HISTORICAL DEVELOPMENT OF LAND ACQUISITION LAWS IN INDIA www.lawtool.net INTRODUCTION As we know that it is not very easy to determine the origin of property. According to Sh R.S. Sharma, the term pana, which later came to mean coin, and dhana, which later came to mean wealth, is used in the earliest portion of the Rig Veda as prizes, wagers, or stakes won as a result of either war or competition. He concludes from this the acquisition of property involves serious effort including war. “Loptra or loot (spoils of war) finds corresponding words in all the important Indo-Aryan languages. This seems to have been the earliest source of property for the Rig Vedic people”. In the Rig Vedic period, items like livestock, sons, chariots, plants, food grains and personal effects such as weapons, pots, vessels, clothing and other household articles were constituted the property. Among the immovable property, land and house were yet to be considered as private property in the Rig Vedic period. This is not difficult to understand because Rig Vedic people were migratory in nature and neither they had a permanent dwelling nor cultivated a piece of land on any permanent basis. However, in the post-Vedic period, the grihyasutras, dealing with domestic rites, suggest permanent houses. Land was under the general control of the ruling tribe and the chief could grant the land with the consent of the king. When the people began to lead a settled life, they began to own small pieces of cultivable land and these pieces necessarily belonged to individuals. With the use of iron ploughshare and with an assured water supply, agricultural production was on the raise, and the importance of land was fully realized. This development took place during the time of Buddha. Property now came to consist of land and precious metals like gold and silver. Spoils of war, cattle and women slaves constituted the main forms of property. To this may be added horses, ornaments made of precious metals and weapons. By now a clear idea of movable and immovable property had come to be formed. Provisions for saluting leaders of robbers and burglars in the Yajtis texts presuppose a great deal of movable property, and indicate that the process of establishing the sanctity of property was not smooth. With the progress attained in material culture, coupled with the rapid strides made in industry and trade, the notion of property underwent a change and whatever one possessed either by inheritance or by self-efforts, movable and immovable included, came to constitute property in the modern sense of the term. In the early law there were no complicated differences between ownership and possession of property. At that time only the Roman law made a very clear distinction between the two, they talked of two concepts: 1. Dominium - It is an absolute right to a thing 2. Possessio - It was mere physical control In English law the distinction was not very clear. The developments took place and it reached the level of ownership by development of possession laws. The English men emphasised on possession whereas the Romans laid stress on absolute rights i.e., dominium. The Common Law only talks of Seisin1 and it is still the only form of ownership recognised in English Law.2 In Rome it was much easier to prove title. The Greeks took a view similar to the English Law and the writers felt that anyone who could prove better possession was the owner.3 The situation underwent a change and concepts like ejectment were introduced to show absolute possession. Still the roman concept of dominium remained absolute. It could only be acquired in prescribed ways. The full rights of an owner can be summarised as follows: 1. Power to enjoy, power to deal with the thing and also the power to destroy 2. Possession which has right to exclude others 3. Power to alienate 4. Power to charge security 5. Power to will out the thing No owner possesses all these rights together. There are very few owners who have absolute ownership.4 Owner may grant many of his rights to another person but may still remain the owner. Dominium is ultimate right which has no right behind it. It may be of no practical content. The fact that the owner may cede so many rights raises practical difficulties. AGRARIAN STRUCTURE: The proprietary right in land originates from the “Occupation Theory”. This theory means that things which are not already the subject of property, become the property of the first occupant. “A field”, says Manu, “is his who clears it of jungle, game is his who has first perced it”. This theory is not promulgated for the first time by Manu, (who flourished in the second century B.C.) but was already in existence when he composed his Smriti. The great Sanskrit poet Bharavi says: “To whom do wild animals belong? They are his who first pierces them”. The juristical conception of our sages, who lived and thought at a time when Rome was in its infancy, was identical with the notions accepted in other countries in later times. Manu’s “Occupation-theory” of property corresponds to the doctrine of occupation” which prevailed in Rome during the seventeenth and eighteenth centuries. The Muslim jurists differ in their interpretations of this Hadith. According to Abu Haneefa, the mere cultivation of waste land is not enough to create a real right in the cultivator, the permission of the State is necessary for the acquisition of proprietary right. But his disciples Aby Yusuf and Abu Mohammad, both of whom were judges under the Khalifa Harun-al-Rashid, maintain that no permission of the State is necessary to make the cultivator the proprietor. It was believed that waste lands were a sort of common goods and become the property of the cultivator by virtue of his being the first possessor.Blackstone’s view regarding early evolution of the notion of property is slightly different. According to him by the law of nature and reason, he who first began to use the land acquired in it ‘transient’’ property. Therefore the right of possession was coextensive with the duration of possession. It was felt that land was common land and no one could acquire permanent property in it. The idea of “permanent dominion” came with the increase in the number of mankind. According to Maine, occupancy was assumption of physical possession and the notion that such an act confers a title is probability the growth of a refined jurisprudence. Thus, Maine does not find himself in agreement with the thesis that occupation preceded ownership. He has elaborated this idea of mere possession of a thing followed by the fact of ownership when objects of enjoyment were brought into ownership. Occupancy ripens into ownership because there is no better claimant to the object (res nullius) and because all things were presumed to be ‘somebody’s property’. In this chapter we shall deal with the further development of proprietary right in land separately during Hindu Period, Muslim Period, and British Period. LAND LAWS DURING THE HINDU PERIOD The main view points of the Jurists of Hindu Law can be summed up as follows: Sovereign was not the Owner of Land The Hindu sages and jurists believed that the sovereign (i.e., State) was not the proprietor of the soil. He was entitled to a share of the usufruct of the lands in the occupation of his subjects, not because he was the owner, but because a share was payable to him as the price for the protection afforded to life, liberty and property. Narada expressly says that this one-sixth of the produce was the sovereign’s fees for the protection of the subjects. Parashara, the renowned Smriti-writer says that “He (the sovereign) receives taxes and therefore, he should protect his subjects from thieves, robbers and others”. King cannot give away Earth Jaimini’s sutra, which, according to European authorities was composed many centuries before Christ, is that, “Earth cannot be given away as it is common to air. Though there may be occupiers of particular portions of it, none can be the owner of the whole earth. The question of the rights of the king have been discussed in many times and, state that the king cannot make a gift of his kingdom as it is not his, as he is entitled only to a share of the produce by reason of his affording protection to his subjects. A king’s sovereignty lies only in his punishing the wicked and protecting the good. The word means the protector of the earth. This was such a well recognized idea that the word “king” or sovereign is used as synonymous with the expression “the appropriator of a sixth of the produce”. In the late fifteenth century of the Christian era, the Muslim Government was firmly established in Bengal and Muslim ideas on land-law were well known and well recognized. It was believed that by conquest and other means a king acquiring a kingdom has no other rights over his subjects than that of collecting taxes. Thus even in the case of a conquest, the property of the conquered in their houses, lands and other goods does not pass on to conqueror but only the taxes due from these. Roman Jurists believe that things capable of appropriation, of becoming the objects of private property, but originally belonging to none, would be res nullius, and what belonged to no one would become the property of the first one that takes possession of it. Cultivator was the Owner of the Land Individual ownership in arable land was recognized. The cultivated land was not considered the common land, but the waste lands belonged to the village as a whole. There is no reference in the Vedas to communal ownership or communal cultivation of land. The famous text from Manu makes it clear that cultivated land is the property of him who cleared and tilled it. It also points to the individual ownership of land. The right of the subjects to the ownership of land was universally recognized by ancient Hindu kings. Private property in land seems to have been recognized as a sacred right, which even the hand of despotism would rarely violate. According to Hindu law, the right belongs to the first person who makes beneficial use of the soil. Cultivation Insisted on Cultivation of land during the Hindu Period was strongly insisted upon and penalties were prescribed for non-cultivation. According to Manu, “if the land was injured by the fault of the farmer himself, or if he failed to sow it in due time, he was fined ten limes as much as the King s share of the crop that might otherwise have been raised, but only five times if it was the fault of his servants without his knowledge”. Vyasa also says, “If a man after taking a field fails to cultivate it either himself or through the agency of others, he should be made to pay the owner a proportionate share of the corn which the field could have yielded if it were cultivated and, in addition, a fine to the king”. Agricultural production is the winning of wealth from the land by means of labour and only those can have the right to such wealth as work to produce it and only for so long as they continue to do so. Proprietary rights in land do not amount to absolute ownership in the judicial sense of the right of using, altering or destroying the thing owned at the owner’s pleasure. Proprietary right in land, if any such right exists, confers a right of exclusive enjoyment which is, however, restricted, in view of the obviously vital interest of the community, by the proviso that the right to enjoyment of the wealth produced from and can accrue only to those who work on it.

PEGASUS SPYWARE IS A SURVEILLANCE SOFTWARE www.lawtool.net Pegasus spyware is a surveillance software created by the Israeli cyber intelligence firm NSO Group. The firm has been used solely for the sole purpose of saving lives through preventing crime and terrorist acts as claimed by the company and investigated by law enforcement and governments. Known for creating sophisticated software and technology to sell to intelligence agencies. Pegasus is software designed to gain access to your phone without consent and collect personal and sensitive information and pass it on to the user who is spying on you. According to Kaspersky, Pegasus spyware is able to read the victim's SMS messages, listen to calls, take screenshots, record keystrokes, and access contacts and the browser. Pegasus spyware is a surveillance software created by the Israeli cyber intelligence firm NSO Group. The firm has been used solely for the sole purpose of saving lives through preventing crime and terrorist acts as claimed by the company and investigated by law enforcement and governments. Known for creating sophisticated software and technology to sell to intelligence agencies. Pegasus is software designed to gain access to your phone without consent and collect personal and sensitive information and pass it on to the user who is spying on you. According to Kaspersky, Pegasus spyware is able to read the victim's SMS messages, listen to calls, take screenshots, record keystrokes, and access contacts and the browser. Pegasus spyware: how does it infect the phone? The Organized Crime and Corruption Reporting Project (OCCRP) reports that eventually, as the public became more aware of these tactics and better able to identify malicious spam, a zero-click exploit solution was discovered. . This method doesn't rely on the target doing anything for Pegasus to compromise your device. Zero-click Messages rely on bugs in popular apps like WhatsApp and FaceTime, which all receive data and sometimes sort it from unknown sources. Once the vulnerability is found, Pegasus can infiltrate a device using the app's protocol. The user doesn't need to click a link, read a message, or answer a call - they can't even see a missed call or message. "It connects to most messaging systems, including Gmail, Facebook, WhatsApp, FaceTime, Viber, WeChat, Telegram, Apple's inbuilt messaging and email apps, and more. With such a line-up, one can access almost the entire world's population." can spy. It is clear that NSO is offering an intelligence-agency-as-a-service," said Timothy Summers, a former cyber engineer with a US intelligence agency. Amnesty International recently reported that spyware from NSO Group has infected new iPhone models, specifically the iPhone 11 and iPhone 12, through an iMessage zero-click attack. Spyware can impersonate an application downloaded to an iPhone and broadcast itself as Push Kaspersky says Pegasus for Android doesn't rely on zero-day vulnerabilities. Instead, it uses A well known rooting method called Framaroot. Another difference: If the iOS version fails to jailbreak device, the whole attack fails, but with the Android version, even if the malware fails to get Root access required to install monitoring software, it will still try to ask the user directly It needs permissions to at least take out some of the data. Pegasus spyware: is there any way to find out if a phone has been tampered with? Researchers at Amnesty International have developed a tool to check whether your phone is targeted by spyware. The purpose of the Mobile Verification Toolkit (MVT) is to help identify whether Pegasus has infected your device. While it works on both Android and iOS devices, it requires Some command line knowledge top works right now. However, MVT can achieve a graphical User Interface (GUI) over time. Pegasus Spyware In India In late 2019, Facebook initiated a suit against NSO, claiming that Pegasus had been used to intercept the WhatsApp communications of a number of activists, journalists, and bureaucrats in India, leading to allegations that the Indian government was involved Phone numbers of Indian ministers, opposition leaders, ex-election commissioners and journalists were allegedly found on a database of NSO hacking targets by Project Pegasus in 2021. Independent digital forensic analysis conducted on 10 Indian phones whose numbers were present in the data showed signs of either an attempted or successful Pegasus hack. The results of the forensic analysis threw up shows sequential correlations between the time and date a phone number is entered in the list and the beginning of surveillance. The gap usually ranges between a few minutes and a couple of hours.11 phone numbers associated with a female employee of the Supreme Court of India and her immediate family, who accused the former Chief Justice of India, Ranjan Gogoi, of sexual harrasment, are also allegedly found on a database indicating the possibility of their phones being snooped. Records also indicate that phone numbers of some of the key political players in Karnataka appear to have been selected around the time when an intense power struggle was taking place between the Bharatiya Janata Party and the Janata Dal (Secular)-Congress-led state government in 2019. It was reported that the Indian government used Pegasus to spy on Pakistan Prime Minister Imran Khan and diplomats from Iran, Afghanistan, China, Nepal and Saudi Arabia. Hacking of phones using the Pegasus spyware constituted a criminal offence punishable under Sections 66 (computer related offences), 66B (punishment for dishonestly receiving stolen computer resource or communication device), 66E (punishment for violation of privacy) and 66F (punishment for cyber terrorism) of the IT Act, punishable with imprisonment and/or fine.

NUISANCE Subject :-Law Of Torts www.lawtool.net This is the lawful interference with a person‟s use or enjoyment of land or some other rights over or in connection with land. It entails the doing or an unjustifiable thing, which interferes with the use or enjoyment of another‟s land. This tort protects a person‟s enjoyment of land or rights vested in the land. Nuisance may be public or private. Public Nuisance This is an act, which interferes with the enjoyment of a right of members or a society in general e.g right of fresh air, noise free environment, use of public highway, waterway, etc. Public nuisance is criminal offence actionable by the state on behalf of the public. However, an individual may sue for public nuisance only if he may prove that he has suffered particular damage or loss over and above what other members of the public have suffered. Such injury caused must be direct and not mere consequential injury. It must also be shown to be of a substantial character in order to avoid multiplicity of litigation. Public nuisance is therefore a tort as well as crime. These suits are dealt with by or in the name of the state. Private Nuisance This is the unlawful interference with a person‟s use of land or right connected with the land. It affects a person in his individual capacity and hence a personal action for redress is necessary. It may take the form of noise, heat, smoke, vibrations, overhanging branches, playing loud music etc. Private nuisance is not actionable if the action of the defendant is reasonable in the legitimate use of his property. The defendant would also not be liable if the plaintiff is over sensitive. The standard or test applied by courts is that of a reasonable man. The defendant cannot escape liability by pleading that the plaintiff came to the source of the nuisance. The defendant cannot escape liability by pleading that the plaintiff came to the source of the nuisance Relief / Remedies to tort of nuisance. 1. Damages: The tort of nuisance is not actionable per-se. The plaintiff must prove loss or damage unless the same can be presumed. 2. Injunction: The plaintiff may apply for an order to restrain the defendant from continuing with the tortuous acts and the court may grant the order if circumstances so demand. 3.Abatement: This is the discontinuation of the nuisance e.g. cutting overhanging branches or roots. A person may only sue for nuisance if he has an interest in the land affected. A guest whose enjoyment of land is interfered with has no action in nuisance unless he is vested with the management and control of the source of nuisance. Defenses to the tort of nuisance 1. Prescription: Right to commit private nuisance may be acquired by continuation of the nuisance for 20 years or more. The tortfeaser acquires prescriptive rights if he proves that he has committed the alleged nuisance for such period of 20 years without any interference. 2.Statutory authority: This is the offending act has been enabled by an Act of parliament. 3. Plaintiff’s consent: This is the defense of Volenti non fit injuria i.e. that the plaintiff willingly consented to the nuisance with full knowledge of its character.

DEFAMATION Subject :- Law Of Torts www.lawtool.net Defamation means the publication of a false statement regarding another person without lawful justification, which tends to lower his reputation in the estimation of right thinking members of society or which causes him to be shunned or avoided or has a tendency to injure him in his office, professions or trade. It has also been defined as the publication of a statement that tends to injure the reputation of another by exposing him to hatred, contempt or ridicule. In the case of Dixon Vs Holden (1869) the right of reputation is recognized as an inherent right of every person, which can be exercised against theentire world. A man‟s reputation is therefore considered his property. Following are the essential elements of defamation: - i. False statement: The defendant must have made a false statement. If the statement is true, it's not defamation. ii. Defamatory statement: The statement must be defamatory. A statement is said to be defamatory when it expose the plaintiff to hatred, contempt, ridicule or shunning or injures him in his profession or trade among the people known to him. iii. Statement refers the plaintiff: The defamatory statement must refer to the plaintiff. But the plaintiff need not have been specifically named. It is sufficient if right thinking members of the society understand the statement to refer to the plaintiff. iv. Statement must be Published: Publication of the statement consists in making known of the defamatory matter to someone else (third parties) other than the plaintiff. Where the defamatory statement is kept under lock and key and no one ever gets to read it, there is no defamation. TYPES OF DEFAMATION 1. Slander:-Slander takes place where the defamatory statement are made in non-permanent form e.g. by word of mouth, gestures, etc. Slander is actionable only on proof of damage. However, in exceptional cases, a slanderous statement is actionable without proof of damage. This is so in cases: a) Where the statement inputs a criminal offence punished by imprisonment. b) Where the statement inputs a contagious disease on the plaintiff. c) Where the statement inputs unchastely on a woman. d) Where the statement imputes incompetence on the plaintiff in his trade, occupation or profession. 2. Libel:-Libel takes place where the defamatory permanent form e.g. in writing, printing, television broadcasting, effigy, etc. Where a defamatory matter is dictated to a secretary and she subsequentlytranscribes it, the act of dictation constitutes a slander while the transcript is a libel. An action for libel has the following essential requirements: i) it must be proved that the statement is false, ii) in writing, iii) is defamatory, and iv) has been published. Distinctions between slander and libel Libel can be a criminal offence as well as a civil wrong while slander amounts to a mere civil wrong only. 1. Libel is in a permanent form while slander is in a non-permanent form. 2. Under libel, the wrong is actionable per se whereas in slander the plaintiff must prove actual damage except when it conveys certain imputations. 3. Libel can be a criminal offence and may as well give rise to civil liability while slander is essentially a civil wrong. Defenses against defamation I. Truth or justification: Truth is a complete defense to an action on libel or slander. The defendant must be sure of proving the truth of the statement otherwise more serious and aggravated damage may be awarded against him. II. Fair comment: Fair comment on a matter of Public interest is a defense against defamation. The word "fair" means honesty relevant and free from malice and improper motive. III.Absolute Privilege: Certain matters are not actionable at all in defamation. They are absolutely privileged. A matter is said to be privileged when the person who makes the communication has a moral duty to make it to the person to whom he does make it, and the person who received it has an interest in hearing it. They include statements made by the judges or magistrates in the course of judicial proceedings, statements made in Parliament by Legislators and communication between spouses, etc. IV. Qualified Privilege: In this case a person is entitled to communicate a defamatory statement so long as no malice is proved on his part. They include statements made by a defendant while defending his reputation, communications made to a person in public position for public good, etc. V.Apology or offer of Amends: The defendant is at liberty to offer to make a suitable correction of the offending statement coupled with an apology. Such offers maybe relied upon as a defense. The defendant can make an offer of amends where the publication waswithout malice and it was published innocently. VI. Consent: In case whereby the plaintiff impliedly consents to the publication complained of, such consent is a defence in defamation. Remedies for defamation Damages: The plaintiff can recover damages for injury to his reputation as well as his feelings. Apology: An apology is another remedy available to the plaintiff. This is because it has the effect of correcting the impression previously made by the offending statement about the plaintiff. Injunctions: The Court may grant injunction restraining the publication of a libel. But the plaintiff must first prove that the defamatory statement is untrue and its publication will cause irreparable damage to him.

STRICT LIABILITY Subject :- Law Of Torts www.lawtool.net Write down the differences between ‘Strict Liability,’ and Absolute Liability’ Strict liability means liability without proof of any fault on the part of the wrongdoer. Once the plaintiff is proved to have suffered damage from the defendant's wrongful conduct, the defendant is liable whether there was fault on his part or not. Strict liability must be distinguished from absolute liability. Where there is absolute liability, the wrong is actionable without proof of fault on the part of the wrong-doer and in addition, there is no defense whatsoever to the action. Where there is strict liability, the wrong is actionable without proof of fault but some defenses may also be available. Strict liability may be considered in the following case namely: i. The rule in Ryland Vs. Fletcher (1866) ii. Liability for fire and; iii. Liability for animals. 1. The rule in RYLAND VS FLETCHER (1866) The rule is base on the judgment contained in the above case. It states that; "The person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and, is prima facie answerable for all the damage which is the natural consequence of its escape". The above rule is commonly called the rule in Ryland vs. Fletcher. It was formulated on the basis of the case of Ryland vs. Fletcher (1866). In this case Ryland had employed independent contractors to construct a reservoir on his land adjoining that of Fletcher. Due to the contractor's negligence, old mine shafts, leading from Ryland‟s land to Fletcher's were not blocked. When the reservoir was filled, the water escaped through the shafts and flooded the plaintiffs mine and caused great damage. The court held that Ryland was liable and it was immaterial that there was no fault on their part. Limits of the rule.For this rule to apply the following conditions must be applied: 1.Non-natural user: The defendant must have used his land in a way, which is not ordinarily natural. 2.Bringing into, or keeping or accumulating things on land for personal use. 3.That the things brought were capable of causing mischief if they escaped. These things need not be dangerous always. 4. Need for escape: There must be actual escape of the thing from the defendants land and not a place outside it. 5. That the plaintiff suffered loss or damage for such escape. Defenses in rule in Ryland vs. Fletcher. i.Acts of God: Act of God is a good defense to an action brought under the rule. ii.Plaintiffs' Fault: If the escape of the thing is due to the fault of the plaintiff, the defendant is not liable. This is because the plaintiff has himself brought about his own suffering. iii. Plaintiff‟s consent or benefit: That the accumulation or bringing of the thing was by consent of the plaintiff. iv. Statutory authority: That the thing was brought into the land by requirement of an Act of parliament. v.Contributory negligence: if the plaintiff was also to blame for the escape. vi. Wrongful act of third party: the defendant may take the defence of the wrongful acts of a third party though he may still be held liable in negligence if he failed to foresee and guard against the consequences to his works of that third party‟s act. 2. Liability for Fire: The liability for fire due to negligence is actionable in tort. It is also a case of strict liability. Therefore, if a fire starts without negligence but it spreads due -to negligence of a person, then that person will be liable for damages caused by the spread of the fire. 3. Liability for Animals: This may arise in cases of negligence. An occupier of land is liable for damage done by his cattle if they trespass onto the land of his neighbors thus causing damage.In the same way, person who keeps dangerous animals like leopards, dogs, lions, etc is liable strictly for any injury by such animals. He cannot claim that he was careful in keeping them. He remains liable even in the absence of negligence.

VICARIOUS LIABILITY Subject:- Law Of Torts www.lawtool.net Vicarious liability means the liability of one person for the torts committed by another person. The general rule is that every person is liable for his own wrongful act. However, in certain cases a person may be made liable for wrongful acts committed by another person. For example: An employer may be held liable for the tort of his employees. Similarly, a master is liable for any tort, which the servant commits in then course of his employment. The reason for this rule of common law is that: As the master has the benefit of his servant's service he should also accept liabilities. The master should be held liable as he creates circumstances that give rise to liability. The servant was at mere control and discretion of the master. Since the master engages the servant, he ought to be held liable when gagging a wrong person. The master is financially better placed than the servant.It must be proved that a person was acting as a servant and that the said tort was committed in the course of his employment before a master can be sued for a tort committed by his servant. MASTER AND SERVANT A servant means a person employed under a contract of service and acts on the orders of his master. The master therefore controls the manner in which his work is done. The concept of vicarious liability is based on the principle of equity that employee is normally people of meager resources and it is therefore only fair that the injured person is allowed to recover damages from the employers. Therefore a master is liable for the torts committed by his servant. To prove liability under master-servant relationship the servant must have acted in the course of his employment A master is liable whether the act in a question was approved by him or not. It is immaterial that the alleged act was not done for the benefit of the master. But the master is not liable for torts committed beyond the scope of employment. A servant is a person who works under the control of and is subject to the directions of another e.g. house-help, home servant, chauffeurs etc. Such persons are employed under a contract of service. The servant would also hold his master liable for torts committed in the course of duty for action done on ostensible authority. For vicarious liability to arise, it must be proved that: The servant would also hold his master liable for torts committed in the course of duty for action done on ostensible authority. For vicarious liability to arise, it must be proved that: 1. There was a lawful relationship between the parties. 2. There must have been a contract of service between the parties. 3. The servant is under the control and discretion of the master. This control and discretion is determined by the master‟s freedom: - To hire or fire the servant. - To determine the tasks to be discharged. - To provide implements. - To determine how the tasks would be discharged. - To determine the servants remuneration. -That the tort was committed by the servant in the course of his employment. This is irrespective of whether the servant was acting negligently, criminally, deliberately or wantonly for his own benefit. In Patel Vs Yafesi, where an employee was carrying 3 excess passengers in the vehicle contrary to the master‟s instructions, it was held that the master was liable as the driver was acting in the course of his employment.An employer is however responsible for the torts committed by an independent contractor where the contract, if properly carried out, would involve commission of a tort and also in cases where the law entrusts a high duty of care upon the employer. INDEPENDENT CONTRACTOR An independent contract means a person who undertakes to produce a given result without being controlled on how he achieves that result. These are called contract for service. Because the employer has no direct control of him, he (the employer) is not liable for his wrongful acts. However, there are certain cases (exception) under which the employer may still be liable. These are: - a). Where the employer retains his control over the contractor and personally interferes and makes himself a party to the act, which causes the damage. b). Where the thing contracted is in itself a tort. c). Where the thing contracted to be done is likely to do damage to other people's property or cause nuisance. d). Where there is strict liability without proof of negligence e.g. the rule in Ryland vs. Fletcher.

NEGLIGENCE subject:- Law Of Torts www.lawtool.net According to Judge Alderson, negligence means the breach of a duty caused by the omission to do something, which a reasonable man would do, or doing of something, which a prudent and reasonable man would not do. Negligence consist of neglect to use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect, the person has suffered injury to his person or property. The plaintiff suing under tort of negligence must prove that: 1. The defendant owed him a duty of care, The circumstances must be such that the defendant knew or reasonably ought to have known that acting negligently would injure the plaintiff. A road user owes other users a legal duty of care. An inviter owes his invitees a legal duty of care. A manufacturer of products owes a legal duty of care to consumers. As a general rule, every person owes his neighbor a legal duty of care. The neighbor principle was enunciated by Lord Atkin in his dictum celebrated case of Donohue Vs Stevenson (1932), a man bought a bottle of ginger beer from a retail shop. The man gave the bottle to his girlfriend who became ill after drinking the contents. The bottle contained the decomposed remains of a snail. The bottle was opaque so that the substance could not be discovered until the lady was refilling her glass. The consumer sued the manufacturer for negligence. Lord Atkin in his ruling said “the law that you are to love your neighbor becomes in law that your must not injure your neighbors…who then is my neighbour? The answer seems to be persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in question” In the Case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman, was sitting behind the counter of her husband‟s bar when suddenly a horse was driven into the bar. Fearing her personal safety, she suffered nervous shock and gave birth to a premature baby. In the circumstances, the court held that the plaintiff was entitled to recover in negligence. The standard of care expected of the defendant is that of a reasonable man. This is a man of ordinary prudence. A reasonable person is an objective stand created by law for all circumstances. Where professionals or experts are involved, the standard of care is that of a reasonably competent expert in that field. There are some circumstances however where not even a reasonable person could have foreseen the plaintiff suffering any loss, in which case, there is no liability upon the person who has committed the injurious act. In the landmark case of Bourhill Vs. Young (1943), the plaintiff (a pregnant woman) heard the noise of a road accident some distance away and walked to the scene. On reaching there, she suffered nervous shock and subsequently miscarried. In the circumstances, the Court held that the plaintiff could not recover in negligence because the injury she suffered or the manner in which it was caused which was not foreseeable. Had the plaintiff not walked to the scene of the accident, she would not have suffered the injury complained of. Such injury was legally termed as remote. 2. There has been a breach of that legal duty of care.The plaintiff has to prove that there was a duty imposed by common law, statute or otherwise, upon the defendant and that the defendant was in breach of this duty. However, at certain times, negligence is presumed without proof of breach of duty by the plaintiff. This is in the case of res-ipsa loquitor. RES IPSA LOQUITOR As a general rule, the burden of proving negligence lies with the plaintiff. He must prove that the defendant owed him a duty of care, that the defendant has breached that duty and that he has suffered damage. However, in certain cases, the plaintiff's burden of proof is relieved by the doctrine of res ipsaloquitor. Where it is applicable Res ipsaLoquitor means that „thing or facts speaks for themselves‟. This for example, occurs where an accident happens in circumstances in which it ought not to have occurred e.g. a car traveling on a straight road in clear weather and good visibility suddenly swerves off the road and overturns, where a barrel of flour suddenly drops from a warehouse, etc. Such an accident ought not to have occurred except for the negligence of the defendant. Res ipsa loquitor is a rule of evidence and not of law. It merely assists the plaintiff in proving negligence against the defendant. Before it can be relied upon, three conditions must be satisfied, namely: a) The thing inflicting the injury must have been under the control of the defendant or someone whom he controls. b) The event must be such that it could not have happened without negligence and; c) There must be no evidence or explanation as to why or how the event occurred, as the accident is such as in the ordinary course of things does not happen if those who have the duty use proper care. In the case of Bryne Vs. Boadle (1863), a barrel of flour fell from a warehouse o the defendant onto the plaintiff injuring him in the street while he was passing through. In the circumstances, the Court held that the plaintiff was not required to show how the accident took place because on the facts, negligence could be presumed and the rule of res ipsa loquitor applied. Effect of Res ipsa rule 1.It provides prima facie evidence of negligence on the part of the defendant. 2. It shifts the burden of proof form the plaintiff to the defendant. 3.The plaintiff has suffered injury to his person or property.Plaintiff has to prove that if it were not of the defendant‟s act he would not have suffered loss or damage.There must be a traceable link between the act and the loss, otherwise it would be considered remote and so, irrecoverable. If the plaintiff act is traceable to an independent intervening act (novus actus), the defendant is not liable. 4. Damage: For the plaintiff to succeed in claim of Negligence, he must prove that he suffered harm, loss or prejudice, unless this is presumed as in the case of Injuria sine damnum. No damage, no negligence. Defenses to Negligence 1. Contributory negligence: This defense is available to the defendant in circumstances in which the plaintiff is also to blame for his suffering. The effect of this defense is to reduce the amount recoverable by the plaintiff as damages by the extent of his contribution. Liability is apportioned between the parties. In earlier law, a person who had contributed to his injury due to his own negligence could not maintain an action in regard to such injury but this was altered in Kenya by the Law Reform Act (Cap 26).This law now enables the plaintiff to recover damages even in case of contributory negligence. However, the damages to be recovered are to be reduced to such an extent by the court, taking into consideration that the plaintiff contributed to his injury. Contributory negligence does not apply in case of children and they can recover full damages even in case of their contributory negligence. 2. Volenti non fit injuria: This is the doctrine of voluntary assumption of risk. 3. Statutory authority: The defendant must prove in this defense that he acted in accordance with the provisions of the Act.

