1

CPC
CHAP 1. SUITS OF CIVIL NATURE OR ESSENTIALS OF CIVIL SUITS

MODEL QUESTIONS
 1. “It is not the status of parties to the suit, but subject matter of the suit which
determines whether or not the suit is one of a civil nature”.  Elucidate with the help of
illustrations.
2. “No Civil Court gets jurisdiction to entertain suits which are not of civil nature”.
Explain.
3. “The Courts shall have jurisdiction to try all suits of a civil nature”. Discuss.
4.  Explain the suit of civil nature.

Answer
I. CIVIL SUITS
Civil suit is a law regulating legal rights between one subject and another subject.
Civil suit relates to property questions or questions regarding religious rights and
ceremonies or the jurisdiction of Civil Court itself.
 
II. ESSENTIALS OF A CIVIL SUIT
1. The suit should be of Civil nature.
2. Only Civil Courts have power to decide disputes of  civil nature.  
3. The civil court will have jurisdiction if the suit is not ‘expressly barred from
jurisdiction.
 
III. SUIT OF CIVIL NATURE
The following are Civil suits
1. All Property matters - both movable and immovable, tangible and non tangible.
2. Temple and other religious properties.
3. Civil wrongs - torts
4. Specific reliefs including injunctions.
5. All civil remedies for breach of contract
6. Common law rights.
7. Right of worship, religious and other ceremonies.
8. Dissolution of marriage, Divorce, Restitution of conjugal rights etc.,
9. Special contracts like Partnership, Sale of Goods, etc.,
10. Right of custom, decent burial, expulsion from caste,   membership of a club.
11. for furnishing accounts etc.,
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12. Cancellation, Rectification, Novation, Recision and Injunction.  

13. Suits of Political questions, Caste questions etc.,
14.Suits under Hindu Succession Act, Indian Succession Act, etc.,
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CPC
CHAPTER 2
RES JUDICATA AND RES SUB JUDICE (Sec. 11)

MODEL QUESTIONS
 1. “Every suit shall be filed with a cause of action but the same cause of action cannot
be for the second suit”.  Discuss.
2. Write the difference between Res Subjudice and Res judicata.
3.  There cannot be a second suit in the same cause of action Discuss.
4. Write short note on: a)Res Judicata.b) Res Subjudice (Stay of Suits)

STAY OF SUITS (Sec. 10) (Res Subjudice)

Answer
 I. RES JUDICATA
When a suit is finally decided by a competent Court, the same suit between tsame parties
should not be tried in a subsequent suit by same or similar Court.
The doctrine is not applicable to Appellate court, because appeals are tried by Superior
Courts.  
 
ESSENTIALS OF RES JUDICATA
1. The matter in issue in both suits should be the same.
2. The parties to the former suit and the subsequent suit should be the same.
3. The second suit should have been filed under same title.
4. The former Court must be competent to exercise jurisdiction and give remedy.
5. The matter in issue in subsequent suit must have been already heard and finally
decided by former Court in the previous suit.
 
NON - APPLICABILITY OF RES JUDICATA
In the following cases, the doctrine of res judicata is not applicable. So even if a court
has decided a suit, on the same facts a second suit can be filed in the same court.
 1. Res judicata is not applicable to consent decree or order.
2. It is not applicable to writ petitions finally heard.
3. It is not applicable to Decree obtained by fraud or illusion by one party.
4. It is not applicable to Co-defendants and co-plaintiffs.
5. It is not applicable to Insolvency proceeding.
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6. It is not applicable to Arbitration proceedings and awards.

7. It is not applicable to Public interest litigation.
8. It is not applicable to Land Acquisition proceeding.
9. It is not applicable to Industrial Dispute Act.
10. It is not applicable to Income-tax proceedings.
11. It is not applicable to Election proceedings.

II. RES SUB JUDICE (STAY OF SUITS) (Sec. 10)

1)A Court should not proceed with the trial of any suit in which the matter in issue is also
directly and substantially in issue in a previously instituted suit between the same/any of
the parties is already pending in the same or any other equal or lower court in India.
2)The object of Res Sub Judice to prevent a Court from exercising Jurisdiction in
already a pending case by the same or equal court.

ESSENTIALS
1. Previously instituted suit must be pending in the same Court or similar court in which
the subsequent suit is brought.
2. The ‘matter directly and substantially in issue’ in both the suits must be the same.
3. Both the suits should be between the same parties or their representatives.
4. Such parties must dispute under the same title in both suits.
5. The Court which hears the previous suit must have jurisdiction to grant relief in the
second suit.
6. Any decree passed by the second Court in violation of Res Sub judice is null and void.
7. Res-sudjudice has no application in Arbitration.

III. DIFFERENCE BETWEEN RES SUB JUDICE AND RES JUDICATA

Res sub judice prevents subsequent Courts from hearing cases, while the matter in issue
is already pending in another Court.
Res Judicata prevents subsequent Courts to hear same cases, if matter in issue had
already been decided by another Court.  Res Judicata deals with finally decided suits.

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CPC
CHAP 3
PLEADINGS (Order - VI, Rule 1 to 18)
 MODEL QUESTIONS
1.   What are pleadings?  State the rules to be followed in the construction of pleadings.
2. Can a pleading be amended? It so, under what circumstances?
3.   Write short notes on: (a) Amendment of Pleadings (b) Construction of Pleadings.

