of
theft it is essential that the person must have moved the property with a
dishonest intention. Therefore for an offence of theft following are the
essential requirements-
Section 390 IPC defines the term robbery. It tells us as to how does a theft is converted into the offence of robbery. As per section 390 theft is converted into robbery when the person in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hur, or of instant wrongful restraint, then such person is said to have committed the offence of robbery.
Answer:- As per the general rule of vicarious liability the agent is never held liable and it is the principal who is always held liable for the acts of the agent within the scope or the extent of authority. The same principle has been given under section 230 of the Indian Contract Act (hereinafter referred as the act). As per section 230 it has been stated that the agent can neither sue nor he be sued personally for the enforcement of the contract. But there are three exceptions to this rule in which the presumption is raised that in such cases the agent undertakes to be personally liable. These are as follows-
Pretended Agent- as per section 235 of the act if the agent untruly represents to some party that he is acting as an agent to the principal and on such representation he induces that party to deal with him then he will be personally liable to compensate the loss of the party.
Fraud or misrepresentation by the agent- as per section 238 of the act if the agent has committed fraud or misrepresentation in the course of business then the principal will be held liable. But if the agent commits fraud or misrepresentation outside the scope of authority then the agent will be held personally liable and the principal is not bound by it.
Answer:- The relevancy of character evidence is given under section 52 to 55 of the Indian Evidence Act (hereinafter referred to as IEA). The character of a person means the behavioural pattern of any person i.e. how the person conducts towards the society at large. Section 55 defines the term character as the general reputation and disposition of a person. Such evidence may or may not be relevant in the civil or criminal cases. In civil cases as per section 52 the character of a person is generally irrelevant.
But there are certain circumstances in which the character of a person in civil cases becomes relevant. These are as follows-
In criminal cases such character evidence shall be relevant according to the nature of character. In criminal cases the previous good character of the accused is relevant as per section 53 of the IEA. But in section 54 it has been stated that previous bad character of the accused is not relevant. In section 54 it has also been stated that previous bad character in criminal cases becomes relevant in the following circumstances-
Answer:- Section 13 of the Civil Procedure Code, 1908 provides for 6 hurdles/conditions which are pre-requisite for enforcing a foreign judgment in India.
The Code of Civil Procedure (Amendment) Act, 1937 inserted Section-44A which made bifurcation between “Reciprocating” and “non-reciprocating” territories.
Foreign judgments cannot be directly put to execution and enforcement. It is for this purpose that the CPC lays down the test for a foreign judgment to be ‘conclusive’ for being rendered as enforceable, vide Section 13(2). The six hurdles that such a judgment must cross over are:
The Supreme Court of India in Y. Narasimha Rao v. Y. Venkata Lakshmi ruled that:
(a) Court of competent jurisdiction would be the one which the law under which parties are married, recognises. Any other court would be court without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.
(b) It was held that the decision must be given on the “merits” of the case i.e.:
In Satya v. Teja Singh, when the respondent had instituted a foreign court proceeding, in a court in whose jurisdiction the applicant has never lived, respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practised fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. That foreign court decree was declared invalid by the Supreme Court of India.
In the case of Gurdas Mann v. Mohinder Singh Brar, the Punjab & Harayana High Court held that an ex-parte judgment and decree which did not show that the plaintiff had led evidence to prove his claim before the Court, was not executable under Section 13(b) of the CPC since it was not passed on the merits of the claim.
Answer:- Doctrine of Election is based on principles of equity. Under any instrument if two rights are conferred on a person in such a manner that one right is in lieu of the other, he is bound to elect only one of them. A person cannot choose to select the part of instrument or transaction that is beneficial to him and choose to reject the other part.
The doctrine of election is a branch of rule of estoppel, in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both.
Section 35 of Transfer of Property Act deals with the doctrine of election. It states that a person transfers a property to another person and that is such property for which he has no right to transfer. Also in such transfer he has conferred a benefit upon the owner of the property, and then in such situation the owner has two options with him. The first one being that the owner can confirm the transfer and accept the benefit and the second one being that the owner can dissent from the transfer. But when he dissents or discards the transfer then he has to return the benefit back to the transferee. Where a particular benefit is expressed to be conferred on the owner of the property which the transferor possesses to transfer, and such benefit is in lieu of that property, if such owner claims the property, he is not bound to relinquish any other benefit that he achieves through the same transaction.
The acceptance of the benefit by the original owner will be considered to be an election by him to confirm the transfer, if he is aware of his duties and responsibilities and of the circumstances that might influence a prudent (reasonable) man into making an election. This knowledge of the circumstances can be assumed if the person who gets the benefit enjoys it for a period of more than two years without doing any act to express dissent. The transferor would ask him to elect his choice, if the original owner does not elect his option within a year of the transfer of property. Even after the reasonable time, if he still does not elect, the original owner shall be presumed to have elected the validation of the property transfer as his choice.
Answer:- There are various powers or jurisdictions of Supreme Court under the Constitution of India. These are as follows-
Answer:- A proposal once accepted becomes a promise. Until and unless a proposal is
accepted it will not become a promise. Also the acceptance must be a valid
one i.e. as per the rules and provisions of the Indian Contract Act.
One of the important rules of a valid acceptance is that the acceptance must
be duly communicated. Communication of acceptance can be done in two
different modes i.e. inter presents or instantaneous rule or inter absentes or
postal rule. As per the instantaneous rule the formation of contract is done as
soon as the acceptance is heard by the proposer. As soon as the acceptance is
heard then there is no scope of revocation and it results into a valid contract.
In the case of Entores v. Miles Far East (1955) and Bhagwandas v. Girdharilal
(1966) it was held that in the cases when the acceptance is heard then there is
a concluded contract between the parties.
In the present problem B has sent the letter of rejection to A. But before the
letter reaches to A, B changed his mind and telephoned him the acceptance. As
soon as the acceptance is spoken and is heard by A then we can consider that
there is a valid contract between A and B.
Therefore as B has communicated the acceptance and it has been heard by A
and hence there is a valid contract.
Answer:- Section 76 and 79 of the Indian Penal Code (IPC) deal with mistake of fact as
a defence to an offence. The Latin maxim ignorantia facti excusat is the basis
for this concept.
As per section 79 IPC when any person has committed an offence and while
committing the offence he was under a mistake of fact then he shall not be
liable for such an offence. Under such mistake of fact and not under mistake of
law he believed that he was justified by law to do that act which amounted to
an offence. Also the person must have acted in good faith i.e. he did not have
any criminal intention to commit this offence.
For example- A sees Z commit what appears to A to be a murder. A, in the
exercise, to the best of his judgment exerted in good faith, of the power which
the law gives to all persons of apprehending murderers in the fact, seizes Z, in
order to bring Z before the proper authorities. A has committed no offence,
though it may turn out that Z was acting in self-defence.
Therefore following are the conditions to be fulfilled in section 79 IPC-
Answer:- Guarantee in general means giving assurance for the transaction or a
contract. In the Indian contract Act the provisions for contract of guarantee are
given under section 126 to section 147.
As per section 126 a contract of guarantee means a contract in which one
person known as the surety promises to pay or to compensate the promisee or
the creditor in case the principal debtor makes a default in payment. Therefore
a recoverable debt is a prerequisite for the contract of guarantee. In the
contract of guarantee the liability of the surety is secondary to the principal
debtor. Firstly the principal debtor is liable to pay or to repay the debt of the
creditor. It is only after the principal debtor makes a default, the liability of
surety arises. Therefore it is said that the contract of guarantee is accessory to
the main contract between the principal debtor and the creditor.