TRESPASS subject:- Law of Torts www.lawtool.net Trespass as a wrong has a very wide application. It could mean unlawful presence in another's closure or land or premises, offence to the body of a person or even mean wrongful taking of goods or chattels . To constitute the wrong of trespass, neither force nor unlawful intention not actual damage nor breaking of an enclosure is necessary. Every invasion of private property, be it ever so minor is a trespass. Trespass may take any of the following three forms: 1. Trespass to land. 2. Trespass to person, and; 3.Trespass to goods. TRESPASS TO LAND Trespass to land may be committed by any of the following acts: - a). Entering upon the land or property of the plaintiff b). Continuing to remain in such land or property on expiry of license i.e. Permission to be in it. c). Doing an act affecting the sole possession of the plaintiff, in each case without justification. d) By throwing objects into another‟s land. e) By using the right of entry for purposes other than for which it was allowed. Generally, trespass to land is a civil wrong. However it may give rise to criminal proceeding; For example: Under the Trespass Act (Cap 294), a trespasser can be prosecuted for a criminal offence if he enters on somebody's land with intent to steal goods or commit any other offence. It is important to note that trespass to land is actionable per se, that is, without proof of special damage. In other words, it is not a defense that no damage has been caused by the trespass. Following are explanations to the elements of trespass: 1. Entry as an essence to constitute a trespass. A man is not liable for involuntary entry but intentional entry, even though made under mistake. E.g. if in mowing in his own land a man inadvertently allows his blade to cut through into his neighbors' field, he is guilty of trespass. Public streets including pavements e.t.c are primarily dedicated for public use for the purpose of passage and cannot be used as though it is private residence. Thus an excess of ordinary user of highway amount to trespass. 2. If a person who has lawfully entered on the land of another remains there, after his right of entry has ceased he shall then be committing trespass. 3. Every interference with the land if another e.g. throwing stones over a neighbors land is deemed to be constructive entry amounting to trespass, much as driving a nail into another walls, planting trees on his land e.t.c These are actionable per-se whereas private nuisance is actionable only with proof of damage. The owner of land is entitled to the column of air space above the surface ad- infinitum for ordinary use and enjoyment, and anything down to the center of the earth. In principle, every continuance of a trespass is afresh trespass and an action may be brought of it. An action may be brought for the original trespass in placing an encumbrance on the land and another action for continuing the structure being so erected. It therefore follows that a recovery of damage in the first action by way of accord and satisfaction does not operated as purchase of the right to continue in the injury. Trespass by a man's cattle, sheep, poultry etc is dealt with similar to trespass committed by the owner personally. Remedies for Trespass to land. 1. Defense of property: He may have to use force till he gets possession but not unnecessary amount of force of violence. This is called remedy of ejection. 2. Expulsion of trespasser especially in case of continued trespass. 3. Distress damage feasant: He may seize and retain them impounded as a pledge for the redress of the injury sustained. 4. Damages: This means recovery of monetary compensation from the defendant. 5. Injunction: This may be obtained to ward off a threatened trespass or to prevent a continuing trespass. 6. Action for recovery of Land: In case the plaintiff is wrongfully dispossessed of his land he can sue for the recovery of the land from the defendant. Defenses against Trespass on land. 1.Statutory authority: Where the law allows entry upon land. 2.Entry by license: Where entry is authorized by land owner, unless authority is abused. 3.Adverse possession: Where land has been peacefully possessed for over 12 years without disturbance. 4. Act of Necessity: Example is entry to put off fire for public safety is justifiable. 5.By order of court of law: This may be in execution of court order e.g. by court brokers. 6.Self defense: a trespasser may be excused as having been done in self defense or in the defense of a person‟s goods, chattels or animals. 7.Re-entry on land: A person wrongfully dispossessed of land may re-take possession of it if it‟s possible for him to do so peacefully and without the use of force. In this case, he will not be liable for trespass to land. 8. Re-taking of goods and chattels: if person unlawfully takes the good and chattels of another upon his own land, he impliedly licenses the owner of the goods to enter his land for the purpose of recaption. TRESPASS TO PERSON Any direct interference with the person (body) of another is actionable in the absence of any lawful justification. Trespass to person includes assault, battery and false imprisonment. Assault Assault means conduct or threat to apply violence on the person of the plaintiff in circumstances that may create apprehension that the latter is in real danger. It is committed when a person threatens to use force against the person of another thus putting the other person in fear of immediate danger. Examples: Shaking of fist, pointing o a gun menacingly at another, letting go a dog fiercely etc. It is important to note that not every threat amounts to assault. There must be the means of carrying out the threat and the capacity to effect the threat. The person threatened must be put in fear of immediate danger. An assault is a tort as well as a crime. The intention as well as the act makes assault. Mere words do not amount to assault unless it gives the user‟s gesture such a meaning as may amount to assault. Battery Battery means the actual application (use) of force against the person of another without lawful justification. It is immaterial whether the force is applied directly or indirectly to the person. But there must be actual bodily contact between the plaintiff and the defendant. Examples: - striking of another person or touching another person in a rude manner, pouring water on or spitting on another person. Assault and battery is actionable per-se (damage does not have to be proved). False Imprisonment False imprisonment means total restraint or deprivation of the liberty of a person without lawful justification. The duration of the time of detention is immaterial. False imprisonment may be committed even without the plaintiff's knowledge e.g. by locking him up in his bedroom while he is asleep and then reopening the door before he has awoken In such a case the plaintiff may still sue, (Meering vs. Graham-white Aviation Co. Ltd (1919)122 L.T.44). It is not however necessary that the person‟s body should be touched. A person is not only liable for false imprisonment when he directly arrests or detains the plaintiff, but also when he actively promotes or causes the arrest or detention of the person. Defenses to assault battery & false imprisonment a). Volenti non-fit injuria: A person who has voluntarily consented to come into actual bodily contact with another e.g. in sports, etc cannot later complain against another person who touches him in the course of playing the game. b). Private defense: A person is within his legal rights to defense himself, his property or his family. But he must use reasonable force in doing so. c). Legal authority: A police officer has statutory authority to arrest a person in the preservation of public peace. Here reasonable force may be used to effect such arrest. d). Forceful entry; The rightful owner of property is entitled to use reasonable force to prevent forcible entry on his land or to repossess his land or goods, which are wrongfully in the possession of another. e). Parental authority: People such as parents, teachers, etc can inflict reasonable punishment for the correction and benefit of the children. Thus a parent exercising parental authority can chastise or even lock-up a child reasonably without being guilty of assault, battery or false imprisonment , nor would a school-teacher. TRESPASS TO GOODS A person can sue for trespass to goods where there is wrongful interference with goods, which are in his possession. Such interference includes wrongful conversion, actual taking of or a direct and immediate injury to the goods. The tort of trespass to goods is meant to protect personal property. To constitute the tort of trespass to goods, the plaintiff must show: - 1. That at the time of trespass, he had the possession of the goods. 2. That his possession had been wrongfully interfered with or disturbed. Trespass to goods are of three categories namely: - 1. Trespass to chattels. 2. Goods Detenue and; 3. Conversion. Trespass to Chattels It means interference with goods, which are in the actual or constructive possession of the plaintiff. It may involve: - Removal of goods from one place to another, - Using the goods or; - Destroying or damaging the goods wrongfully. For an action to be sustainable: - The trespass must be direct. - The plaintiff must be in possession of the chattel at the time of the interference. - The tort is actionable per-se. Goods Detenue This means wrongful withholding or detention of goods from the person entitled to their immediate possession.For example: If A lends his book to Band B refuses, to return it to A, A is said to have committed the tort of Detenue. Conversion This means dealing with goods in a manner that is inconsistent with the right of the person in possession of them. This tort protects a person‟s interest in dominion and control of goods. The plaintiff must be in possession or have the right to immediate possession. For example: If A intentionally sells B's goods to C without any authority from B, A is guilty of conversion. Acts of conversion may be committed when property is wrongfully taken, parted with, sold, retained, destroyed or the lawful owner‟s right is denied. Defenses to trespass to goods. Limited defenses are available to a defendant against a wrong to goods. The defendant, however, can claim the right of lien. He may also claim other general defenses like statutory or judicial authority. Remedies to trespass to goods. i. Recaption: The plaintiff can recapture his goods that have been wrongfully taken away from him provided he uses reasonable force. ii. Order for specific restitution: The court may also order for specific restitution of the goods where damages is not adequate a remedy. iii. Damages: The plaintiff is entitled to claim the full value of the goods and damages for any inconvenience suffered by him. OCCUPIERS LIABILITY At common law, an occupier owns a common duty of care to his invites or invitee while within their premises and is generally liable for any injury to them or damage to their goods by reason of condition to their premises. The law relating to occupiers liability in Kenya is contained tin the OccupiersLiability Act Cap 34 laws of Kenya.The object of the Act was to amend the law relating to liability of occupiers and to others for injury or damages resulting persons or goods lawfully on any land or other property. Under the Act, an occupier owes a common duty of care to all invitees and their goods. However the common duty of care may be modified or restricted by agreement.The Act abolishes the old distinction between licensees and invitees, and now calls such persons visitors. This however does not include trespassers.Under Section 3(2) of the Act, common law duty of care means “a duty to take such care in all the circumstances of the case as is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose in which he is invited or permitted to be there” The court will consider the following in determining if there was this common law duty of care: -Whether the invitee is a child, the occupier must be prepared to take children to be less careful than adults. -Whether the invitee was exercising his calling under the Act, an occupier may expect that a person in exercise of his calling will appreciate and guard against any special risk ordinarily incidental to the calling if the occupier permits him to do so.The occupier is not liable where the accident occurs through the defective work of an independent contractor provided he can establish that the contractor was efficient as far as he was able and that he had inspected the work done. Defenses An occupier may escape liability if the injury or damage is occasioned by danger of which the occupier had warned the invitee.The occupier may escape liability in respect of any damages caused to the invitee if occasioned by the fault of an independent contractor.The common duty of care does not impose on an occupier any obligation in respect of risks willingly accepted by the invitee. The occupier owes no common duty of care to trespassers and is not liable for any injury or damage they may suffer while in his premises.

What is meant by the precolonial notion of crime? Discuss with relation to Hindu & Muslim Law Elaborate the evolution of crime in the pre-colonial era. Ancient Hindu Criminal Law - Before the conquest of Indian by the Muslim the penal law prevailing in India was the Hindu Criminal Law. It is now well established that in ancient India there existed a systematic and well defined criminal law. The punishment of a criminal was considered to be a sort of expiation that mover his character. Ancient Smriti writers were also fully aware of various purposes served by punishing the criminals. Manu, Yajnavalkya and Brihaspati state that there were four methods of punishment, namely, by gentle admonition, by server reproof, by fine and by corpo¬real punishment and declare that these punishments shall be inflicted separately or together accord¬ing to the nature of the offence. The punishments served four main purposes, namely, (1) to meet the urge of the person who had suffered (2) revenge or retaliation (3) as a deterrent, and preventive measures and (4) reformation or redemption of the evildoer. THE CHARACTERISTICS OF MOHAMMEDAN LAW OF CRIMES (a) General - According to the Muslim jurisprudence, there was no clear-cut distinction be¬tween public law and private law. In modern State today there is a clear cut distinction between public law and private law and criminal law is considered to be a part of public law. In modern times, a crime is treated as an offence against the State and generally, the State is the prosecutor. Only in exceptional cases, prosecution of a crime depends on the option of the victim of the offence. But the. spirit of Mohammedan law crimes, (as it was of several ancient laws of crimes,) was to redress the injured rather than to treat crime as an offence against the State and society. Nevertheless, Mohammedan law of crimes classified crimes into two categories, i.e., 'Crimes against God’ and 'crimes against man’. In the class of .crimes against God, offences such as drunkenness and adultery were included. They were considered to be crimes against God, offences such as drunkenness and adultery were included! They were considered to be crimes of a more serious nature In the second category, i.e., crimes against man, crimes such as murder and robbery were included. These crimes were considered to be offences against the victim or his near relatives. In the case of crimes against God, the State would take the initiative and the offender would be punished. Bat in the case of crimes against man, the initiative for prosecution, was left to the victim or the hairs of the victim. Thus, serious crimes like murder and robbery could be punished only if the heirs of the victim or the victim, as the case may be, took the initiative. It was this approach to criminal law that introduced certain irrational elements into the trial and punishment of crimes. These principles of criminal law evolved in a different society under altogether different circumstances were illogical and irrelevant in the 17lh and 18m centuries in India. (b) Punishments - Mohammedan law classified punishments under four different categories, Kisa “ ' Kisa meant retaliation. The victim or the relatives of the victim could demand a punishment similar to the offence itself. It was a case of a tooth for a tooth and an eye for an eye or a life for life. Under this category offences like murder, serious injury to the body were included. The .peculiarities of these offences were that no action could be taken unless the victim or the heirs of the victim took the initiative. It was open to them to condone the offence or to accept blood money if they choose to do so. Further, in the case of murder, the heirs of the victim were to personally inflict punishments on the offender. For example, in a case, where the wife had murdered her husband, the children were expected to inflict the death penalty on their mother. The concept of Kisa led to certain other anomalies. If a person was murdered, Kisa could be claimed only by his heirs. If the heir did not come forward to prosecute the murdered, for one reason or another, the murderer had to be kept in prison till someone came forward to prosecute. Similarly, the position was not clear as to what should happen when there were no heirs to claim Kisa though in practice the ruler claimed Kisa. Similarly, if the heirs were minors the prisoner had to be kept in prison until they attained majority. There was a difference of opinion among the Muslim commentators on this question. Therefore, the judge at his discretion could either allow the adult heirs to prosecute or to keep the prisoner in prison till all the heirs attained majority. Further, if one of the several heirs pardoned the murderer by .accepting Diya (by accepting blood money) other heirs could not claim Kisa. They could only demand their share of the blood money. Thus, the concept of Kisa was primitive, complicated, technical an technical and obscure. Diya - There were certain offences where the victim of a crime was entitled to blood. money on a certain fixed scale. Further, in the case of Kisa, the victim or his heirs could take blood money, pardon the murderer and compound the offence. Such Diya could be accepted in case of murders, robberies and serious wound ng or maiming. Hadd - In the .case of certain offences which were known as offences against God, Mohammedan law proscribed punishment of a fixed nature, quantity and quality. In these cases, the judge had no absolute discretion. The word Hadd means boundary or limit. Such a limit was fixed by law and not left to the discretion of the judge. The Hadd punishments were severe and they were in the nature of death by stoning, amputation of a limb or by flogging. For simple offences like accusing the married woman of adultery, the pun shipment was 80 stripes of flogging; for theft, cutting off the right hand or left foot and for Zina, i.e., illicit intercourse the punishment was death. Though the punish¬ment appeared to have been very severe, the severity was mitigated by the rigid rules of evidence. For example, in the case of Zina, there were to be four male eyewitnesses of the actual offence which would almost be impossible, to have. Further, if there was any doubt in the mind of the judge, -regarding the commission of the offence punishable with Hadd, it could be left to Tazeer. Tazeer - This kind of punishment included discretionary punishments. The nature and the quantity of the punishment were left entirely to the judge. Under this category were included punishments like imprisonment, exile, etc. The bulk of the offence under Muslim criminal law was to be pun¬ished under this category, The offences which invited Kisa or Hadd were very few. Further, even the offence which invited Hacicf or Kisa could come under Tazeer if the required standard of proof was not available and if there was a strong presumption of the offence. The doctrine to Tazeercould is invoked both in the case of Offences against man and against God.

Discuss various theories of punishment. State your opinion as to which theory is most suit¬able for criminal justice. THEORIES OF PUNISHMENT A.person If said to be punished when some pain or harm is inflicted on him. This may range from the death penalty to a nominal fine. following aro various theories & purposes of punishments - (1)Deterrent Punishment First and the most important object of criminal justice is to deter (discourage) people from committing crimes. The idea is not to punish the wrongdoer only but others should also learn a lesson that commissioning of crime is a bad bargain. Thus the first and most important aim of punishment is not revenge but terror. Exemplary punishment should be given to the criminal so that others may learn a lesson from him, According to Mann - “Penalty keeps the people under control, penalty protects them, the penalty remains awake when people are asleep, so the wise have regarded punishment as a source of truth." This theory has been the basis of punishment in almost ay. systems cf law yet there Is a lot of criticism of this theory. It is said that this theory has proved ineffective in checking crime. The fear of the unknown is very great and on this ground punishment losses, it's horror when once a criminal is punished. (2) Preventive Punishment It means the punishment should be preventive or disabling i.e. the offenders should be prevented from committing a crime or they should be disabled. In this theory, offenders are disabled from repeating the offenses (by giving them such punishments as imprisonment, death, exile, or forfeiture of office). By putting a person, (who has committed a crime), behind the bars, he is prevented from committing another crime, by the dismissal of a person from his ' office, where he has misused his office, he is deprived of the opportunity to commit a crime again, the 'license of a Truck Driver is canceled because of his negligent driving resulting in a serious accident, now he is prevented from committing accident again. However, critics point out that preventive punishment has the undesirable effect of hardening the first offenders or child (juvenile) offenders by putting them in the association of hardened criminals. (3) Reformative punishment The Central idea of this theory is that the crime should be treated as a disease. A criminal likes a patient and the punishment like medicine. Our purpose must be to mend criminals' father then to end them. Even if an offender commits a crime, he does not cease to be a human being, He may have committed a crime under circumstances that might never occur again, Therefore an opportunity must be given to him to mend his ways. The object should be 'to bring about the moral reform of the offender. Reformative punishment tries to check the commission of crimes by reforming the criminal or bringing out a change for the better in his character. Criminologists believe that criminal tendency is a disease curable like any other disease. Just a disease can be cured in its early stages, so first or young. offenders can be cursed of their tendency to commit crimes by confinement and suitable treat¬ment in reformatories and Borstal institutions. Modern thinkers prefer that punishment should be reformative and it must wean away offenders - especially first offenders and juveniles - from the path of crime by diverting their thoughts in other channels through persons in reformatory, special schools, etc. Salmond raises his objections against the purely reformative theory as follows : (1) It is not proper for hardened criminals - Some persons are so Vicious that crime becomes a part of their nature. The reformative theory would give up such persons in despair as incurable. Deterrent and preventive punishment would deprive such persons of liberty or even of life, and this disables them from being a menace to society. those who are prepared to commit crimes. (2) Crime will become a profitable industry which will flourish exceedingly - because many persons will be tempted to commit the offense in the hope of being sent to prison to be treated well there in such comforts which the wrongdoer could not afford. (3) It is not practicable ever in the case of the abnormal, degenerate, or mentally unsound person. First, there is no short dividing line between normal and abnormal humans. beings and sec- only, in the generality of cases, deterrent punishment cures even an abnormal and degenerate person of their desire to lead a criminal life. However, the greatest objection to the individualized treatment of criminals is the money that is required to spend and our imperfect knowledge of criminology. It is also said that if this theory is adopted then commissioning of crimes would become a profitable industry. This theory is of no use in the case of hardened and habitual criminals. (4) Retributive Punishment Kant has been an important supporter of this theory. It is said that the purpose of criminal justice .is vengeance, if one person had done something wrong then he also must be dealt with in the sam^manner. It is also said that an eye for an eye, a tooth for a tooth is deemed to be a complete and self-sufficient rule of natural justice and the same is the idea underlying this theory. The idea of this theory is that evil should be returned for evil. Although this system of criminal justice is considered barbaric and outdated and the rule of private vengeance or revenge has been abolished, yet no one can deny that this theory still plays an important role in the systems of criminal justice of most of the countries because most of the coun¬tries have retained capital punishment (death penalty) which is the best form of punishment accord¬ing to this theory-being “life for life". According to Salmond retributive punishment gratifies the in¬stincts of revenge or retaliation which exists not only in the individual wronged but also (by way of sympathy) in the society's large. (5)The theory of compensation:- According to this theory, the object of punishment must not be only to prevent further crime, but also to compensate the victim of the crime. This theory further believes that the mainspring of criminality is greed, and if .the offender is made to return the ill-gotten benefits of the crime, the spring of criminality would be dried up. Conclusion - What should be the modern approach to the problem of criminality? Which. the theory is perfect? According to prof. Salmond reformative theory alone is not sufficient. The perfect system of criminal justice is based on neither the reformative nor the deterrent principle exclusively but is the result of a compromise between them. It is therefore suggested that punishment should be reformative so far as it is possible, to reform the offender especially if he is a first offender or juvenile but deterrent preventive aspects should not be ignored as the primary object of justice is to prevent crime. Punishment may be light in orderly and law-abiding societies, but where there are signs of turbulence or of a “crime-wave” deterrent and exemplary punishment should be awarded. We might say that the administration of criminal justice cannot have any of the above purposes as the single standard cf punishment. A perfect penal code must be a judicious combination of those various purposes of punishment. No theory of punishment is a complete answer by itself. As has rightly been said, all theories of punishment require the support of each other. '

What is Punishment \ Discuss the various kinds of Punishment. What is punishment - Punishment, according to the dictionary, involves the infliction of. pain or forfeiture; it is the infliction of a penalty, by the judicial arm of the State. But if the Sole purpose behind punishment is to cause physical pain to the wrongdoer, it serves very little purpose. However, if punishment is such as makes the offender realize the gravity of the offence committed by him, and to repent for it (thus neutralizing the effect of his wrongful act), it may be .said to have achieved its desired effect. KINDS (TYPES) OF PUNISHMENT (1) Capital Punishment- In the history of punishments, capital punishment has always occupied a very important place. In ancient times, and even in the middle ages, sentencing offenders to death was a very common kind of punishment. Then, there arose a movement in the eighteenth century which raised its voice of protest against the inhuman nature of punishment. Bentham can be considered as the spearhead of this movement. He analysed the causes of the crime and showed how punishment was to be adequate. According to him, punishment itself was evil, but a necessary evil. No punishment was to be inflicted unless it brought greater good. The object of capital punishments said to. be two-fold. By putting the offender to death, it may instill fear in the minds of others and teach them a lesson. Secondly, if the offender is an incorrigible one, putting him to death, it prevents the repetition of the crime. But it is evident that this punish­ment is not based on the reformative object of punishment, in the sense that it is a step of despair. There have been many arguments for and against this kind. of punishment. (2) Deportation - Next to capital punishment, a method of elimination of incorrigible or dangerous offenders is the punishment of deportation. In India, it used to be called transportation. This could hardly be a solution to the problem. If a man is dangerous in one society and if he is let loose in another society, he is likely to be equally dangerous there also. (3) Corporal Punishment - Corporal punishment included beating flogging (or whipping) and torture. This was a very common kind of punishment in ancient and medieval times. In ancient Iran and ancient India, and even in times of the Mughal Rulers and the Marathas, whipping was commonly resorted to. The main object of this kind of punishment is deterrence. It has been long ago realized that this kind of punishment is not only inhuman but also ineffective. The person who undergoes this kind of punishment may become more antisocial than he was before. The criminal tendencies in him might _ be hardened and reforming him might become impossible. Though whipping was one of the kinds of punishment originally provided in the Penal Code, it was abolished in 1955. (4) Imprisonment - This kind of punishment, if properly used, may serve all three objects of the punishment. It may be a deterrent because it makes an example of the offender to others. It may be preventive because it disables the offender, at least for some time, from repeating the offense, and it might, (if properly used) given opportunities for reforming the character of the offender. (5) Solitary Confinement, - Solitary confinement is an aggravated kind of imprisonment. This kind of punishment exploits fully the sociable nature of man, and by denying him the society of his fellow beings, it seeks to inflict pain on him. It has been felt by many criminologists that this kind of punishment is inhuman and perverse. It is possible that this might turn a man of sound mental health into a lunatic. If used in excess, it may inflict permanent harm on the offender, though in limited cases, if used in proportion, this kind of punishment may be useful.

LAW REFORM www.lawtool.net Write a short note on:- Law Reforms. Reforms in Criminal Law by English administration:- The administrators of the East India Company realized, from time to time, that Mohammedan Law needed to be reformed. It was left to Warren Hastings and Lord Cornwallis to carry out these reforms in a practical manner. Reforms in the Criminal Law as carried out by Warren Hastings:- After acquisition of Diwani by the East India Company the need was left to reform the Mohammedan Criminal Law but it was in 1772 that Warren Hastings changed the existing law in order to suppress robberies and dacoities. He even criticized the existing Mohammedan criminal law. In order to regulate the machinery for administration of criminal justice in Bengal, Warren Hastings carried out reforms in 1772, then in 1774 and finally in 1780. He also suggested certain measures for reforms. Reforms carried out by Lord Cornwallis:- Lord Cornwallis, when he come to India in 1790, considered seriously the state of the administration of Criminal justice, He realised that there was great need to reform the existing system of criminal law. The reforms that he introduced are enumerated below in a brief manner. 1) Through a Regulation in 1790, Lord Cornwallis made the intention of the criminal as the main factor for determining the punishment. It was to be determined on the basis of general circumstances and evidence gathered. 2) He also laid down that the 'Doctrine of Yusuf and Mohammad' should form the basis for determining the seriousness of crime and not Hanafi's Doctrine. 3) It was left to the next of a kin of a murdered person to remit the penalty of death on murderer. 4) Instead of amputation of arms and legs, he substituted hard labour of fine and imprisonment. This was done in 1791. 5) In 1792, a Regulation was also framed that if the relations of a murdered person refused or neglected the prosecution, the Courts of Circuit were required to send the records of the case to the Sadar Nizamat Adalat for final orders. 6) It was also decided in 1792 that religious tenets of the witness shall not be considered as bar to the conviction of an accused person. 7) The Muslim law of evidence was also modified in 1792. 8) Cornwallis Code—On May 1,1791, a code which came to be known as Cornwallis Code, containing 48 enactment's, was framed. This laid down the general principles for administration of criminal justice. It was this year, i.e. in 1793, that the Regulations framed by the Government were codified according to the prescribed form. Until-the year 1833, the Governors of Bombay and Madras and the Governor General of Calcutta and their respective Councils were authorised by Acts of Parliament of England to legistate for the territories outside the Presidency towns of Bombay, Madras and Calcutta respectively by means of regulations. On the other hand the Parliament w-s to legistate in respect of the Presidency town itself. As a result of the power aforesaid a number of regulations were passed for the governance of the natives of the country, but they did not touch the Hindu or Mohammedan law. Though the personal laws of Hindus and Mohammedan were exempted from the purview of Regulations, yet they did -n fact modify them in several aspects, in as much as the Mohammedan criminal law in Calcutta and Madras and the Hindu criminal law in Bombay were so much affected by the year 1833 that they lost their original character. It has been said that the regulations were passed with a view to reduce the cruelties and the hardships of these criminal laws and make them "consonant with the British rule", but it may be pointed out that in doing so the criminal law became a patchwork of enactment's so confused that it was the first subject which invited codification. On the arrival of Lord Macaulay in India the First La Commission was constituted. Lord Macaulay was appointed Chairman of the Commission and three other persons namely Cameron, Macpherson and Anderson were appointed members of the first Law Commission. During the four years 1834-38 of Lord Macaulay's stay in India the Draft of the Indian Penal Code. was prepared and produced. Lord Macaulay was the sole or the principal author of the Draft of Indian penal Code prepared by the 18, Law Commission of India, Although the draft of Indian Penal Code was ready by the end of 1838, yet it could be passed only in the year 1860. Due to various causes it could not be passed earlier. Codification of criminal law was not favoured by some of the Judges in India, but the Indian Mutiny of 1857, culminated in the culm passing of the Indian Penal Code. Certainly Indian Penal Code has been so masterly drafted that sir Stephen, the well-known jurist on criminal law has remarked that, "It seems to me the most remarkable, as I think it bids fair to be the most lasting monument of its principal author. There is a fashion in literature which may diminish the influence and popularity of his other writings but the Penal Code has triumphantly supported the test of experience for upwards of twenty-one years during which time it has met with a degree of success which can hardly be ascribed to any statute of anything approaching the same dimensions," It is correct to say that while the draft, which latter became Indian Penal Code, remained a draft for about twenty-one years, it received during this time a revision at the hands of the professional lawyer sir Barnes peacock, who was then law member, and who later became the Chief Justice of the Supreme Court of Calcutta and later rose to be a member of the Judicial Committee of the Privy Council. Now at the end of Mutiny the governance of India was transferred from the hands of Company to the Crown, and an extra-ordinary impetus was given to legislation by the change. The Indian Penal Code was, therefore, passed as Act XLV of 1860 and shortly afterwards Act XXV of 1861 was enacted which is called the Criminal Procedure Code. Now considering the stages of progress which the Penal Law of India underwent, it would not be wrong to say that the present Indian, Penal Code does not contain anything of Mohammedan criminal law, The Indian Penal Code may be described as the Criminal Law of England freed from all technicalities and superfluities, systematically arranged and modified in some few particulars to suit the circumstances of British India.