Answer
Statements of parties in writing, stating their contentions and claims, giving details so
that opposite parties may know and give reply.
 
1. Plaint: Here, the plaintiff gives his cause of action and other necessary particulars.
2. Written Statement: It is defence statement made by defendant. It is in reply to every
material fact alleged by the plaintiff in the plaint. He also states new facts, which speak
in his favour.

Objects of Pleadings
1. Gives fair notice to other party.
2. Summarises the points on disputes.
3. Knows matters in dispute and facts to be proved.
4. Each side becomes fully aware of the questions.
5. Gets an opportunity of providing relevant evidence.

Material Facts
Facts on which plaintiffs and defendants’ cause of action are based.
Facta Probanda: the facts on which the party relies.
Facts probantia the evidence of facts by which they are to be proved.
 
1. Facts like misrepresentation, etc., should be stated.
2. Condition precedent specified.
3. A bare denial only amounts to denial in facts not the legality.
4. Condition of mind like malice, etc., may be alleged as a fact.
5. Matter of fact which the law presumes need not be stated.
6. Signed by the party and his pleader.
7. Verified at the end by the party.
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 WRITTEN STATEMENT, SET OFF AND COUNTER CLAIM (Order VIII)

The statement of the defendant, in which he denies or admits the allegations of the
plaintiff.
 The defendant, within thirty days, presents a written statement of his defence.
1. The defendant must state all matters to show that the suit is not maintainable.
2. He must state grounds of defence.
3. He must state the distinct grounds of defence.
4. He should not be an evasive in denials.
5. If not denied specifically, it is taken as admitted.
6. If he does not present written statement, then the judgment may be pronounced against
him.

SET OFF
Set off is a ‘reciprocal payment of debts’ between both the plaintiff and the defendant’
Conditions for claiming set off
1. Suit must be for recovery of money.
2. It must be for an ascertained sum of money.
3. It must not be barred by limitation.
4. It must not exceed the monetary jurisdiction of the Court.
5. Court fee is should be paid on the amount claimed of set off.
 
 Kinds of set off
TWO KINDS:
1. Equitable set off
It is allowed even in respect of an unascertained sum.

2. Legal set off

It is only for ascertained sum of money.

Counter Claim
(1) A counter claim in a suit is against the plaintiff by the defendant.
(2) It is a cross action.
(3) It should not exceed the monetary jurisdiction of the Court.
(4) It has the effect of a cross suit and the plaintiff can file a written statement to answer
the counter claim.
——-
 7

CPC
CHAP 4
EXECUTION OF DECREES AND ORDERS
(Sec. 36 to 48)
MODEL QUESTIONS
1. State the rules regarding the execution of decree of a civil court.
2. What is a money decree?  How is it executed?  
3. Explain execution of decrees. What are the powers of the decree executing Court?

Answer
(1) Execution proceedings is enforcement of decrees and orders by the process of Court.
(2) It enables the judgment creditor to recover the benefits of judgment from the
judgment debtor.  
(3) It is the mode of executing decrees and orders governed by Sec. 36, 74 and Order
XXI of C.P.C.
(4) The decree must be capable of execution.
(5) The execution of orders and the execution of decrees have same procedure.
(6) The decree holder/joint decree holders are entitled to apply for execution of decree.
(7) All money payable under a decree is paid in any one of the following ways:

a)By payment by deposit/postal money order in the Court (or)

b)As per directions of the decreeing Court (or)
c)Outside the premises of the Court.
 
(8) Execution of decree is directed only against person or property of judgement debtor.
(9) A decree is executed by the Court which passed it or by the Court is sent for
execution.
(10) Even if decree is illegal, execution is binding between the parties.
(11) Executing Court cannot alter, vary or add to the terms of decree.
(12) Executing Court can refuse to execute a decree against a dead person, or due to
wrong jurisdiction or due to contravention of any enactment or if decree is uncertain.
(13) Decree cannot be executed, if person against whom decree is passed resides or
carries on business or has properties within the local limits of some other Court.
(14) Court executing a decree has same powers as of the Court which passed the decree.
(15) Upon application of decree holder, the Court which passed the decree may issue
precept to any other Court to execute such decree.‘Precept’ means a standard or rule of
 8

conduct or a command or a writ or warrant issued by an authorised court demanding

another to take action on his behalf.   
The attachment of property order by a percept cannot continue for more than two
months.
 (16) While sending a decree for execution, the Court which passed decree must send to
the executing Court:
 i. A copy of decree or order.
 ii. A certificate that the decree or order was not enforced within the jurisdiction of the
Court which passed the decree.
 
———-
 9

CPC CHAP 5 APPEALS FROM ORIGINAL DECREES

(Powers of Appellate Court) [(Sec. 96 - 99A) (Order XLI, Rule 1 to 37)]
MODEL QUESTIONS
1) “An appeal shall lie from every decree passed by a Court exercising original
jurisdiction to the Court authorised to hear appeals from the decisions of such Court.
Explain pointing out the powers of the Appellate Court.
2)What are the grounds on which there is no right of Appeal?
3)Short notes on: (a) Cross Objections (b) Stay of proceedings (c) Judgement in Appeal

Answer
Unsuccessful party goes in appeal to Higher Court to set aside the decree of lower Court.
 Only the party against whom the decree is passed or his legal representative goes for
appeal.  
 