In a contract of guarantee there are total three agreements i.e. one between
the principal debtor and a creditor, second between the creditor and the
surety and last between the surety and the principal debtor.
In a contract of guarantee the liability of the surety is co-extensive with that of
the principal debtor. The surety may limit his liability if it has been mentioned
in the contract. The maximum extent up to which the surety can be made
liable is the entire amount of debt and not more than that.
As per section 129 of the act the term continuing guarantee means the
guarantee by the surety which is not given for any particular transaction rather
for the series of transactions.
Generally no guarantee can be revoked after it has been executed. But in
continuing guarantee as per section 130 of the act it can be revoked as to the
transactions which are not yet executed i.e. the future transaction and not for
the past transactions or the transactions already executed.
Answer:- Co-accused is a person who has committed the crime together with the accused person and has been tried along with the accused. The confession of a co-accused affecting his own interest and the interest of the other accused can be proved and used against the other accused. Such provision has been given under section 30 of the Indian Evidence Act. As per section 30 if the following conditions are fulfilled then the confession of the co- accused can be used against the other accused-
Answer:-
The procedure to be followed by a Magistrate when there is a complaint
case and police investigation is going on in respect of the same offence has
been given under section 210 CrPC.
The object behind section 210 is to prevent the wastage of time of the court.
The basic objective behind section 210 is to club the proceeding against the
same accused in case of same offence. This prevents the multiplicity of
proceedings.
As per section 210 it has been stated that when the Magistrate is dealing with
the complaint proceedings regarding the accused for an offence and during
such inquiry or trial it appears to him that a police investigation regarding the
same offence is in process, then he may stay the continuance of the complaint
proceedings and may call for the police report for the offence.
When the police report is filed and it appears to the Magistrate that the
accused in the police report is same as that in the complaint proceedings the
he may club both the proceedings and may continue to deal with the case as
per the procedure in police report cases.
But if the accused in the police report cases and the complaint proceeding is
different, then the complaint proceeding will revive and both the proceedings
will be carried on simultaneously.
The real effect of section 210 is when the accused in both the complaint
proceedings as well as the police report are the same. The effect was held in
the case of Harjinder Singh vs. State Of Punjab And Ors. 1984 SC. It was held
that when the accused is same in both the proceedings then the material
evidences will be recorded only once. The trial will be joined and there will be
a single judgement for both the proceedings.
Answer:-
The criminal justice system aims to deliver the justice. For delivery of justice
and for a just and fair decision it is required that the court must be given some
inherent powers to prevent the injustice. In India we follow the adversarial rule
and not inquisitorial rule. But in exceptional circumstances we follow
inquisitorial rule in which the court or the judge becomes pro-active and
derives the truth of the matter.
Section 165 Indian Evidence act provides one such power to the judge. This is
an extra ordinary power of the judge in which the judge is empowered to ask
any question at any stage of the proceeding and to any person i.e. the party or
the witness. Also the judge has the power to call any witness or any person to
produce any document or evidence in the case. None of the party to the case
has the right to object to any question asked by the court or to any document
called by the court. Also none of the party is allowed to cross examine any
witness on the basis of the question asked by the judge using the power of
section 165. Such cross examination can only be done by the permission of the
court.
In the case of Nepal Chandra Roy v. Netai Chandra Das (1971) the word “any”
was given a wider approach to include anything which the court or the judge
considers necessary in order to derive the truth.
Exceptions to the power of the judge under section 165 IEA-
The following are the exceptions to the general rule or power under section
165-
1. The court cannot call for the secondary evidence of any primary
document which has not been provided under the circumstances in
section 65.
2. The court cannot permit or compel the disclosure of the facts which are
privileged or are protected under section 121 to 131 as protected
communications.
3. The court cannot ask any questions which are prohibited under section
148 or 149 being unreasonable or improper.
Answer:-
As per section 17 of the Indian Contract Act fraud means an act by a party to
the contract in which with the intention to deceive or to defraud he actively
conceals a fact which he should have disclosed. But this only includes an active
concealment of a fact fundamental to the contract.
Generally silence does not amount to fraud. The reason behind this is that law
does not cast a duty upon any person to speak. If a person was silent as to a
particular fact then that does not signify that this is fraud.
Also the explanation of section 17 states that there are only two situations in
which the silence can also amount to fraud. These circumstances are as
follows-
Answer:-
The process of arrest is very important for the criminal justice system. It is
the process which initiates the process of investigation. The procedure of
arrest enables the police officer to commence the investigation by
interrogating the accused or the arrested person. It includes curtailment of the
personal liberty of the arrested person. But at the same time we have the
cardinal rule of criminal jurisprudence that an accused is considered to be an
innocent until his guilt is proven beyond reasonable doubt. Therefore the
interest of justice has to be kept in mind. Due to this the procedure of arrest
has to be a regulated one.
In the case of Meneka Gandhi v. Union of India (1978) it was held that the
personal liberty of an individual can only be taken away as per the procedure
established by law under article 21. But it was also held that such procedure
has to be a just, fair and reasonable one.
Applying the same concept the procedure of arrest must be regulated because
it is an important element of criminal justice system. Therefore from section 41
to section 60A of Crpc various rules regulating the procedure of arrest has
been given and also various right of the arrested persons are given.
In the case of Joginder Kumar v. State of U.P. (1994) certain guidelines were
held by the Apex Court regarding the procedure of arrest. These are as follows-
1. Arrest of a person should not be merely on suspicion about the person’s
complicity in the crime and the Police Officer must be satisfied about the
justification of such arrest on the basis of some investigation.
2. Arrest should normally be avoided except in cases of heinous crimes.
Reasons for arrest must be recorded by police officer in his case diary.
3. An arrested person being held in custody is entitled, if he so requests to
have one friend, relative or other person who is known to him or likely to take
an interest in his welfare told as far as practicable that he has been arrested
and where he is being detained.
4. Police officer should inform the arrested person when he is brought to the
police station of this right.
5. An entry shall be required to be made in the diary as to who was informed
of the arrest. These protections from power must be held to flow from Articles
21 and 22(1) of the constitution and must be enforced strictly.
Answer:-
A contract is an agreement which is enforceable by law. So when any
defendant refuses to perform the contract then it is said that the contract has
been breached. Breach of contract is when the defendant does not perform
the contract in its entirety. The remedy which is provided under the breach of
contract is compensation or damages under section 73 of the Indian Contract
Act. The breach committed by the defendant can be of two types-
Applying the above law to the present facts it can be concluded that in the present case as B has breached the contract by not performing on the sixth night in the theatre therefore this can be treated as an anticipatory contract as per section 39 of the Act. Therefore B is at liberty to rescind the contract and hence he shall not be liable for damages or compensation. But at the same time he has to pay the charges for the previous five night to A for which he has performed the contract validly.
Answer:-
As per section 300 (secondly) of Indian Penal Code (hereinafter referred to
as IPC) it has been mentioned that when any person causes bodily injury with
the intention to cause bodily injury and at the same time such bodily injury is
likely to cause death which the accused knows that it is likely to cause death.
Section 300 (secondly) is the specie of the genus given under section 299 (part
2). As per section 300(secondly) culpable homicide will be murder when the
following essentials are fulfilled-
Applying the above law to the present facts it can be concluded that the fact
that B has an enlarged spleen and with that knowledge he kicked him and
caused bodily injury. Therefore it is very clear that he had an intention to
caused bodily injury as his conduct of kicking B in his abdomen shows the
same. Also in B’s case such bodily injury is likely to cause death as he has an
enlarged spleen. It has been stated that A knew that B is suffering from
enlarged spleen. Therefore the required actus reus and mens rea for the
offence under sec 300(secondly) IPC.