NEW KINDS OF CRIMES SUCH AS TERRORISM, POLLUTION & ADULTERATION www.lawtool.net Topics 1) Terrorism 2) Pollution 3) Adulteration TERRORISM The word' Terrorism' has no specific definition because it includes many activities within its ambit aircraft hijacking, the killing of ethnic minorities challenging the sovereignty emanation, etc. Worldwide efforts have been made to fight terrorism which has proved unsatisfactory that's why the different nations of the world have enacted laws, controlling and punishing terrorism. The terrorism and destructive activities prevention and controller act 1987 was enforced till the year Dec. 1994, when it was repealed due to certain loopholes and demands by certain human rights activists. But after that year India again faces a grave problem from the terrorist. The unity and integrity of India again were threatened as J 8s K was in serious problem at the hands of terrorists that's why the parliament enacted a new law to combat (fight) terrorism namely POTA [Prevention of Terrorism Act, 2002]. It is noteworthy that the act does not define terrorism or what is terrorist Act but in Sec. 3 subsections (1) a category of acts are included in the term terrorist act means the definition is not exhaustive but is inclusive. Pollution The term pollution means anything that is foreign to the environment. The term environment denotes totally all extrinsic, physical & biotic factors affecting the life & behavior of all living things. It is therefore important that the environment of which land, water, air, human beings, plants & animals are components be preserved & protected from degradation to enable maintenance of the ecological balance. Considering that these natural resources sustain life on the planet being the basis of all over activities whether agriculture or industry or science, their conservation both quantitatively and qualitatively is of vital important & protection of the environment has assumed even more importance in recent times with increased Industrialisation resulting not only in overdraw of natural resources but also pollution of air, water, flora & fauna. While development is essential to every economy it is also essential that no irreparable damage be caused to the ecosystem. The responsibility of the state is to protect the life of the subject. Certain acts by industrialists & individuals threaten the environment directly or indirectly. This act in turn affects the life of an individual. Some acts are also directly hazardous to human life keeping in view new enactment which try to prevent pollution in the environment and other related aspects are introduced. They create certain new offenses for which punishment prescribed. Such legislation are: 1) Environmental protection act 1986 2) Water (prevention & control of pollution) act 1974 3) Air (prevention & control of pollution) act 1981 In these three specific enactment, the definition of environmental pollution water pollution & air pollution has been given respectively. The first act fixes responsibility on the person carrying on industrial operations for handling hazardous substances & the act requires, such person to comply with (follow) certain safeguards for the prevention control and abatement (removal) of environments • pollution & also strict duties have to be followed by such persons in furnishing certain information regarding the nature of business handling of hazardous substances the discharge of waste materials etc. Th,e central govt. has been granted general powers under the act for taking all necessary measures for protecting the quality of the environment and also for laying down standards for omission or discharge of environmental pollutant. It also imparts duty on certain central govt. for laying down standard of quality, which must be environmental friendly, the handling of hazardous substances, requirements of certain persons in submitting information etc. Section 16 of the act punishes a company and every person who-at the time of the offence was directly in charge of & was responsible to the company for the conduct of the business. Section 17 punishes the govt. departments by punishing the head of the department. These punishments are prescribed in case of any of the duty imparted by the act on any person is contravened. Section 15 provides that contravention of any of the provisions of the act or any rules made there under shall be punishable with rigorous imprisonment upto 5 years or with fine of Rs. 1,00,000. An additional fine of Rs. 5,000 would also be levied for every day of continuing default subsection (2) of section 15 further provides that where such contravention continues beyond a period of one year from the date of conviction, the offender shall be punishable upto 7 years. Note: The environment protection act deals with matters connected with environment in general. The water (P & C) of pollution act 1974 was enacted to provide, for the prevention and control of water pollution & maintaining or, restoring the wholesomeness of water, establishment of Boards with a view to carry out the enforcement of the act. This act contains provisions relating to penalties and failure to comply with directions under subsection (2) or subsection (3) of section 20. Under sec. 20(2) a state board may give direction requiring any person who in its opinion is abstracting water from any such stream or well in the area in qualities which are substantial in relation to the flow or volume of that stream or well or is discharging sewage or trade effluent into any such stream or well, give such information as to the abstraction or discharge at such time & in such form as may be prescribed in the direction. Whoever fails to comply with the direction given in sub-section (2) & (3) of section 20 shall on conviction be punishable with imprisonment for a term, which may extend to three months, or with a fine, which may extend to ten thousand rupees or both. In case of failure continues with an additional fine which may extend to five thousand rupees for everyday default.Failure to comply with an order issued under section 32(1)(c) (restraining or prohibiting the person concerned from discharging any poisonous, noxious or polluting matter into the stream or well or on land or from making insanitary use of the stream or well) & section 33(2) or any direction under section 33A shall on conviction be punishable with imprisonment for a term. which shall not be less than one year & six months but which may extend to six-year and with fine and in case the failure continues with an additional fine which may extend to five thousand rupees or every day during which default continues after the conviction for the first such failure of the failure continues beyond a period of one year after the date of conviction be punishable with imprisonment for a term which shall not be less than two year but which may extend to 7 years & with fine. Under section 42, whoever does the following acts is punishable with imprisonment for three months or fine upto Rs. 10,000 or both. Adulteration The provisions relating to food adulteration are contained in section 272 to 276 of I.P.C. Adulteration of food or drink or drug is made punishable under the I.P.C. But in order to provide *comprehensive provisions relating to food adulteration separate legislation is enacted i.e., prevention of food adulteration act 1954. The definition of adulteration is given under section 2(i-a) as under: "adulterated" - an article of food shall adulterated - I) the nature, subst ce A if the article sold by a vendor is not o to his prejudice quality demanded by the purchaser and is Quality y which it purport;:h: not of the nature, substance or qual represented to be ; 2) if the article contains any other substance which affects, or the article is so processed as to affect, injuriously the substance or quality thereof ; 3) if any inferior or cheaper substance has been substituted who or in part for the article so as to affect injuriously the nature substance or quality thereof ; 4) if any constituent of the article has been wholly or in pa r abstracted so as to affect injuriously the nature, substance or t quality thereof ; 5) if the article had been prepared, packed or kept ' .unde, insanitary conditions whereby it has become contaminated injurious to health; 6) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substan4 or is insect-infested or is otherwise unfit for hump consumption 7) if the article is obtained from a diseased animal ; 8) if the article contains any poisonous or other ingredient which renders it injurious to health 9) if the container of the article is composed, whether wholly or part, of any poisonous or deleterious substance which rende its contents injurious to health ; 10) if any colouring matter other than that prescribed in resp thereof is present in the article, or if the amounts of prescribed colouring matter which is present in the article not within the prescribed limits of variability ; 11) if the article contains any prohibited preservative or permitt preservative in excess of the prescribed limits ; 12) if the quality or purity of the article falls below the prescri standard or its constituents are present in quantities not wi the prescribed limits of variability, which renders it injurious health 13) if the quality or purity of the article falls below the prescrib,e standard or its constituents are present in quantities not Withi the prescribed limits of variability but which does not renderi injurious to health :

CULPABLE HOMICIDE AND MURDER www.lawtool.net Definition and Differences: Section 299 deals with Culpable homicide. (Homicide means killing of man. Culpable means punishable). Killing of a person. punishable in nature, is culpable homicide. Sn. 300 deals with murder : Culpable homicide Murder (i) Causing death: a) with the intention of causing death, or b) With the intention of (ii) Killing another person: a) with the intention of causing death, or b) With the intention of causing such bodily injury causing such bodily injuryas is likely to cause death or, With the knowledge that the act is likely to cause death. which the offender knows to be likely to cause death or c) With the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death, or d) With the knowledge that the act is so imminently dangerous that it must in all probability cause death. Examples: A keeps sticks and turf over a pit with an inten- tion to cause the death of Z. Z walks over it falls into the pit and dies. i) A with an intention to kill Z shoots at Z several times from close quarters. Z dies. This is murder. (ii) Z is suffering from a spleen iii) A knows that Z is suffering disease. A does not know, from an acute spleen He hits Z. Z dies in conse- disease. He hits Z on the quence. This is culpable stomach, Z dies. This is homicide. murder, (iii) Z is hiding behind a bush. iii) A intentionally gives a deep A hears a sound, thinks that sword cut to Z, Z dies. there is a wild animal, and This is murder. not knowing that Z is there shoots at the bush, Z dies. This is C.H. iv) A intentional shoots at the mob with an intention to kill Z. The shot hits B, who dies. This is murder. Justice Melwell in Govinda's case held that if death is the likely result it is culpable homicide. But if death is most likely or certain it amounts to murder. Hence in culpable homicide, death is the probable result but in murder, it is the most probable result. The leading cases are : i) R.V. Gorachand Gopi ii) Rajwant Singh V State of Kerala iii) R.V. Govinda iv) R .V. Beg vi) Harinder singhV Delhi v) Vjra Singh's case i) R.V. Gorachand Gopi:The accused struck his wife a blow on her head with a ploughshare. She fell down. The accused thought that she was dead. He hanged her with a rope to create an impression that she has committed suicide. In fact, she died due to strangulation. He was tried for murder. The court made a distinction between culpable homicide and murder. Held accused was not guilty of murder or culpable homicide but was guilty of grievous hurt. ii) R.V. Govinda:The accused knocked down his wife, and put his knee on her chest and dealt on her face with two or three violent blows with his fist and in consequence she died. Mehvell J made a distinction between culpable homicide and murder, and held, the accused was guilty of culpable homicide not amounting to murder. In Vira singh's case, the accused had pierced a spear with such force that 3 coils of abdoman of D had come out. Held murder under "thirdly" in Sn 300. See Sn 300 In Harinder singh's case the accused had knifed D who had come to rescue his brother B. D died. Held culpable Homicide. Culpable homicide is not murder in the following five circumstances: 1. Culpable homicide is not murder, if the offender being deprived of his self control by grave and sudden provocation causes the death of that person, or any other person by mistake or accident. Ex : A, under grave and sudden provocation given by Z kills Z's child intentionally. This is murder and not culpable homicide. Exception : a) The provocation should not have been made voluntarily by the accused himself. If he does so it will he murder. b) It is not a provocation if it is caused to the accused as a result of a public servant exercising lawful powers over the accused. Ex.: A is arrested by P. a Police Officer. This excited A to grave provocation and kills P. This is murder and not culpable homicide. c) The provocation is not given by anything done in private defense. Ex : i) A, attempts to pull Z's nose. Z in private defence holds A. A, is moved to sudden passion and kills Z. This is murder. ii) Nanavathi case : N's wife admitted before N adultery, with one Ahuja. Then, N, went to his office took his revolver, went to Ahuja's house and killed him. Defense was 'grave and sudden provocation'. There was sufficient time between the provocation and the act of killing. The court held that this was murder and not culpable homicide. iii) Balku's case :A and B were sleeping together outside the house. Sometime in the night B got up, went inside the house and had illegal connection wish A's wife. A saw this through an aperture. B returned and slept in his place. Thereupon A stabbed B several times and killed him. Held : Culpable homicide. 3. Culpable homicide is not murder if the offender being a public servant exceeds his legal power and causes death in good faith. The act must be lawful and necessary. There must be-no malafide intention. 4. Culpable homicide is not murder if it is committed by a person without any premeditation but in sudden fight in the heat of passion and without taking undue advantage over the other person. This is culpable homicide and not murder. Eg. In Raju Ghosh case :There was a pitched qurrel and sudden fight between A and B. While fighting A chanced on a heavy piece of wood. He took it and hit hard B, B died. Held; this is culpable homicide and not murder. 5. Culpable homicide is not murder, when the deceased being above the age of eighteen. suffers death with his own consent. Ex : A instigates Z below 18 commit suicide stating that life, was useless. A has abetted murder. Other leading case for when Culpable homicide is not murder (i) Madhavan V. St. of Kerala (ii) Akhtar V. State (iii) Chamru Budhwa V. St.. of M. P (iv) Jagrup V. St. of Haryana (v) St. of M. P. V. Ram prasad.

FALSE EVIDENCE www.lawtool.net Giving false evidence : (Sn. 191) According to Sn. 191 'giving false evidence' is an offence punishable under Indian Penal Code. In English Law according to Kenny this is perjury. If a person in a judicial proceeding, before a competent court, gives false evidence or evidence which he knows to be false he is guilty of perjury. But,, he must have stated this under oath and on matters material to the trial. Sn. 191, defines giving false evidence. Here the accused must be legally bound by an oath to state the truth or to make a declaration. He must make a false statement and must know that it is false or that it is not true. The statement may be made either orally or in writing. It amounts to false evidence, (i) if a person says that he believes a thing which he does not believe (ii) if he states that he knows a thing which he does not believe, or (iii) if he states that he knows a thing which he does not know. Ranjit Singh V. State of Pepsu : The facts were that the accused Police Officer filed an affidavit, stating that Ranjit was never arrested and illegally detailed in custody. The Supreme court held that as his statements were found to be false the accused had committed an offence under this section. Eg. i) A, under an oath stated that he believes that a signature to be in the handwriting of Z, knowing fully well that it is not so. This is false evidence. ii) A, under an oath tells the court that Z was not present at a particular place on a particular day. He knows that this is not true. This is false evidence. iii) A, under an oath, translates a statement knowing that the translation was false. Making false affidavit, amounts to giving false evidence. Sn. 193 provides for punishment. Fabricating false evidence : Sn. 192. This is an offence under l.P.C. The essentials are three: i) The accused must cause a circumstance to exist, or make a false entry in any book or record or make any false document. ii) He must do so with the intention that it may appear in evi- dence in any court or tribunal. iii) The intention must be that the circumstance may cause an erroneous (bad) opinion in the proceedings. E.g.: i) A puts jewels into Z's box with an intention that Z may be convicted of the offence of theft. A has fabricated false evidence. ii) A makes a false entry in his shop book for the purpose of using it in a criminal case. The leading cases : i) Rameswar Rai V. State : Here A the accused had stolen railway pins and kept in the house of Z. Z was punished for theft. A was held guilty ii) Dutt V. State of U. P. : Here the accused was an expert witness. He had fabricated a London Diploma Certificate to show he was an expert. Held guilty iii) Umrao V. State: The witness had made two contradictory statements intentionally it was held he was guilty of giving false evidence.

UNLAWFUL ASSEMBLY, RIOT www.lawtool.net Unlawful Assembly : Sn. 141. Unlawful assembly is an assembly of five or more persons with the common object: i) to over-throw by criminal force the Government or the legislature or ii) To resist the execution of any legal process iii) To commit mischief (S. 425), criminal trespass (441) iv) To obtain property or right by criminal force or v) To criminally force a person to do an act which he is not bound to do, or to force him not to do an act which he is bound to do. If a person is a member of an unlawful assembly then that person is punishable. An assembly which is not unlawful in the beginning may become unlawful subsequently. The purpose or common object decides the nature of the assembly.The essentials are that there should be five or more persons and there should be the common object as specified in Sn. 141. This is different from common intention in Sn. 34. For unlawful assembly prior meeting of minds is not essential.To be called a "member" of the unlawful assembly the person must have joined knowing the facts, intentionally or continued in it. The punishment for being a member is 6 months imprisonment, fine or both. Aggravated forms are instances of persons armed with deadly weapons joining the unlawful assembly Sn. 144 In Chikkarange Gowda V State of Mysore, the Supreme Court laid down the essentials of unlawful assembly. There should be the minimum of five members & they should have the common object of Sn. 141. The members should know that they are likely to commit an offence, in furtherance of the common object. The prosecution should prove the presence or participation of the member in the unlawful assembly. Riot: (Sn. 146) This means if an unlawful assembly or a member thereof, in pursuance of common object, uses force or violence, then every member is guilty of Rioting, (unlawful assembly +force = Riot)Unlawful assembly is an assembly of five or more persons with the common object: i) to over-throw by criminal force the Government or the legislature or ii) To resist the execution of any legal process iii) To commit mischief (S. 425), criminal trespass (441) iv) To obtain property or right by criminal force or v) To criminally force a person to do an act which he is not bound to do, or to force him not to do an act which he is bound to do. If a person is a member of an unlawful assembly then that person is punishable. An assembly which is not unlawful in the beginning may become unlawful subsequently. The purpose or common object decides the nature of the assembly.To be called a "member" of the unlawful assembly the person must have joined knowing the facts, intentionally or continued in it Affray : (Sn. 159) If 2 or more persons, fight in a public place, disturb .public peace, they are guilty of affray. The punishment is imprisonment for one month or fine up to Rs.100/- or both. Affray means to terrify i.e., it creates a terror to the public. Actual fighting is necessary. Mere quarrel with some words or threatening words will not amount to affray. There must be physical exchange of blows. Fighting at public taps, or public urinals are examples. The place must be a public place.In Jagnnath's case, two brothers were quarreling on a public road using abusive language. A large crowd gathered and the traffic was jammed.Held, no affray as there was no "fighting" by the brothers. Fight is a bilateral act and fighting by both parties is essential.In Ellappa V Ellappa, a washerman was beaten, in public place, but there was submission by washerman. He was crying but was not fighting back. Held, there was no fight, hence, no affray. It was only an assault.Affray is different from Riot. For affray there should be two or more persons.. For rioting there should be five or more persons. Riot may be in a private place, but affray should be in public place.

GENERAL EXCEPTIONS www.lawtool.net Mistake of law and mistake of fact : Sns. 76 and 79. One of the cardinal rules of criminal law is ignorantia facti excusat, ignorantia juris non excusat (Ignorance of fact is an excuse but not Ignorance of law). This rule is contained in Sns. 76 and 79. According to Sn. 76, a person who believes himself to be bound by law, is excused if he does an act under mistake of fact but not under mistake of law. ' E.g. (i) 'A' a soldier fires on a mob by the orders of the Superior officers as per law. A is not guilty. (ii) A, a police officer, arrests Z, believing, in good faith that he is the person required. He is not guilty. 'Mistake' is a slip made not by design but by mischance. It is an error that results from unintentional act or omission. Hence, mistake of fact is considered a good defence. The leading cases are : 1. R.V. Tolson 2. R.V. Prince In R.V. Tolson, Mrs. Tolson was charged with Bigamy as she had married her a icond husband. Her defense was that Mr. Tolson, her first husband could not be traced for over seven years despite all reasonable means to search adopted. There was not mens rea. Hence, it was held that she was not guilty. 'Mistake of the fact is an excuse' the court declared. In R.V. Prince, the accused was charged with kidnaping, Annie Phillips, a girl under 16 years of age. The plea of the accused that the girl looked to be above 16, was rejected by the court and he was held guilty. His reasonable belief as to her age was no legal defence. According to Sn. 79, an act done by a person, who believes himself to be justified by law is excused. However, ignorance of law is no excuse but mistake of fact in good faith is an excuse. (i) A, a police officer sees Z commit an offence which appears to be murder. A, in good faith, exercising his powers under Cr. P.C. arrests Z. It turns out that there was no murder. Held,, Z not guilty as he is justified by Saw. (ii) A. a police constable, saw B carrying, three pieces of cloth, suspected them to be stolen and questioned him. B gave no satisfac- tory answers". Hence, he arrested him, but the Inspector released him. B prosecuted the constable for wrongful confinement. Held, consta- ble not guilty. There was a mistake of fact.- Constable was justified by law to enquire B. In Chirangi V. State, accused in "delusion" took his son as tiger and killed him.. He was protected under Sn. 79. In State of Orissa V. Ram Bahadur, killing a person as ghost was excused in the set of circumstances of the case Drunkenness or Intoxication: Sn. 85. One of the rules contained in the general exceptions of the I.P.C. is that intoxication is a good defence only in a particular circumstance, i.e., when it is not voluntary. Sn. 85 provides that it would be no offense, if the accused at the time of doing it was, by reason of intoxication (i) incapable of know- ing the nature of the act or (ii) that what he was doing was either wrong or contrary to law. The essential condition for excuse is that the thing which caused intoxication must have been administered to him without his knowl- edge or against his will.Drunkenness is a species of madness for which the madman alone is to be blamed. Case : Director of Public Prosecution V. Beard. In this case the accused ravished a girl of 13 years of age and in committing rape he placed his hand on her mouth and his thumb on' her throat. The girl died due to suffocation. The plea of drunkenness was rejected. Held, guilty of murder . Drunkenness in generally not a defence. The Supreme Court in Vasudev V. State of Persu has laid down conditions. Accused, drunk heavily in a wedding party killed a boy. Held, he was not so much obscured by drink. Held guilty "Act done in good faith" : The l.P.C. in the general exceptions Sns. 89, 89, 92 and 93 has provided for certain classes of cases, where there would be no offence, if the "act is done in good faith". This gives protection to the medical profession in particular and to others in general. (i) If A causes any harm to B, without any intention to cause death, but in good faith, he is not guilty, if B has given his consent to take the harm or the risk (Sn. 88). E.g. A, surgeon conducts an operation on B (who was suffer- ing from acute stomach pain) with his consent and in good faith to save him. B dies. A has committed no offence. (Sn. 89). (ii) If A, causes any harm in good faith to B, who is under 12 years of age, or of unsound mind with the consent of the guardian, for the benefit of B. A has committed no offence. (Sn. 89). A, a surgeon conducts an operation on B, a child of 10 years in good faith to save the child, with the consent of B's father, but the child dies. A has committed no offence. (iii ) If A causes any harm to B, in good faith for the benefit of B, under such circumstances that consent could not be taken, then, A has committed no offence. E.g. (a) A, a surgeon sees a child involved in an accident and conducts an emergency operation. There was no time to seek the parents consent.If the child dies, the surgeon has committed no offence b) A is carried off by a tiger. B shoots at the tiger in good faith to save A, but kills A. B is saved under this section. (iv) Any communication made in good faith to a person to benefit him is not an offence, if any harm results from it. A. surgeon in good faith tells B. his patient, that in his opinion B would not survive, B dies out of shock. If A,has said this for the benefit of B. A has committed no offence. The Right of Private defence : (Sns. 96 to 106) : One of the fundamental principles of law is that every individual has a right to defend himself and his property. This is the doctrine of self-defence or self-preservation. Sns. 96 to 106 have recognised this rule and have provided for the limits within which it may be exercised. This may be discussed under two heads: Right of person Right of property. Right of person : (i) Every person has a right to defend his own body and the body of any other person against any person. Sn 97 (ii) Against a madman etc: The right extends in all circumstances against any person who is insane, drunk or who by reason of youth immaturity is excused under law[ Sn 98 I P C ] Z under madness attempts to kill A. A may defend and even kill Z if circumstances so warrant. (iii) Extension of the right: Sn. 100 provides as follows : A person who is under a reasonable apprehension that his life is in danger, may to defend himself, voluntarily cause the death of the assailant if: a) The assault done by him i .e, assailant causes reasonable apprehension of 1) death or 2) grievous hurt. b) Or has assaulted with an intention to commit.- i) The offence of rape ii) The offence of unnatural lust iii ) Kidnapping or abduction or iv) Wrongful confinement, in such circumstances that the defender could not have recourse to public authorities to claim protection.This section empowers n person to defend himself by inflicting injury not greater than what is reasonably necessary. The injury caused in defending must be proportional to and commensurate with the injury received. This is the test. (v) Only in the above circumstances, the right extends to caus- ing death as recourse. But, in all other circumstances, the right ex- tends to causing any injury other than causing death. (Sn. 101). In R.V. Rose, H was cutting the throat of his wife, W.Their son saw this and fired at H. H died in consequence. Held, accused is within the limits of private defence. Hence, not guilty. In Shaku V Crown, H used force to take away his wife W by force from her father's house. W inflicted injuries to H. H died. Held under the circumstances, W was within her right of defence. iv) Duration : Sn. 102 the right of private defence commences as soon as there is a reasonable fear of danger to the body and continues as long as such fear continues. In Deo Narain V. St. of U. P. the Supreme Court has laid down the meaning of "Duration". Exception : (i) There is no right of private defence against a public servant, if he acts in good faith, under colour of his office, though that act may not be strictly according to law. However, if this act causes fear of instant death of grievous hurt, there is a right of private defence There could have been no recourse to any public authorities. No more harm than is necessary to defend, may be inflicted.(Sn. 99) i i) There is no right of self-defence if the public servant states the authority under which he is acting or produces (Warrant etc.) the same when demanded. Leading cases i) St. of U. P. V. Ram swamp ii) Kishan V, St. of .M.P iii) Munshi Ram V. Delhi Private defence of property : i) Every person has a right to defend his property, moveable or immoveable. It may be his own or any person's property. The act of the offender must amount to theft, robbery, mischief, criminal trespass or attempt thereof (Sn. 98). ii), Extent: The right extends to cause death or any other harm to the offender in the following cases: a) House-breaking by night. b) Mischief by fire on any building or vessel. c) Theft, mischief or house-trespass with a fear that the offender would cause death or grievous hurt, if not defended. This is the test adopted (Sn. 103). iii) Duration : Sn. 105 The right of private defence commences when there is a reasonable apprehension of danger to property and continues as long as that danger continues. The danger may be due to theft, criminal trespass, mischief or robbery, or house-breaking by night. (a) In R.V. Halloway Cases : S, the servant of M, saw a boy B, stealing wood. He tied the boy to a horse's tail and beat him. The horse took fright and B died. Held, no private defense, but a case of murder by S. b) In R.V. Karim Bux, K saw a thief A, entering the house at night through an aperture in the side-wall. K held down the head of A to prevent him from further entering. A died of suffocation.Held, K not guilty.

DEFINITIONS INDIAN PENAL CODE www.lawtool.net Topic - OneTouch Judge: Sn. 19. Wrongful gain and Wrongful loss : Dishonestly, Fraudulently: Sns. 24 & 25. Valuable security: Sn.30. Voluntarily: Sn. 39. Act, Omission : Sn. 33. Good faith: Sn. 52. Harbour : Sn. 52 A. Counterfeit: Sn. 28 Common intention: Sn. 34. Document : Sn. 29. Offence : Sn. 40. Judge: Sn. 19. Judge denotes every person who is officially designated as a Judge. It also includes a person or a body of persons empowered to give definitive judgments in any legal proceeding. The test is that such a person or body should have the right to give judgment. Eg. (i) A Magistrate who commits a person to the sessions is not a 'judge' in that circumstance. (ii) A Magistrate conducting a summons-case is a judge. The definition is only inclusive and not exhaustive. Legislature may empower a sarpanch or panch under the Panchayat to act as a judge. An arbitrator is not a judge, as he cannot give a definitive judgment. Wrongful gain and Wrongful loss : Sn. 23. Wrongful gain is the gain of property made by unlawful means. The test is that such a person is 'not legally entitled to such property. Wrongful loss is the loss of property incurred by unlawful means. The test is that such a person, so losing is legally entitled to such property. E.g. : Husband H had taken loan from C. When H died, C forcibly and illegally seized the bullocks of the widow of H. This is in satisfaction of the debt. C makes a wrongful gain but W has wrongful loss. Wrongful gain is only an ingredient of an offence and therefore it is part of an offence. E.g. Theft, Sn. 378. But In Mischief, [Sn. 425] there is wrongful loss, no wrongful gain. Dishonestly, Fraudulently: Sns. 24 & 25. If a person does an act with the intention of causing wrongful gain to one person or wrongful loss to another he is doing that act dishonestly. If a person does a fraudulent act with intention to defraud, he is said to have done the act fraudulently. The intention of the person is important. Ex : In theft Sn. 378, there is no fraud but there is the intention to cause wrongful loss or wrongful gain. Under Sn. 411, receiving stolen property, the person is punishable if he dishonestly received property. In Cheating Sn. 415 there may be a fraudulent or dishonest intention. In forgery, Sn. 463 there is the fraudulent intention or intention to commit fraud. Defraud has two elements (i) Deception and (ii) Injury to the person deceived. The difference between fraudulently and dishonestly is that in 'Dishonestly' there will be no intention to defraud. But in 'fraudulently' fraud is an essential ingredient. Dr. Vimala V. Delhi Administration, the Accused had bought a car in her minor daughter's name & had made claims by signing minor's name. Held, deceit but no injury. Hence, not liable under Sn. 467 (Forgery.) Valuable security: Sn.30. It is a document or one which purports to be a document. It creates, transfers, restricts, extends or extinguishes a legal right of a person. An acknowledgement of legal liability under a document is a valuable security. E.g. : Pronote, Bill of exchange. Cheque , sale deed, mortgage or lease deed. A endorses a cheque in favour of B. The endorsement is a valuable security. Further "Under purports to be a document", unstamped or blank documents or incomplete documents to be filled up later are valuable security A deed of divorce is a valuable security. Account books are not valuable security. Voluntarily: Sn. 39. A person is said to do an act voluntarily when he intends to cause an effect or at the time of employing those means he. knows or has reason to believe that he is likely to cause it. This, is defined, taking the relation of the causation and effects. Therefore it differs from the ordinary meaning. The result is that if a person does an act voluntarily, he is deemed to have known the consequences as well. E.g. A sets fire to the house of B, to commit robbery but causes the death B. A had not intended to cause the death of B, but if, he knows that by setting fire to the house, it was likely that B would be killed, he has "caused death voluntarily". Act, Omission : Sn. 33. The word act denotes aperies of acts or a single act. The word omission includes a series of omissions, including a single omission. These words are not defined in the I.P.C. but are used in the definition of offences. (i) Culpable homicide is murder if the act by which the death caused is done with the intention of causing death (Sn. 300 murder). A person is guilty of an illegal omission when that causes common injury (Public nuisance Sn. 268). Good faith: Sn. 52. Nothing is said to be done or believed, in good faith, which is done or believed, without due care and attention. The belief must be reasonable and well founded. The expression "good faith" is used in many sections of the I.P.C. Sn. 76, 79, 77, 78, 300, 339, etc. A quack conducted an operation for piles with an ordinary knife but the patient died. The plea of good faith was rejected by the court (Kaviraj's case). When a villager, returning home late in the night found near the entrance of his village, a devil, he hit hard on its head. In reality he had killed a child. The place was known for devils according to the villagers. The plea of good faith was rejected by the court. The person must act honestly. This means he must act with fairness and uprightness. This is judged on the facts and circumstances of each case. There is no good faith if a person acts negligently or with lack of fairness. . A Sub-inspector saw a horse tied by B, and arrested B. He had jumped to the conclusion that the horse was the one his father had lost a few days ago. In reality, it was not the same horse. Held, that the officer had acted without "good faith" in arresting B. Harbour : Sn. 52 A. Harbour according to I.P.C includes supplying a person with shelter, food, drink, money, clothes, ammunition and means of conveyance or any means to evade apprehension. There is one exception to this. It is no harbour for the wife or the husband to give shelter, food, etc., to the other spouse. Harbouring deserter (Sn. 136) is an offense. A deserter from the Army, Navy, or Air Force may obtain the help of another to conceal himself. A person who knowingly harbours him is guilty of this offence. In harbouring offender (Sn. 212) a person who harbours, knowingly an offender is guilty of the offence. Counterfeit: Sn. 28 A person is said to counterfeit, when he causes one thing to resemble another thing with an intention to cause deception or with the knowledge that deception is thereby practised. The imitation need not be exactly the same.. There is a presumption that when a person causes one thing to resemble another he has the intention to practice deception but this is a rebuttable presumption. Counterfeiting coin is an offence and is punishable under Sn.231 Common intention: Sn. 34. When a criminal act is done by several persons, in furtherance of the common intention of all, then each person is liable for that act in the same manner as if it were done by him alone. The gist of this definition is that there is a joint liability, in the doing of the criminal offence. This liability is based on the existence of a "common intention''. For this, there must be prior consent or prearranged plan. There must be a prior meeting of minds. Several persons may attack ^A' each with an intention to kill A, but this is not common intention as there is no "meeting of minds". In such a case each is liable for whatever injury he has caused. The leading case is Krishna Govind Vs. State of Maharastra. This section is only a rule of evidence, and does not create any offence. Sn. 34. read with Sn. 302 In Bahu! Singh V. Emperor, it was held that there must be a pre-arranged plan- a meeting of minds. to convict both the accused. In this case, Mala Singh had given one blow to the deceased Dala Singh, but Bahu! was responsible for killing. There was no plan or meeting of minds to make them both liable for murder. Held Mala Singh was liable for causing grievous hurt. In Ishwari V. state, two brothers A & B had attacked D and killed him at the dead hour of the night at D's residence. A had attacked with a sharp weapon, & B had attacked with lathi. Held there was common intention. Document : Sn. 29. It denotes any matter expressed or described on any substance, by means of letters, figures or marks intended to be used as "evidence".A cheque, a power of attorney, all agreements, a map or a plan to be used as evidence, are documents. A currency note is a "document".A printed wedding invitation is a document. In using any letters, figures or marks, the same meaning that is in usage or in mercantile transactions is to be given. A endorses a B/E payable to P. The bill as per mercantile usage means payable to P or to his order. Offence : Sn. 40. "Offence", according to the I.P.C. denotes a thing punishable under this code, or under any special or local law. The "thing" is comprehensive and includes the doer or the dead, or the subject or the object. It includes the acts or omissions made liable under the code. Though mens rea is part of the offence, the I.P.C. has specified the nature of the intention in the definitions of the various offences: Using "voluntarily" "dishonestly'' fraudulently etc Hence, the English rule Actus non facit reum. .nisi mens sit rea is not applicable in India. The nature of the intention of the act to be established is defined in the various sections of the I.P.C.

INTRODUCTION INDIAN PENAL CODE www.lawtool.net The Indian Penal Code is a Substantive law containing 511 sections. It was Lord Macaulay who moved the House of Commons in 1833 to codify the whole of Criminal Law in India. Lord Macaulay himself was appointed as the Chairman of the First Law Commission and this Commission submitted its draft code of l.P.C. to the .Governor General in 1837. This was circulated to Judges and Law Advisers. It was revised by another Commission and was passed by the 'Legislative Council' 'in 1860. The Criminal Procedure Code was passed in I860 (Amended in 1973). These two together constitute 'Criminal Law’ of India. This codification of both the substantive and adjectival (Procedural) Criminal law brought uniformity and definiteness to the Criminal jurisprudence in India. Definition of offences, containing many ingredients must be remembered with abundant caution. Even if one ingredient is slipped, it will not amount to an offense. In Sn. 378 I P C theft has five essentials. If one, say "without consent' is omitted, the definition suffers from this infirmity and there will be no theft at all. Further, the illustrations play a dominant role and should be studied again and again to comprehend the essentials of the offences. 'Mens rea' which is the subject of great discussion in England, is much simplified by the l.P.C. The mental element is stated in each offense as 'dishonestly', "Fraudulently', intentionally' etc. Hence, the legal maxim 'Actus non facit reum, nisi mens sit rea' is hardly applicable in India.The subject is heavy but is worth its weight in gold.