 RIGHT OF APPEAL: (Sec. 96)
 1. Sec.96 of C.P.C. recognises the right of appeal from every decree.
 2. An Act can take away the right of appeal, but only for future and not for past.
 3. An appeal may lie from an original decree passed ex-parte.
4.The parties cannot give a right of appeal by an agreement or mutual consent.
 
NO RIGHT OF APPEAL IN THE FOLLOWING CASES:  
(NON APPEALABLE CASES)
1. If the parties have entered into an agreement as not to appeal from a decree or order,
then there is no appeal.
2. If a party does not go in appeal from a preliminary decree, then he can not go on
appeal in final decree.
3. If appeal is prohibited for any suit by this Code or by any other law.
4. There is no appeal from consent decree.
 
POWERS OF APPELLATE COURT - PROCEDURE OF HEARING
1. When appeal is admitted, the Appellate Court registers the appeal.
2. Appellant begins the proceedings in appeal.
3. Appeal is dismissed, if the appellant does not appear on the date fixed for hearing.
4. The dismissed appeal is readmitted, if the appellant had sufficient cause for not
appearing on the fixed day.
5. With the permission of Court, additional evidence allowed.
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 10

CPC & LIMIT ACT

CHAP 6
SUFFICIENT CAUSE OR POWERS OF COURT IN EXTENDING THE PERIOD OF
LIMITATION OR CONDONING THE DELAY AND COMPUTATION OF
LIMITATION PERIOD (Sec. 5)

MODEL QUESTIONS
 1. What are the grounds under which the Court can grant extension of limitation period?
2. Explain the meaning of “sufficient cause” as contemplated under Sec. 5 of the
Limitation Act, giving illustrations.
3.Explain the computation of limitation period

 If applicant or appellant has sufficient cause for not making the application or not
preferring the appeal within the limitation period, the application or appeal may be
admitted after prescribed period.
 
1. The Court verifies whether the cause shown is reasonable or not.
2. The Court’s decision on sufficient cause is a discretionary power.
3. Applicant has the burden of proof that even after taking all necessary steps to file
appeal within time, he has failed due to causes beyond his control.
4. The delay excuse is decided on affidavits.
5. There should not be any negligence on the part of the applicant.
 
INSTANCES OF SUFFICIENT CAUSE
1. Illness
2. Mistake in legal advice or mistake of counsel

Bonafide mistake by a pleader can be excused.

2. Poverty and Purdah is
mot a sufficient cause.

3. Minority and Insanity

If the guardian is negligent, then the delay is not excused.
 
4. Delay in obtaining copies
Delay in getting copies due to the fault of the Court is excusable.
 
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5. Delay on the part of court

Undue delay on the part of Court is treated as sufficient cause.

6. Legal disability
Legal disability is a sufficient cause for excuse of delay.

COMPUTATION/CALCULATION OF PERIOD OF LIMITATION (SEC. 12)

In computing the period of Limitation, the following exclusions are allowed (exclusion
of time):
1. Regarding a suit, the day on which the time begins to run is excluded
2. Regarding an appeal:
 
a. The day on which the time begins to run is excluded.
b. The day on which the judgment was pronounced is excluded.
c. The time needed to obtain copy of the decree, sentence or order is excluded
d. The time needed to get a copy of the judgment is excluded

3. The time to set aside an award is excluded

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 12

THE TRANSFER OF PROPERTY ACT, 1882 AND THE INDIAN TRUSTS ACT,
1882
CHAP NO. 1
 TRANSFER AND PROPERTIES WHICH CAN BE AND CAN NOT BE
TRANSFERRED (EXCEPTIONS TO TRANSFER) (Sec. 5)
 (Property of any kind may be transferred)

 UNIVERSITY QUESTIONS
1. Define ‘Transfer of Property’. What are the properties that cannot be transferred under
Transfer of Property Act?
2. a) Define ‘Transfer of Property’.
b)‘Property of any kind of transfer may be transferred’ - State the exceptions.
3. Explain the types of properties which cannot be transferred?
Answer
A.INTRODUCTION
The Transfer of Property Act deals with all transfers except that of movable properties
which are governed by the Sale of Goods Act, 1930.
 
B. MEANING OF “TRANSFER OF PROPERTY’’ (Sec. 5)
‘Transfer of property’ means an act by which a living person transfers property in present
or in future, to one or more other living persons or to himself and one or more living
persons.

Meaning of ‘Property’:
Property means
a. Tangible materials like land and houses.
b. Rights over material things: E.g., right to possess, right to gift, etc.
c. Rights over non-material things:  E.g., right of repayment of debt, etc.
 
C. ESSENTIALS OF A VALID TRANSFER 
The following are the Essentials to constitute a valid transfer of property (movable or
immovable)
1. The property must be transferable.
2. The transferor must be competent to transfer.( major and sane person)
3. The transferee must be competent to take the transfer. ( major and sane person)
4. The object or consideration must be lawful.
5. If the Act requires any particular mode, then the transfer must be made in that manner.
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If new title is not created in favour of the transferee, the property is not transferred.
E.g.
1. Partition 2.Surrender 3.Release deed 4.Family settlement.
The Distt. Manager, Food vs Shri Kailash Chand & Others on 12 December, 2013
The Court held that the compensation received under the Land Acquisition Act, is
Transfer.
 