Therefore A is liable for the offence of murder which is punishable under
section 302 IPC.
Answer:-
A declaratory decree is the relief that is given to any person to declare the
right, title or character of that person. The rationale behind declaratory decree
is to ensure certainty of the right, title or interest of any person. It protects the
disputes related to property.
Section 34 of the Specific Relief Act, 1963 allows a person to file a lawsuit
against someone who denies or is interested in denying their legal character or
property rights. The court can then declare that the person is entitled to the
legal character or property. Section 34 is broad enough to settle disputes
about legal status and conflicting property claims. However, it is not a solution
for all legal disputes.
Essential features of a declaratory decree-
1. The plaintiff was at the time of the suit entitled to any legal character or
any right to any property.
2. The defendant had denied or was interested in denying the character or
the title of the plaintiff.
3. The declaration asked for was a declaration that the plaintiff was
entitled to a legal character or to a right to property.
4. The plaintiff was not in a position to claim a further relief than a bare
declaration of his title.
The Court may refuse to grant the relief of declaration if was able to seek any
other further relief but he omits to do so. The court may refuse to grant
declaratory decree in cases where the plaintiff was supposed to seek further
relief but he claimed mere for the declaration of the right or title through a
declaratory decree under section 34 SRA.
Answer:-
(a) As per section 8 of the Indian Evidence Act (hereinafter referred to as
IEA) when the conduct is of a person who is the party to the suit or proceeding
and such conduct is in reference to the fact in issue or relevant fact then such
conduct is relevant. Such conduct must either influence or be influenced by the
fact in issue or relevant fact.
Applying the above law to the present facts it can be concluded that A here is
the accused and hence he is the party to the proceeding. His conduct of
absconding soon after the alleged crime is in reference to suit or proceeding or
investigation of the offence. His conduct is influenced by the fact in issue i.e.
the offence that he has committed.
Therefore this fact will be a relevant fact under section 8 of the IEA.
(b) As per section 8 the conduct of a person against whom the offence has
been committed shall be relevant if such conduct is influenced by or influences
the fact in issue or relevant fact in the suit or proceeding.
Applying the above law to the present facts that B was seen coming out of the
house of A distressed and sobbing soon after her alleged rape by A is the
conduct of the victim of the crime against whom the alleged rape has been
committed. Also such conduct also is influenced by the fact in issue i.e. the
alleged rape.
Therefore such fact is a relevant fact as per section 8 of the IEA.
(c ) As per section 7 of the IEA any fact which shows the cause of the fact in
issue or relevant fact shall be relevant. Cause here means the reason of the
fact in issue i.e. the reason because of which the fact in issue or the relevant
fact has occurred.
Applying the above law to the present facts it can be concluded that when the
question is whether A robbed B, the facts that shortly before the robbery, B
went to a fair with money in his possession and that he stored it or mentioned
the fact that he had it to third parsons is a relevant fact under section 7 of the
IEA. This is because the fact that B went to a fair and showed his money to
people is the reason or the cause that after such act he was robbed.
Therefore such fact is relevant under section 7 of IEA.
Answer:-
Indian Criminal Law consists of Indian Penal Code, 1860, Criminal Procedure Code,
1973 and Evidence Act, 1872. Collectively they provide for following types of jurisdictions:
Answer:-
As per section 59 of the Indian Evidence Act it has been stated that when
any person wants to prove the contents of the contract then for that only
documentary evidence can be given and oral evidence to prove the contents of
the document cannot be used.
This is known as the rule of exclusion of oral evidence by documentary
evidence. The manifestation of this rule has been given under section 91 of the
Act. Also section 92 of the act also states that when the terms of the contract,
grants or other disposition has been reduced into writing or is required to be
reduced into writing then for the addition, deletion, alteration or modification
of the terms of the document only documentary evidence can be given and no
oral evidence shall be allowed for that.
But at the same time there are six provisos or exceptions to the general rule of
section 92. Proviso 1 of section 92 states that when any person wants to
invalidate the document on the ground of fraud, intimidation, illegality, want
of due execution, want of capacity in any contracting party, want or failure of
consideration, or mistake in fact or law then oral evidence can be given for that
purpose.
Applying the above law to the present facts it can be concluded that when A
wants to give oral evidence of the fact that his consent to the contract or
document was not free as it was induced by misrepresentation then he will be
allowed to give oral evidence of it as it has been provided in proviso 1 of
section 92 of the Act.
Answer:-
As per section 20 of the Code of Civil Procedure (hereinafter referred to as
CPC) it has been stated that when the plaintiff wants to file a suit against the
defendant then he can file the suit at a place where the cause of action lies.
Also the plaintiff can file the suit at any place where the defendant voluntarily
resides or carries on business or personally works for gain.
Section 20 CPC is about the territorial jurisdiction i.e. in the territory of which
court the suit must be filed. It is based upon the principle that he who seeks
equity must do equity i.e. if the plaintiff has approached the court then he is
duty bound to file the suit for the convenience of the defendant. Therefore the
suit must be filed at a place in which the defendant voluntarily resides or
carries on business or personally works for gain.
In the case of Harshad Chimanlal Modi v. DLF Universal Ltd. Anr 2005 SC it
was held that section 20 is a residuary provision i.e. it deals with the cases
which are not related to immovable property or movable property. As per this
provision the plaintiff can file a suit at a place where cause of action lies.
Applying the above law to the present facts it can be concluded that A can sue
B for the price and file a suit for the same in Calcutta i.e. where the cause of
action has arose. A may also sue B in Delhi because that is the place where
B(defendant) voluntarily resides.
Answer:-
As per section 154 Criminal Procedure Code (hereinafter referred as CrPC)
states about the information as to the commission of cognizable offence.
When an informant gives information to the officer in charge of the police
station and that information is related to the commission of a cognizable
offence then such information is known as the First Information Report. As per
the rules of law to amount to an FIR it has to be the first detailed information
which must be given by the informant.
If an information which is even though the first information but is not a
detailed one shall not be considered as a first information report. The logic
behind this is that FIR being a substantive piece of evidence has to be detailed
and exhaustive i.e. the informant must mention his name, the place of offence
etc. exhaustively.
In the case of Surajit Sarkar v. State of West Bengal (2012 SC) the concept of
cryptic information or cryptic FIR was given. Cryptic information is the FIR or
information which is not detailed information. It can be information given over
the phone call by a person who did not disclose his name. It was held that in
the cases of cryptic information it will not be considered as a valid FIR as per
section 154 CrPC as it is not detailed. It has been held that if we consider the
cryptic information as an FIR then the detailed information recorded by the
police officer on the spot will be hit by section 162 CrPC as being the statement
in the course of investigation and cannot be used as evidence in the case.
Therefore to prevent this situation it was held that cryptic information is not a
valid FIR as per section 154 CrPC.
Applying the above law to the present facts it can be concluded that the
information recorded by the police officer about commission of dacoity over
the phone shall not be a valid FIR being cryptic information. The information
that the police officer recorded on the spot will be the FIR as per section 154
CrPC.
Answer:-
(i) In the given facts A has brought a gun and has loaded it. This amounts to
preparation to commit murder. As per IPC the preparation to commit murder
is not punishable rather the attempt to commit murder is punishable under
section 307 IPC. Attempt means when the accused commits any act towards
the commission of the offence. Before the commission of such act there is no
punishment is given as it is a stage of mere preparation.
Therefore merely purchasing a gun and loading it is not punishable as it is a
preparation.