Imperative Theory : Austin www.lawtool.net Imperative theory of law defines "law as the command of the sovereign"This theory states what a legal rule is, and, distinguishes it from a 'just rule' or 'a moral rule'. It takes into consideration the formal criteria ofa legal rule, and distinguishes it from morals, etiquette etc. Trieste is founder of this theory is. Austin. According to him positive law has three characteristic features : . It is a type of command; It is laid down by the political sovereign & It is enforced by a sanction Commands: According to Austin, every positive law is a direct or circuitous command of the monarch or the sovereign, to his subjects. Austin explains the nature of these commands. In a State, where there is an absolute Ruler, by name R, are all the orders made by him commands? His order to his servants to close the door, or to arrange for a banquet; (if not followed the servant may be punished). There are not commands but only desires according to Austin. To be law, the command must be a general command. Of course, generality alone is not sufficient to be a law. Political Sovereign: Law emanates from the political Sovereign or Superior. A sovereign may be a person or a group of persons, but not obedient to any other person. He enjoys the obedience of his subjects; Of course, perfect obedience may not be available. Laws may be obeyed out of respect, fear, habit or wisdom. The reason is not important for Austin, but, obedience to the sovereign exists as a fact, in general. Sanction: Human nature being what it is, a sovereign without a means to enforce his commands would have no scope. Law stands in need of sanctions. To Austin law is something for the citizen to obey, not as he pleases but whether he likes it or not. This can be achieved by using some coercion (force), that is, by inflicting punishment, by the sovereign. Thus, sanction is part of law. Criticism: Austin's theory has been attacked by many. i) The Naturalists, opposed the positive law, stating that Codes, Statutes, Constitutions etc. are enforced by force and, hence, are not true law, but a violation of law. Moral and ethical base is essential for a good law and there cannot be good positive law, without this base. Austin's definition of law as a command of the sovereign, is silent about customary law. Viewed from this angle, international law is no, law all according to Austin. In reality this is not so. There are some laws which are not commands, but are rules which confer only powers. Right to vote, right to contest for election etc. examples. Laws continue even after the extinction of the actual law giver. Some provisions of the Constitutions provide for restrictions on the law giver and some provisions cannot be changed, in some States, e.g. basic structure in India. English law is full of judge-made law. Austinians argue that judges are the delegates of the Parliament. But, this is not so in reality. Under judicial review in many States judges declare law as null and void. Hence Austin's Theory is inadequate to explain this. Rules defining sovereignty are varied. Modern States have written Constitutions. These provisions are hardly the commands of the sovereign. Conclusions: Though critics have an edge against the imperative theory, the fact remains, that this theory contains a lot of truth. The law emanates from and is visited with penalty by an authority. This is best explained by imperative theory than by any other theory.

Agencies by which Law is brought in harmony with society, are three in number : Legal Fictions, Equity and Legislation". Henry Maine The spontaneous development of the primitive law, came to an end with the codes. In fact, a new era began with the codes, and a line could be drawn between primitive societies which became static, and, the progressive societies, which made improvements. These progressive societies, were a few in number, e.g. Roman Society. Necessities: Social necessities and social opinion were always in advance of law. However, law was stable, but society progressive. Thus, there was a gap between such a society and, the law. According to Sir Henry Maine, this gap was filled up by bringing law into harmony with the society, with the instrumentalities : legal fiction, equity and Legislation. The development was also in the same order of sequence: First Legal fiction, second and Equity and then Legislation.According to Sir Henry Maine, the "agencies by which Law is brought in harmony with society, are three in number : Legal Fictions, Equity and Legislation 1. Legal Fiction : "Fiction", in old Roman Law was a "term of pleading". It was a false averment by the plaintiff which he would aver before the court, that he was a Roman citizen, though in reality, he was a foreigner. The objective was to give the court, the jurisdiction to try the case. Later, the term "legal fiction" began to signify any "assumption which concealed the fact that a rule of law had changed, in its operation, but had not altered in its letter. In Roman Law, in fact social progress was possible because the fictions helped to overcome the rigidity of law, e.g. the concept of adoption. The fiction was that the adopted child was the child of the adoptive parents, and, that such an adopted person could succeed to the properties of the adoptive parents, and the family genealogy would continue. 2. Equity : It was a body of rules based on some distinct principles and claiming to supersede civil law. The sanctity of them was inherent in the principles themselves, and their interference with law was direct and open. They were different from legislation, inasmuch as, they originated from some sacred principle and were independent of the consent of any group of persons like the Legislature. 3. Legislation : This refers to the Acts made by the Legislature. This is the third ameliorating instrumentality. The legislation was by the Parliamentary assembly or an autocratic prince. The authority came from such an external authority or person. It could impose obligations on the community and there was nothing to prevent its caprice. Its binding force came from the authority of the Legislature itself. If a particular enactment was based on some equity, the binding force came from the legislature , and not from the sanctity of equity. Two instances of Legal fiction : Sir Henry Maine had detected legal fiction in two glaring developments. i) Precedents : English legal system was full of case law and judicial precedents. Sometimes the decisions modified the existing law ; sometimes the change made, was not easily detectable. Judges of the 13th Century drew heavily from the "compedia" of Roman & Canon Laws ; but when Legislation made innumerable enactments, this tendency ceased. English Common Law was composed of equity (court of chancery) and of law made by the Parliament. Roman Responsa Prudentium : This closely resembled the judicial precedents. 'Responsa Prudentium'meant the answers of the learned in the law. These were explanatory glosses (interpretations) on written documents like the Twelve Tables.The fiction was this : The Table or the texts were to remain unchanged.But, in reality he "Books of Responses" showed that the text was constantl modified, extended recorded and edited by the pupils of the great jurisconsults.These were called the "Institutes" or "Commentaries". It was through theseresponses that Roman Law developed. By the time of the fall of the RomanEmpire, these responses were becoming more systematised and reduced int"compendia". Mucius Scaevola, the Pontifix, had published a manual of civil law.The Edict i.e., the annual proclamation of he Praetor mainly gained prominence for law reform. The final blow to responses come from Augustus. He restricted the jurisconsults to confine themselves to the cases referred to them. In later years, Ulpain, Paulus, Gaius and Papinian wrote elaborate treaties, based on Praetor,s Edict. Legislation : In Rome, it was scanty during the Republic, but became very voluminous under the Roman Empire. Legislation was directed to remove some great abuse, or to set right decisions between classes or dynasties. In fact, to settle he Roman society's great civil commotion, he Roman's solution, was the making of large body of statues. Sylla, Julius Caesar, Augustus Constantine and others desired to the Roman Society by making a number of statutes. However,the true period of Roman statute law,began only with establishment of the Roman Empire. Conclusion : Sir Henry Maine, having detected the gap between the law and the progressive society has also elaborated hat this gap was filled by legal fiction. Equity and Legislation. His findings are commendable and noteworthy.

'The most celebrated system of jurisprudence known to the world begins as it ends with a code' Henry Maine The magnificent role played by codification is expressed by Henry Maine with these words. 'The most celebrated system of jurisprudence known to the world begins as it ends with a code'. The twelve tables of Roman Law dates back to 450 B.C. This is the beginning. This ended with the corpus juris civils of Justinian (534A.D) Codification marks the beginning as well as the matured stage of Roman jurisprudence. Two meanings are given to codification i) Conversion of unwritten law into written law : The twelve tables, ii) Conversion of written into well written law : The corpus Juris belongs to this type. The twelve tables was an enunciation in words of the existing customs of the Roman people. The reasons for making this code are to be seen in the political discontent in Rome. The patricians had all the political and administrative powers. There were many perversions in the rules applied to the plebians. The patricians interpreted the customs. Hence there was discontent among plebians. After a long struggle, a commission 'The Decemarate' consisting of 5 pleabians and 5 patricians was formed which drafted the twelve tables. Responsa Prudentium: The customary law of the Romans called Jus civile was a part of the twelve tables. The Romans had a progressive method. 'Jurists' were specialists in law. They gave 'responsa' (answers) to elucidate law. These were complied. Emperor Hadrian declared that these had the force of law. Great luminaries like Gaius, Paul, Papinian etc. wrote elaborate treatises on law. ie., on praetor's edict. This was a great legal reform. The development of the office of the Praetor was a great step forward. He published the 'Edict'- a set of rules. One remarkable development was the office of Praetor Peregrines who resolved cases between a foreigner and a civilian. This became a special law called Jus Gentium : the law of Nations. Justinian in 528 A.D. Issued instruction for compilation of new code which was made in 529 A.D. This was replaced by the 534 A.D.Code. Besides this code, Justinian had compiled 'Digest' of Roman Law and the 'Institutes' (text-books for students). All these are collectively called corpus juris civilis. This is a glorious monument of fame to its creators and also a priceless legacy to the modern world. This is a classical work in legal history.

"The fate of Hindu Law, is in fact, the measure of the value of the Roman Code."Henry Maine The first part of the history of law is spontaneous, according to Sir Henry Maine, the celebrated author of 'Ancient Law'. During this period three stages are evidenced. The 'Era of Themistes', the 'Era of customs' and the 'Era of codes'. When the king decided disputes it was believed, in the infancy of society, that his judgment was the divine inspiration. 'Themists', were 'commands'. These authoritative pronouncements-Themists-followed by community practice resulted in Customary rules. The decay in Royal power gave way to the aristocracy which claimed exclusive knowledge of the customs.This resulted in the codes. Instead of leaving the customs to the-aristocracy to decide, it was found expedient to reduce to writing these customs. Laws were engraved on tablets and published to the people, in the form of codes. The ancient codes had gorgeous religious formalities. Still they were extremely valuable as everyone could know the rules. A timely code made, would solve many problems. If not so made, the usages would create dangerous situations. Further, the aristocracy which had the monopoly of knowing the law, could lend itself to perversions. These dangers were met by the early codes. Codes : The Twelve Tables of Romans and the Hindu Code Manu's Dharma sastras, are taken for examination by Henry Maine. The Roman Code XII Tables appeared in 250 B.C. The Roman were Legal Theory AL 9 thus fortunate as they could protect themselves against the dangers and the privileged. Aristocracy and the debasement of national institutions. But, the Hindus were not so fortunate as the Manu code, came late in point of time. There was much degeration of the usages. Further, the priestly oligarcy of the Hindus, tampered with the customs and resorted to cruel absurdities to protect their own interests. The Hindu code is an ideal picture of what ought to be the law. It therefore did not fully reflect the rules administered then. The Hindu society therefore suffered under these circumstances. The Romans had a practical code and hence escaped these cruel absurdities. Hence, according to Henry Maine. 'The fate of the Hindu Law is, in fact, the measure of value of the Roman Code'.

The movement of all progressive societies has hitherto been a movement from status to contract'..Henry Maine . Henry Maine in Chapter V, 'Primitive Society and Ancient Law', makes a deep and penetrating enquiry into the early primitive societies and analyses the then existing system, and compares them with the later systems. With this analysis, he comes to the conclusion that 'the movement of all progressive societies has hitherto been a movement from status to contract'. The oldest prevalent system was the particular family. Here the eldest male parent called partia protestas was absolutely supreme. He had extraordinary powers over his children women and the slaves. He could kill them if he decided to do so, the children had no rights what-so-ever. They had no right to property also. The son obeyed the father and it was moral obligation of the father to look after the son. The son was to gain superior strength and wisdom under his father's guidance. This Absolute power of the father saw a change. Eg. Where a son was appointed as commander in the army and the father continued as an ordinary solider, the father was supreme in the family but the son was supreme in the battle field. The son had the power to punish his father ! Where a son was appointed as Magistrate and the father a clerk under him, this naturally brought a change. The father's powers to sell the sons, to physically punish etc. slowly lost their foothold.The first stage came when sons acquired properties as commander or as Magistrate etc. The sons could have for themselves the properties acquired by them. Emperor Constantine took away the absolute powers of the father over the property of children. Justinian also introduced changes. The sons were allowed to have their own properties. Position of Woman and Slaves : The position of the families was that of a tutelage (under control of others). Restrictions had been imposed on the property.Further in respect of the. selling of the slaves the position was pathetic, to say the least. The slave could be sold or killed or ill-treated or controlled by the partia potestas . Later, under manumission the slaves were freed from their bondage. Such a free slave could be appointed as an heir by the partia potestas. The succeeding generations saw innumerable changes. There was a gradual dissolution of the family dependency and individuals started living on their own. In many cases the individual lived separately and his relationship with others was one of contracts. The social order changed to an order in which the relationship between individuals and individuals became governed by contracts. Slaves became free and the contractual relationship of master and servant came into existence. A move from status to contract. Hence Henry Maine is right in his conclusion that the movement of all progressive societies has been a movement from status to contract.

The positive duty resulting from one man's reliance on the word of another was the slowest conquests of civilization”. Henry Maine “Younger the civilization the simpler were the obligations”. Henry Maine The unit of the society in Ancient Rome was the family headed by the patria potestas and not the individual member of the family. In fact, the members of the family were incapable of entering into contracts. If entered, the patria potestas could disregard such contracts. Hence, a family could contracts with another family. That is one patria potestas with another patria potestas. In the early phase of development there were no contracts at all. However, families made promises with other families. If the promises were associated with solemn ceremonials then they had the sanction (force) behind it. Promises without them were empty. The gorgeous ceremonies were, in later years, slowly dispensed with. Some contracts were allowed to be entered into without any formalities. The mental element in the contract was called by the Roman as a 'pact'. Hence, contracts meant 'pact plus obligation'. A word of promise was the basis of contract. The positive duty resulting from one man's reliance on the word of another was the slowest conquests of civilisation. The early form of contract was called Nexum. This meant a transaction with help of libripans (copper and balance). The contract was a right in personam. Distinctions had been made between contract and conveyance. When property was transferred it was called 'mancipation'. Henry Maine has traced the origin and has set out the different stages of development as follows: 1. First stage: A conveyance being completed with formalities E.g. sale of a slave. 2. Second Stage: The slave was transferred but money was not paid. Here the contract Nexum continued. 3.Third stage: Nothing is handed over and nothing is paid by the vendee. Here both obligations were deferred, (postponed). 4. Fourth Stage : As already stated contract was "pact plus obligation'. Obligation was a bond which bound the parties togetherA pact without obligation was not a contract. Obligation signified the rights and duties, Henry Maine has made the classification of contract as follows 1. Verbal contract: This was the most ancient contract. This was done under stipulation i.e, questions and answers.Eg. The purchaser asked 'Do you promise to deliver me your ten slaves at such a place and on such a day for such an amount. The seller answered 'I do promise'. This was the original method of contract. 2. Literal contract : This meant the written contract: Here a ledger had been kept and entries were made therein. This had the effect of making the obligation complete. This shows the remarkable domestic system of maintaining accounts. 3. Real contracts : Here-the contract imposed a legal duty but this was based on moral consideration. Undertaking to return the loan was essential in the case of loan agreement. 4. Consensual contract: 'consensus' meant mutual consent of the parties to contract; without it there was no contract. Four different kinds of this were apparent in Roman law: 1. Mandatum (Agency) 2. Societas (Partnership) 3. Emptio Venditio (Sale) 4. Locatio conductio (letting out or hiring) It is evident from the above analysis that the younger the civilization the simpler were the obligations.

HISTORY OF TORTS www.lawtool.net There was no law of crimes in ancient societies but, only the law of delicts (torts)…Henry Maine Accordingly, Gaius 'Commentaries' had defined Furtum (theft) as a tort. The modern offences like Assault, Robbery etc., were torts only. As per the Germanic codes the modern heinous offences like murder, grievous hurt etc. were torts and compensation was recoverable. Hence in the early historical periods the citizen was protected under the-law of torts, and in fact if we go back to ancient history of the codes penal law was minuter. All sins were under the head of Torts.Sin against God formed the I class of ordinances. Sins against the neighbor produced the II class. It was much later that acts which touched the security of the States were made punishable by the legislature. This according to Maine is the origin of crime. Here the State intervened as an arbitrator.The early torts were disposed off as follows: Plaintiff deposited a sum of money as a stake. The defendant accepted the stake. The Praetor (judge) took security and this went to the coffers (exchequer) of the State. And the party who won got the wager amount. Of course, the Praetor took into consideration the damage incurred and the vengeance thereof. The twelve tables before Justinian had classified the furtum into manifest arid non-manifest. If a manifest theft is done by a slave, death was the punishment, but if it is done by a citizen the punishment was the bonds-manship of his property. In non-manifest cases, the penalty was double the value of property stolen by the thief. Gaius considerably reduced the nature of punishment. Until this period, there was no development of criminal Jurisprudence. True criminal jurisprudence started only later. The State considered itself obliged to the wronged and the 'Popular Assembly' started punishing the offender. Thereafter, the committees of the Assembly were formed. These were the criminal tribunals which later became criminal courts. Broadly speaking Henry Maine classified the entire law of crime into 4 stages. 1. The state recognised an injury to a person as an injury to the state. Here bills of 'pains and penalty' were passed by the Assembly. This named the various offences like murder and also prescribed the punishment (penalties). 2. When crimes increased in number, the legislature delegated its powers to commissions. Each commission was charged with the duty to investigate and was empowered to punish the offenders. 3. The commission was nominated by the legislature periodically. 4. Permanent Benches or Chambers with Judges were later established by the legislature. The legislature made certain acts defining the offences and specifying the punishment. The development of the crime in Rome in subsequent years related to the establishment of a large number of criminal tribunals. Further, many statutes were also made. They separately dealt with different offences. There were also questions dealing with jurisdiction etc. Later these two were fused together. The Romans had tolerably a complete criminal law by the time of Augustus. The process of conversion of torts 'into crime also went on. The punishment portion of the crime was transferred to the Magistrates nominated by the Emperor. The proceedings of the Senate passed on to the Imperial (Royal) Privy court.This became the ultimate criminal appellate court this influenced the doctrine that the Sovereign was the fountain of all Justice & Grace. Two reasons account for fast development of criminal law; the memory of Roman Empire & the Church. Severe punishments were reduced under the influence of the Church, and mercy it taught. But offences against Almighty God and Treason had no mercy.

MAJOR THEORIES OF LAW www,lawtool.net Major Theories: The major theories of law, which are prominent in legal theory (jurisprudence) are the following: i) Law as the dictate of Reason. This is the natural law theory. ii) Law as the command of the Sovereign of the State. This is the imperative theory. (Austin's theory) iii) Law as the practice of courts. This is the theory of "Legal Realism". (Salmond's theory) iv) Law as a system of Rules. This is called as Hart's theory. Natural Law theory: Natural law theory defines "law as the dictate of reason". The theorists are called the Naturalists. Law consists of principles of Justice and morality which are deduced from the objective moral principles of nature. These are rules of conduct for human beings, and, may be discovered by natural reason and commonsense. These are true law and are not obligatory but are followed naturally by the people. This is the essence of this theory of law. Naturalists oppose the positive law founded in Codes, Statutes, Constitutions etc., These are obligatory and are enforced by force All these, which are opposed to natural law, are riot really true law, but are only a violation or abuse of law. Merits: The merits of this theory of law are as follows: Superior standard: When the ordinary positive law falls short of some ideal, the people appeal to some higher standard based on natural law. The cry of the people in such cases would be "an unjust law is no law at all". Thus natural law has some leading role to play. Obedience: The phenomena of nature like the movement of the moon, the earth and the heavenly bodies are governed by the law of nature obligatory and are being followed. However, people have made their own customs, manners, fashions etc., and these are arbitrary and conventional. They do not command obedience as natural law. Stoic's Philosophy: The Stoic philosophers developed this concept further. According to them, "man should live, according to nature" since, man by nature is endowed with reason. True law is equal to right reasoning. Natural Rights: On the ground of "reasoning", the fundamental human rights have their base in natural law. For example, equality, has its base in natural lawNaturalists say "A dwarf is as much a man, as a giant is". Criticism:Natural law has its own formidable difficulties, Not followed in Practice: Natural law holds that the people 'ought' to follow its rules. But, in reality this may not be so. For example, man out to beget children, just like a tree bearing fruits. This may not be followed. Even States may impose restrictions on begetting children. Fulfilling functions: The principle of nature is that everything has its proper function and so, it must fulfill this function. The function of a watch is to show correct-time, as per its maker. This is its definite purpose. This analogy is not fully applicable to man. His purposes and functions are varied. The question about his maker god creates many other problems. Functions: According to nature, it is the function of smoke to rise, fire to burn, of tree to bear fruits, and of wind to blow. Likewise there are many functions of man founded on "reason". iv) There is no acceptance of natural law, universally. Slavery was recognised in Rome and Greece. Inequality prevails on the basis of religion, colour etc. Contents:The contents of natural law are also changing. Monogamy is recoginsed in many States ; Polygamy is some others etc. Natural law has not provided for the security and protection of property and of the person of the individuals. Disputes are solved or decided by the Courts and tribunals. Applying moral or natural law, it may become difficult for them to solve.

COMMISSIONS www.lawtool.net Commissions (Order 26 Rules 1 to 22.) The C.P.C. has provided for the appointment of a commission for the examination of a resident, within its jurisdiction, if that person is (i) exempted from attending the Court or is proved to be (ii) sick and infirm. The persons who are exempted are: i) Persons resident outside the jurisdiction or who is about to go outside. ii) Govt. officers who are in service and who cannot attend without detriment to public interest. Who may be the Commission: The Court may appoint an advocate or pleader or any person at its discretion as a commission. Commissions may be appointed, to make local investigations, to examine accounts, to make partitions. to make scientific investigation or to make sale of movable property. Powers The Commission should discharge its functions as per the directions of the Court. It may examine the parties or any witnesses or any other person whom it deems fit. Call for and examine documents and other relevant things, Enter any place or buildings at reasonable times, Recordobjections to answer questions. Attendance, Summoning: The Commission is considered as a Civil Court, and is empowered to exercise its power as in C.P.C. (Of course, no penalties can be imposed.) Returning of Commission: The court fixes the time within which the Commission should return. It should submit its report to the court with the evidence collected, depositions, documents etc. Evidentiary Value: The evidence taken under a Commission should not be read as evidence without the consent of the other party, subject to certain exceptions. When the commission submits its returns, it is dissolved, and, ceases to have any power.

ATTACHMENT & ARREST www.lawtool.net ATTACHMENT:- section 60 property liable to attachment and sale in execution of the decree. the following property is liable to attachment and sale in execution of a decree, namely lands, house or other building goods money, banknotes, cheques, bill of exchange, government security. Properties that cannot be attached A suit is a civil court concerning any right to any property that may be decreed in favor of the plaintiff or may be dismissed. If the suit is decreed, the person in whose favor the decree is passed is called the decree-holder and a person against whom it is given is called the judgment-debtor. The decree-holder can resort to execution to realize the amount, by way of attachment of the property of the judgment debtor, or byways of the arrest of the judgment debtor, or by both. Attachment is an order of the court prohibiting the judgment debtor From dealing with the Property attached. It is only after attachment that it will be ordered to Be Sold by the court by court auction. Those properties which may be attached are mentioned in Sn.60 subject to certain exceptions. Property is liable for attachment: Lands, Houses, other buildings, goods, money, cheque, Government Securities, debts, shares, etc. as per Sn.60. The following are not liable for attachment: 1. Necessary wearing apparel, cooking vessels, beds and beddings of the debtor, of his wife and children. Personal ornaments which should be with a woman by religion. (Eg.Mangala Sutra etc.) 2. Tools of artisans, Agricultural implements including cattle and seed grain and agricultural produce as are necessary for livelihood. 3. Books of account, a mere right to sue for damages, any right of personal services, etc. 4. Stipends and gratuities and political pensions. 5. Wages of laborers and domestic servants payable in kind or in money. 6. Salary to the first Rs.400/- and two thirds of the remainder, 7. A right to future maintenance etc. as per Sn.60 of C.P.C. 8. Houses and buildings belonging to agriculturist, laborer or a domestic servant, 9. L.I.C. Policies, Provident Fund Contributions. Where the property is immovable the attachment shall be made by an order prohibiting the judgment-debtor from transferring orcharging the property in anyway. All persons are prohibited from taking any benefit from such transfer or charge.. The order shall be proclaimed at some place on the propertyor adjacent to the property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the property or of the Court house (or in the office of the collector if it is land). A. Arrest before Judgment (order 38,rule1 to4 ) A plaintiff in a suit may at any stage of the suit pray for the arrest of the deft before judgment or for the attachment of property before judgment. He must make an application after the plaint is admitted. It is not just to arrest a person or attach his property before a decree. But, in only certain specified cases such an action is allowed. Order 38 Rules 1 to 4 provide for arrest before judgment. If the court is satisfied that the deft has an intention to delay or obstruct the execution of a decree that may be passed against him: i) has absconded or is about to abscond or had left or is about to leave the local limits of its jurisdiction. ii) has disposed of his property or has removed from the local limits, or iii) he is about to leave India, the court may issue a warrant to arrest the deft, and to bring him before the court. The court may ask him to furnish security for his appearance. The Warrant should specify the amounts claimed by the plaintiff. If the amount is paid, the deft, should not be arrested. If not so paid the court may ask him to deposit sufficient money or property or to furnish security for his appearance. If he fails to do so, he may he committed to the civil prison. He should not be detained for more than 6 months. If the value of the subject matter is below Rs.50/- he should not be arrested for more than 6 weeks. B. Attachment before judgment (order 38,rules 5 to 12) The attachment before judgment the object is to protect the interest of the plaintiff and to prevent the defendant to defeat the right of the plaintiff. If the deft is about to dispose of the property or to remove it from the local jurisdiction, with a view to delaying or obstruting the execution of a decree, then the court may direct the deft, to furnish security. The court may order for conditional attachment of the said property.. Compensation: If the arrest before judgments or attachment is made on insufficient grounds the court may award upto Rs.1,000/compensation to the deft. The plaintiff should pay this compensation.

TEMPORARY INJUNCTIONS www.lawtool.net Temporary Injunction. Provisions are made in the C.P.C. to enable courts to grant temporary injunctions. Injunctions are of two kinds. Temporary and Permanent. Temporary injunctions are those that continue for a specified time or until further orders are made by the courts. They may be issued at any stage of the suit or even before the issue of summons, but it is essential that the suit should be pending in the court. But, a perpetual injunction can be granted by the decree of the civil court made at the hearing and on the merits of the case. These are governed by the Specific Relief Act. Circumstances under which a temporary injunction can be granted are : i) The property which is the subject matter of dispute must be in danger of being wasted, damaged or transferred by a party to the suit or wrongfully be sold in execution of a decree. ii) The deft must be threatening to dispose of his property with a view to defraud his creditors. iii) The deft threatens to disposses the plaintiff or otherwise cause injury to schedule property. Illustrations i) X lets out vacant land to Y under a contract that Y should not dig there. Y makes arrangement to dig and carry sand for his purpose. X may sue for an injunction to restrain Y from doing so. ii) T is the trustee and A is the beneficiary. T is attempting to sell trust property in violation of the trust deed. A may sue for an injunction. iii) X pollutes the air with smoke and gas and interferes with the physical comfort of the neighbours. Y may sue for an injunction. The court in its discretion may grant a temporary njunction, for the purpose of preventing waste, or dispossession or injury etc. This is a preventive relief until disposal of suit or until further orders. This is an equitable relief. If order is granted till the disposal of the interlocutory application for injunction (without finally disposing) it is ad interim. If given in finally disposing of application it is Temporary injunction. This enures to the benefit of the party until disposal of suit, or until further orders. The plaintiff must come with clean hands & disclose all facts. The court will grant, if there is a prima facie case. There must be a serious question to be tried, or on facts there should be a probability of getting relief, by plaintiff. Them courts interference should be necessary to protect against injury; otherwise mischief would be more.Balance of convenience is in favour of plaintiff. Breach of injunction by defendant, amounts to contempt of court. Under this order 39, injunction can be granted to prevent second marriage, if the first wife / husband is living. Appeal: An appeal If the plaintiff has brought a suit on insufficient grounds or if there was no reasonable ground for suing, the court, may on the application of the deft, award compensation upto Rs.1,000/- to the deft. The Plaintiff shall pay this.