D. EXCEPTIONS
The following properties cannot be transferred -
1. Spes Successions
(Chance of Succession):
During the lifetime of a person, the chance of his heir succeeding to his property is called
Spes successions.
Such expected property cannot be a subject matter of a transfer. Such a transfer is
invalid.
 
2. Right of Re-Entry:
The landlord has the right of re-entry on his immovable properties when the tenant or the
lessee makes default in payments.. This right is not transfer under the Transfer of
Property Act.

3. Easementary Right:
An easementary right is the right available to a person to use another man’s property.
 The easementary right is acquired by agreement, prescription (long standing
possession), custom, etc. This easementary right alone cannot be transferred to others
without the transfer of the main property.

 4. Personal Services cannot be transferred:

The restricted enjoyment of an owner to himself cannot be transferred.
A person cannot transfer his restricted interest of enjoyment to another. For eg.,, if a
house is lent to a man for his personal use, he cannot transfer his right of enjoyment to
another.

5. Right to future maintenance of a widow and other dependants cannot be transferred.

6. This mere right of suing others cannot be transferred.
Varah Swami (vs) Ramachandra 38 Mad 138
The Court held that a right to sue is personal right to the party aggrieved and there can be
no assignment of a right to sue the third party.
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7. The Public Offices, salary of a Public Officer cannot be transferred before or after it
has become payable.
8. Scholarship, medals, awards, distinctions, etc., acquired by personal skill, labour, etc.,
cannot be transferred.
9. The stipends given to military, naval, air force and Government Officers and political
persons cannot be transferred.
10. The pensions and salary payable to persons under military, naval and air force
services cannot be transferred to others.
11. Res - Nullius (no man’s property) cannot be transferred. For e.g. fish in the sea is res
nullius and cannot be transferred.
12. Any Transfer for an unlawful object or consideration is void.
13. Transfers to legally disqualified persons like lunatics, etc, are void.
14. The damages that can be claimed in Torts and Breach of Contract cannot be
transferred.

–˜™—
 MODEL PROBLEM
A gave his two acres of land to his son B by will. The son B sold the two acres of land to
C before the death of A. Decide the validity of sale.

Answer
C is not entitled to the two acres of land sold by B as per Sec. 6 (a) of the Transfer of
Property Act, 1882, as it is Spes Successionis (Chance of Succession).
During the lifetime of a person, the chance of his heir succeeding to his property under a
will is called ‘Spes successionis.
Such expected property cannot be transferred. It is invalid.
——-
 15

TP Act CHAPTER NO. 2 RULE AGAINST PERPETUITY

(DIRECTION AGAINST ACCUMULATION) (Sec. 14, 15, 16, 17 & 18)

UNIVERSITY QUESTIONS
1. Explain the Rule against perpetuities.
2. Explain the applicability of the Rule against perpetuity.
3. Explain the doctrine of accumulation of income.

ANSWER
A.INTRODUCTION
‘Perpetuity’ means permanency .
The old law was that the property could be detained for a permanent period.
The rule was abolished both in English Law and Indian Law by Sec. 14 of the Transfer
of Property Act.
Now a property cannot be detained permanently. The rule is known as ‘Rule against
Perpetuity’.
For e.g.: X gives a piece of land to his friend A for life and afterwards to his friend B for
life and then to B’s unborn son and then to unborn son of B’s son and so on. This is
called ‘Perpetuity Transfer’ (transfer for an indefinite period).
 
B. ENGLISH LAW OF ‘RULE AGAINST PERPETUITY’
According to English Rule of perpetuity, a property cannot be held up longer than for a
life or lives and 21 years thereafter. This is called ‘Rule against Perpetuity’.

Cadell Vs. Palmer

A land was given to 26 persons successively for life and after the death of the 26th
person to his unborn son at the age of 21.
The Court held that the transfer was valid, because all living persons die almost
simultaneously.
 
C. INDIAN LAW OF ‘RULE AGAINST PERPETUITY’ (Sec.14)
1)According to Sec. 14, the vesting of property cannot be postponed beyond the life time
of any one or more persons living at the date of transfer and after that, vesting of absolute
interest in property in favour of an unborn person may be postponed until he attains the
age of 18 and not afterwards.

2)It means that property can be transferred first to one or more living persons on the date
of transfer and secondly upto the minority of some person i.e., 18 years in India.
 16

E.g.: An estate is given to a living person A for life, then to a living person B for life and
then to the unborn son of B. The son of B must have been born on or before the date of
the expiry of the life estate in favour of B.

3)The maximum limits of the perpetuity period in India is life period of a living person
for e.g., (A)+ period of A’s child in the womb of such living person (A) i.e., a maximum
of 10 months + life period of A’s child + period of B’s child in the womb i.e., maximum
of 10 months + 18 years.

Illustration:
A, a owner of a property transfers it to a living person B for life, and after B’s death to C,
a living person, for life, and before C’s death to his (C) unborn son when he attains the
age of 18. This transfer is valid under Sec.14 - Rule against Perpetuity.