(ii) In the present facts A fires at B. This amounts to attempt to murder. A’s act
will be actual commission of murder when B dies. But till B actually dies it will
be attempt to murder. As soon as A fires at B now the situation is out of A’s
control and it cannot be controlled by A. Now if due to external circumstances
the bullet misses B or B does not die then A will be liable for attempt to
murder under section 307 IPC.
(iii) In the present facts when A purchased poison and mixed it in the food it is
still the stage of preparation. Until the food with poison is in A’s possession he
will not be liable as he is in the stage of preparation. But as soon as A hands
over the plate to B then such an act towards the commission of the offence
then he shall be liable for an attempt to murder.
Therefore here A will not be liable for any offence as he is still in the
preparation stage.
(iv) In the present facts the moment A handed over the plate to B he is then in
the stage of attempt to murder. As soon as the food with poison goes out of
the possession of A then even though B does not consume the food due to
external circumstances then also A would be liable for the offence of attempt
to murder.
(v) In the present case when A woman, with intention of committing suicide
runs towards a well, but there she was caught by a person was caught by a
person it will not amount to attempt to suicide. The reason behind this is that
attempt is when the accused commits an act towards the commission of the
offence and the situation is then out of control. But in the present facts the
woman did not jump into the well and was just running towards it. If she would
have jumped into the well and then due to some fact was saved then she
would have been liable for the offence of attempt to suicide under section 309
IPC.
Therefore in the present facts she will not be liable for any offence as she is in
the stage of preparation only.
Answer:-
Right to private defence has been given under section 96 to 106 of the
Indian Penal Code (hereinafter known as IPC). Right to private defence is a
right to defend or to protect one’s life or property when faced with danger.
Section 97 of IPC states that the right to private defence can be used in order
to protect one’s own body or to protect the body of some other person.
Also in the exercise of right to private defence a person can either cause death
or can cause any other harm except death depending upon the danger faced
by him. Section 100 enumerates the circumstances in which a person who is
faced with danger can even cause death of the other person. As per section
100 death can be caused in the exercise of right of private defence in the
following circumstances-
1. When there is an assault in which there is a reasonable apprehension of
either death or grievous hurt.
2. When the assault is done with the intention of causing rape, unnatural
lust, kidnapping or abduction etc.
3. When there is an assault with the intention of wrongful restraint which
causes him to apprehend that he will be unable to have recourse to the
public authorities for his release.
4. When there is an act of throwing or administering acid or an attempt to
throw or administer acid which may reasonably cause the apprehension
that grievous hurt will otherwise be the consequence of such act.
Also in section 101 it has been stated that in all the situations other that those
which are enumerated under section 100, in the exercise of right to private
defence, can cause any other harm except causation of death.
As per section 102 IPC it has been stated that the right to private defence to
body can be used or exercised until the apprehension continues. As soon as
the apprehension is over then afterwards the right to private defence cannot
be validly exercised.
Any defence which has been mentioned under Chapter IV must be specifically
pleaded by the accused and it cannot be relied upon without proving it. As it is
mentioned under section 105 of the Indian Evidence Act that the accused has
the burden to prove the existence of general exception. The Court shall
presume the absence of the general exception.
Answer:-
As per section 2(b) of the Indian Contract that acceptance is when the
person to whom the proposal is made signifies his assent thereto. Here the
word signifies has been used which makes it compulsory that the assent has to
be communicated to the other person. This clearly states that the silence does
not amount to acceptance.
A person to whom the proposal is made is under no duty to accept the
proposal. Law does not cast a duty upon any person to speak up the
acceptance. A person is free to give or not to give the acceptance.
In the case of Felthouse v. Bindley (1862) it was held that silence does not
amount to acceptance. The only situation when silence can be treated as
acceptance is when a person has the duty to speak.
The present problem in question is based upon the facts of Felthouse v.
Bindley. Therefore A’s claim against F shall not lie because F was not under any
duty to accept the proposal made by A. here even though F had the intention
to accept the proposal as he told B an auctioneer to keep the horse out of sale
of his farm stock, as he intended to reserve it for his uncle A.
As there was not acceptance to the proposal made by A hence F is not liable to
pay any compensation to him and there is not binding contract between them.
Answer:-
As per section 144 of the Civil Procedure Code (hereinafter referred to as
CPC) the remedy is restitution has been given to the applicant who applies for
it.
Restitution means to restore. Restoration here implies the act of returning the
benefit which has been received. As per section 144 CPC if any decree or order
has been varied, modified or is set aside then any person can file an application
under section 144 of the CPC for restitution. In this the court to which the
application has been made shall order restitution to the person who is entitled
to the benefit. This is done in order to put the parties in the same position in
which they were or they would have been if the decree or order would not
have modified, varied or set aside.
For the purpose of restitution the court may make any order i.e. refund of cost,
payment of interest, payment of damages, payment of compensation,
payment of mesne profits etc.
Applying the above law to the present facts it can be concluded that the ex
parte decree has been set aside by the appellant court. Upon such setting
aside B is entitled to the benefit of property which has been received by A
under the ex parte decree.
Therefore the application for restitution by B under section 144 CPC is valid
and he will be entitled to the relief of restitution.
Answer:-
Arbitrariness is the unfair and unlimited use of personal power.
Arbitrariness is an action that is done without reason or principle. It is done on
the will of the person. Arbitrariness always comes along with unjust and unfair.
Equality is a cornerstone of Indian democracy. Equality is the rule of law in a
republic. It means treating each individual equally without any biasness
towards anyone. Equality always negates arbitrariness because the essence of
equality lies in justice, equity and fairness.
In the case of EP Royappa v. State of Tamil Nadu (1974 SC) it was held that
equality is antithetic to arbitrariness. Equality can never be seen in isolate
rather it has to be seen with the other factors.
Prior to this case all the fundamental rights were seen in isolation. Article 14
provides with equality but it was limited to the rules of article 14 i.e. rule of
law, reasonable classification etc. but after this judgement the principles of
justice, liberty, equality, fairness were given a broader approach. It was held
that all the fundamental right are like overarching principle as they are running
across each other and cutting each other.
Therefore where there is equality then the arbitrariness does not have any
place. If a principle promotes equality then the arbitrariness has to be kept
aside.
Also it was held that Equality is a dynamic concept with many aspects and
dimensions and it cannot be cribbed cabined and confined within traditional
and doctrinaire limits. From a positivistic point of view, equality is antithetic to
arbitrariness.
Answer:-
As per section 2(b) of the Indian Contract Act it has been stated that when a
person to whom the proposal is made signifies his assent thereto then he is
said to have given an acceptance.
In the given definition the term “thereto” means the acceptance will be a valid
acceptance only when it has been given for the same proposal which has been
made to the acceptor. As per section 7 the acceptor is duty bound to accept
the same proposal which has been made to him without adding or deleting any
of the condition of the proposal. If the acceptor changes any condition of the
proposal then it does not amount to a valid acceptance rather it amounts to an
implied rejection of the original offer. When the acceptor accepts the offer by
changing the conditions it is known as a counter offer. And whenever a counter
offer is made the original offer is cancelled.
Applying the above law to the present facts it shall be concluded that when 10-
12-89 plaintiff made an offer to the defendant to purchase for rs. 80000 this
amounted to counter offer and not acceptance as he changed the terms of the
offer.
In the case of Hyde v. Wrench it was held that a proposal once rejected comes
to an end. Therefore when on 10-12-89 the plaintiff made a counter offer to
the defendant then the original offer stands cancelled or rejected.
Therefore the plaintiff’s claim against the defendant will not be successful as
there was no binding contract between the plaintiff and the defendant.