PRELIMINARY TOPICS www.lawtool.net Topic 1. Pleadings a) Plaint b) Written Statements 2. Parties to suit Pleading:- i) Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial, and giving all such details as his opponent to know, in order to prepare his case in answer (P.C. Mogha). There are two pleadings : The 'Plaint' & the 'Written Statement'. The C.P.C. defines pleadings (O.VI R.2) Every pleading shall contain, and contain only a statement in a concise form of the material facts, on which the party pleading relies for his claim or defense, as the case may be, but not the evidence by which they are to be proved. According to Sri. P.C Mogha : Drafting of pleading is an art, it requires a good knowledge of law and the skill of sorting out material facts from the whole bundle of facts and circumstances brought to the knowledge of the Advocate. ii) Essentials : a) Every pleading must state facts and not law : Eg : The deft, is in possession of the mortgaged property and 'is liable to render accounts of income and expenditure'. (There is a statutory duty and hence, need not be pleaded) b) Pleadings should have only material facts The party must plead all material facts on which he intends to rely and must plead material facts only. These are 'facta probenda' (Facts to be proved). 1. In a claim on a Promissory note, it is unnecessary to plead, that money was given because of the honesty of the promisor. 2. In denying, the receipt of any money taken as a loan, it is unnecessary to plead that the defendant is a very rich man and that he had never taken any loan from any body. c) Pleadings should not contain the evidence, but only facts : Eg: An Insurance company was defending the claims made by a party. The term of the policy was that it would become void if the insurer-died by his own hand'. In the written statement the Company had stated that policy holder was a moody fellow, that he had bought a pistol from a shop a few days before his death and that he had also written to his wife that he would kill himself. The court held that all this was evidence and hence should not be included in the pleadings (Written Statement). It was sufficient to say that "the policy holder died by his own hand". d) Facts must be pleaded with simplicity, brevity and precision. This rule is more easily said than done. As P.C. Mogha, points out, precision and brevity can be attained by experience and careful observation. 1. Simple words and short sentences should be used. Facts must be stated plainly and with precision. Use of pronouns must be avoided. The said defendant or the said plaintiff may be used often to avoid ambiguity. Similarly 'the said deed', the First-schedule property' etc may be used. 2. Dates, sums, numbers must be expressed in figures. 3. Chronological order must be followed. 4. Legal effects of documents must be briefly stated, without reproducing the document or quoting from it. 5. Intention, malice, knowledge etc., must be stated as a fact without setting out the circumstances. 6. The pleading should be signed by the parties and his advocates. It shall be verified at the foot to testify the sanctity of the fact stated. Plaint (0.7, R.1) CP.C. The plaint is the foundation of the Civil Case. Before drafting it 4 essentials are to be noted 1) Period of limitation (ii) Pecuniary or territorial jurisdiction of the court (iii) Statutory formalities before filing a suit (iv) Impleading all necessary parties. Contents : 1) Headings : The name of the Court (Space for fixing Court - fee - stamps) 2) Title : Description of Plaintiff and Defendant 3) Body : States the material facts divided into paragraphs and numbered consecutively. 4) Relief - Claims or Amounts sued for 5) Valuation, court fee - paid 6) Jurisdiction of court, within period of limitation, etc.. 7) List of documents, annexure 8) Signature and Verification WRITTEN STATEMENT Defence available to defendant in a Civil Suit (Essentials of W.S.) The written statement can be conveniently divided into following heads 1. The heading and title or formal portion 2. The body of the W.S. a) Admission and Denial part b) Additional pleas c) Objection in point of law d) Special defences and avoidance Verifications 1. The heading and the title : The heading of the W.S. should be the same as that of the plaint. Then there should be the number of the suit. Title also should be the same as that of the plaint with the difference that if there are several plaintiffs, the name of the first plaintiff should only, be written with the addition of words 'and another' or 'and others'. After the title, the person on whose behalf the W.S. is filed should be shown. In some places, the words "The defendant states as follows" are used before the various paragraphs of the W.S., but this is not necessary. The rules about signature and verification of the W.S. should be carefully observed. 2. The body of the W.S. a) Admissions and Denials : The defendant should take each fact in the same order in which it is alleged in the plaint and it should be either admitted or denied, or when the defendant has no knowledge of it, he may refuse to admit. General denial is not sufficient. A denial may be total or partial. When the denial is total, i.e., when the defendant totally and categorically denies the allegations in the plaint, the defence is said to be in form "traverse". i) Dilatory pleas : . Dilatory pleas are those which merely delay trial of suit on merits. But, pleas which go to the very root of the case are called peremptory plea, or pleas in bar. ii) Objection in point of Law : It is an objection which a defendant takes to the legal inference which is drawn by the plaintiff in his favour in the plaint. Ordinarily this is heard and decided at the time of trial, but the court should try that objection before proceeding with trial of other issues, if the case (or any part there of) can be disposed of on the decision of such objection. iii) Special defence : Order 8, Rule 2 contains the rule : which says that the defendant must rise, by his pleading, all matters which show the suit not maintainable, or that the transaction is void, or voidable in point of law, and all such grounds of defence, as for instance, fraud, limitation, release, payments, performance, or facts showing illegality etc. In a suit by a firm, if the defendant wants to plead its non-maintainability on the ground of the firm's nonregistration, it will not be sufficient to say that plaint does not allege that the firm is registered. 2. Pecuniary (Sns. 6 & 15) : The civil courts have different grades to try suits of a civil nature. Small causes courts have Jurisdiction upto a fixed amount. However, High courts, District and Civil judge courts have unlimited pecuniary jurisdiction. 3. Subject matter: The jurisdiction in civil matters is based on the subject matter as well. i) Generally, money suits are confined to small causes courts upto a fixed amount. Matrimonial matters are to be initiated at the District Judges court. Various acts prescribe which court has jurisdiction. ; ii) The suit is to be instituted where subject matter i.e., immovable property is situated.The general rule is that parties cannot create or oust the jurisdiction of the courts.Suit by or against a partnership FIRM order 30 Rules 1 to 10 C.P.C. deal with provisions to file a suit by or against a firm. Partnership firms 1. Partners may sue or be sued in the name of the firm: According to 0.30 R.I, any two or more persons claiming (or being liable) as partners, and carrying on business in India, may sue or be sued in the name of the firm. These persons should be partners of the firm at the time of accrual of the "cause of action". Further, any party to the suit, may apply to the court for a statement of names and addresses of the persons who were partners (at that time of accrual of cause of action) in such firm and this is to be furnished by the party and verified in such manner as the court may direct. All pleadings (plaint, written statement etc) may be verified or signed by any such person (partner). The suit is not affected, if there is a minor in the firm, or one who is not capable of suing or be used. 2. Partners' name and addresses: When the suit is filed in the name of the firm, the defendant may in writing demand the names and addresses of all the partners and the plaintiff shall furnish the same to the court. If the plaintiff fails to so furnish, the court may stay all proceedings on such terms as it may direct. However, if the names and addresses are declared, the suit shall proceed, with the partners arrayed in the plaint. The proceedings continue in the name of the firm, but the names are to be entered in the decree of the court. 3. Summons : . Provisions are made for service of summons. If persons are named in the cause title, the summons shall be served on any partner or partners or at the place of business as directed by the court. This is good service of summons. However, if the plaintiff has knowledge, at the time of filing the suit that the partnership firm has been dissolved summons will have to be served on every such partner of the said dissolved firm. Appearance is necessary, if the person is a partner. Otherwise, he may enter appearance under protest (Rule 8), stating that he was never a partner at any material time. The court decides whether that person was a partner or not. When the partners are sued in the name of their firm, they should make appearance, in their names but subsequent proceedings shall be in the name of the firm. Death : In case of death of a partner, it is not necessary to join the legal representative. But a legal representative has a right to apply to the court to be made a party. Suits between partners: R.9 provides for suits between partners of the same firm. Similarly, in case of two or more common partners in two firms, suits by one firm against the other may be filed. Suit by a minor : (0.32 Rl to 16) A minor or infant is regarded by law as of immature intelligence and discretion. Due to want of capacity and judgment, he is disabledfrom binding himself, except for his,»,own benefit. Order 32 is therefore specially made to protect the interests of minors. These provisions apply to persons of unsound mind. The objective is to see that a minor or unsound person is represented by a qualified person, to act on his behalf. Suit: Every suit by a minor should be filed in his name by a "next friend", "Minor" is a person who has not completed 18 years of age, if minor's property is under charge of court of Wards Act, the minority is upto 21 years. The cause title of the suit gives the title and description. "X, minor, by his next friend Mr.. ..... " versus AB defendant. Suit filed, without next friend should be taken off the file, on hearing the objector – defendan Appointment: The court has powers to appoint (Rule 3), a "Guardian" for the suit, by issuing an order made on the application of the guardian. The guardian should file an application, with an affidavit verifying that he is a fit person and has no interest in the suit adverse to the minor i.e., he would act for the benefit of the minor. The court will appoint after giving notice to Father, but if he is not alive, to the mother if both are dead, to the guardian, if any, of the minor. Guardian should give his consent for appointment. The guardian so appointed continuous until he is terminated by removal, retirement, or death. If any person is not fit to be appointed as guardian, the court may appoint an officer of the court as guardian and his expenses shall be met from the property of the minor as justice and circumstances (Rule 3). ii) If defendant appears and plaintiff does not, the court is bound to dismiss the suit. iii) If plaintiff appears and defendant does not, the court is authorised either to postpone the hearing or proceed exparte. The order is applicable to hearing, before the trial begins. For subsequent stages suitable provisions are made in order 17. ii) Joinder of defendants: The rule is that all those persons may be joined as defendants when any relief claimed by the Plaintiff, arise out of the same act or transaction, and further, when there is any common question of law or of fact. Eg.: a) A, a passenger in a bus belonging to B is injured by a •collision between the bus and a truck of C. A sues B & C for damages for personal injury. As the transaction is the same and there is a common question of law B & C may be sued together. 1. A & B conspire and publish a libel against C. C may sue A and B together. If the above rule is not followed it may lead to misjoinder of defendants. Misjoinder of plaintiff or misjoinder of defendants or misjoinder of cause of action will not be fatal to the suit but, the plaint may be amended, and the Court may proceed further. If a necessary party is not joined, it amounts to non-joinder of parties. Framing of suit in civil Court [ As amended in 1999.] i) Order 2, Rules 1 to 7 C.P.C. have provided for "Frame of suit". The rule is : every suit should be framed so as to afford ground for final decision on the subjects in dispute. The objective is to prevent further litigation. Hence, as far as possible the framing should be complete by itself. e.g. In a partition suit, the plaint should be so framed as to disclose the whole partible property.[all properties to be partitioned] ii) The plaintiff should include the whole of his claim, to which he is entitled as regards cause of action. He may relinquish a part of his claim, in which case he is estopped from claiming it (Rule 2). Where various reliefs are available in respect of the same cause of action he may claim for a few. If he has omitted a relief, he cannot claim, except with the permission of the court. iii) Joinder of causes of action : Rule 3 : a) Plaintiff may unite several causes of action against the same defendant or defendants jointly. b) Further, if plaintiffs are jointly interested in the cause of action, they may sue jointly. iv) For recovery of immovable property The plaintiff may include with the leave of the court: i) mesne profits or arrears of rent ii) damages for breach of contract iii) claims on the same cause of action. Exception : In a suit for foreclosure or redemption the party may claim possession of mortgaged property. v) Rule 7 : All objections for misjoinder of causes of action should be taken by the defendant at the earliest time. Otherwise it is deemed to be waiver. Procedure: O.IV R 1 : The plaint should be filed to the Court with a duplicate copy. If duly instituted, a summon is issued to the defendant to appear and answer the claim. He should file the written statement of his defence, if any, within thirty days from the day of institution of the suit as may be specified therein: But no summon is issued if defendant was present at the time of filing of suit and admits the claims. If the defendant fails to file his written statement within the 30 days, the Court in its discretion may allow to file his W S on a day not later than 30 days from date of service of summons to him. Issue of Summons and delivery C P C amendment 1999 has made many changes in respect of issue and delivery of summons. The objective is to minimize delay and expedite the disposal of the .case. Under rule 9 the Court may issue summons and deliver the same to the plaintiff or his agent for service. , it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within two days from the date of such order along with requisite fee for service of summons on the defendants. It may direct the summons to be served by (i) registered post acknowledgement due or (ii) by speed post or (iii) High Court approved Courier Service or (iv) by fax massage or (v) by Electronic Mail service [ email] or (vi) by such other means as the High Court may prescribe by rules. The summons is addressed to the defendant, to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain. Under rule 9A the Court can , in addition to, and simultaneously with the delivery of summons for service to the plaintiff, direct that summons to be served on the defendant or his agent. Rule 14. Provides for production of document on which plaintiff sues or relies along with the plaint.He should prepare a list of all such documents and shall produce it in Court with all the documents and a copy thereof, with the plaint. But, if he does not file any such document or a copy, it will not be admitted in his evidence. Exception: documents produced for the cross examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory. Rule 18. 1A deals with the duty of defendant to produce documents upon which he relies for relief He should prepare a list of all such documents and shall produce it in Court with all the documents and a copy thereof, with the plaint. But, if he does not file any such document or a copy, it will not be admitted in his evidence. Exception: documents produced for the cross examination of the defendant’s witnesses, or, handed over to a witness merely to refresh his memory. Order of dismissal If plaintiff or his agent has not sent the summons within 2 days to the defendant or he has not paid the court-fee or charges, the court shall make an order that the suit be dismissed. Recording of Evidence Amendments 1999 One important change in the C P C amendment Act 1999 is the procedure of recording of evidence made with a view to save the time of the Court.Recording of evidence is conducted in the following manner: A. Examination in Chief of a witness shall be on affidavit; B. The Cross Examination and Re-Examination of such a witness will be either taken by the Court or the Commissioner appointed by it; C. The Court or the Commissioner will then record the evidence in writing or mechanically in the presence of the Judge or the Commissioner, as the case may be; D. The Commissioner has to return the evidence along with his report in writing to the Court; E. The report of the Commissioner has to be submitted to the Court within 60 days of such appointment or within such further extended time as the Court may permit for reasons to be recorded in writing; Such evidence shall form part of the record of the suit Written Arguments: In addition to this the C P C Amendment Act of 2002 has made provisions for submission of written arguments in support of the case by both the parties separately .This is in addition to oral arguments with the permission of the Court. This helps in saving the valuable time of the Court Exparte proceedings Rule 6 : When the suit is called on, for the "first" hearing, Rule 6 provides that if the plaintiff appears and the defendant does not appear, the court may make an order to hear exparte 1) When summons has been served on the defendant. 2) and it is proved that it is so served. The court must be satisfied that there was due service of summons on the defendant. "Service" does not mean by Regd. post. Hence, no exparte decree is made on that basis. The court weighs the merits of the suit even in exparte proceeding. Adjourned exparte hearing (0.9 R.7) : When the hearing exparte, is adjourned to a later date, the defendant may appear and file an application with affidavit and assign "good cause" for his non-appearance on that date, The court may issue suitable directions as to costs etc. He is then entitled to defend the suit. Non appearance of plaintiff (R.8): When the defendant appears and the plaintiff does not appear, the court may dismiss the suit. However, if the defendant admits any claims, the court may pass a decree on the basis of the admission. But in respect of other claims, if any, the court dismisses such claims. In such a case, the plaintiff is barred from filing a fresh suit R-9. But, he may file an application to set aside the dismissal by showing "sufficient cause" and the court at its discretion may set aside the dismissal order and allow the party to proceed with the suit. Notice should be served on the defendant, before making such an order under R-9. In case of non attendance of one or more of several plaintiffs or defendants, the court at the instance of the plaintiffs (or defendants) appearing as the case may be, permit the suit to proceed in the same way as all were present. Attendance in person : R-12 provides that where the plaintiff or defendant is to appear in person as per summons and absents without sufficient cause, the suit will be dismissed as per the Rules under order 9. Setting aside exparte decree (0.9, R.13) : 0.9, Rule 13 is wide enough to cover every application to set aside exparte decree. The grounds are that summons was not "duly served", defendant was prevented by "sufficient cause or reason" from appearing, or that there was fraud in suppressing summons. Application : The defendant may file an application with affidavit to the court which passed the exparte decree. The court will make an order setting aside the decree, if the defendant satisfies that the summons was not duly served or he was prevented from appearing by "sufficient cause". The court imposes such terms as to costs and fixes a day to proceed with the case. Limitations: ; 1. The defendant should make the application, within 30 days from the date of decree, or where the summons are not duly served, the period is 30 days from the date of his knowledge of the decree. 2. No decree should be set aside without notice to the plaintiff (Rule 14). 3. If the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all defendants. 4. Mere irregularity ir. the service of summons, is no ground to set aside the decree, if the defendant, had notice of the date of hearing and had sufficient time to appear. Sufficient cause : It is interpreted liberally to do substantial justice when there is no negligence or inaction or want of bonafides of the defendant. A finding by the court on sufficient cause is mandatory. Such a cause depends on various facts and circum-stances of the case. Effect: The effect of setting aside the exparte decree is that the parties are restored to the position they previously held. Hence, the court* proceeds from that stage. If decree is not set aside, it will be absolute and binding. Revision : Under Sn. 151 C.P.C. revision will lie if the conditions are satisfied. Suit dismissed for default. Court appointment of Guardian Death of a party (Order 22 : Rules 1 to 12) : Provisions have been made in 0.22 Rl to 12 C.P.C. to cases of creation, transfer or devolution of interests in pending cases. The cardinal rule is that if the right to sue survives, the death of a party (plaintiff or defendant) does not cause the suit to abate. The suit or appeal can be represented by the heirs and legal representatives. If the right to sue does not survive, the suit ends. The general rule is that death of a party, marriage or insolvency of a party to the suit, pending in the court, will not abate, if the right to sue survives. Rule 1 : If the right to sue survives, the Suit shall not abate on the death of plaintiff or defendant. Rule 2 : Death of one of several plaintiffs or defendants : When there are several plaintiffs or several defendants and any of them dies, and the right to sue survives, the court shall make an entry on record and the suit continues between the surviving plaintiffs alone or against surviving defendants alone. Rule 3 : Death of sole plaintiff or one of several plaintiffs : In such a case, if the right to sue survives to the sole surviving plaintiff, or the right to sue does not survive to surviving plaintiff alone - the court, on an application made in that behalf, shall allow the legal representatives to be made a party, and the suit proceeds. However, if no application is made within the period of limitation, the suit abates so far as that dead plaintiff is concerned. Costs, if any may be recovered by defendant from the estate of the deceased plaintiff. Rule 4 : Death of sole defendant or one or more of several defendants. i) When the sole defendant dies and right survives to legal representative he may be brought on record. ii) When one of several defendants dies, and the right to sue does not survive to defendants alone, legal representatives may be brought on record. iii) If no application is made to bring on record, the suit abates. iv) However, the defendant may prove his ignorance or show sufficient cause for the delay and the court with due regard to the ignorance of the defendant, may allow the legal representatives to be brought on record. Pleaders duty : It is the duty of the pleader, appearing on behalf of the defendant to inform the court about the death of the party. The court gives notice to the other party and allows the legal Reps, to be brought on record. Marriage of female party: Rule 7 : This will not abate the suit. Hence, it may be continued and executed against her alone. However, if the husband is liable for debts of his wife, the decree may be, executed against the husband. Insolvency Rule 8 : Insolvency of plaintiff will not abate the suit. The official receiver may continue but if he refuses to give security, the court on an application made by the defendant dismiss the suit. Transfer of a suit (Sns. 22-25): Sn. 22: C.P.C.: The general principle is that the plaintiff has a right to choose his own forum. However, if the suit is one which can be instituted in two or more courts and the plaintiff has instituted in one of them, the defendant, may make an application to the appellate court, to have the suit transferred to another court. He should give notice to the plaintiff before making the application. The time of making application is at the earliest opportunity and before such settlement of issues. The appellate court shall consider the objections of the parties and examine the totality of circumstances which indicate to the balance of convenience in favour of the applicant and decides in whichcourt the suit should proceed. The application lies to the Appellate court, when several courts are under its jurisdiction. But, if those courts are subordinate to several appellate courts, application should be made to the High Court to which the appellate courts are subordinate. Sn. 24 : General power of transfer : The High Court or District Court on motion by any party – but with notice and after hearing the parties or suo moto, at any stage, may transfer any suit, appeal or other proceeding pending before it to any competent court to try or dispose of. It.has the powers to withdraw any suit, appeal or proceeding pending in any court subordinate to it, and may try and dispose of or may. transfer to the competent court to dispose of the same. The grounds of transfer should be sufficient and the burden is on the applicant. If he has a genuine apprehension that he would not get justice from the court, or if transfer would be "convenient" to the parties and "would be cheap" - or if the balance of convenience was in favour of transfer - the court may, if satisfied with the reasons, transfer the suit. Sn. 25 powers of Supreme Court: On application filed with affidavit by a party before the Supreme Court, the Court after giving notice and hearing parties may make an order for transfer, if such an order would be necessary for the ends of justice. It may transfer any suit, appeal or proceeding from a High Court or Civil Court of a State, to another High Court or Civil Court. "Costs follow the event" - Explained Sn. 35 C.P.C. deals with costs of suits. According to it costs of the suit and incidentals thereto are determined by the court at its discretion. It has full power to determine to what extent the costs are to be paid by whom and from what property. It may give suitable and necessary directions in this regard. A court without jurisdiction may also determine costs. Exception : In case the court directs that "any cost does not follow the event" it should state its reasons. Costs : Mean expenses incurred by the party/The object is not to make any gain or profit to the party. It is not a bonus. They cost in determined by the court, but is subject to the conditions and limitations of law. Cost includes incidentals e.g. arbitration referred by court. Order : Order as to costs may be "costs reserved" "costs to follow the event", "costs to abide the result" etc. The court takes into account the length of trial, nature of questions involved, conduct of parties. The principle is costs follow the event. Scope : 1. The successful party is entitled to cost if not guilty of misconduct. For harassment exemplary costs may be levied. 2. It does not depend on who wins or loses. Many facts shape judicial verdict. 3. Cost is not equal to what a litigant may actually spend. 4. Costs are disallowed for misconduct or for frivolous and vexations suits or for loss of time of the state. 5. Under Sns. 35 A, compensatory costs for vexations or false claims may be ordered to be paid to the objector who has put forward his defence. The maximum is Rs.3000/- Rateable distribution Sn. 73 C.P.C Sn. 73 C.P.C. provides for rateable distribution, among decreeholders Of the Assets of the Judgement debtor, held by the court. Earlier the rule was "first come, first serve, and this had led to malpractices and scrambles. To put an end to this, Sn. 73 was made to place all decree-holders on equal footing. The objects are (1) to prevent multiple execution proceedings and (2) to secure equitable distribution of assets. This section provides for a cheap and speedy mode of execution. It is a rule of procedure. Essentials: The essential conditions are as follows : i) The assets of judgement - debtor (J.D.) must be held by the court i.e., attached by the court. ii) The decrees obtained by two or more decree holders, should be money-decrees and should be against the same J.D. iii) The claimant must have applied for execution to the same court and before the court received the assets. He should not have obtained satisfaction of his decree. iv) The cost of realisation, should be deducted before rateable distribution. Distribution of proceeds: When the immovable property of the J.D. is sold by the court, the sale proceeds shall be applied to meet: i) cost of making sale ii) amounts due under the decree iii) interest and principal on encumbrances if any iv) rateable distribution of moneys among all the eligible decree-holders. Restrictions : 1. The right of the Govt. is not affected by the section. 2. The sale of immovable property by the court is subject to the mortgage or change, if any, on the property and hence, the purchaser gets the property subject to the said mortgage or charge. Of course, such a mortgagee or holder of charge, may waive and agree for reteable distribution with other decree-holders. Revision : The High Court has powers of revision when the lower court has no jurisdiction or distribution is wrong. Subsistence allowance: 0.21, R. 39 21 has provided for execution of decrees or orders. Provisions have been made in Rules 37 to 39, for the arrest and detention of the judgment-debtor (J.D.) in execution proceedings against him, before the execution court, On an application with affidavit filed by the decree-holder, the court instead of issuing a warrant for arrest, issue a notice to the J.D,to show cause why he should not be committed to the civil prisonNotice is not necessary if the J.D. is making plans to abscond etc. The court on inquiry may release the J.D. on security or detain in custody of officer of the court. If warrant of arrest is issued, it is addressed to an officer appointed by the judge and specifies the amount to be paid by the J.D. and is signed by the judge. No arrest is to be made if the amount is specified. Otherwise, the officer may arrest the J.D. and bring him before the court "with all convenient speed". Condition to deposit subsistence allowance : One strict rule is that the decree-holder should make the deposit of amounts as the judge thinks sufficient for the subsistence of the J.D. until the JD is brought before the court. However, if the JD is committed to the civil prison, the court fixes the monthly allowance, as per prescribed scales. The decreeholder should deposit in advance in full on the first of every month. If not paid the JD will be released. Such amounts are deemed costs in the suit Out of Court Settlement or Alternate Dispute Resolution One important change made by the C.P.C. is in introducing alternate Dispute Resolution [ Sn 89.] This is taken from the United States where it has been a success thereby reducing the delay in civil litigations. Civil Courts are given the power to refer the disputes to: Arbitration; Conciliation; Judicial settlement including settlement through Lok Adalat; or Mediation. In case the Court prefers arbitration, it invokes the provisions of the Arbitration and Conciliation Act and advices the parties to settle as per the Act. In case the Court finds the conciliation is suitable,it will refer the two parties to Lok Adalat, in which case Sn 20 (1) of the Legal Services Authority Act, 1987 and all other relevant provisions will apply . In case the Court thinks that Judicial settlement is suitable, it may refer to an institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Act 1987 will become applicable. for mediation, the Court makes a compromise between the parties and follows such procedure as may be prescribed. Direction: C P C Amendment of O. X.1A. Direction of the Court to opt for any one mode of alternative dispute resolution —After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties.

INDIGENT PERSON www.lawtool.net Informa Pauperis (Suits by indigent person) Provisions are made in C.P.C. to enable a pauper to file a suit subject to certain conditions. 1 to 16 provide for this. A person is a pauper when he is not possessed of sufficient means to pay the court fee to institute a suit. Where no such fee is  prescribed, the person is a pauper when his entire property is below Rs.1000/- value excluding his necessary wearing apparel and of course the matter of the suit. Suit provides for the procedure to file a suit informa pauperis. Every application for leave (permission) to sue informa pauperis must contain the particulars as required in a plaint. Also a schedule of any movable or immovable property with estimated value should be annexed. The plaint should be duly signed and verified. Presentation The application should be presented to the Court by the applicant or Agent capable Of answering Material questions put To him By the court. Examination The applicant is examined, if the application is proper and duly presented and if the court thinks fit to examine. The examination relates to the merits of the claim and property of the applicant. Rejection ·The court rejects the application: ·If it is not framed and presented in the prescribed manner. ·If the applicant is newfound to be a pauper. ·If the applicant has fraudulently disposed of his property within two months next before instituting the suit. ·If there is no cause of action. ·If there is a transfer of interest in the subject matter of the proposed suit, to some other person. Hearing If there is no reason to reject the application, the court shall fix a day for receiving the evidence by the applicant to prove his pauperism. Evidence to disprove pauperism may be allowed. (Notice to the opposite party and Govt. pleader necessary). On the day fixed the court shall examine the witnesses produced by either party and may examine the applicant and make a memorandum thereof. Thereupon the court may give its decision allowing the application or its refusal. Admission of application: If the application is granted it should be numbered and registered. It shall be deemed to be a plaint and the suit shall proceed of course without payment of Court fees. Dispaupering If the plaintiff is guilty of vexatious or improper conduct in the course of the suit. If his means are more than a pauper. If the plaintiff transfers his interest in the subject matter,  The court may dis-pauper him. Under the new C.P.C. the court is empowered to assign a pleader to an indigent person who is not represented by a pleader Order 33, Rule 18 also provides for free legal services to such persons. Costs Where the plaintiff succeeds, the court shall calculate the amount of court fees and recover the same from the plaintiff. Pauper Appeals A pauper who is entitled to go for an appeal but who is unable to pay the fees is  allowed to appeal as a pauper subject to the same provisions as provided above. The court entertains the appeal if, the lower court's decision is contrary to law usage or is erroneous or unjust.

Sns 79 & 80 Suits against Government Suits may be (i) General or (ii) of a particular kind. In respect of suits in general it is not necessary to give notice to the defendant before filing a civil suit. However, in respect of suits against the Government, it is essential that notice under Sn. 80 C.P.C. must be served. The object is to provide an opportunity to the Govt. to reconsider the legal position, and to amend or settle the claim without any litigation. The Central Government shall be called the Union of India and the State Government shall be called the State, e.g. state of Karnataka for the purpose of serving notice. Period of notice: Two months Notice is essential, as per sn.80 In respect of suits, against the Central Government notice must be given to the Secretary to the Government. (If it relates to the railway, notice must be given to the General Manager of the railways). In respect of suits against State the cause of action Government notice must be given to the Secretary to that Govt. or the Collector of the District, as the case may be. The notice must be in writing, state the name and description and place of residence of the plaintiff and also the relief which he claims. In case of a public officer, notice under Sn.80 must be delivered to him or left at this office. Plaint The plaint shall contain a statement stating that notice under Sn.80 has been so delivered or left in the office of the person so concerned. If a notice has not been so served, then the suit is to be dismissed. The new C.P.C. Sn.80(2) provides that when a suit to obtain an urgent or immediate relief is to be filed then no notice is necessary if the court so permits. The court in such circumstances shall give the Govt. or the Officer, reasonable opportunity of showing cause. The court also, decides whether there is urgency or not. No suit under Sn.80 shall be dismissed merely on technical grounds of error or defect in the notice. If there is no urgency to grant relief, the Court returns the plaint for presentation after giving notice.It must identify the cause of action and reliefs claimed, in the notice and in the plaint.

RES SUBJUDICE & RES JUDICATA www.lawtool.net Res-Subjudice: Sn .10   CP.C. This means a right under judicial consideration'. In order to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in Issue, provisions are made in Sn.10 C.P.C.   Such a matter is said to be 'Res Subjudice' if the matter previously instituted is pending in another court of competent jurisdiction.  What is barred is the second suit instituted. The second court should not proceed with the trial of the suit if: the object of this rule is to prevent the court of current jurisdiction from simultaneously entering and of adjudication upon two parallel litigation in respect of a same cause of action on the same subject matter and for the same relief RES –SUBJUDICE OR STAY OF SUIT (SEC 10) Two object of the rule is to be prevent the court of concurrent jurisdiction from simultaneously entering and adjudicating upon two parallel litigation in respect of the same cause of action on same subject matter and for the same relief. It is a simple word when a suit is pending before a competent court it cannot be sued again in the same or any other Court of the competent jurisdiction simple word when a suit is pending before the competent court it cannot be used again in the same or any other Court of competent jurisdiction object : section 10 is to prevent multiplicity of suit . condition : two suits same subject matter same parties pending before competent courts duel competent The second court should not proceed with the trial of the suit if: i) The matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. ii) The previously instituted suit must be (a) in the same court in which the second, suit is brought or (b) in any other court original or appellate. iii) The previously instituted case must be pending in any of the courts as above or Supreme Court competent to grant the relief. E.g.: B residing in Calcutta, has an agent A at Mysore to sell goods. A sues B in Mysore for balance due on account. During the pendency of the suit B institutes a suit against A, in Calcutta. The Calcutta court must not proceed as the matter is re-subjudice in Mysore Court. The suit must be stayed. Exception: If a suit is pending in a Foreign Court, the suit is not barred in India and hence, a suit may be filed. The provisions in Sn 10 are mandatory. It also applies to proceedings under Art 226 of the Constitution. Res Judicata: Sn. 11 C.P.C. The term 'Res' means 'a thing' and 'judicate' means 'already decided' Res Judicata means 'right decided’. This means 'the matter is adjudicated' and hence, the competent court has already decided the matter. The rule is that the second trial should be barred to prevent multiplicity of proceedings. This rule was laid down in the Duchess of Kingstone's case by Sir William de Gray, Judge. However, several conditions are to be fulfilled to bar the jurisdiction of the second court.res judicata means a thing already decided by the Court of Justice according to Section 11 of the CPC 1908 no court shall try any suit or issue in which the subject matter and the party are the same and had already been tried by the court of competent jurisdiction The expression res judicata means a thing already decided by a court of justice . Conditions i) The matter directly & substantially in issue in the subsequent  suit must be the same matter which was directly and substantially in issue either directly or constructively in the former suit. Former suit is a suit which has been decided prior to the suit in question. No court shall try any suit or issue Subject matter and parties are same Litigation under the same title Undrline Principale 3 legal maxim . 1) Nemo debit lis vexari pro qua :- one and the same cause no person should be vexed twice. 2) Interest republica ut sit finis litium :- in the interest of the state there should be an end to litigation . 3) Res judicata pro veritate occipitor :- every judicial decission must be accepted as correct and canclusive truth . a) A sues B for breach of contract. The suit is dismissed. A subsequently sues B for damages for breach of contract oral the same contract. This-is barred under Re Judicata. b) A sues B for rent due for the year 1995. The defense is that the rent has been paid and that there are no dues. Hence, the claim for rent is the matter directly and substantially in issue. ii) The former suit must have been between the same parties or between their representatives. iii) The parties to the suit must have litigated under the same title in the former suit, same title means the same capacity. E.g.: A a mahnt of a Hindu mutt, dies. His heir B sues 'S' to recover mutt property from him. The suit is dismissed on the ground that the heir had not taken out succession certificate. But later B is appointed duly as the manager of the mutt. He can sue 'S' and there is no res Judicata. iv) The court which decided the former suit should have been a court competent to try the subsequent suit.   If the first court had exclusive jurisdiction, then that court's jurisdiction will act as res Judicata to bar any subsequent suit.   If the first court had concurrent jurisdiction then that court is competent hence res judicata operates.   Hence, if the first court had neither exclusive nor concurrent jurisdiction, it has no jurisdiction at all. Hence res judicata will not apply. The suit may be initiated. v) The matter directly and substantially in issue in the subsequent suit must have been heard And finally decided by the court in the suit. There must be final decision, the matter is heard and finally decided in any one of the following ways: (a) Ex Parte (b) Dismissal (c) Decree (d) Dismissal due to Plaintiff’s failure to produce evidence.  Explanation: - Sn 11 has 8 explanations: According to them i) The matter in the former suit should have been alleged by one party and admitted or denied by the other ii) Competence of court is decided irrespective of a provision to an appeal in the earlier suit, iii) "Matter" which might ‘or ought to have been agitated or defended in the earlier suit shall be the matter directly or substantially in issue. iv) Relief, if not, granted in earlier suit shall be constructed as rejected. Amendments of C.P.C. 1976. I.To avoid multiplicity of proceedings it is provided that the District court may try the suit or transfer it to a court with competent  jurisdiction if the court finds that the case involves a question which a court of limited jurisdiction would be incompetent to try. II.Before the new C.P.C. under res judicata the successful party was barred in respect of adverse findings of the court. Now, it is not barred, and he may file an appeal against such adverse findings. III.The doctrine is now extended to independent proceedings and also to execution proceedings. Constructive res judicata. section 11 According tothe section 11. constructive res judicata and artificial form of res judicata. res judicata there should be a previous decision and constructive res judicata is applicable without previous decisions. constructive res-judicata section 11 constructive res judicata is an artificial form of the Rise judicata res judicata there should be a previous decision constructive res judicata is applicable without the previous decision the rule of res judicata related to a matter in issue already decided shall not be tried again another court of competent jurisdiction but the rule of constructive res judicata provides that if a party had taken a plea in a proceeding between him and his opponent he should not be permitted to take the same plea against the same party against same subject matter in a subsequent proceeding. Transfer file a Suit against B to recover money on a pronote be contained that the promissory note was obtained from him by undue influence.objection is overruled that and suit is decreed we cannot challenge the promissory note on the ground of coercion are fraud in subsequent in as much as he ought to have taken that difference in a formal suit the constructive Res- judicata case state of Uttar Pradesh versus Nawab Hussain:- Explanation :- a matter may be actually or constructively in issue. Matters may be directly in issue.  These are clear from the pleadings in the plaint and the written statement. However, there may be matters 'might have been' or 'ought to have been' made by the parties (the plaintiff in his averment or the defendant in his written statement).   If the parties have failed in the previous suit to bring out these, then under the rule of res judicata, the matter is deemed to have been in issue directly and substantially, and it is also deemed to have been Heard and decided. The result is that in such cases, the suit is barred under res Judicata. E.g.: A sues B to recover certain property belonging to the estate of C. The ground was that C & D were brothers; on the death of C, the property came to me survivor D andthat D had adopted 'A'. D, died and the property had come to B. A claimed as adopted son. The suit was dismissed as adoption was not proved. Later A sued B alleging that he was a 'bandhu' of C and hence was entitled. This is barred by constructive res Judicata. B ought to have pleaded that he was a 'bandhu' in the earlier suit. Suit dismissed Res - Judicate · It exclude the jurisdiction · Result from the court decision · It is based on the public policy · Avoid multiplicity of suit · It is bind of the both the parties to a litigation Estopple · It is suit the mouth the party · Result from the Act of the parties · It is based on the principal of equity · Avoid multiplicity of representors · It bind only that party who made the previous statement or should the previous conduct . Res – subjudice sec 10 · it is related to a matter pending in a court of competent jurisdiction. Res – judicata sec 11 · it's related to a matter by a already decided Court of competent jurisdiction.