D. CLASS GIFT/CLASS TRANSFER (Sec. 15)

‘Class gift means - if an interest is created for the benefit of a group of persons and
because of the rule against perpetuity, if such interest fails to some of the persons in the
class of persons,, then such interest fails only to those persons and not to the whole class
of persons.
 
Thus, if a gift was made to a class of persons with regard to some of whom it was
inoperative, since they were not in existence at the material date, the gift or bequest
failed in regard to those persons only and not in regard to the whole class.
 
For eg.: If a gift was made by a Hindu to his grandsons and if none of them was living at
the date of the gift, then none of them had the capacity to take  the gift and hence the gift
was void.
 
 Illustration:
A transfers his property in favor of a class of persons, i.e., gift to all the children of B. If
some children of B cannot take, whether others at least can take it. Under Sec. 15, others
unaffected by Sec. 13 or 14 can take the gift.

E. EXCEPTIONS TO THE RULE AGAINST PERPETUITY

There are five exceptions:
1. The rule against perpetuities is not applicable to already vested property rights.
2. The rule against perpetuities does not apply to personal contracts;
3. The rule does not apply to pre-emption.( the right of co owners to buy the property
first)
 17

4. The rule is not applicable to a property which is transferred for the benefit of public.
5. The rule is not applicable to mortgagor’s right of redemption.
 
F. DOCTRINE OF ACCUMULATION (Sec. 17 & 18)
If a transfer of property directs that the income from the property must be accumulated
for an unlimited period ie., exceeding life or lives plus 18 years, then such condition is
void.

Exceptions to the Rule against Accumulation

 There are three exceptions to the above rule –
 
1. If the accumulation is for the payment of debts of the transferor or the transferee, there
can be accumulation exceeding the life of transferor or 18 years.
 2. If there is a direction for accumulation of income for providing portions of
accumulation for the children,grand children of the transferor, then such direction for
accumulation of income exceeding the above periods is valid.
 3. If the accumulation is for preservation or maintenance of the transferred property,
then such direction for accumulation of income exceeding the above periods is valid.
 4. If the accumulation is for the benefit in the advancement of religion, knowledge,
commerce, health or any other beneficial object of mankind, then such direction for
accumulation of income exceeding the above periods is valid.
–˜™———-

 MODEL PROBLEM
Property is transferred to ‘A’ for life and the remainder to his eldest son on attaining the
age of 25 years ‘A’ has no son on the date of transfer. Examine the validity of the
transfer.

Answer
The transfer is not valid as per Sec. 14 of the Transfer of Property Act.
According to Sec. 14, vesting of absolute interest in favour of an unborn person may be
postponed until he attains the age of 18 only.
As per this rule, a property can be transferred first to one or more living persons on the
date of transfer and secondly upto the minority of some person (18 years).  
 
In the given problem, the transfer of the remainder is postponed beyond the age of
majority by 7 years i.e., his 25th year.
So, the transfer is not valid.
 18

TPAct
CHAP NO. 3
DOCTRINE OF LIS PENDENS
(Transfer in Pending Litigation/Suit)(Sec. 52)

 UNIVERSITY QUESTIONS
1. What are the limits of the doctrine of lispendens? What is the principle on which the
doctrine is based?
2. What is transfer in pending suit? Explain the essential conditions of a pending suit.
3.Discuss the leading case ‘Bellamy Vs. Sabine’ and how its rule is incorporated in the
Transfer of Property Act?
 
Answer
A. INTRODUCTION
‘Lispendens’ means the pending of a suit in a Court.
If one of the parties to the suit transfers the immovable property which is the subject
matter of the suit, then the transferee is bound by the suit’s result.
 
For e.g.: If ‘A’ and ‘B’ have a pending case before a Court with regard to the ownership
of a house and, if ‘B’ transfers the house to ‘C’ during the pending period, the transferee
i.e., ‘C’ should return the house to ‘A’ if ‘A’ wins the case.
So, the rule affects the purchaser if the judgment is in favour of the party opposing the
transfer. The basis of the doctrine is the final decision of the dispute.
The rule does not apply to “Court auctions” but only to voluntary transfers like sale,
mortgage, etc.
 
Bellamy Vs. Sabine
‘A’ filed a suit to invalidate the sale of an estate by E to F.
During pendency, F transferred it to B who did not know about the suit. Judgement was
given in favour of F. It was held that B was bound by the decision and he had to return
the estate of F. This is known as ‘Doctrine of Bellamy Vs. Sabine’
 
B. APPLICATION AND SCOPE
1. The doctrine is applicable to all cases between co-heirs.
2. It is applicable to exparte judgement.
3. It is also applicable to compromise decrees.
4. It is applicable to Insolvency Transfers.
 19

5. The doctrine of lis pendens applies to voluntary as well as involuntary transfers.

Eg.,Execution of properties under Court’s order is an example of involuntary transfer.
6. The doctrine does not apply to co-defendants.
7.The doctrine does not apply to transfer by inheritance, etc.,
 
C. ESSENTIALS OF LIS PENDENS
 1. Transfer during pendency of a suit or proceeding:
The transfer should take place during the pendency of a suit. The ‘doctrine of lispendens’
applies to both exparte proceedings and to compromise proceedings in a suit.
2. Pendency in a Court of competent jurisdiction:
The suit must be pending before a Court of competent jurisdiction. If a suit is not filed
before a Court of competent jurisdiction, it is not considered as a pending suit.
3. Transfer without the authority of court:
Transfer made by one of the parties to the litigation must be without the authority of the
court.
 4. Right to property must be in question:
Such pending suit should be with regard to right to the immovable property. The right
over the immovable property should be directly in question in the suit or proceeding.