Answer:-
As per section 378 IPC theft is an offence when a person mover a movable
property out of the possession of the other person’s possession without such
person’s consent. This moving or taking must be done with dishonest intention
to deprive the other person of his property wrongfully.
Also explanation I to section 378 IPC states that if any property is attached to
the earth then it cannot amount to theft of such property as theft can be done
against movable property only. But it has been clarified in that explanation
that once the property is severed from earth then it becomes capable of being
the subject of theft as soon as it is severed from the earth.
Applying the above law to the present facts it can be concluded that when
Sanjoy had cut down the tree on the Vijoy’s land with the intention to take it
with him without Vijoy’s consent amounts to theft under section 378 and
punishable under section 379 IPC.
Also applying the explanation I to the present facts it can be concluded that
even though a tree is not a movable property but as soon as it is severed from
the land it becomes movable and capable of being the subject matter of theft.
Answer:-
The best evidence rule states that the direct evidence always excludes
hearsay evidence or indirect evidence. Direct evidence means such evidence of
a fact which can be directly perceived by any of his senses. On the other hand
hearsay evidence means indirect evidence which is not directly perceived.
When any person has seen an incident and then he tells it to some other
person then if such person gives evidence of such incident then it will be
hearsay evidence.
A fact which is not directly perceived is not admissible in evidence as it has
been stated in section 60 that oral evidence must always be direct and not
indirect.
The rationale behind this best evidence rule that hearsay evidence is not
reliable as it is not directly perceived. The person giving evidence of such
hearsay fact may manipulate the facts and will not feel responsible towards it
as he has not seen it directly. Also the person cannot be cross examined on the
basis of hearsay fact stated by him.
EXCEPTIONS TO THE RULE
There are certain exceptions to it. These are as follows-
1. Dying declaration
2. Opinions of experts
3. Admissions and confessions
4. Res gestae
5. Statements of persons, who cannot be found, are incapable of coming to
the court etc.
Note- but technically dying declaration is not an exception as the statement
of a person who is now dead is directly heard and recorded by the person
who is giving evidence of such statement in the court.
Answer:-
The above stated fact is a manifestation of a cause and effect relationship
between the agreement and contract.
As per section 2 (e) of the Indian Contract Act an agreement is a promise or set
of promises forming consideration for each other. Also as per section 2(h) of
the act a contract is an agreement which is enforceable by law. Therefore for a
contract an agreement is necessary first. Only after becoming a valid
agreement then it can be converted into a valid contract.
An agreement will become a valid contract when it can be legally enforced by
the parties. Legal enforceability here means that the contract in order to be a
valid contract has to fulfil the ingredients of a valid contract as per section 10
of the Act.
Section 10 of the Act states that an agreement will convert into a contract the
following essential feature must be followed-
1. Free consent- an agreement will be a contract in which the consent of
both the parties is free. Consent means meeting of minds i.e. agreeing
upon the same thing in the same sense. The consent of both the parties
must be free from any effect of coercion, undue influence,
misrepresentation, fraud or mistake.
2. Competent parties- the parties to the contract must be competent.
Competency as per section 11 and 12 means that the parties must be
major. Also the parties must not be of unsound mind and must not have
been disqualified by law.
3. Lawful consideration- the consideration of the agreement must be
lawful as per section 23 of the act i.e. it must not be against the
provision of law or must not defeat the law or must not be immoral or
against public policy.
4. Lawful object- the object of the agreement must also be lawful as per
section 23 of the act i.e. it must not be against the provision of law or
must not defeat the law or must not be immoral or against public policy.
5. Not expressly declared as void- the agreement must not be such which
has been expressly declared as a void agreement under section 26 to 30
of the Act.
Answer:-
The Preamble to the Indian Constitution is the introduction to the
Constitution. It gives the objects and the aims that the Constitution sought to
achieve. Also it tells about the intention of the constituent assembly that what
the makers of the constitution wanted to achieve.
As it was held in the case of Re Berubari (1960) it was held that the Preamble is
the key to open the minds of the makers of the Constitution.
There are various major commitments incorporated in the Indian Constitution.
These are as follows-
1. Sovereign- in the preamble the people of India resolve to create a nation
which will be a sovereign. The term sovereign means that a nation which
is an independent nation i.e. which is not dependent on the foreign
nations and is a self-reliant one.
2. Socialist- socialist here refers to social democracy and social justice. It
means achievement of socialistic goals. It also signifies the concept of
distributive justice.
3. Secular- it is also an inherent feature of the Indian Constitution. It means
that the State will not have any religion of its own. This also means that
the state shall not favour any religion rather each and every religion is
equal in the eyes of the State.
4. Democratic- this is a feature of the Indian Constitution which implies
that the representatives in our nation are appointed for the people, by
the people and of the people. The people of India elect their
governments by a system of universal adult franchise, popularly known
as one person one vote.
5. Republic- In a republican form of government, the head of state is
elected and not a hereditary monarch. Thus, this word denotes a
government where no one holds public power as a proprietary right. As
opposed to a monarchy, in which the head of state is appointed on a
hereditary basis for life or until abdication, a democratic republic is an
entity in which the head of state is elected, directly or indirectly, for a
fixed tenure.
6. Justice- the ultimate aim of the Constitution of India is to attain the
Justice. Justice here includes the social justice, economic justice and
political justice.
7. Liberty- this is also one of the resolution of the Preamble. Liberty here
means freedom of action. Liberty includes liberty of thought, belief, faith
and worship.
8. Equality- the preamble also motivates the principle of equality among
the individuals. Equality here means the equality of status and equality
of opportunities.
9. Fraternity, unity and integrity- also it is the object of the Constitution to
encourage the feeling of brotherhood among the individuals. Also the
preamble aims to promote that the dignity of the individuals is also
maintained.
Answer:-
The concept involved in the question is the law related to invitation to
proposal or invitation to offer.
Invitation to offer means when the person is not making a proposal rather he is
just sharing information about something. Invitation to offer is not a part of
the formation of a contract because contract starts from the very root i.e. the
proposal. In invitation to proposal the intention is not to obtain the assent but
to invite the other person to make a proposal. It is mere sharing of information
which can be interpreted by construction. The intention has to be seen. The
consequence of the invitation to proposal is that the person, to whom the
proposal is made, makes a proposal for the same. Whereas in proposal the
consequence is that the person to whom gives his acceptance for the same.
In the case of Pharmaceuticals Society of Great Britain v. Boot Cash Chemist
(1953) it was held that when the goods are displayed on shelves then it
amounts to a mere invitation to proposal and there cannot be a binding
contract merely on the basis of such invitation.
Applying the above law to the present facts it can be concluded that when A
sent a pricelist to of goods to B it was an invitation to offer. When B placed an
order to A of the goods mentioned in the pricelist then it amounts to a
proposal. It will not be a binding contract until A gives acceptance for the
same. Therefore B will not get any remedy until A gives his acceptance.
Answer:-
As per section 81 of Indian Penal Code 1860 if any person commits an act
without any criminal intention in good faith and in order to prevent any bigger
harm from being committed then it will not amount to an offence and the
person will be completely excused from his liability.
Section 81 is a manifestation of the principle of necessity. In this if person
causes harm by committing any act only with the intention of preventing a
bigger harm from being committed then it is a situation of necessity and he
must not be penalised.
In the case of Queen v. Dudley and Stephen (1884) and US v. Holmes (1842) it
was held that the defence of necessity can be availed in cases of public
necessity and not for private necessity or for your own necessity. Public
necessity here means the act must be done for the benefit of some other
person.