“Advent of Islam’’ and development of Islamic Law. www.lawtool.net Islam - its basis : Islam is the last revealed religion. “Islam" is an Arabic word meaning “submission”. It denotes complete submission to the One Almighty God. Muhammad Identified himself as a simple human being sent by God as a Prophet to the people. The Quran is the Divine Book which is God’s own word as revealed to Muhammad through the Angel of Revelation. It dictates the Law, initiates into the Unseen, purifies the soul and guides social progress. It can be said to be a complete code of conduct for all time. The Quran, as we have it now, is a record of what the Prophet said while in the state of ecstatic seizure. The recording of the Prophet’s words in the beginning was haphazard. Verses were written on palm leaves, stones, the shoulder-blades of animals-in short, any material which 'was available. There is no doubt that at the death of Muhammad, a good deal of the Quran was already written down, though not all of it, for while the Prophet was alive, new chapters were constantly being added. There is also no doubt that a 'great deal of the Quran had been learned by heart. THE DEVELOPMENT OF ISLAMIC LAW (1)The first period in the development of the Islamic Law is of ten years the one between 1 A. Hejira and 10A.H. This is the most important period so far as . the first two sources of law, viz., the Quran and ‘hadith’ are concerned. The Prophet had conquered Mecca, and in the last few years of his life, he took upon himself the task of legislation. Most of the verses of the Quran revealed during this period deal with legal aspects. So also do some of the Prophet’s most important judicial decisions and traditions. The precept of the Prophet acquired binding force because Muslims believed that the actions and the saying of the Prophet were inspired or commanded by God. (2)The second period is the period of thirty years from 10A.H. to 40A.H. when the rightly-guided Caliphs, viz., Abu Bakr, Umar, Usman and Ali were the Caliphs. During this period, there was a close adherence to ancient practice under the guise of adherence to the ‘sunnah’-the precept of the Prophet. During this period, the collection and the editing of the Quran also took place. The authorized text of the Quran-which remains without change or corruption to this day-was first published during the reign of Usman, the third Caliph. (3)The third period is a long one which ranges from 40A.H. to the third century after Hejira and is very important. It was during this period that the work of collection of the ’traditions’ of the Prophet took place. During the earlier part of this period, there appear the four schools of Sunni law, which are named after their four founders. The Hanafi School, named after Imam Abu Hanifa, placed reliance on the principles of ‘qiyas’ or analogical deduction. Imam Abu Hanifa employed ‘qiyas’ because the doctrine of haduth had not developed fully at that time. There was also no recognised collections of the ’hadith’. The Maliki School named after Imam Malik does not differ much from the Hanifi School: Imam Malik, however, placed greater reliance on systematic reasoning. The Shaafi School was named after Imam Shaafi who preferred the doctrine of ‘ijma’ or consen-sus of the learned. The Hanbali School, founded by Imam Ahmed bin Hanbal, advocated the principle of adhering to the hadith literally. (4)The fourth period in the development of Islamic law extends from the third century after Hejira to the present day. After the four recognised schools had been founded, later scholars applied them-selves to the methods laid down by the founders and developed each system in a particular manner. However, no individual jurist was ever afterwards recognised as having the same rank as the founder himself. After the abolition of the Caliphate, a new situation arose and there was no one to execute the behests of the Shariat. During the last period, the doctrine of ‘taqlid'-following by imitation-and ‘ijtihad’-the power of inde-pendent interpretation of law developed and came into prominence. The Shia School of thought In our consideration of the development of Islamic Law. we must not lose sight of the Shia School. The term ‘Shia’ by itself means faction and is a contraction of the word 'Shia-t-i-Ali' or the 'faction of Ali'. The Shias deny and dispute the principle of election by the people in the matter of the Caliph-ate and hold that the Prophet had appointed Ali as his successor. The Shias are divided into a large number of schools, the two most important of which are the Ismailis and the IthnaAshari. In India, the Ismailis consist of two main groups, viz., the Khojas and the Bohras. The Khojas are the followers of the Aga Khan and the Bohras are mainly the followers of Syedna or Dai. The majority of Shias belong to the IthnaAshari School. The word Shia is, in India, applied in general to the IthnaAshari School of Shias. The Imarriat - According to the Sunni doctrine, the leader of the Muslims, at any given moment, is the Caliph. He is more or less a temporal ruler than a religious chief; in religious matters, he has merely to follow the shariat. The concept of the Imam according to the Shias is totally different. It is here that the fundamental difference between the Shia and the Sunni theology comes in. According to the Shias, the Imam is the final interpreter of the laws. He is the leader, not by election, but by divine right, as he is the successor of the Prophet-a descendant of AN. The Shias hold that no hadith is valid unless it is related by an Imam descended from the Prophet. They accept the authority of the Quran, but say that only the Imam can say what the correct interpretation of the law is. According to the Shias, the Imam is the law-giver himself, but as he is hidden, the ‘mujtahid1 2 3- corresponding to the Sunni Kazis-are his agents, the interpreters of the law. ‘Ijtihad’-the power of independent interpretation of the law-therefore has an altogether different significance in the Shia Law. The Shia Mujtahid can give decisions on his own responsibility. The doctrine of qiyas(analogical deduction) and ijma(consensus of opinion) as understood by the Sunnis is not accepted by the Shia' School of thought. Therefore, law, according to the Shia School, consists of rules of conduct based on authoritative interpretation of the Quran and the Sunnah and the decisions of the Imams through the mujtahids. Development of Muhammadan Law in India ; The Mughal emperors being Hanafis, the Hanafi law was administered till the establishment of British Rule.The British applied Muhammadan Law as a branch of personal law to those who belonged to the Muslim religion in accordance with the principle of their own school or sub-school. In all suits regard-ing inheritence, succession, marriage and caste and other usages or institutions, the laws of,the. Quran in accordance with the opinion of the maulvis were invariably adhered to in the case of Muslims. With the changing social conditions, the need for a change in some of these laws became apparent. On the other hand, certain portions of the law were abolished, such as the banning of slavery and forfeiture of rights on apostacy. Similarly, certain portions of the customary law were altered to make the original rules of the Islamic Law applicable. The Wakf Act, 1913, was enacted on these lines. Today, the law of Marriage, Divorce, Dower, Legitimacy, Guardianship, Wakfs, Wills and Gifts and Inheritance among Muslims is uniform all over India. The Shariat Act of 1937 abrogated custom and restored to Muslims their own personal law in almost all cases. We thus see that the Muhammadan Law as applied in India is the shariat modified by the principle of English common law and equity.

The Various Sources Of Mohammedan Law www.lawtool.net Primary or Principal Sources The Quran : (which is the 'divine communication and revelation to the prophet of Islam) is the first source of Muslim Law. It is the Paramount and universal authority of Mohammedan Law. It is composed of such express revelations as were made in the very words of God to Mohammed when pe was gifted with of the office of Prophet and Messenger of God. As precept and usages of Mohammed were inspired by God, they have the force of law. 18 years after the death of Prophet Mohammed, Quran took its present textual form in which it is divided in 30 chapters and is composed of Ayats. The Quran is not in the form of any definite code. A very small portion of its has a reference to law laying down the broad general principles, concerning with marriage, dower, divorce inheritance etc. but in all matters with which it deals it is the primary and final authority. Traditions (Ahadis & Sunnat) : After the death of prophet Mohammed, the Mohammedan society was faced with many problems to which the Quran was silent and it was also not possible to refer to Prophet. But during his life time, the prophet pronounced his verdicts, he did certain things and also allowed indirectly the doing of certain other things as permitted by Islam. Consequently ‘what was said or done or upheld in silence by the Prophet1 becomes a primary source of Mohammedan law coming next in importance to Quran. Quran is the express revelation while these traditions are implied revelations in the precepts, actions and saying of the Prophet. They were not written down during the life time of Prophet but were preserved by traditions and handed down by authorized agents. Sunnat generally means what the Prophet did while Ahadis means what he said. Ijma (Consensus) :Ijma means the consensus (unanimity) of opinion of the companions and followers of the Prophet. Sir Abdul Rahim has defined it as 'the agreement of the jurists among the followers of Mohammed in a Particular age on a particular question'. After the death of Prophet and with expansion of the Islamic influence, a large number of fresh facts, new problems arose which could not be decided by reference only to Quran and Ahadis. The jurists then took the recourse through the Principles of Ijma, that is the consensus of opinion among the companions of Prophet. The reason behind it was that the persons associated with the prophet as his companion must have known by instinct, the Policy of the Islamic law and whether a particular rule or decision was in harmony with Islamic principles. Ijma is the best guide of law and is universally accepted as an authority next after Quran and Ahadis. So it is the third (in time and importance) source of law. Qiyas (Analogical deductions, simiiar inferences) :In Muslim jurisprudence Qiyas means an extension of law (from the original text),by means of common sense. According to Jung it is the process of deduction, applying the law of the text to the cases which (though not.covered by the language of the text), are covered by.the reasons of the text. Secondary Sources Custom : A custom is a tradition, (Passing from one generation to another) thatoriginally governed human conduct and has obtained the force of law in a particular locality or com¬munity. It is a natural source of law. The Muslim jurists do not expressly describe it as a source of law but those customs and usages which were not touched upon or abrogated by the Prophet, remained good and valid like Polygamy, Oral Wills, Dower, Divorce etc. Judiciai Precedents ; Interpretation of the Mohammedan Law by the Privy Council and the Judges of the Supreme Court and High Courts, continue in modem times to supplement and modify the Islamic Law. As such they are continuing source of Mohammedan law. Legislation : Acts of Indian Legislature such as Mussalman Waqf validating Act 1913,Shariat Act 1937, the Dissolution of Muslim Marriage Act 1939, the Indian Contract Act 1872 and Guardians and Wards Act 1890,etc. have considerably affected, altered, enlarged or modified the old Muslim law. Justice, Equity and Good Conscience :Where there is no specific rule to guide the court, or there is conflict of opinion the Court should follow that opinion which is more in accordance with justice, equity and good conscience (Aziz Bano V. Mohammed 1925). Where the law of Qiyas etc, is not suitable to the present day needs of the society or where it was such that its rigid application would result-in hardship to the public, rules of equity could be applied. Istihasan Where the law analogically deduced (obtained from similarity) is inadaptable to the present needs of the society,- or where it was such that its rigid application would result in hardship to the public, rules of equity could be applied. Abu Hanifa, (the great jurist) called this “istihasan'' (literally translated as “Juristic Preference”).

GUARDIANSHIP - Wilaya www.lawtool.net Guardianship may be in respect of: The person The property and Marriage. There is guardianship in respect of a person. But in Islamic law, guardian for property is rarely appointed because the executor is the guardian to the property. Marriage guardian is called. Wall. Types: 1. Natural Guardian 2. Testamentary Guardian 3- Court Guardian 4. De facto Guardian 1. Quardian of Minor : Minority is at three stages : (i) A person is a minor under 15; according to Mohammedan Law. (ii) A person under 18 is a minor according to the Indian Majority Act, and (iii) A person under 21 is a minor under the Court of Wards Act. In Mohammedan Law, minors under 15 can act independently in respect of marriage, dower and divorce, fn other respects it is 18 years (male or female). Application: An application for the appointment of the guardian of the person or of the property or of both, must be made to the court under the Guardians and Wards Act 1890. The court must take into consideration: (a) The welfare of the minor (b) The law to which the. minor is subject. (c) The age, the sex of the minor and the character and capacity of the guardian and also the wishes of the decea sed parent. (d) Preferences of minor, if any and appoints the guardian. It is the duty of the guardian to take care of the welfare supervision education, protection and progress ‘of the boy or girl. Father, on his death father's father is the natural guardian according the Muslim law. Mother: The custody belongs to mother upto the age of 7 if a male and upto puberty in respect of a female child (Hanafi Law). The leading case is Imambandi Vs. Muisaddi It was declared that the father .is the legal guardian, if he is dead, the executor is the legal guardian. The mother is entitled only to the custody of the person. She is not the natural guardian. Hence, if father and mother live together, the husband cannot take away the minor. The mother also cannot take away without the permission of her husband i.e., father's supervision continues.A minor cannot be appointed as a guardian (rare exception in the case of his own wife or child). If -the mother (widow) or a female guardian is married to a person not related to the child, she is disqualified. Similarly adultery, immorality or. neglect of the minor are disqualifications. In Zynsbi Vs. Mohamed Ghouse : Zynabi the wife (W) and her husband Mohamed Ghouse (H) lived separately in Madras. There were 3daughters of ages7,5 and 3 and one son aged 7 ½ years, H took a second wife but the marriage was dissolved. All the children were with W. One day H came and took two children by force. Thereupon W filed a petition for custody under the Guardian and Wards Act. Held W entitled to the custody of her children. Other Relations: In the absence of mother the following are entitled to custody in order of priority. Mother's mother, father's mother, full sister and other female relations including aunts. If such a female marries a stranger, she loses her preference. Failing the above persons, the following male relations are entitled to custody on priority basis. (i) The father, (ii) Nearest paternal grand father, (iii) Full brother, (iv) Consanguine brother. The general rule is 'no male is entitled to custody over a female minor unless he is related to her by blood, i.e., he must be within the prohibited degrees'. An illegitimate child upto 7 years of age must be under its mother, after that, it is left to its option. 2. Guardianship of Property : Guardians : The father is the legal guardian. Failing him (i) Father's executor (ii) Father's father (iii) Paternal grand father's executor. Court Guardians: Failing legal guardians, the court may appoint a guardian, either the mother or some other person whom the court thinks fit under the circumstances. De facto Guardian : He may intermeddle with the property of the minor. He will be only a custodian. He has no rights but only obligations. Immovable Property : The legal guardian should not sell it except for double the. value or where it is necessary for the maintenance of the minor. A court guardian cannot sell ormortgage without the permission of the court.A de facto guardian has no right at all. The leading case is Imambindi Vs. Mutsaddi. Zhad two children (minors). She conveyed certain shares (of herself and of children) ofvalue Rs. 10,000 to P. Held by Ameer Ali J that mother had no power to alienate as shewas not the legal guardian. Other leading cases : (i) Venkamma Naidu Vs. Chisty, (ii) Kharag Narayan Vs. Hameeda Khatoon. In Venkamma Naidu's case, the mother asguardian of a minor, executed a sale-deed of immovable properties. Held, the sale was void. Movable property: The legal guardian has the power to charge the movable property for the necessity of the minor, such as food, clothing, shelter etc.Court guardians have larger powers, in respect of movable propertythe de facto guardian has powers similar to a legal guardian.

MAINTENANCE -Muslim Law www.lawtool.net MAINTENANCE It is called 'Nafaqu', It means food, raiment and lodging. The causes that make one person to maintain another are: (i) Marriage (ii) Relationship (iii) PropertyThe higher obligation arises on marriage. Hence maintenance of wife and children is a primary obligation. Wife's right to maintenance : She is entitled to maintenance from her husband even though she may have the means and even if her husband has no means, It is said that wife is the ASL means (root) and child is FAR means branch).Husband should maintain his wife after puberty. She must be obedient at all times In addition to legal maintenance he may have to provide for other special allowances. An agreement to allow the first wife to live with her parents and to pay her maintenance is valid. Polygamy is permissive in Islam: Art. 25 of Constitution is not violated. However Cr. P. C, Sn, 125 may be applied, if the husband takes a second wife or keeps a mistress. She is entitled to maintenance. Right to sue; She can sue if the husband refuses to maintain. The court may make an order not above Rs, 500 per month, under Cr. P.C, The right to maintenance ceases on the death of husband. Wife is entitled during Idda that is 4 months and 10 days, or if she is pregnant (at the time of the death of the husband), until she delivers of the child. , Shaw Banu's Case : In this case, the Muslim husband H an advocate, divorced his wife Shaw Banu by declaring Talaq, when the wife sued for maintenace under Sn. 125 Gr, P. C. The Supreme Court held that she was entitled to maintenance irrespective of the personal laws of the spouses. The Parliament almost neutralised this decision by passing an Act: The Muslim Women (Protection of Rights in Divorce) Act 1986. Sn. 3 of this Act prevents a Muslim woman from seeking remedy under Sn. 125Cr. P.C. The Act further provides that the affected Muslim woman should claim maintenance from her relatives in the first instance, and from the Wakf Board if need be i.e., when the relatives are unable to maintain her. Failure to maintain: If a husband fails to maintain or neglects for two years, the wife is entitled to dissolution of her marriage under the Dissolution of Muslim Marriage Act 1939. But, she has no right to maintenance, for her life time, In respect of children, father should maintain the sons till they attain puberty and the daughters until they are married.

ACKNOWLEDGEMENT OF PATERNITY - IQRAR www.lawtool.net Legitimacy is a status which results from certain facts but legitimation is a process which creates a status which did not exist before. In a 'proper sense there is .no legitimation under Muslim law. In fact an acknowlegement is a declaration of legitimacy and it does not refer to legitimation. Hence an illegitimate cannot be made legitimate under Muslim law. Legitimation per subsequence matrimoniam (Legitimation by subsequent marriage of the parents of the child) of Roman law is not known to Muslim law. Iqrar: But Muslim law recognises Iqrar ( Acknowledgement of paternity) It has three incidents: (i) Unknown paternity (ii) Child must not be illegitimate, (iii) There must be nothing to rebut presumption. (i) Unknown paternity: That is, if the paternity of the child is not certain. The leading case: Mohammad Allahabad Vs. Mohammad Ismail. A claiming to be the eldest son of G brought a suit against Ismail and his 3 sisters for his rights in certain villages. Ismail and his 3 sisters were born to Mothi Begum after her marriage to G. But A was born to her at a time when it was unknown, who-the father of A was. G during his life time had acknowledged A as his legitimate son. It was held : (a) That there was no proof of paternity of A. (b) That it was not proved that A was by illicit intercourse. Therefore it was held : That A was legitimate and he had a right to inherit. (ii) It must not be illegitimate: According to Muslim law there is no legitimation. Hence an illegitimate son cannot be acknowledged to make him legitimate. The principles of Roman law relating to birth per subsequence matrimoniam are not applicable. The leading case is: Sadiq Hussain Vs. Hashim All. In this case the Privy Council held that acknowledgement by the In this case the Privy Council held that acknowledgement by the Muslim father of the child as his son is substantive evidence relating to the legitimacy, and hence, the child was legitimate. (c) That there was no proof of paternity of A. (d) That it was not proved that A was by illicit intercourse. Therefore it was held : That A was legitimate and he had a right to inherit. iii) There must be nothing to rebut the presumption of paternity a. The parties must be such as to be so related as father, wife and child in conformity with the presumption of paternity. b. Marriage must be possible between the father and mother of the child.. c. The person acknowledged must not be the child of an illicit intercourse; and ' d.There must not be any disclaim or repudiation by the father. . The leading case is: Habibur Rehman Chowdary v/s Chowdary, A was the daughter's son of the Nawab. N one person H son of Cohen .sued A andclaimed that the Nawab had married Cohen. Hence, he claimed his share as son. Heldneither marriage nor acknowledgement was proved and hence, A failed. Acknowledgement may be express or implied. Effects: Acknowledgement has the legal effect of making the child legitimate and has the legal effect of the acknowledgement of the wife also. A valid acknowledgement gives rights of inheritance to the children and to the wife. An acknowledgement is not revocable.

Who is a Muslim www.lawtool.net APPLICATION OF MUHAMMADAN LAW Who is Muslim ? Like Hindu law, Muhammadan law is a personal.law. Unlike territorial laws, it does not apply to all the persons in a given district. It applies only to those persons who answer a given description - Muslims - whether they are so by birth or by conversion. To be a Muslim is to. profess Islam ; i.e., to acknowledge that there is no God but The God (i.e:,-there is only one God) and Muhammad is.His Prophet; “La ilaha ill lil laH Muhammad ur Rasul Allah'’; Profession of the faith of Islam'(i.e., belief in the unity of God) and the mission .of Muhammad (as a prophet or messenger of God) are necessary and sufficient for establishing that a person is a Muhammadan by birth or by conversion, it is not necessary that he should observe any particular rites or ceremonies. A person born a Muslim remains a Muslim until he renounces the religion by an unequivocal renunciation of Islam. The mere adoption of some Hindu forms of worship does not amount to a renunciation of religion. In the case of an illegitimate son of a -Hindu by a Muslim woman and brought up as a Hindu, he may well be regarded as a Hindu, though his mother was a Muslim. Muhammadan law applies to : (a) Muslims by birth, and (bj Muslims by religion, i.e., persons who have become converts to Islam. EFFECT OF CONVERSION TO ISLAM :- On conversion to Islam, the convert is deemed to have completely renounced his former religion and status. On conversion to Islam, converts, (no matter, what their previous religion may have been) must be taken, (at that moment) to have renounced their former, religion and personal law, and to have substituted for it the Muslim religion and so much of the personal law as necessarily flows from that religion : Advocate - General of Bombay v. Jimbabai i.L.R. (1917)41 Bom, 181. Thus, an Indian Christian domiciled in India can, after his conversion to Islam, legally contract a, second marriage with a Muslim woman while his former marriage with a Christian woman is still subsisting : John Jiban Chandra Datta v. Abinash, I.L.R. (1932) 2 Cal. 12. But if the first marriage were contracted in England under English form, during its subsistence, the second marriage would be regarded as a nullity : King v. Superintendent, Registrar of Marriages, Hammersmith, (1917) 1 K.B. 634 But the conversion of Hindu wife to islam does not ipso facto dissolve her marriage with her husband, .and she will be guilty of bigamy if She so marries again : Mst. Nandi v. The Crown, (1920) i.L.R. 1 Lah. 440 In Khambatta v. Khambatta, (1934.) 36 Bom. L.R, 1021, I.L.R. (1935) Bom. 278, a Muslim married a Christian woman in the Christian form. The wife became a convert to Islam andthe husband divorced her by talak. In these circumstances, the Court held that the divorce was valid. Problem - Yusuf, a Muslim marries Rita, a Christian woman, in Scotland according to lex loci (i.e. the law of Scotland). They return to India where Rita embraces Islam. Can Yusuf divorce Rita by Talak? Ans - Y,can divorce R by talak, R having embraced Islam : Khambatta v. Khambatta, 1.L..R. (1935) 59 Bom. 278. Succession to estate of a convert to Islam :The succession to property of a convert to the Muslim religion would be governed by Muslim law and not by the Indian Succession Act. The property, therefore, of a Hindu convert to Islam will devolve according to Muslim law. But the conversion must be bona fide and not merely a colourable one with a view to elude the personal law to which a person is subject. A Christian man, married to a Christian wife, was co-habiting with another native Christian woman. Desirous of marrying and in order to escape the punishment for bigamy, both, the man and the native Christian woman, declared themselves Muslims and went through a form of marriage according to Muslim law. It was held that the marriage was not valid. (Skinner v. Orde, 14 M.I.A. 309). Effact of apostasy on the right to inherit :According to the strict Muhammadan Law, difference of religion is a bar to inheritance. But by the application of the Freedom of Religion Act 1850, a convert from Islam does not lose his right of inheritance. That Act does away with the provisions of Muhammadan Law by which apostates were excluded from inheritance. According to Muslim law, a Hindu cannot succeed to the estate of a Muslim. Therefore, if a Hindu, with a Hindu wife and his children, embraces Islam, and marries a Muslim wife, his property will pass.on his death to his Muslim wife and not to his Hindu wife and children : Chedabaram v. Ma Nyien, I.L.R. (1928) 6 Ran. 243.