5. Bonafide suit:
The suit should not be collusive. The doctrine is not applicable to collusive suit or suit in
which the decree is obtained by fraud. A collusive suit is not a real suit. It is preplanned
to affect the defendants.
 
6. Transfer before filing the suit:
The property in the suit must be transferred during such pendency. A transfer before the
filing of suit is valid and it is not affected by the lis pendence doctrine.
 
7. Transfer - to affect the right of the other party:
The transfer should affect the rights of the other party.
Nagubai Ammal Vs. B.Shama Rao, AIR 1956 SC 593
A transfer of property by a party to a suit during the pendency of the suit is not void. If
the party transferring the property wins the suit, then the transfer is not affected.
 
D. EFFECT OF LIS PENDENS
1. It does not invalidate the transfer.
2. It makes the transfer, subject to the result of the decision of litigation.
 20

3. No notice is necessary to the purchaser, because lis pendency itself acts is a

constructive notice.
4. Even if the purchaser is a bonfide person and without notice of pending suit, he is still
bound by the judgement.
——-
 
MODEL PROBLEM
‘A’ filed a suit against ‘B’ in respect of his house for declaration and possession. Before
the service of summons, ‘B’ transferred the property to ’C’. The suit is decreed against
‘B’. Is ’C’ bound by the decree?

Answer
R is bound by the decree and he has to return the house to P after the decision.

According to the doctrine of Lispendens, the subject matter of the suit should not be
transferred to any third party when the suit is pending.
 
If one of the parties to the suit transfers the immovable property which is the subject
matter of the suit, the transferee is bound by the judgement in the suit.
 
In the given problem, there is a suit between P and Q in respect of a house and Q had no
right to transfer the house during the pendency of the suit. But Q had transferred the
property to R, who is bound by the result of the judgement. Since the suit is decreed
against Q, R has to return the property to P.
———
 21

TP Act
CHAPTER NO. 4
DOCTRINE OF ELECTION (Sec. 35)

UNIVERSITY QUESTIONS
1. Explain the “doctrine of election” as embodied in the Transfer of  Property Act.
2. Explain the doctrine based on the rule in Cooper Vs. Cooper.
3. a) Discuss the doctrine of election with case  laws. b. State the consequences of failure
to election.
 
Answer
A. INTRODUCTION
‘Election’ means choosing of one right between two rights, when there is clear intention
that both the rights cannot be enjoyed but only one.
 
If a person transfers some property (movable or immovable) in which he has no right to
transfer, and in the same transaction, confers any benefit on the owner of the property,
such owner must elect either to confirm such transfer or reject it.
 
If he rejects the transfer, he relinquishes the benefit conferred upon him and the property
will revert back to himself or his representative as if it had not been disposed of.
 
B. APPLICATION FOR THE DOCTRINE OF ELECTION
The following are the essential conditions for the application of the Doctrine of Election:
1. The transferor should dispose of the property in which he has no right to transfer.
2. The transferor must confer a benefit to the real owner of the property.
3. Both the benefits conferred and the transfer made must be part of the same transaction
(document).
4. The owner is now given a choice of election either to accept the benefit and allow the
transfer or to reject both.
E.g.: ‘A’ transfers ‘B’s property worth Rs. 1,000/- without his consent or knowledge to C
and in the same transaction, A gives Rs. 10,000/- to B.
 
Here, B gets two options –
He may either accept the transfer of his own property to C, and get Rs. 10,000/- for
himself or he may reject both.
If he rejects, his property shall revert to himself and he does not get 10,000/-. Here B is
called the disappointed donee.
 22

C. MODE OF ELECTION
1. Direct Election
There is no prescribed form. A letter, telegram, oral words of the transferor or any other
sign, symbol by the person which conveys the intention of the transferor is enough.
 
2. Indirect Election
There are three types of indirect election.
They are:
a. Acceptance of benefit without knowledge of duty to elect:
If the donee accepts the benefit conferred upon him by the transfer, then such acceptance
on his part constitutes election by him. But the acceptance must be made with full
knowledge of his duty to elect and all matters about such benefit.
 
If the donee accepts the benefit without knowledge, then the representative of the donee
may revoke the election. If the election is made under mistake of fact, it may be revoked
by the elector or his representatives.
 
But if the done wilfully abstains from inquiring into the circumstances under which the
benefit is conferred upon him and makes an election, such an election is binding on him
and his representatives.
 
b. Enjoyment for two years [Sec. 188 (1) of the Indian Succession Act]:
If a person who has to elect knows that he is under a duty to elect, he must express his
dissent but if he keeps the property for two years, without expressing that he is not in
favour of the election, then it is presumed that the person so retaining the property is
doing so with knowledge and acceptance of the document.
 
c. Status quo cannot be restored:
In the case of property which is exhaustible by consumption or use, if he once starts
consuming the property, election in his favour is presumed. No period of consumption is
necessary for this presumption.
 
d. Requisition to elect:
Sec. 35 provides a special procedure by which the person put to  election may be
compelled by the transferor to elect.
On the expiry of one year from the transfer, if an election has not taken place, then the
transferor may compel him to make his election. If he fails to comply with the request of
transferor within a reasonable time, then he is deemed to have confirmed the election.
 