Applying the above law to the present facts it can be concluded that when A in
great fire pulled down the houses in order to prevent the fire from spreading is
an act of necessity as he is acting here in good faith i.e. for saving the life and
property of others. Also he did not have any criminal intention and he pulled
the roofs of houses in order to prevent a bigger harm from being committed.
Therefore A shall not be liable for any offence and his act will be completely
excused from criminal liability.
Answer:-
Res gestae is a latin term which literally means that part of the same
transaction. This is a concept from English law which means that the facts
which form the part of same transaction are relevant to each other. The
concept of res gestae was propounded in the case of R v. Andrews. In this case
the judgement of Ratton v. R was followed.
The general principle of res gestae is manifest in section 6, 7 and 8 of the
Indian Evidence act. In these sections the facts which even though in
themselves are not facts in issue but they are relevant because they are
motive, effect, preparation, cause etc. and are a part of same transaction and
hence part of res gestae.
The phrase “part of the same transaction” has been expressly used in section 6
of the Act. Section 6 manifestly deals with the concept of res gestae.
As per section 6 a fact shall be relevant if it is a part of same transaction. Here
the facts may not be the fact in issue in themselves but they are a part of the
same transaction. Also it does not matter that whether those facts occurred at
same time or place or different time or place still they will be relevant under
section 6 of they are a part of the same transaction.
The important factor to be determined here is when the transaction started
and when did it end. It is between the continuance of such transaction that all
the facts shall be relevant. There is hard and fast rule as to the starting and
ending of the transaction rather it is a question of fact. The facts which are
spontaneously, naturally connected to each other or are so connected that
there is not manipulation are said to be a part of same transaction.
This principle was followed by the court in the landmark judgement of Sawal
Das v. State of Bihar (1974).
Answer:-
The above mentioned statement is a manifestation of the fact that the
procedure of the formation of contract starts from the stage of proposal.
Proposal is the first step to form a contract.
Merely having an intention to obtain the assent is not sufficient rather
proposal is complete when it is communicated to the person to whom it is
made. Therefore proposal is that point from where the contract formation
starts.
When the proposal is communicated to the person to whom it is made accepts
the same then it gets converted into a promise. The manifestation of this lies in
the language of section 2(b) i.e. a proposal when accepted becomes a promise.
A mere promise is not binding rather it can be enforced only when it becomes
an agreement. To convert a promise into an agreement consideration has to
be added to a promise. When we add some value to the promise then it
becomes an agreement.
A mere agreement is not a contract. Rather as per section 2(h) of the Indian
Contract Act only such agreements are contracts which are legally enforceable.
Therefore agreements which can be legally enforced by the parties in the court
of law then such agreements finally become contracts.
Hence it is justified to state that proposal lies in the roots of the formation of
the contract.
Answer:-
Section 81 of the Indian Penal Code states about defence of public necessity.
As per the said provision it is stated that when any person without any criminal
intention and with the knowledge that it is likely to cause harm does an act
and causes harm with the purpose or avoiding other harm, he shall not be
liable for any offence. For application of section 81 the act must have been
done in good faith.
Public necessity in section 81 means the situation when a person considers it
necessary to cause a smaller harm in order to prevent a bigger harm. Therefore
the act must be done as a matter of public necessity and not private necessity.
Hence it is important that the person must be acting under good faith i.e with
due care and caution.
Applying the above law to the present facts it may be concluded that in the
present facts the act of A pulling down the houses in order to prevent the fire
from spreading is an act of necessity. Also it is evident in the facts that he was
acting in good faith as he is doing the act in order to save the life and
properties of others. Also A’s act was done in order to prevent a bigger harm
from being committed.
Therefore it can be concluded that A shall not be liable for any offence as his
act of pulling the houses down shall be excused under section 81 of the IPC.
Answer:-
(i) Section 14 Indian Evidence Act states about the state of mind, state of
body and bodily feeling. It states that intention is a mental element or
state of mind and is relevant under section 14. But explanation 1 of
section 14 states that whenever we talk about the relevancy of intention
as a fact then it has to be examined that the intention existed against
that particular person and not against any other persons in general.
Applying the above law to the present facts it can be concluded that the
fact that A has the intention to kill B is a relevant fact under section 14 of
the Act. But as per explanation 1 the fact that earlier A has shot C is not
relevant to prove A’s intention against B because intention must be
specifically towards a particular person and not a general one.
Therefore this fact is irrelevant under section 14.
(ii) Section 9 of the Indian Evidence Act deals with the facts which are
explanatory. Explanatory facts are those which explain the fact in issue
or relevant fact.
Applying the above law to the present facts it can be concluded that the
fact that mob which was being headed by A was shouting or crying is
relevant under section 9 of the Act. The fact that A was heading the mob
and the mob or the people of the mob were crying explains the fact in
issue that the A was rioting.
Therefore this fact is a relevant fact under section 9 of the Act.
Answer:-
Feeding of grant by estoppel has its essence in the principle of estoppel. It
means that when one person has made a representation and the other person
has relied upon it and has altered his position, then the person making the
statement cannot retract his statement. This is based upon the principle of
equity and justice.
Feeding of grant by estoppel means that when a person has transferred an
immovable property to any person by falsely stating that he is authorised to
transfer and the opposite person has relied upon that statement then
afterwards the transferor has to execute the transfer of property by the
interest that he acquires.
This doctrine is derived from another Latin maxim ‘nemo dat quod non
habet’ which means ‘no one can confer a better or higher right to property
than what he himself possesses’. Section 43 is an exception to this maxim.
This doctrine has its manifestation in section 43 of transfer of property act.
As
per section 43 of the act the following are the conditions to be fulfilled-
1. There has to be a fraudulent or erroneous transfer of immovable
property. It is not required that the transferor has deliberately
transferred with defective title rather it will be sufficient if mistakenly he
has transferred the property having defective title.
2. The transferee has a right to get the transfer executed against the
transferor through the title that he subsequently acquires. This is due to
the application of the doctrine of estoppel.
Answer:-
As per section 218 CrPC generally for each offence separate charge shall be
framed. Section 219 is an exception to the general rule.
In some cases even though the offences are different but they can be charged
together. As per section 219 if a person has committed different offence but
these offences are committed in the same transaction then the charges can be
joined. But for this the offences must be of same kind. Also it is a requirement
that the offences must have been committed within twelve months and the
number of offences must not exceed three.
Applying the above law to the present facts it can be stated that A has
committed attempted to cause grievous hurt to C and hurt to D i.e. he has
committed the offences of the same kind. Also he has committed these
offences in the same transaction.
Hence as per section 219, A can be charged for attempting to cause grievous
hurt and actually causing simple hurt jointly.
Answer:-
The legal point involved in the given problem lies in section 511 Indian Penal
Code. The concept involved here is criminal attempt. Attempt basically is the
second last stage of a crime. The attempt of any offence is punishable under
IPC. If there are no specific sections for attempt in the IPC then such attempt
will be covered under section 511.
As per section 511 a person shall be held liable for attempt of an offence if he
has done some act towards the commission of the offence. In such cases the
actual commission of the offence is not required rather the person must have
committed an act towards the actual commission and then due to the external
interferences the offence could not be finally completed. Also the possibility of
the happening of the offence is not mandatory. It will not be examined that
whether the offence was actually possible or not rather it was examined that
whether the accused believed his act to be sufficient for the commission of
that offence or not.
Applying the above law to the present facts it can be concluded that when a
person with the intention to kill administers poison to the other person but
that was actually not poison rather it was sugar, so the point to be considered
here is not whether the offence was possible or not rather the point to be
considered here is whether the accused believed his preparation to be
sufficient for the actual commission of the offence.