CONSTITUTIONAL OBLIGATION - ENVIRONMENTAL PROTECTION www.lawtool.net The Constitution of India, which is the supreme. Law of the land, has imposed an obligation to protect the natural environment both on the State as well as the Citizens of India. Part IV of the Constitution called the Directive Principles of State Policy has imposed certain fundamental duties on the State to protect the environment. Part IV A of the Constitution has imposed a fundamental duty on every citizen of India "to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures". OBLIGATIONS ON THE STATE Article 39 (b) of the Constitution of India provides that the State shall direct its policy to see "that the ownership and control of the material resources of the community are as distributed as best to sub serve the common good." The term `material resources of the community' embraces all things, which are capable of producing wealth for the community.' The expressions 'material resources of the community' has been held to include such resources in the hands of the private persons and not only those, which have already vested in the State.2 The Constitution of India through Article 42 has directed the State to endeavor to secure just and human conditions of work. Under Article 47 it imposes a duty upon the State to raise the level of nutrition and the standard of living of its people and improve public health. The Supreme Court in Municipal Council, Ratlam v. Vardhichand observed, "The State will realize that Article 47 makes it a paramount principle of governance that step are taken for the improvement of public health as amongst its primary duties," Under Article 48 directs the State to take to organize agriculture and animal husbandry on modern and scientific lines. In particular, it is directed to take steps for preserving and improving the breeds and prohibiting the slaughter of cows, calves and other much and draught cattle . Of all articles, Article 48A which was added to the Constitution by the Constitution of India 42nd Amendment Act in the year 1976, expressly directs the State to "to protect and improve the environment and to safeguard forests and wild-life" The Madras High Court in M.K.Janardhanam v. District Collector, Tiruvallur served that "the phrase used (in Articles 48A and 51A) is 'protect and improve' which implies that the phrase appears to 'contemplate affirmative govern-mental action to improve the quality of the environment and not just to preserve the environment in its degraded form." The State is also required under Article 49 "to protect every monument or place or object of artistic or historic interest (declared by or under law made by Parliament), to be of national importance from spoliation, disfigurement, destruction, removal, disposal or export.' Article 51 provides that the State should strive to "foster respect for international law and treaty obligations". Most important of all articles is Article 37 which declares that the directive principles contained in Part IV of the Constitution are 'fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws." In all the above articles, the expression 'State' is used and one should under-stand the meaning of the word 'State'. The framers of the Constitution of India chose to adopt the same definition for the word 'State' as defined in Article 12 for the purpose of Part IV of the Constitution as wells. This was done to enable the judiciary to interpret it so widely to bring all agencies and instrumentality of the State under the scope of the word 'State'. The object was to direct all such agencies and instrumentality of the State to apply the directive principles in making laws. The Supreme Court in M.C. Mehta v. Union of India6 held that "these directive principles (Articles 39 (b), 47 and 48A) individually and collectively impose a ty on the State to create conditions to improve the general health level in the country, and to protect and improve the natural environment. The Word State as defined in Article 12 and as interpreted by the Supreme Court through various cases decided by it means and includes: (1) The executive and the legislature of the Union, (2) The executive and the legislature of the State, (3) The judiciary' (4) Local authorities like Municipalities, District Boards, Panchayats, Townships, Corporations, Improvement Trusts, etc., and (5) Other authorities which are agencies or instrumentality of the States By a generous interpretation, of the word 'State', the Supreme Court has now included many institutions including societies registered under the Societies Registration Act, 18609; a Government Company is incorporated under Sec,617 of the Companies Act, and every 'Other authority' as a 'State' if it is an instrumentality of the State. The wide interpretation given to the expression 'State' by the Supreme Court is to widen the scope and amplitude of the Fundamental Rights and the Directive Principles of State Policy. Hence, now it has become the fundamental duty of all ‘authorities’; coming under the purview of Article 12 to fulfil the obligations contained Part IV of the Constitution of India. The Legislature, both the Union and the State, to fulfil their fundamental obligations contained in the Constitution, have enacted a number of legislation to protect and improve the natural environment and to safeguard forests and wild-life. The Executive, both the Union and the State, to fulfil their constitutional obligations, have made sufficient number of rules to effectively implement the laws made by the legislatures to protect and improve the natural environment and to safeguard forests and wildlife. The Judiciary, to fulfil its Constitutional Obligations was and is always pre-pared to issue 'appropriate' Orders, 'directions and writs against those persons who cause environmental pollution and ecological imbalance. This is evident from a plethora of cases decided by it starting from the Ratlam Municipality Case". Vardhichand12 provoked the consciousness of the Judiciary to a problem, which had not attracted that much attention.' The Supreme Court responded with equal anxiety and raised the issue to come within the mandate of the Constitution. In this case, the question related to the court's power to force public bodies under public duties to implement specific plan in response to public grievances, which related to environmental pollution, The Supreme Court in Ratlam-Municipality case observed: "Why drive com-mon people to public interest 'action? Where Directive Principles have found statutory expression in Do's and Don'ts the court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the, plea, of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process has a. new enforcement dimension not merely through some of the provisions of the Criminal Procedure Code but also through activated, tort consciousness. The officers in charge and even 'the elected representatives will' have to face the penalty of the law if when the Constitution and follow-up legislation direct them to do are defied or denied wrongfully". The Supreme Court in Aural litigation and Entitlement Kendra v. State of U.P.13 ordered the closure of. Certain lime stone quarries causing large scale pollution and adversely" affecting the safety and health of the people living in the area. Likewise, the Supreme Court in M.C. Mehta v. Union of India" directed an industry manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living in its neighbor hood, to take all necessary safety measures before reopening the plant. In yet another case filed by Mr. M.C. Metha it ordered the chisure of all tanneries, which were found to be polluting the river Ganga". The Supreme Court on another occasion"' directed the Mahapalika to get the dairies shifted to a place outside the city and arrange for removal of wastes accumulated at the dairies so that it may not reach the river Ganga. In the same case, it also directed the Mahapalika— I. to lay sewerage line wherever it was not constructed, 2. To construct public latrines and urinals for the use of poor people free of charge, 3, to ensure that dead bodies or half burnt bodies are not thrown into the River Ganga and 4. To take action against the industries responsible for pollution. In the Delhi industries pollution case", the Supreme Court ordered for the shifting of 168 hazardous industries operating in Delhi as they were causing danger to the ecology. In S. Jagannath v. Union of India's the Supreme Court has held that setting up of shrimp culture farms within the prohibited areas and in ecologically fragile coastal areas have adverse effect on the environment, coastal ecology and economics and hence, they cannot be permitted to operate. The Supreme Court in A:P. Pollution Control Board II v. M. V. Nayudu' referred to the Resolution of the UNO" passed during the United Nations Water Conference in 1977 to which India is a party and observed that "the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens." 2 "All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs." What is stated above is only a very small portion of the contributions made by the Judiciary to protect and improve the environment and to safeguard forests and wildlife. OBLIGATIONS ON THE PART OF CITIZENS The constitution under part IV A, Article 51 A (g) has declared that it shall be the fundamental duty of a citizen of India " to protect and improve the natural Environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures’: Article 51A (j) has imposed on citizens another fundamental duty "to strive to-wards excellence in all spheres 'of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement". The Rajasthan High Court in Vijay Singh Puniya v. State of Rajasthan observed that "any person who disturbs the ecological balance or degrades, pollutes and tinkers with the gifts of the nature such as air, water, river, sea and other elements of the nature, he not only violates the fundamental right guaranteed under Article 21 of the Constitution but also breaches the fundamental duty to protect environment under-Article 5-1A (g). This observation was made in a writ petition filed against dyeing and printing units, which were discharging effluents and he polluting the water sources used' for agricultural and drinking purposes. The question before us is whether we as, citizens of India have fulfilled our part of obligation imposed by the constitution of India? The answer is "No". In Plato's phrase, " We are still -like cave men, with our backs turned to the light, watching the shadows on the' wall ". Dr. Konrad Adenauer, the form-ex-Chancellor of West Germany, remarked that in creating man, God had hit upon a very poor compromise. If he had made man more intelligent, he could have known how to behave; if he had made matt less intelligent, he would have been easier to govern23. Since man does not know how to behave, the necessity arises of legal responsibilities to prevent liberty from degenerating into license. It, is true that eternal vigilance is the price of liberty. But it is true, in even a deeper sense, that eternal responsibility is also part of the price of liberty. Excessive authority, without liberty, is intolerable; but excessive liberty without authority and without responsibility, soon becomes equally intolerable. 24 De Tocqueville made the profound observation that "liberty cannot stand alone but 'must be paired with, a companion virtue, liberty and morality; liberty and law; liberty and justice; liberty and the common good; liberty and civic responsibility,"" Paras Diwan, in his "Environment Administration, Law and Judicial Attitude" has pointed out that the people in India love pollution to such an extent that they cannot live without it, because, "traditionally we are a pollution loving nation. We pollute air by bursting crackers on Dussehara, Diwali and on the occasions of marriages and other festivals. We pollute our rivers by disposing of dead bodies and all other human and other wastes. We take out so much from wood from our trees for fuel that in many areas trees have become scarce. We are lovers of cleanliness and, therefore, broom out all of our household and other waste on the public streets. Any space 4 ow enough for us to ease; we are country which believes in open latrines. Municipalities are oblivious of their duties and all city wastes, human and' industrial effluents are allowed to flow in open drains and to 'flood the streets. We are equally fond of noise pollution. Godman's voice must be heard by all, day and night, and our Ratjagas, Akhandpaths and azan must use loudspeakers and amplifiers; no one should be deprived from hearing God and Godmen's voice-and Gods too are far away beyond' the hell and heaven. Our voice must reach them; otherwise our spiritual needs will remain administered. We are not less noisy in our secular matters. Our marriage and funeral processions must be accompanied by bands, twists and Bhangras. While this being one view, there also exists another view that traditionally we are nature loving people. We worshipped nature in all forms: the sun, forests, trees, rain, air, rivers, etc. Though it will not be relevant here, to argue whether we, the people of India are nature loving people or pollution loving people. Whatever it may be we will have to certainly agree that the unprecedented in-crease in the number and activities of human, since the industrial-revolution and particularly in the later part of this century, have given rise to a deterioration of the environment and depletion of natural resources that threaten the future of the planet Earth. Though this subject is of everyone's concern, in fact, pollution and Environ-mental Protection has drawn the attention of a very few social conscious people like Vardhichand, M.C.Mehta, Avadash Kaushal, founder of Rural Litigation and Entitlement Kendra, and other NGOs like Kalpavriksh, Kerala Sastra Sahitya Parishad, World Wide Fund for Nature - India (WWF India), Bombay Natural History Society, Narmada Bachao Andolan, CPR Environmental Education. Centre, etc. In M. K. Janardhanam v. District Collector, Tiruvallur27 the Madras High Court appreciated the petitioner for the efforts taken by him. "Under Article 51A(g) it is the fundamental duty of every one of the citizens of this country to protect and improve the natural environment including forests, lakes, rivers, all other water resources and wild life and to have compassion for living creatures. The petitioner should be complimented for discharging his constitutional obligation by bringing to the notice of this Court at the risk of his personal safety the unimaginable aggression on natural resources by unscrupulous element." But on the other hand, according to one Survey, majority of the population in India, mostly the poor and the slum dwellers are not even aware of the problem, leave alone the seriousness of the problem. Various legislative and administrative measures adopted by the. Government both the State and the Central show its serious concern for protecting the environment. Judicial Activism in India provides' impetus to the campaign against pollution. Vardhichand showed the path for people's involvement in the just icing process, without which the system would crumble under the burden of its insensitivity. Judicial Activism is the hope, but just as to get the butter, churning is essential, similarly its vibrational impact would not be possible so long as no-action status continues due to ignorance of the seriousness of the problem and the obligations imposed by the Constitution of India. While we are commendably concerned with the issue of 'Human rights', we may ask ourselves - are we equally mindful of the paramount need of legal responsibilities? FUNDAMENTAL RIGHT TO LIVE IN A HEALTHY ENVIRONMENT --JUDICIAL ACTIVISM IN INDIA The right to live in a clean and healthy environment is not a recent invention of the higher judiciary in India. This right has been recognized by the legal system and by the judiciary in-particular for over a century or so. Tile only difference in the enjoyment of the right to live in a clean and healthy environment today is that it has attained the status of fundamental right the violation of which, the constitution of the India will not permit it was only from late eights and there rights as a fundamental prior to the period as pointed as pointed out earlier the people of the country has enjoyed the right. Not as constituently guarantied fundamental right but a right recognized and enforced by the court of law under different laws like torts, Indian penal code, and civil procedure code. Etc. In today immerging jurisprudence environmental rights which encompass a group of collective right are described as 3rd generation rights the 1st generation rights are generally political rights such as those found in the international covenant on civil and political rights while 2nd generation rights are social and economical rights as found in the international covenant on economics social and cultural rights. RIGHT TO LIVE IN A HEALTHY ENVIRONMENT AS BASIC HUMAN RIGHTS Right to life being the most important of all human rights implies the right to live without the deleterious invasion of pollution environmental degradation and ecological imbalance . There is building up in various countries a concept that rights to healthy environment and to sustainable development a fundamental right implicit in the right to life. The universal declaration of human rights 1948 has declared that every one has right to life and that every one has right to a standard of living adequate for the health and well being of himself and of his family the international ..

LAW OF AGENCY (Sns. 182 to 238) Part of INDIAN CONTRACT ACT. www.lawtool.net LAW OF AGENCY Sns. 182 to 238 Part of INDIAN CONTRACT ACT. Delegatus non protest delegate : This rule is in Sn. 190 of the contract acct. It means that "An agent to whom authority has been delegated, cannot redelegate that to a third person". The reason is that the principal's confidence in the Agent, is at the root of the contract of agency. Accordingly, factors, auctioneers, brokers in whom confidence is reposed, have no power to delegate their duty or authority to'others. Exception : There is an exception. This is the appointment of a sub-agent. (i) Where the nature or custom of the business requires that authority should be delegated to third persons, the agent may appoint a sub-agent. ii) Such an authority is implied where the act to be done by the sub-agent is purely ministerial. iii) Such delegation is implied from usage of trade or by nature of business in unforeseen emergencies. Architects, builders etc. may be appointed as sub-agent by usage. iv) The principal may allow the agent to appoint a sub-agent expressly by or by implication. Liability of principal : Where the sub-agent is properly appointed, the principal is represented by the sub-agent. The principalis responsible to third parties for the acts of the sub-agent. But, between the principal and agent, the agent is responsible to principal for the acts of the sub-agent. 2. Where the sub-agent is not properly appointed, the principal is not liable to third parties for the acts of thee sub-agent. The agent is liable. The sub-agent is liable for his acts to the agent. He is not liable to the principal, except in case of fraud, or wilful wrong. Eg: P's agent A appoints a sub-agent S in commission agency, S fraudulently disposes of goods of P. Held, sub-agent liable to principal. Substituted agent: (Sn. 194) If an agent who has authority to name a person to act for his principal in doing business, names another person, such a person is called substituted agent and not sub-agent. The authority of agent may be express or implied. P directs his advocate A, to sell his property by auction and toname an auctioneer for this purpose. A names X and W to conduct auction. Here, X and W are substituted agents and not sub-agents. There is a clear and marked line of difference between ordinary sub-agent and substituted agent. The Supreme Court in Union of India Vs. Amar Singh, that when the exigencies or circumstances demand, the rule delegatus non protest delegate is relaxed, and a sub-agent may be appointed. But, when the agent has the authority to name a person, he may duly name a substituted agent. The agent is bound to exercise his discretion, as a man of ordinary prudence would, in his own cause. If he so selects, then he is not responsible for acts of negligence of substituted agent, to the principal. Eg. 1) A asks B, a merchant to buy a ship for him. B employ's a qualified surveyor S for the selection of ship. S does his job negligently. A buys but the ship was un-seaworthy and was lost.Here, B is not liable. But S is liable to A. 2) A sends goods to B to sell by auction. B appoints reputed K and W auctioneers to auction. K and W auction, collect proceeds but become insolvent. Here B is not liable to A. Del credere agent: He is one who in consideration of an extra commission, called a del credere commission, undertakes that the persons with whom he enters into contract on behalf of the principal, will be in a position to perform their duties. Such an agency is inferred from the circumstances where extra commission is charged for the risk of bad debts. A del credere agent incurs only a secondary liability towards the principal. He is in effect a surety to the extent of the default by insolvency of their parties. Certified brokers of Bombay native stock and share brokers association are del credere agents. Agency coupled with interest: The general rule is that "the authority of an agent coupled with an interest is irrevocable". The meaning is that where the agent has an interest in the subject matter of the agency, the principal cannot revoke his authority to the prejudice of the agent. a) P appoints A to sell a plot of land and to pay himself out of the proceeds the advances A has made to P. P cannot revoke hisauthority. b) A an agent advances money to P. P consigns 1000 bales of cotton to A to pay himself from sale price. P cannot revoke. There is an exception. The principal may revoke the agent's authority before the agent has exercised the authority so as to bind the principal. However, where the authority has been partly exercised the principal cannot revoke the authority. A authorises B to buy 1000 bales of cotton on account of A and to pay out of A's moneys in B's hands. B buys by making himself personally liable for the price. A cannot revoke B's authority .

CONSIDERATION www.lawtool.net Consideration : Sn. 25 The legal maxim "Ex nudo pacto non oritur actio", means "Agreement without consideration is void". This principle is embodied in Sn. 25 contract act. 1. Section 25 declares that an agreement made without consideration is vod. Sn. 2 Cl. (d) defines consideration. When at the desire of the promisor, the promisee or any other person has done or abstains from doing, or does or abstains from doing, or promises to do or abstains from doing, something, such act or abstinence or promise is called a consideration for the promise. 1. A promises for no consideration to give to B, Rs.1,000/- this is a void agreement. 2. A agrees to sell his house for Rs.50000/- to B. For A's promise the consideration is Rs.50000/- and for B's promise the consideration is the house. Consideration must be clear, specific and not illusory. The rule is "no consideration, no contract". The consideration may be inadequate if the parties agree. Consideration should not be illegal, immoral or opposed to public policy. The basis of all contractual obligations, is consideration and without consi-deration, the contract becomes void and unenforceable in the courts. Section 25 provides for certain exceptions : i) If an agreement is made on account of natural love and affection between parties related to each other, then the agreement is valid only if it is expressed in writing and registered duly. Gifts are valid under this section. Ex : A for natural love and affection to give his son Rs.5000/-duly executes a document (Gift deed) and registers it. This is a contract. ii) Compensation for voluntary service done by one person to another. In such a case, promise to compensate wholly or in part for service done is a contract valid and enforceable. Ex : A supports B's infant son, B promises to pay A's expenses. This is a contract. iii) A promise to pay a time barred debt is valid if it is made in writing and signed by the debtor. Ex : A owes B Rs.1000/- But the debt is barred by limitation. A signs a written promise to pay B Rs. 500/- on account of the debt. This is a contract. 3. According to English law past consideration is no consideration at all. A promise to provide maintenance for past illicit cohabitation is void according to English law. But according to Indian law past consideration is a good consideration under particular circumstances. A promise made by D, on account of past cohabitation with P, was held valid. Namperumal V. Veera-perumal. However, if the cohabitation amounts to adultery, the consideration is illegal and hence, the contract is void. 4. Section 25 provides that if the consent is freely given then inadequacy of consideration will not make the contract void. But the court may take into consideration the inadequacy .to find out whether the consent was freely given. Leading cases are : 1. Beswick Vs. Beswick 2. Kenney Vs. Brown 3. Thomas Vs. Thomas ' In Thomas Vs. Thomas there was an agreement to pay pound one per year as annual rent for a big house. Though this rent was nominal and inadequate, by itself it did not make the contract invalid. 5. Consideration must be lawful: Section 23 provides that if the consideration is unlawful the agreement is void. It is unlawful when it is forbidden by law or it is of such a nature that if permitted it would defeat the provisions of any law, or, is fraudulent or involves injury to a person or property or when the court regards the transaction as immoral or opposed to public policy. Eg. 1 A, B and C agreed to divide the amount got by fraud. This is void and unlawful. 2. A promises to B to pay Rs.1,000/- if B provides A a job in Govt. service. This is void. 3. A leases out his house for immoral purpose. The lease is void. Executory and Executed consideration : (Past, present and prospective consideration). If the consideration is past or present, it is called executed con-sideration. But, if the consideration consists of a promise to be done in future, it is called Executory Considera-tion. In executed consideration, one party is yet to perform his part of thepromise but, in executory consideration, both the parties are to perform theirpromises. A places an order for 500 bags of rice with B. A, is to pay when goodsare delivered. Rice is in the form of a heap. This is executory. B must fill to bags, weigh, stitch, etc., and appropriate to the contract, by giving notice to A. Goods are delivered. The value is not paid. This is executed contract. B has done his job. A is yet to pay. Agreement in restraint of Marriage : Sn. 26 of the contract act states that every agreement in restraint of marriage is void. The exception is the case of a minor. The objective of the legislature is that husband and wife should live together by selecting each other voluntarily. The consideration must be love, affection and welfare and not 'money consideration'. The leading case is Lowe V Peers. In this case, there was a promise to the effect that P would not marry anybody except Catherine. P had also agreed that he would pay 2000 pounds, is he marries somebody else. In fact, P married B, Catherine sued P. Held, there was a restraint on marriage and hence, the contract was void. Marriage Brokerage' contracts are also void. In Venkatakrishna V. Venkatachalam, a sum of money was agreed to be paid to the father in consideration of his giving his daughter in marriage. The Madras High Court held, that this amounted to "brokerage" of (Commission for) marriage and hence void. Sn. 7 of the Dowry prohibition act 1961 has prohibited such offers and has made taking or giving a dowry an offence. Similarly, an agreement to separate husband and wife is void. An agreement by a husband to marry K, after the death of his wife W, is also bad and void. These are opposed to public policy. Agreement in restraint of trade : Contract Act Sn. 27, states that every agreement in restraint of lawful trade, profession or business of any kind is void to that extent. One exception is provided when the goodwill of a business is sold, conditions may be imposed to restrain doing any similar business within certain specified local limits. This limit must be reasonable, depending on the nature of the business. The restraint should be in no way injurious to public interest. The test of reasonableness is applied by courts in England. Nordenfelt V. M. Nordenfelt Co. N sold his business of manufacturing guns and ammunition to M for a sum and agreed that for 5 years, he would not carry a similar business or any other to compete with that business. Held, that the restraint was reasonable under the circumstances of the case. Agreement to sell goods at a particular rate fixed by the company is not a restraint on trade. Combination by traders to fix up the selling price of ice, is valid. Monopolies and Restrictive Trade Practices Act (MRTP Act) aims at declaring as offences acts which restrict or distort certain trade practices. Agreement in restraint of legal proceedings. Sn. 28. Every agreement which absolutely restricts any party his right to move the court, is void. Similarly, restricting the time limit to enforce is also void. Any agreement which purports to oust the jurisdiction of the court is void. Further, any time limit in violation of the limitation act is also void. For pronote the time is 3 years. Hence, agreeing for 6 years to sue on a pronote is void. Exception : Any agreement to settle disputes by arbitration is valid. Similarly, any contract to recover only the award of the arbitrator is valid. An agreement between the parties, that the suit shall be filed in a particular place is valid. A in Calcutta and B in Mysore agree that anydispute should be settled in the courts of Calcutta. This is valid.

VOIDABLE CONTRACTS www.lawtool.net Undue influence : (Sn. 16) :- An agreement is said to be induced by undue influence, if the relation subsisting between the parties is such that, one of them at the time of the agreement. a) was in a position to dominate the will of the other party, and b) that he has used that position to obtain an unfair advantage for him. There is a presumption of undue influence when : A person who stands in a fiduciary relation to the other, or a person who holds a real or apparent authority over the other or a person who contracts with another whose mind is enfeebled by age, illness, physical or mental distress. In such circumstances if the transaction is unconscionable, the onus of proving that the contract was not under undue influence is on the dominating person. There is a presumption of undue influence in the following relationships parent and child, guardian and ward ; trustee and beneficiary, spiritual master and pupil, Doctor and patient etc. The section applies to every case where influence is acquired and abused and where confidence is reposed and betrayed. Eg. i) A advances money to his son B during his minority. When B attains majority, A exercising his parental influence gets a bond for sums excessive than advanced. A has employed undue influence. iii) D a doctor induces B his patient to pay a very heavy sum for his services. D has used undue influence. ) In Allcard Vs. Skinner. P. joined the sisterhood of a church andwas under the spiritual control of D, a lady superior. P had advanced a total of £ 7000 at various points of time, to D. 6 years after leaving sisterhood, she sued D to recover the amounts. Held that advances were made under pressure ; (undue influence) butthe suit was barred by time. Legal consequences : The contract vitiated by undue influence is voidable and the party affected may sue to get the declaration that the contract is void. A forges B's signature. B, threatening to prosecute A, gets a bond from A for Rs.2000/- The bond is voidable, at the option of A. Fraud : Section 17 contract act deals with fraud with reference to contracts. In fraud : 1) There must be an intention to deceive 2) The act may be by the party to the contract or with his connivance 3) There must be suggestion falsi. or 4. Active concealment of fact (suppressio vari). or 5) A false promise or 6) Any act or omission which may amount to a fraud according to law. If a party has entered into a contract in which any one of the above elements can be shown, then it is a contract which becomes voidable due to fraud. Leading case is Derry Vs. Peek. In this case, the defendants issued a prospectus stating that the company had the right to use steam power instead of horse, on their tram way. The directors had believed that the Board's permission was a mere formality, but the Board refused to give permission to the company to use steam power. The company was wound up. The plaintiff sued for "deceit". It was held that there was no fraud as there was no intention to mislead. It was an honest mistake on the part of the company. This is no longer good law today. Today according to the Companies Act, the directors are liable for negligent misstatements. Mere silence will not amount to fraud unless keeping silence itself amounts to fraud under the circumstances. Eg. 1. A sells by auction to B a horse which A knows to be unsound, B buys the horse and A says nothing about it. This is not a fraud. 2. B says to A if you do not deny, I presume that the horse is sound. A says nothing. Mere silence amounts to speech. 3. A and B are traders. A enters into a contract with B ; B agrees to sell at a particular price. But, the market price had gone up which A knew. B did not know it. There is no fraud. Mere non-disclosure is not fraud. Misrepresentation : Section 18. contract act defines misrepresentation. It means and includes : i) An unwarranted positive assertion of that, as not true, even though he believes it to be true. ii) Committing breach of duty to mislead another person. iii) Causing a party to the contract to make a mistake as to the subject matter of the agreement. Eg : A induces B to believe that C's factory is manufacturing 500 metric tonnes of Indigo annually thereby he induces B to buy the factory. This is misrepresentation and if B buys, he may avoid the contract as it is voidable. Mis-representation may be of two kinds : 1. it is innocent misrepresentation when there is an honest mistake on the part of the person making representation. 2. Wilful representation (Fraud). Here there is a willful falsehood with an intention to deceive. This amounts to fraud (Section 17) Breach'of duty : There must be some relationship between the parties e.g. buyer and seller, landlord and tenant, banker and client etc. The misrepresentation must be material. Bannarman V. White : A agreed to sell to B, hops which had been grown by A. B's condition was that no sulphur should have been used while growing hops. A had agreed. But, out of 300 acres, in 5 acres sulphur had been used. Held this was a misrepresentation and B may avoid the contract. Coercion : Sn. 15 Coercion is the committing or threatening to commit, any act forbidden by the Indian PenalCode, or the unlawful detaining, or threatening to detain any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. Contract made under coercion is voidable at the option of the party whose consent was so obtained. The reason is that the consent is not free as defined in Sn. 14. According to this, if consent is caused by coercion, undue influence, fraud, or misrepresentation then the contract is voidable at theoption of the party whose consent is so obtained. The essentials of coercion are : 1) There must be a commission of (or threatening to commit) an offence under I.P.C. 2) There must also be the unlawful detaining (or threatening to detain) any property. Examples : A obtains B's consent at gun point; A threatens to cause grievous hurt and obtains B 's consent for an agreement; A threatens to burn down, valuable documents of B, and obtains B's consent. InAmmiraju Vs. Seshamma, H, the husband by creating a threat to commit suicide, induced his wife W and son to give their properties by a release deed to B, the brother of H. it was held that threat to commit suicide amounted to coercion, and hence the contract was voidable. In Ashley Vs. Reynolds P pledged his plate with B and took a loan of 20 pounds. When P went to B to take back his plate B demanded 10 pounds interest as otherwise he would not deliver. P paid 20 pounds and also 10 pounds, and took delivery. P sued d. Held, D was liable as he had extracted extra money. Mistake of fact or law in a contract: One essential condition of a contract is that there must be free consent. Consensus ad idem i.e., parties agreeing the same thing in the same sense. This free consent is affected in case of coercion, fraud, misrepresentation and hence, the contract becomes voidable. In respect of "mistake" the Contract Act has made some provisions (Sns. 20, 21 & 22). i) Mistake by both the parties : (Sn.20) When there is a mistake of fact essential to the agreement, the agreement is void. This happens when there is a mistake as to the existence or identification of the subject matter. A and B agreed for the sale and purchase of India Corn, on board a ship which was bound for England. Unknown to A and B, the corn had been damaged and discharged, even before the agreement. Held : contract "void", as there was mistake of fact as to the existence of corn. A agreed to sell and B agreed to buy 125 bales of cotton, which was to arrive by a ship called "Peerless". Infact, there were two vessels of the same name of sail from Bombay : One in October and another in December. Held, there was no consent and hence no contract. ii) Mistake by one party : When there is a mistake of fact by one of the parties, the contract is valid. It is neither invalid nor voidable. Hence, the party under a mistake notion cannot escape the liability There are some Exceptions : 1) If there is a unilateral mistake as to the nature of the contract, the contract is void e.g. an old illiterate man was made to sign a bill of exchange, by falsely representing it was a guarantee. When he was sued, the court held that there was error in consent, and hence, the contract was void. 2) Mistake in the identify of persons : If A enters into a contract with B, believing him to be B, but it turns out that he was C, the contract is void. Cundy V. Lindsay : B, by imitating the signature of a reputed firm, induced X to supply goods on credit. B later sold the goods to D. X sued D to recover the goods. Held, X never intended to contract with B. Hence, the innocent buyer from B does not get a title. Hence, X could recover the goods from D. iii) Mistake of Law : (Sn. 21) : The general rule is 'Ignorantia juris non excusat' (Ignorance of law is no excuse). Hence, if a contract is made with a mistake as to the existence of a law, the contract is valid, (and so not voidable). In case of mistake of foreign law, it is treated as a mistake of fact. Hence, the rule in Sn. 20, applies.

FREE CONSENT OR CONSENT www.lawtool.net Free consent: One essential requirement of a valid contract is that it must have free consent. The parties must have consensus ad idem, that is they must agree upon the same thing in the same sense. Consent is not free if it is caused by Coercion ; undue influence, fraud or misrepresentation or mutual mistake. That is, but for the existence of coercion, undue influence etc., consent would not have been given. For a valid contract there must be free consent. If it is affected as in coercion, undue influence etc., the contract becomes voidable. When there is no consent the contract is void. 'Consent' is defined in Sn.13. Two or more persons are said to give consent when they agree upon the same thing in the same sense i.e.,consensus ad idem. Legal consequences : i) If there is a mistake of fact by both the parties, then there is no consent, and, hence the contract is void. (Sn. 20). A agrees to sell his horse to B. But, at the time of sale the horse was dead. Both did not know this fact The contract is void. ii) If consent is obtained by fraud, coercion or misrepresentation, the contract is voidable, at the option of the party affected "A". A may insist that he may be put in the position in which he would have been put, if there was no fraud or misrepre-sentation.etc. ii) When there is no consent, the contract is void ab initio. According to Sn. 1 : "all agreements are contracts, if they are made by the free consent of the parties". Hence, free consent is one of the essentials of a contract.

CAPACITY OF THE PERSON www.lawtool.net Minors contract: Section 11 of the contract act, states that the parties to the contract must be competent to contract is that, the two parties must not be "incapax". There is no capacity when a party is a minor or insane, an idiot or when he is disqualified according to any special law, to which he is subject. i) Contract entered into by a minor is void ab-initio: A person who has not completed 18 years of age is a minor and in the case of a ward he is a minor until he attains thee age of 21 years. The leading case on this point is Mohori Bibi Vs. Dharmadas Ghosh (1903). D. Dharmadas a minor executed a mortgage for a sum of Rs.20,000/- out of which the money lender M had paid him only Rs.8,000/-. M had notice of the minority of D, D sued to set aside the mortgage. It was held by privy council that the contract was void ab-initio and no question of refunding moneys arose in such a transaction. This has been followed in a number of cases. Hence it is settled that a Minor's contract is void from the beginning. The aim of the Contract Act is to protect the interests of a minor, and to save him from the transactions in which the other party may have taken advantage of the minority of the person. It has been held that if a minor performs his promise and delivers goods to another party, the minor has got a right to recover the price through his guardian. The minor is entitled to plead his minority and is not estopped under the provisions of the evidence act (Sn.115). This is settled \in SadiqAli Khan V.JaiKishore; a deed entered into by a minor was held a nullity. False representation as to age, could not stop him from pleading his minority. ii) Necessities supplied to a minor : According to Sn. 68 of the contract act if necessaries are supplied to the minor then the person who supplies is entitled to be reimbursed of the amounts from the property of the minor. The minor is not personally liable. Leading case : Rider Vs. Wombwell. Supplying golden buttons etc., to a minor was not a "necessity"). iii) Estoppel, not applicable to minor : Even if a minor falsely represents himself to be a major and enters into a contract, the contract is void and unenforceable. The minor may plead his minority in the suit against him. The rule of Estoppel that he shall not deny his representation as a major, is not applicable to him. This does not entitle him to cheat persons and gain some advantage. If he cheats a trader and gains property, he will be liable to restore it to the trader. iv) Ratification : As the minor's agreement is void ab initio, the minor cannot ratify and make the contract valid after attaining majority. There is no specific performance against the minor as the agreement is void ab initio. Insanity, Idiocy : Incapacity may arise as a result of insanity or idiocy. The rule in such a case is that a contract made by an. insane or an idiot is void ab-initio. But a lunatic who is usually of sound mind but occasionally of unsound mind may make a valid contract, during his lucid intervals. Sn. 12; The test is, such a person must be capable of understanding the contract, and of forming a rational judgement as to his interests. "A", a patient in a Mental Hospital, who is at intervals of sound mind, may contract when he is of sound mind. Drunkenness: Drunkenness is also considered as an incapacity and contract made by a drunken person is void. Hence a man who is so drunk that he cannot understand the contract or who cannot form rational judgement cannot make a valid contract. Other incapacities : Incapacity may arise as a result of the status of persons as in the case of foreign sovereigns, Ambassadors, enemy alients etc.