 23

Cooper Vs. Cooper

‘X’ gave certain properties to some trustee to sell it after his widow’s death. The sale
proceeds in trust must be used for the benefit of his children.
The widow executed a deed and gave the property to her three sons A, B & C. She gave
the self acquired property to her sons B and C and the deceased husband’s property to A.
After the widow’s death, A brought an action against B and C to elect between the deed
of appointment and the inheritance.
The Court held that the doctrine of election could apply and as such, B and C had either
to accept the widow’s deed and waive their inheritance or to reject both.
 
Mangaldass Vs. Ranchordas
A Hindu widow died, leaving a will in respect of property inherited from her husband.
She bequeathed Rs. 2,000/- as a legacy to the plaintiff and immovable property of her
late husband to K. K and the plaintiff were the nearest reversioners to her husband’s
estate.
On the death of the widow, the plaintiff claimed the legacy and also half of the
immovable property as heir. It was held that the plaintiff must elect either to take the
legacy under the will or half of the property as heir.
 
Venkatarayudu Vs. Narayanaya
In this case, it was held that surrender is not transfer of property.
e. Time Limit for Election
In Indian law, the Transfer of Property Act has prescribed a time limit of one year after
the date of transfer for the person put to election to signify his intention to confirm or
reject the deed.
But in English law, there is no time duration fixed for election to be made. The
instrument itself may fix a period or he may be required to elect without undue delay. If
he failsto make his election, he is deemed to have elected against the instrument.
 
f. Failure to signify choice
The failure to signify his choice within the stipulated time is treated under English law as
an election against the instrument, but under the Indian law as an election in favor of the
instrument.
–˜™—
MODEL PROBLEM
A gives by an instrument Rs. 50,000/- to B.  By the same instrument, A gives B’s
property worth Rs. 30,000/- to C.  B elects to keep his property.  What are the rights of
C?
 
 24

Answer
Under the doctrine of Election (Sec. 35), A transfers B’s property to C on which he has
no right, but in the same transaction confers to B the benefit of Rs. 50,000/- in an
instrument. Here, B has to either choose the instrument of Rs. 50,000/- and allow both
the transfers or reject both.
 
In the given problem, he has rejected both.  Since B elects to retain his property, he is
called the refractory donee. C is the disappointed donee.
 
In English law, B can retain both the properties, but must compensate C Rs. 30,000/-.
However, as per the Indian law, since the doctrine of Election is based on forfeiture, the
refractory donee (B) incurs a forfeiture of the benefit conferred (Rs. 50,000/-).
 
C is entitled to get Rs. 30,000/- out of the amount of Rs. 50,000/- from A, which is
forfeited by B.
 25

TPAct CHAPTER NO. 5

ESSENTIALS OF LEASE AND RIGHTS AND
LIABILITIES OF LESSOR AND LESSEE (Sec. 108)

 
UNIVERSITY QUESTIONS
 1. What are the rights and liabilities of lessor and lessee.
2. Explain the liabilities of lessee to pay rent.
3. The rights and liabilities of Lessor and Lessee are numerous – Discuss.
 
Answer
A. INTRODUCTION
A lease is a transfer of a right to enjoy such property for a certain time or permanently. In
lease, there is only transfer of enjoyment or possession of property in consideration of
periodical payments and not transfer of ownership of property.

The transferor of the right is called the Lessor

 
The transferee of the right or the person  to whom the right is transferred is called the
Lessee.
 
A minor cannot be a lessee, as he cannot enter into contract. A contract with a minor is
void.
 
The price is called the premium money, share, services, rent etc.,
 
B. RIGHTS AND LIABILITIES OF LESSOR
The following are the rights and liabilities of Lessor.
1. The lessor should disclose all material defects in the property to the lessee.
2.He must also disclose all the known hidden defects in the property to the lessee.
However, he need not disclose the defects which are discoverable with ordinary care.
This is based on the principle of ‘Caveat Emptor’.
3.The lessor should put the lessee in possession of the leased property. Only then, the
lessor can demand the rent from the lessee.
4.The lessor must compensate the lessee for all losses incurred by the lessee due to any
disturbance in the enjoyment of the property. In other words, lessee should have free and
quiet enjoyment of the property.
 26

5.If the lessor transfers the leased property to another person, then the other person gets
all the rights and liabilities of the lessor.

C. RIGHTS AND LIABILITIES OF THE LESSEE

The following are the rights and liabilities of the Lessee
1. During the continuation of the lease, if any addition is made to the property, then such
added property must also be returned with the main property to the lessor. In other
words, “Accessory follows the principal” is the dictum.
2. If part of the property is destroyed by fire (Vis Major), then the lease becomes void at
the option of the lessee.
However, such destruction of the property must not be due to the wrongful act of the
lessee.
3. If the lessor neglects to make sufficient repairs even after notice by the lessee, the
lessee can make such repairs by himself and can deduct the expenses of such repairs with
interest from the rent.
4. If the lessor neglects to make payment of tax, etc., then the lessee can make such
payment and deduct such payments from the rent with interest or recover the amount
from the lessor with interest.
5. After the termination of the lease, the lessee can remove all the things, which he had
attached to the earth but he must leave the property in the same state as he received it.
6.The lessee may sub lease the leased property, if there is no prohibition in the lease
deed.
7.The lessee is bound to disclose to the lessor any material increase in the value of the
property known to him only.
8.The lessee is bound to pay the rent to the lessor or to his agent at the proper time or
place.
 