Therefore it can be concluded here that in the present case the accused had
the intention to kill B and with such intention he administered poison in his
food. He believed his act to be sufficient in order to commit the offence. Hence
he would be liable for attempt to murder.
Answer:-
Introduction
The doctrine of supervening impossibility has been given under section 56 of the Indian
Contract Act. This literally means that the contract was not impossible from the very
beginning rather subsequently it became impossible due to the uncertainties.
This doctrine is dealt with under section 56 para 2 Indian Contract Act. It has been stated
that the contract always frustrates because of impossibility. As per section 56 there may be
a situation in which the contract initially is valid but due to the subsequent impossibility or
due to some situation which the party cannot control, the contract becomes illegal to be
performed. In such situations the contract which was initially valid subsequently becomes
void due to illegality or impossibility.
The impossibility can be of various types. Following are the types of impossibilities which are
recognised under the law of contract.
1. Physical impossibility- The contract may become impossible due to physical
impossibility. It means that the contract has become impossible to be performed.
Physical impossibility may be that the subject matter of the contract was
destroyed (taylor v. Caldwell)
Also the contract can become physically impossible due to the fact that the
event for which the contract was entered into did not happen (Krell v. Henry)
It also covers the situation that the parties died or became incapable of
physically performing the contract (Robinson v. Davison).
2. Legal impossibility- Also the contract in some situations may be legally impossible.
This means that after the making of the contract the law changed and made the
contract impossible to be performed. Subsequent to the change in law the contract
becomes illegal and hence impossible.
3. Practical impossibility- Also the impossibility may be a practical impossibility which
means that even though the contract is physically possible but the actual
performance is not rational or feasible (Satyabrata Ghose v. Mugneeram Bangur).
Answer:- The procedure of sessions trial has been given under section 225- 237 CrPC. In these
provisions the process of sessions trial has been discussed in detail.
Following are the provisions related to the process of sessions trial-
1. The case in a sessions trial is always opened by the prosecutions. The prosecution
opens the case by briefing the court about the details and facts of the case. The
prosecutor shall open his case by describing the charge brought against the accused
and stating by what evidence he proposes to prove the guilt of the accused.
2. If based upon the record of the case and the documents submitted, and after
hearing the submissions of the accused and the prosecution if the Judge considers
that there is not sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.
3. If the accused is not discharged and the Judge is of opinion that there is ground for
presuming that the accused has committed an offence which is exclusively triable by
the Court of Session then he shall frame a charge. If the case is not exclusively triable
by the the court of session then the judge may frame a charge against the accused
and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other
Judicial Magistrate of the first class and direct the accused to appear before the
Chief Judicial Magistrate, or the Judicial Magistrate of the first class.
4. After hearing the charges if the accused pleads guilty then the judge shall record his
plea and convict him on plea of guilt.
5. Then the court shall send the summons to the prosecution witnesses and for
prosecution evidences. Then the prosecution shall produce its witnesses and
evidences.
Also the court will examine the accused personally under section 313.
On the basis of the prosecution evidence and the examination of the accused if the
judge is of the opinion that the accused has not committed any offence then he shall
record an order of acquittal.
6. When the accused is not acquitted then the court will call him to defend him and to
produce the evidences in this behalf. The court will issue the summons to the
witnesses and the defence will produce the evidences in this regard.
7. Finally the prosecution and the defence shall have the final arguments. The
prosecutor shall sum up the case and the accused or his pleader shall be entitled to
reply.
8. The last step of the procedure of the Court of Session trial is the judgement. After
hearing arguments and points of law, the Judge shall give a judgment in the case.
A. Section 383 of the Indian Penal Code defines the offence of extortion. Extortion means
that when any person puts another person under the fear of injury and induces the person
so put in fear to deliver the property. The inducement if given to deliver something which is
a valuable security or something which can be converted into a valuable security then that
would also amount to extortion.
The term injury here is defined under section 44 as an injury which is caused to the body,
mind, reputation or property of an individual.
Also the term valuable security as defined under section 30 IPC as any document in which
any legal right is created, extended, transferred, restricted, extinguished or released, or
whereby any person acknowledges that he lies under legal liability, or has not a certain legal
right.
Applying the above law to the present facts it can be concluded that in the present facts in
hand A had put Z in fear of grievous hurt. Here grievous hurt amounts to fear of injury as per
the definition under section 44 as it is a fear to cause harm to the body illegally.
Also the fear must be caused in order to induce the person to deliver the movable property
or any other valuable security. In the present case in hand the fear of grievous hurt has been
caused in order to induce Z to sign on a blank paper. Here blank paper even though prima
facie is not a property or any valuable security but it can definitely be converted into a
valuable security and hence is covered under the conditions of the offence of extortion.
And under that fear Z signed on the blank paper.
Therefore it can be concluded that in the present case A has committed the offence of
extortion under section 383 and it is punishable under section 384 IPC.
The term foreign judgement has been defined under section 2(6) as the judgement of the
foreign court. Foreign court has been defined under section 2(5) as the court which is situated outside India and not established within the territory of India. A judgement given by any foreign court shall be conclusive between the parties to the suit.
The conclusiveness of the judgement shall be for the matter which has been adjudicated by that foreign court in such judgement. That shall be conclusive between the parties to the suit or between the persons who are litigating under the parties to the suit. There are certain exceptions to the main rule stated above. These are the situations in
which the judgements of the foreign court are not conclusive proof-
1. When the court passing the judgement does not have the jurisdiction i.e territorial or pecuniary.
2. When the judgement has not been given on the merits. Merits here mean that the parties did not get an opportunity to present the case or there was a material defect or irregularity in the case.
3. When the judgement has been given upon the incorrect view of international law. Also where in the judgement there is a refusal to recognise the Indian law that is in force.
4. The proceedings of that particular judgement are opposed to the principles of
natural justice. Here principles of natural justice means that each party must get an opportunity to represent his case and there must be a reasoned judgement.
5. When the foreign judgement has been obtained on the basis of fraud.
6. When the judgement results into the breach of any law in India.
As per section 43 of the CPC the judgement of the foreign court which is established by any authority outside India shall be executed in the same manner which is provided for the territory to which this law applies. If such foreign court is located in any reciprocating territory then as per section 44A it can be executed in the same manner as if it has been passed by the District Court.
Charges mean the accusations upon the accused persons as to the offences that he has committed. The charges are framed by the Magistrate. After the framing of charges the trial starts and the inquiry stage is over. Section 211 to 224 CrPC provides for the rules related to the framing of charges. The policy behind framing of charges lies in the rules of principles of natural justice. This means that as per the rule of audi alterum partem i.e. nobody shall be condemned unheard charges are framed in order to make the accused person aware of the accusations that are put upon him so that he can defend himself in a proper manner.
As per section 211 of CrPC it has been stated that every charge must specifically state the offence which the accused has committed as per the evidences gathered against him. Also if the law under which such offence has been given defines such an offence by a different name then the charge must specify such name and define it accordingly. The charge must contain the law and the section under which such offence has been punished in the Indian Penal code. The charge shall be written in the language of the court. The language which has been used in the charge must be the formal language which has been used in the section and must be according to the format. If the accused has been previously convicted of some other offence then the date, place etc of the commission of such offence must be mentioned in the charge. Also if the accused shall be subject to enhanced punishment or some different kind of punishment then this fact must be specifically mentioned in the charge.