CONTRACTS, OFFER, ACCEPTANCE AND REVOCATION www.lawtool.net Definition and Essentials : Sn.2(h),Contract Act defines a contract. According to it, a contract is an agreement enforceable by law. It is thus an agreement between two or more persons, to do or not to do some act. In fact, every promise, forming the consideration for each other, is an agreement. If the agreement is not enforceable, the contract is void. Hence, all contracts are agreements, but not all agreements, contracts. Essentials : Sn.10. Contract Act The essentials of a valid contract are : i) Consent of the parties i.e., Consensus ad idem ii) Legal capacity or competence of the parties iii) Consideration and iv) Lawful object and lawful consideration i) Consent: It is defined in Sn. 13 : Two or more persons are said to give consent, when they agree on the same thing in the same sense i.e., consensus ad idem. It is not free, when there is coercion, undue influence, fraud or misrepresentation. In such a case, the contract becomes voidable. But, when there is no consent, the contract becomes void. ii) Legal capacity : Sec. 11 of the Contract act, states that the parties to the contract must be competent to contract. There is no capacity, when a party is a minor or insane, an idiot or when he is disqualified according to any special law to which he is subject. A contract with a minor is void ab initio.[from the beginning] A person below 18 years of age is a minor (21 years for a ward under a guardian). The leading case is Mohori Bibi V. Dharmadas Ghosh. iii) Consideration : An agreement without consideration is void. (Sn. 25 Contract Act). Consideration is defined in Sn. 2(d). When at the desire of the promisor, the promisee or any other person has done or abstains from doing, or does or abstains from doing, or promises to do or abstains from doing, something, such act or abstinence or promise, is called a consideration for the promise. 1. The rule is "ex nudo pacto, non oritur actio" [On naked pact (contract),no action arises ].i.,e. without consideration, no action arises. Consideration must be clear, specific and not illusory. It may be inadequate, if parties agree to the contract. By that itself contract will not become void. But, the general rule is "no consideration, no contract". But there are exceptions. 1. When agreement is made on account of natural love and affection (e.g.Gift by father to daughter), it should be in writing and to be registered. 2. Compensation, promised for services rendered. 3. Past consideration is good consideration, iv) Lawful object : According to Sn.23 of the Contract Act, the consideration or object of the agreement must be lawful otherwise the contract is void. The consideration or object is not lawful : i) it is forbidden by law ii) It is of such a nature that if permitted it would defeat the provision of any law iii) it is fraudulent vi) it involves or implies injury to the person or property of another v) it is immoral or opposed to public policy. e.g. (1) A, B & C agree to divide their earnings got by fraud. (2) lease agreement of a house for immoral purposes. Offer and invitation to treat: Sn. 2(a) : Offer or proposal is defined in Sn.2(a) of the contract act. "When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other, to such act or abstinence, he is said to make a proposal (offer). The person who makes the proposal is called a "promisor", the person accepting the proposal is called a promisee. When the promisee gives his assent, it becomes "Acceptance", (i) The offer must be definite and give rise to legal consequences. Invitation to treat: According to Anson, as offer is different from an "invitation to treat". A catalogue of goods for sale is not an offer but only an invitation to offer. A shopkeeper who keeps his goods in the shop window with label of price attached, is making an invitation to offer. Similarly, a mere reply to a letter quoting prices will not constitute a proposal to sell. (a) Harvey V. Facey : H telegraphed, "Will you sell us Whiteacre? Telegraph lowest price". F replied : "Lowest price £ 900". H telegraphed "We agree to buy for £ 900 asked by you". Held : There is only an offer, by H to buy. It is for F to accept or not. Here, F has not accepted. Hence, there was no acceptance. (b) Balfor V. Balfor : Husband H, promised to send £ 23 a month to his wife W, as long as she remained away from him. Held : W cannot sue. The promise of H was never intended to give rise to legal consequences. (ii) General & Specific offer : An offer may be general or specific. It is a specific offer when it is made to a definite individual or to a definite group of individuals. It is, considered as a General offer when it is made to an unascertained group of individuals i.e., to the public at large. Here, offer can be accepted by any individual. Hence, if a reward is fixed, any person who fulfils the conditions may claim the award. The leading case is Carlill Vs. Smoke Ball Company. In this case, the defendant advertised that they would pay 100 pounds to anyone who gets influenza, after using their smoke-ball. This smoke-ball is to treat the nostrils with a kind of carbolic acid snuff. This is to be used as per directions of the defendant company. The company had deposited money in a bank to show their sincerity. Carlill got influenza after using it. She claimed the reward. The court held that the company was liable to she was entitled to the reward. Jude Bowen held, the advertisement was not an invitation to offer, but a general offer which was accepted by the lady and hence, it became a binding contract. She had used on the faith of the advertisement. Her acceptance of the smoke-ball needs no communication to defendant. Her performance that is by using as per direction was sufficient acceptance.This case shows that offer, if it is to be capable of acceptance, must have a promise by offeror that he will bind himself, if conditions are followed. Similarly, Railway time-table is an invitation to offer. Acceptance of offer : According to Anson "An acceptance is to an offer what a lighted match is to a train of gun powder". This means when the offer is accepted it becomes a contract. According to Contract Act Sn.2(b): When the person to whom, the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise. According to Sn.7, in order to convert a proposal into a promise, the acceptance must be : i) Absolute and unqualified ii) Be expressed in some usual and reasonable manner. But if a particular mode is prescribed, it must be accepted in that mode. Otherwise, the proposer may insist on such a mode. If he does not insist, he is said to have accepted. Acceptance should be absolute : Hyde V. Wrench : W offered to sell his farm to H for £ 1000. H said he would buy for £ 950. W did not agree, later H agreed for £ 1000. Question was whatever there was acceptance. Held : there was no acceptance, as it was qualified, i.e., to buy for £ 950. Communication of a proposal when complete : i) It is complete, when it comes to the knowledge of the person to whom it is made. ii) The communication of an acceptance is complete.as against the proposer, when it is in communication to him, so as to be out of the power of the acceptor. a) as against the acceptor, when it comes to the knowledge of the proposer. i) A proposes by letter to sell his house to B for Rs.50,000/-The communication is complete when B receives it. ii) B accepts A's proposal by a letter by post. The communication of acceptance is complete, as against A, when the letter is posted, and as against B, when A receives the letter. Revocation of proposal and acceptance : Sn.6 The communication of revocation is complete : i) as against the person who makes the revocation, when it is put into communication to the person to whom it is made, so as to be out of the power of the person who makes it. ii) as against the person, to whom it is made, when it comes to his knowledge. e.g. A revokes his proposal to sell his house to B, by a telegram. The revocation is complete as against A, when the telegram is despatched. It is complete as against B, when B receives it. B revokes his acceptance by telegram. B's revocation is complete as against B, when the telegram is despatched, and as against A, when it reaches him. Revocation of a proposal: 1) By issuing notice of revocation by the proposer to the other party. 2) By efflux of time prescribed. If no time is prescribed, by the lapse of a reasonable time. 3) By the failure of the acceptor to fulfil some condition precedent (prior condition). 4) By the death or insanity of the proposer. Leading case : Dickinson V. Dodds. On 10th June, Dodds made an offer to sell his dwelling house for £ 800 to Dickinson. "The offer was left open upto 9 a.m. 12th June". But, on 11th itself he contracted to sell the house to A'. Dickinson handed over hisletter of acceptance before 9 a.m. on 12th. Dodd said "you are too late. I have sold my property". Dickinson sued Dodds. Held, there was no contract. Comment: Anson has doubted this decision. This is no longer good law in India. In India, a proposal is revoked by notice of revocation by the proposer to the other party, or on the efflux of time if time is prescribed , or by lapse of a reasonable time if no time is fixed. Stranger to a contract : A stranger is not a party to the contract and hence cannot sue. Consideration is defined in Sn. 2(d). When at the desire of the promisor, the promisee or any other person had done something ...such act ....is consideration for the promise. Hence, consideration may flow from the promisee or any other person. Hence, the question is whether a stranger can sue ? Tweddle V. Atkinson : Here H & W were husband and wife. H's father and W's father agreed to pay money to H and that H could sue. When both parties to agreement died, H sued W's father's executors for the money. Held that H was stranger and hence, cannot sue. Hence, it is a settled law that a stranger cannot sue. Exceptions : 1. When a contract confers benefit on third party, such a beneficiary, as in trust may sue. 2. Trust in favour of a stranger is valid. 3. When money is due under a family arrangement or partition, to a stranger. In the above circumstances, stranger can sue. Valid, void, voidable and unenforceable contracts : a) Valid contract: It is an agreement which has all the requisites of a contract. i) Free consent ii) Consideration iii) Lawful object iv) Legal capacity of the parties. Hence, such a contract is valid and is enforceable in a court of law . b) Void contract : It is an agreement without any legal effect. It is a nullity. It is not enforceable in a court of law. An agreement not enforceable by law is void.Eg. 1) Contract with a minor Sn.ll. 2) Contract without consideration Sn. 25. 3) Contract with object unlawful Sn. 23 4) Wagering contract Sn. 30. 5) Contract in restraint of trade Sn. 27. or in restraint of marriage. Sn. 26. c) Voidable contract: This is an agreement which is enforce able by law at the option of one of the parties thereto but not at the option of the other. Voidable contract is a valid contract until it is set aside by the court. The person who has the right to rescind must do so within a reasonable time, ie., 3 years. Any agreement made under undue influence, coercion, fraud, misrepresentation is voidable. Hence, when the court sets aside the contract the contract becomes void. Undue influence . Fraud . Misrepresentation. Coercion , Unenforceable. contract: It is a contract which is otherwise valid in all respects but cannot be enforced on account of some technical defects like insufficient stamps, not written in a particular form, etc.

CONCEPT OF CRIME AND THE LAW OF CRIMES IN INDIA MEANING OF CRIME Definition of ‘Crime’: The word ‘Crime’ is derived from Greek expression Krimcs’ which means social order and it is applied ‘to those acts that go against social order and are worthy of serious condemnation’. The word ‘Crime’ has not been defined in the Indian Penal Code’, Definitions given by eminent criminologists and sociologists are as given below: As a Public Wrong: Sir William Blockstone defines crime in two ways : (i) Crime is “an act committed or omitted in violation of a public law forbidding or commanding it”, (ii) “A crime is a violation of the public rights and duties due to the whole community, considered as a community. Sir James Stephen, while modifying the Biackstone’s definition, states, “A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large”. As a Moral Wrong: According to Raffeale Garafalo, “Crime is an immoral and harmful Act that is regarded as criminal by public opinion because it is an injury to so much of the moral sense as to community- a measure which is indispensable for the adaptation of the individual to society”. As a Conventional Wrong: Edwin Sutherland says, “Criminal behaviour is behaviour in violation of the criminal law. No matter what the degree of immorality, reprehensibility, or indecency of an act, it is not a crime unless it is prohibited by the Criminal law. The Criminal law, in turn, is defined conventionally as a body of specific rules regarding human conduct which have been promulgated by political authority, which apply uniformly to all members of the classes to which the rules refer, and which are enforced by punishment administered by the State. Characteristics, which distinguish this body of rules regarding human conduct from other rules, are therefore, politically, specificity, uniformity and penal sanction.” As a Social Wrong: According to John Gillin, a sociologist, “Crime is an act that has been shown to be actually harmful to society, or that is believed to be socially harmful by a group of people that has the power to enforce its beliefs and that places such crimes under the ban of positive penalties.” As a Procedural Wrong: Austin says, “A wrong which is pursued by the sovereign or his subordinates is a crime. A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury.” According to Kenny, “Crimes are wrongs whose sanction is punitive, and are in no way remissible by any private person, but are remissible by the crown alone, if remissible at all.” According to Paton, “In Crime we find that the normal modes are that the State has power to control the procedure to remit the penalty or to inflict punishment.” Keeton has defined crime as, “A Crime today would seem to be any undesirable act, which the State finds it most convenient to correct by the institution of proceedings for infliction of penalty instead of leaving the remedy to the discretion of some injured person.” Other Definitions: As per the Oxford English Dictionary, Crime is “an act punishable by law as forbidden by statute or injurious to the public welfare.” Halsbury’s Laws of England provides, “A Crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment.” Michael and Adler state, “the most precise and least ambiguous definition of crime is that which defines it as behaviour which is prohibited by the Criminal Code. According to B.A. Wrotley, “A Crime is an offence against the law, and is usually an offence against morality, against a man’s social duty to his fellow members of society, it renders the offender liable to punishment. Osborn states, “Crime is an act or default which tends to the prejudice of the community, and forbidden by law on pain of punishment nflicted at the suit of the State.” Donald Taft defines, “Crime is a social injury and an expression of subjective opinion varying in time and place.” Miller defines crime “to be the commission or omission of an act stiich the law forbids or commands under pain of a punishment to oe imposed by the state by a proceeding in its own name.” Paul W. Tappan defines crime as “an intentional act or in violation :f criminal law, committed without defence or justification and sanctioned of the law as felony or misdemeanour.” Sellin defined the crime as “an act which offends the basic -;ral sentiments of pity, revulsion against the voluntary infliction suffering or/others and property in respect of the property rights others.” Elener Hubert Johnson states that crime is “an act which the group rjards as sufficiently menacing to its fundamental interest to justify : ~sal reaction to restrain the violator.” As per C. Jones, “Crime is a legal wrong the remedy for which s punishment of the offender at the instance of the State.” Prof. Hart said that in order to term an act as Crime, the following **: questions must be answered in the affirmative:— i) Whether the activity which offends and moral feelings is harmless independently of its repercussion on the general moral code; and ii) Whether the whole moral fabric of the society would go to pieces if the offending act is not made criminal. J.W. Cecil Turner has given the following description of a crime:It is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics : (i) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (ii) that among the measures of prevention selected is the threat of punishment; (iii) that legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.” We find that it is very difficult to get a definition of crime suitable to all countries for all the time. The following are, according to Jerome Hall, interrelated and overlapping differential of crime : (i) There must be some external consequences or ‘harm’ to social interests. (ii) The harm must be ‘prohibited’ by penal law. (iii) There must be ‘conduct’ i.e., intentional or reckless action or inaction that brings prohibited ‘harm’. (iv) There must be ‘mens rea’ or ‘criminal intent’. (v) There must be “concurrence’ of mens rea and conduct. (vi) There must be a ‘causal relation between the legally prohibited harm and the voluntary misconduct. (vii) There must be legally prescribed ‘punishment’ or threat of punishment.

BAR BENCH RERLATIONS CONTEMPT OF COURT www.lawtool.net Object of the Act: The main object of the contempt of court Act is to protect the dignity and decorum of the court and to uphold the majesty of law. The object is not to protect the judges from criticism. By providing punishment for contempt of the court the ability to deliver fearless and impartial justice is strengthened. Definition: The definition given in the Act for the term contempt of court is not exhaustive. it is difficult to define it by words, because the scope of contempt of court is very wide. Contempt means (i)Any disrespect to the authority of law. (ii) Disobedience of the order of the court. (iii) Disturbance to the proceedings of the court. Types: Following are the types of contempt (i) Civil contempt and (ii)Criminal contempt. Civil contempt S.2(b)defines the term `civil contempt ’.` It means (i)Willful disobedience to any judgemaent,decree,direction,order,writ or other process of a court;or(ii)Willful breach of an undertaking given to a court. For taking action for civil contempt on the ground of willful disobedience of court order, it should be established that the court which has passed the order has jurisdiction to pass such order. Disobedience of an order passed without jurisdiction is not a Contempt must prove that the court has no jurisdiction. A willful breach of an unconditional undertaking given orally or in writing either in person or through his Advocate will be treated as civil contempt. When undertakings are given orally , the court shall record it in the proceedings. Breach of a compromise entered in the court cannot be treated as civil contempt. The remedy in such cases is only a civil suit for specific performance of the promise. Punishment: S.12 prescribes the punishment for contempt. court may award any one of the following punishments. (i) Simple imprisonment for a term which may extend to 6 months. (ii) Fine which may extend to Rs.2000/-. (iii)Both the punishment ie., Imprisonment and fine together. Criminal contempt S.2C defines the term `criminal contempt’. It means (i) Publication of any matter (by words, spoken or written, or by signs or by visible representation or otherwise.) (ii) Doing of any other act which (a) Scandalises or tenda to scandalide, or lowers or tends to lower the authority of any court; (b) Prejudices or interferes or tends to interfere with the due course of judicial proceeding; or (c) Interferes or tends to interfere with, or obstructs or tends to obstruct the Administration of justice. Publication means publishing something orally or in writing through news paper, pamplets, radio, television or cinema. conversation between two persons cannot be treated as publication. To decide criminal contempt, the absence of criminal intention on the part of the person who has published the matter containing criminal contempt or done the act of contempt will not be taken into account. In E.M.S.Nambothribad v.T.N.Mambiar (AIR 1970 SC 2015) the then Chief Minister of Kerala, Mr.Nambothribad in a press meet expressed the following about judiciary. judiciary is responsible for the suppression of people. Judges are favouring some class of people and working against the other classes. Judiciary is acting against the interest of working class and the agriculturist. judiciary is helping the oppressor group. The supreme court held that the act of Mr. Nambothribad amounts to criminal contempt. Making complaint against a Judge about his misconduct with sufficient evidence to the higher authorities is not a contempt. But, the same complaint is published in any manner then it amounts to contempt. Preventing the court Amin from executing the court order, Threatening an Advocate not to appear in a particular case, Threatening the witness, Preventing the witnesses from attending the courts, Preventing the Commissioner from performing his duties are treated as criminal contempt. punishment. 1.Simple imprisonment for a term which may extend to 6 months. 2.Fine which may extend to Rs.2000/-. 3.Both the punishments ie., imprisonment and fine together. According to S.12(2),For contempt of court any one of the above mentioned punishment alone can be given and not any other punishment alone can be given and not any other punishment. But, in Delhi Judicial Services Association v. State of Gujarat (AIR 1991 SC 2176)the Supreme Court held punishment not mentioned in S.12 can also be given for contempt of court. In Re Vinay Chandra Mishra (AIR 1995 SC2348)the supreme court held that for contempt of court committed by an Advocate, he shall be suspended from practice for a fixed period or he shall be permanently restrained from practice. The Supreme Court Bar Association has filed a review petition against this order. In which the supreme court held that for contempt of court the court cannot cancel the Advocates right to practice. But, he shall be suspended from practice for a fixed period. For the civil contempt, normally fine alone will be imposed. If the court thinks that fine alone is not a sufficient punishment then he shall be put in the civil prison instead of ordinary imprisonment. If the contempt of court is committed by a company in collusion of the Directors, Secretary and other Managerical staff then shall be detained in the civil prison. If the contempt is committed by a firm then the punishment shall be enforced against the partners of the firm. Defences in Criminal Contempt Or Criminal Contempt not Punishable S.3 to 7 deals with the defences avilable in Criminal Contempt. They are as follows: 1.Innocent Publication(S.3):A person shall not be guilty of contempt of court if he had made any innocent publication of any matter pending before a court without knowing that the mater is pending a court. The person charge with contempt must prove that publication is made without knowing that the Matter is pending in the court. 2.Publication Relating to a Decided Case (S.3(2)):Publication about the decided case is not a contempt since the case is already decided by the court, the publication is not going to interfere with the disposal of the case. that is why it is not treated as contempt. 3.Distribution of publication without knowing that it contains contempt of court Matter(S.3(3)): If a person distributes and publication without knowing that it contains contempt of court matter then it cannot be treated as contempt. If the publication does not contain the name and address of the Author, publisher and printer then this defence cannot be used by the person distributing such publications. 4.Fair and Accurate Reporting of Judicial Proceedings(S.4): Fair and accurate reporting of judicial proceedings is not a contempt. This is because we are following the principle of openness in the matter of administration of justice. The following reporting of judicial proceedings though it is fair and accurate it will be treated as contempt of court. 1.Reporting of the proceedings against any law which is in force. 2.Reporting of the proceedings when the court has prohibited the reporting in the interest of the general public. 3.Reporting of the proceedings conducted in the judges chamber in the interest of defence of public order. 4.Reporting of information relating to secret process, discovery or invention which is an issue in the case. 5. Fair Criticism of Judicial Act(S.5): A proper and fair comment on a decision is not a contempt of court. Criticism is permitted to the extent where it does not interfere with the administration of justice. So, it is open to any one to express fair, reasonable and legitimate criticism of a judicial decision. 6. Bonafide Complaint against the Presiding Officers of a subordinate court(S.6): A bonafide complaint made in good faith against the presiding officer of a subordinate court to the higher authorities, who have control over such subordinate court, is not a contempt. 7. No Substantial Interference with the Administration of Justice: It means an act which is technically a contempt but such act does snot substantially interfere with the administration of justice. For such acts no punishment is awarded. Defences in the Civil Contempt or Civil Contempt not Punishable Following are some of the important defences available to a person charged with civil contempt. 1. Disobedience of the Order is Not Willful: If the disobedience of the order is accidental or which is not willful then it’s a good defence in a civil contempt proceedings. 2. The Order Passed Without Jurisdiction: If the order passed by the court is without jurisdiction then the disobedience or violation of such order cannot be treated as contempt of court. An order passed without jurisdiction is void, hence it won’t bind any person. The person charged with contempt must prove that the court has no jurisdiction to pass such order. 3. Order Disobeyed is Vague or Ambiguous: An order is treated as vague if it is not clear, specific and complete. For violation of such order contempt proceedings cannot be taken. 4. Order Involves More than One Reasonable Interpretation: If the order of the court involves more than reasonable interpretation, and one interpretation is adopted by the party and acted in accordance with such interpretation then he cannot be held liable for contempt of court for not following the order interpretation. 5. Compliance with the Order is Impossible: Impossibility means that the implementation of the order is practically not possible .impossible is different from mere difficulty. Mere difficulty is not a defence. The person charged with contempt must prove the impossibility of compliance with the order. In Amar Singh v.K.P Geatha Krishnan(1993,I SCR 465)the court has passed on order to give some benefits to the retired employees. This order was not implemented. In the contempt proceeding it was argued that the implementation of the order involves huge expenditure hence compliance with the order is impossible. The court has not accepted this defence. 6.No Knowledge of the Order: A person cannot be held liable for civil contempt, if he has no knowledge about the order. If he has knowledge about the order, through it is not officially communicated to him, then he cannot put this defence for violation of the order. Contempt against Subordinate Court The Contempt of court Act, 1971 confers power only to the Supreme Court and High Courts to try the contempt of court and award suitable punishment. Contempt of court against the subordinate courts shall be tried by the High court. The concerned subordinate court or the Advocate General of the state shall file the petition before the High court. In the Union Territories, the officer authorized in this behalf shall file the petition. A contempt which comes within the definition of S.228 of I.P.C. shall be tried and punished by the subordinate courts. S.228: When judicial proceedings are going on, a person causing disturbance to the proceedings and thereby shows disrespect to the court shall be punished with simple imprisonment for a term which may extend to 6 months or with a fine which may extend to Rs.1000/-or with both. In the trial of such cases the court shall follow the procedure laid down in S.345 & 346 of Criminal procedure Code. This section deals with summary procedure. So the court shall follow summary procedure and no detailed enquiry is needed. Contempt Procedure in the Supreme Court or the High Court The Contempt of the court Act confers the following two types of powers to the supreme court and the High courts with regard to contempt of court. 1.Power to punish a person who has committed contempt of court inside the court(S.14). 2.Power to punish a person who has committed contempt of court outside the court(S.15). 1. Contempt of Court Inside the Court: When judicial proceedings are going on, if it appears to the court that a person is guilty of contempt of court in their presence then the court shall take the following actions. (i) Pass an order to arrest the person. (ii) Give a notice in writing immediately regarding the charges against him. (iii) Offered him opportunity to make his defence to the charge. (iv) Take such evidence as may be necessary or as may be offered by such person and hear him. During the trial, if the person charged with contempt applies either orally or in writing, for a trial by some other judge other than the judge in whose presence the alleged contempt is committed then the request along with the statement of facts of the alleged contempt shall be placed before the Chief Justice shall be taken as evidence. If the case is transferred to some other Judge then the judge in whose presence the alleged contempt was committed need not appear as witness. The facts submitted by him to the Chief Justice shall be taken as evidence. During the pendency of the proceedings, the person charged with contempt shall be detained in such custody as the court may specify. He may be released on bail with or without sureties or on a self bond as the court thinks fit. In Sugdev Singh v. Deeja Singh(AIR 1954 SC 186)the supreme court has advised that to the extent possible, the judge in whose presence the alleged contempt was committed, must avoid to conduct the trial by himself. 2.Contempt of Court Outside the Court: The supreme court or the High Court shall take action for contempt of court committed outside the court in the following situations. (i) On its own motion. (ii) On a petition made by the Advocate General(in relation to the High Court)( or the Attorney General or the solicitor General(in relation to the Supreme Court). (iii) On a petition by any other person(if consent is given in writing to file such petition by the Advocate General or Attorney General or Solicitor General as the case may be). A person cannot file a contempt of court petition without the consent of the Advocate General or the Attorney General or the Solicitor General. After Admitting a petition the court shall follow the following procedure. 1.Notice shall be sent to the person charged with contempt. 2.Person charged with contempt shall be allowed to submit his defence in an affidavit. 3.The trial shall be conducted by persuing the defences submitted by him or taking such other evidences as may be necessary. 4.The trial shall be conducted by a bench consisting of two judges. 5.If the court feels that the person charged with contempt may abscond then his properties shall be attached. Limitation: The limitation period for filing a petition for contempt of court is one year. After one year even the court cannot take action on its own motion(s.20). Contempt by Judicial Officers S.16 of the Act deals with contempt by judges, Magistrates and other persons acting Judicially. According to this section these persons are also liable for contempt of his own court or any other court just like an ordinary individual. If they are not made liable for contempt then people may lose faith on judiciary by the contempt act of judges. Observation or remark made by a Judge regarding a subordinate court in an appeal or revision pending before him shall not be treated as contempt of court. In State of Rajasthan v.Prakash Chand (AIR 1988 SC 1344)the Supreme Court held that S.16 has no application against the judges of the High Court and the Supreme Court. So they cannot be punished for contempt of court. In B.K.Mishra v.Bhemsen Dixit (1973, 1 SCC 446)the Supreme Court held that refusal to follow the decision of the High Court or the Supreme Court by a subordinate court amounts to contempt of court. No Special Privilege for Advocates: In the contempt of court Act, there is no special privilege for Advocates. A contempt of court Act, A contempt of court committed by an Advocate will be dealt with just like a contempt committed by any other person. Bar Bench Relations The court hall where cases are conducted consists of two parts namely: (i) The place where the judges sit is called as Bench (ii) The place where the Advocate sit is called as Bar. So the term `Bench’ refers to the judges and the `Bar’ refers to the Advocates. Bar-Bench relation means the cardial relation between the judges and the Advocates. The faith on the judiciary to the general public and the speedy justice mainly depends on the cardial relation between the judges and the Advocates. In the Administration of justice the role of Advocates are also equally important just like the judges. Rendering justice is their joint responsibility. Without the help of Advocates, it is very difficult for the judges to arrive a correct decision in a dispute. If good relation exists between exists between the judges and Advocates then delay in rendering justice and high expences for getting justice can be very much reduced. To strengthen the good relation both should have some good qualities and mutual responsibilities. Role of the Bar to Strengthen Bar-Bench Relation To strengthen the Bar-Bench relation, the Advocates must take the following steps. 1. They should give the due respect to the judges and they must avoid speaking ill of the judges and the judiciary. 2. They should help the judges in the trial of the cases by presenting the relevant law in the correct and clear manner. They should never act in such away to irritate the judges. 3. If the judges pronounces a wrong order, they should not criticize the judges. They should try to set right the wrong order through appeal. 4. For getting favourable order they should not give pressure or influence the judges. 5. If the judges behavior is irritating and disrespect to the Advocates should not enter in to a direct confrontation with the judge. Through the Bar Association the matter should be discussed with the judge in his chamber and shall request to avoid such misbehavior. Role of the Bench to Strengthen Bar –Bench Relation Only when Bar-Bench relations are strengthened, people will get confidence and fair on the Judiciary. To strengthen Bar-Bench relation the Judges should follow and practice the following. 1. Judicial Respect: Just like the Advocates are giving respect to the Judges the Judges should also give to the Advocates and the brethren Judges. 2. Patient Hearing: Judges should hear the case with open and respective mind without any prejudice or bias. They should act only to the interest of justice. They should give sufficient opportunity for the Advocates to present the case in full. 3. Impartiality: Judges should act impartialy. They should not act in favour of any Advocate or a party to the dispute. 4. Avoidance of Interruptions: As far a possible, Judges must avoid interruptions while the Advocate is examining witnesses and arguing the case. Unwarrented interference and adverse comments by the Judges may upset the Advocates and thereby he may not be able to present the case properly. This may cause the failure of justice. Interference may be limited to the following circumstances(i)to prevent repetition and waste of time(ii)to check the relevancy(iii)to get clarifications (iv)to express courts view on a point and (v)to promote speedy disposal of the case. 5. Proper Interpretation: During the process of administration of justice, often the courts have to interpret the Act, Rules, Orders and Notifications in order to ascertain the actual meaning of the provisions or to remove the ambiguity or inconsistency. In such cases proper interpretation should be given with the object of rendering complete justice to the parties. 6. Avoidance of Unreasonable Adjournments: Adjournments are given to afford reasonable opportunity to the parties to present the case. As far as possible cases shall not be adjourned without reasonable and sufficient grounds . Unreasonable adjournment is the main reason for the mounting arrears of cases and it causes hardship to the parties. 7. Speedy Disposal: `Justice delayed is justice denied’, hence cases should be disposed off as quickly as possible. When preference is given for disposal of old cases, care should be given to see that new cases should not get into arrears. 8.Avoiding Unwarranted comments: Judges should not make any unwarranted comments in the open court about the Advocates lack of knowledge in the law. They should not ask any Advocate to leave the court, without sufficient reasons. Similarly, they should not ask any Advocate not to come to his court hereafter. 9.Knowing in Law: Judges should possess deep knowledge in law. They should have the ability to apply the proper law to the disputed facts and to take the right decision. 10. Independence: Judges have the primary responsibility to protect and preserve the independence of judiciary, hence they should not yield to the pressure of the Government. 11. Integrity: A Judge should be honest and morally upright. He should have personal and intellectual integrity. His character and conduct should be praise worthy. Then only the Advocates and the general public will have confidence on him. 12.Industriousness: It means regular and systematic hard work and study. A Judge should get acquainted with the latest developments and changes in the law by regular updating of the knowledge. 13. Meeting of Judges and Lawyers: To strengthen Bar-Bench relation, at regular intervals meeting of judges and the Advocates shall be arranged. In such meetings the respective sides difficulties can be discussed and the differences can be sorted out.

Seven Lamps of Advocacy www.lawtool.net Justice ‘Abbot Parry’ qualifies the following qualities as “Seven Lamps of Advocacy”. They are Honesty Courage Industry wit, Eloquence, Judgement and Fellowship. 1. Honesty: Honesty is the most important quality that an advocate should possess. His thoughts words and deeds should have sincere corelation to each other with genuineness. An Advocate should be dependable reliable to everyone who seeks his advise and services. The uprightness, integrity and honesty of the Advocate will increase his reputations and respect in the society. 2. Courage: It is the duty of an Advocate to fearlessly uphold the interest of his client by all fair means without fear of any unpleasant consequences to himself or any other person. It is the knowledge and the skill of the Advocate that gives him the necessary courage and confidence to present the case fearlessly and to uphold the interest of the client. The knowledge and the skill can be acquired and developed by mastery of facts, mastery of laws, mastery in drafting and presentations of convincing arguments. 3. Industry: It means hard work. Hard works is absolutely necessary for an Advocate. His knowledge of law should be up to date. He shall never be ignorant of the current law in force. He shall get acquainted with the latest law by systematic study. If one ignores the law, the law will also ignore him. That is why it is said that “law is the jealous mistress”. 4. Wit: Judges and lawyers have to deal with a variety of serious and important matters affecting life and liberty of the people. So constant clash between them is common. Anxiety for a favourable verdict on the part of the lawyers; and perpetual worry for the pursuit of the truth on the part of the judges generate strain and tension. Occasional wit and humour, provoking a smile or laughter will help them to ease the tension, and refresh themselves to sharpen their brain for the effective discharges of the duties. 5.Eloquence: Eloquence means the fluency, force and style of using the language. Strong vocabulary is one of the powerful weapon which an Advocate should posses. Words are his keys of thoughts. Strong vocabulary gives him assurance, build his self confidence and build his personality. Words must be employed with eloquence. The art of persuasive and impressive speaking will give the desired result in his favour. 6.Judgement : It means the ability to come to a sensible conclusion and make wise decisions at the relevant time in the proper way. It is on the basis of these conclusions he should employ the necessary facts and the techniques in the case which he is engaged. This quality is necessary from the beginning of filing the case till its final disposal. An Advocate must always anticipate all the possible moves of the other side and must develop the necessary presence of mind , alertness and tact to cope with any awkward situation of difficulty that may arise in the case. 7.Fellowship: In legal profession, one Advocate fights with another Advocate for justice before the learned judge. There may be controversies and contradictions in their contention relating to the case, but that shall never affect the fellowship. The Advocates should refer the opposite party’s Advocate as “Learned Friend” and the judge should be referred as “Learned Judge”. In order to maintain the fellowship, the Bar Council of India has laid down certain rules to be observed as the duty to colleagues.