Also as per section 212 the charge must also contain the particulars as to the time and place and the person against whom the offence has been committed. Also as per section 213 if it is required that the manner of the commission of the offence has to be given then such manner must also be stated in the charge.
common intention is given under section 34 of the Indian Penal code. This is the principle
of joint liability under criminal law. Common intention means having shared the same intention. Common intention is when two or more persons have the consensus as idem regarding the act that they want to commit.
As per section 34 IPC when two or more persons commit a criminal act in furtherance of common intention then each of such person shall be held liable for the commission of the offence in the same manner as if it done by him alone.
Therefore following are the ingredients of section 34-
1. There must be prior meeting of minds between the accused persons. The meeting of mind can be specific or prior and it can even be made on the spot. It need not be distinct and specific.
2. The persons have committed the criminal act in furtherance of common intention. In furtherance here means that the act must be committed in the extension of the common intention that they have shared.
3. The accused persons must be actively participating. Active participation here does not mean mere physical presence rather it means the act done by the accused.
Difference between common intention and common object
COMMON INTENTION | COMMON OBJECT |
---|---|
It has been given under section 34 IPC. | It has been given under section 149 IPC. |
In this the criminal intention must be done in furtherance of common intention. | The act towards the common object must be done in prosecution of common object. |
The accused must be actively participating. | The members of the unlawful assembly must be physically present on the spot. |
The jurisdiction in a criminal trial is very important. The reason is that for a correct
procedure it is very important that the criminal case is filed in the correct court. There are provisions related to jurisdiction in the criminal procedure code. Therefore in a criminal case the jurisdiction is decided as per the rules given from section 177 to section 189 crpc.
As per section 177 it has been declared that each offence must be tried within the jurisdiction of that court where the offence has been committed.
But there are certain exceptions to the general rule which has been given under section 177-
1. As per section 178 if the offence has been committed partially in one area and partially in other area then the jurisdiction of both the courts is established. Where the offence is a continuing one and it continues in more than one area or it is committed in several acts then each of the court shall have the jurisdiction.
2. When the offence which is committed is the consequence of an act or is in relation to the other act then the courts of all the respective areas shall have the jurisdiction.
3. When the offence which is committed is kidnapping then the court within the
territory of which the person is taken or conveyed will have the jurisdiction. The same rule applies in the commission of the offence of theft, receiving stolen property, dealing with stolen property etc.
4. If the offence has been committed in letters then the courts within the territory of which the letters were sent or received shall have the jurisdiction.
As per section 181 it is stated that when any person has been kidnapped then the courts of the places in which the kidnapping has been committed or the person has been conveyed or abducted shall have the jurisdiction. All the respective courts shall have the parallel jurisdiction to try the case.
Applying the above law to the present facts it can be concluded that the courts of both Delhi as well as Shimla shall have the jurisdiction to try the case of kidnapping. The reason is that as per section 181 A was kidnapped in Delhi but conveyed in Shimla and hence the both the courts shall have the jurisdiction.
The offence of criminal conspiracy is an inchoate offence. The policy behind inchoate offences is to prevent the offence from being committed. Therefore even before the main offence is committed the act is punishable under IPC.
In criminal conspiracy also the actual commission of the illegal act is not mandatory rather it is the mere agreement to commit an illegal act which shall be punishable.
Criminal conspiracy has been defined under section 120A of the IPC. As per this provision the criminal conspiracy is an agreement in which two or more persons agree to commit an illegal act or a legal act but by illegal means. For the offence under section 120A mere
agreement is the actus reus.
Essential ingredients of criminal conspiracy
1. Two or more persons agree- one of the most essential ingredients of the offence of criminal conspiracy is that there has to be an agreement i.e. there has to be consensus ad idem between two persons. The offence of criminal conspiracy cannot be committed otherwise than as an agreement. The persons must agree to commit the illegal act.
2. Illegal act or an act in illegal manner- the agreement between the two or more persons must be to commit an illegal act. Also it may be an agreement to commit an act in an illegal manner.
Illegal as defined under section 43 means that anything which is an offence or which is prohibited by law or which gives ground for civil action. Therefore there are three types of criminal conspiracies under the IPC. These are criminal conspiracy to commit an offence, to commit an act which is prohibited by law and to commit an act which is a civil wrong.
Mere agreement to commit an offence is sufficient and no further act is required to punish a person for criminal conspiracy. Whereas in criminal conspiracy to commit an act which is prohibited by law or which gives ground for civil action mere agreement is not the actus reus rather an act in furtherance is needed to be committed.
The rule against perpetuity has been given under section 14 of the transfer of property act. The rule against perpetuity means that the property cannot be held for indefinite period of time. The basic policy behind such rule is that it is against the policy of free movement of property. This is because the alienation of property for an indefinite period of time is against the principle of justice as such alienation destroys or damages the property and also it leads to the violation of the people’s right to transfer property. In the case of Stanley v. Leigh it was held that the alienation of property for an indefinite period of time is against the policy of law and it destroys the property. Here rule against property as per the provision of section 14 of the transfer of property act means that the following conditions must be followed-
For the rule against perpetuity to apply it has been stated that-
1. For the lifetime of a person- the property can be transferred for the lifetime of a person. During such lifetime the person is expected to preserve the property with sue diligence.
2. For the minority of a person- the property can also be transferred for the minority of a person i.e. for a period of eighteen years. This is the maximum time for which a property can be held or alienated i.e. for the life of a particular person and
thereafter till the minority of another person.
3. The person must be in existence on the death of the former one- the person for whose minority the property is being transferred must be in existence at the time of the death of the person for whose lifetime the property was alienated. If the person is not in existence at the time of death of the former then the property shall pass to the legal heirs of such deceased person.
The main question to be determined in the present case is whether a party to an agreement enforce such agreement if such agreement is in the nature of wager’s agreement. Also it has to be determined whether the agreement in which the object was unlawful can be duly enforced or not.
The law on this lies in section 23 and 30 of the Indian Contract Act respectively. As per section 23 of the act the agreements in which the object is unlawful then such an agreement is void. In the present problem tony has borrowed the sum of 5000 form john for the object of betting in cricket which is not lawful or not authorised by law. Therefore this agreement shall be void and John cannot enforce it and claim 5000.
Also as per section 30 the wager’s agreement is void. Wager’s agreement here means that an agreement for an act which is an uncertain act and both the parties to the agreement have mutual chances of winning and losing in it. In the present problem the transaction between tony and Mahesh is in the nature of wager’s agreement. In the agreement of betting it is dependent upon an uncertain event and there are mutual chances of winning and losing. Therefore Mahesh cannot enforce the agreement against tony and claim 5000.
Maintenance under section 125 CrPC is given by the person to his wife, parents, minor son, and daughter etc. Section 125 states various conditions to be fulfilled to make any person liable for the payment of maintenance.
As per section 125 the husband can be ordered to pay the maintenance to his wife when the wife is incapable to maintain herself. The wife referred to under section 125 means a wife who has been divorced by the husband or the wife who has obtained the divorce from her husband.
If the man offers to maintain the wife but the wife refuses to live with him then the Court shall consider the grounds of such refusal. The ground that the husband keeps a mistress or has married some other woman shall be considered to be a valid ground for the woman to refuse to live with the man.
1. She is living with some other person in adultery.
2. Without any sufficient reason she refuses to live with the husband.
3. They are living separately by mutual consent.
If a maintenance order has been passed and the person fails to comply with such order and does not pay the maintenance then the Magistrate of first class may issue a warrant for the payment of the amount and may also sentence such person to an imprisonment for not exceeding one month.
The First Information Report is a report about the information related to the commission of a cognizable offence. this information is given by the informant to the police officer. FIR is only related to the cognizable offences. As per s