Lessee’s liability to pay rent (Sec. 108):
As per Section 108 (l), the lessee is liable to pay rent to the lessor for enjoyment of the
leased property. It is a personal liability. The lessee cannot escape liability for rent by
assigning the lease to hold interest. The contract between the lessor and the lessee is
private between them only and the third party namely the assignee cannot interfere.
The assignment of lease does not bind the lessor and he can hold the lessee liable even
after assignment.
Generally in assignment deed, the assignee undertakes to pay the rent regularly to the
lessor and in case of failure, he undertakes to compensate the assignor for non payment
of rent and non observance of the terms of lease deed.  
10. The lessee is bound to keep the property in good condition. He must return the
property in the same condition as he obtained it. He must allow the lessor and his agent
 27

to enter upon the land and inspect the condition of the land at all reasonable times of the
day. He must give notice of all the defects in the land to the lessor.
11. The lessee must use the property as a person of ordinary prudence. He must not use
the property for any purpose other than the purpose for which it was leased.
12. If the lessee becomes aware of any encroachment on the property, he must give
immediate notice to the lessor for taking steps against such encroachment.
13. The lessee must not construct any permanent structure on the leased property without
the lessor’s consent. But for agriculture purpose, he can construct such permanent
structure, even without the consent of the lessor.
14. After the termination of the lease, the lessee is bound to return the leased property to
the possession of the lessor.
–˜™—
MODEL PROBLEM
A leases his land to B at an annual rent of Rs. 20,000/-. A put B in possession of part of
the subject matter of lease. Can B refuse to pay full rent ?

Answer
A cannot refuse to pay the whole rent. In the given problem, A has put B in possession of
part of the property only, but for that reason, B can not refuse to pay the whole rent. He
should pay the proportionate rent to the lessor.
 28

TP Act CHAPTER 6
RIGHTS, POWERS, DUTIES & LIABILITIES OF TRUSTEE (Sec. 23 to 30)

 UNIVERSITY QUESTIONS
1. Explain the rights of the trustees under the Indian Trusts Act, 1882.
2. What are the duties of a trustee? Explain
3. Explain the provisions relating to liability of trustee in the Indian Trusts Act, 1882.

Answer
Trust is a gift of the property to an individual or a group of individuals or an institution
through a trust deed.
The trustee holds the trust property only for the benefit of the trust and he should conduct
the trust as per the terms and objects of the trust.

A. RIGHTS / POWERS OF TRUSTEES

The following are the rights/powers of trustees:
1. He has the right to the trust deed (Sec. 31)
2. He has the right to reimbursement of expenses incurred by him from the trust money.
(Sec. 32)
3. He has the right to compensation from the wrongful committer by breach of trust (Sec.
33)
4. He has the right to apply to Court for opinion regarding management of trust-property
(Sec. 34)
5. He has the right to settlement of accounts to the beneficiaries (Sec. 35)
6. He has the right to exercise general authority of a trustee (Sec. 36)
 
B. DUTIES OF A TRUSTEE
The following are the duties of a trustee -
1. He should execute the trust. (Sec. 11)
2. He should inform the state of trust-property to the beneficiaries (Sec. 12)
3. He should protect the title to trust-property (Sec. 13)
4. He should not set up title adverse to beneficiary (Sec. 14)
5. Care is required from trustee in management for trust property (Sec. 15)
6. He should convert the perishable property (Sec. 16)
7. He should be impartial in his actions (Sec. 17)
8. He should prevent waste. (Sec. 18)
9. He should provide accounts and information to beneficiaries (Sec. 19)
 29

10. He should properly invest the trust-money (Sec. 20, 20-A & 21)
11. He should sell the trust properties within specified time (Sec. 22)

C. LIABILITIES OF TRUSTEE
1. If the trustee commits any breach of trust, then he is liable to make good the loss to the
trust-property or to the beneficiary. (Sec. 23)
2. A trustee is liable for any loss due to breach of trust in respect of one portion of the
trust property. He cannot set off his liability against the profits to another portion of the
trust-property. (Sec. 24)
3. If a co-trustee jointly commits a breach of trust, or if one of them by his neglect
enables the other to commit a breach of trust, then each co-trustee is liable to the
beneficiary for the whole of the loss. (Sec. 27)

D. NON-LIABILITY OF TRUSTEE
1. If a trustee succeeds another trustee, then he is not liable for the acts or defaults of his
predecessor.
 
2. One trustee is not liable for a breach of trust committed by his co-trustee;
However, a trustee is liable in the following circumstances –
 
(a) If he has delivered trust-property to his co-trustee without seeing to its proper
application;
(b) If he allows his co-trustee to receive trust-property and fails to make due inquiry as to
the co-trustee’s dealings or allows him to retain it for a longer period.
(c) If he becomes aware of a breach of trust committed by his co-trustee, and if he either
actively conceals it or does not, within a reasonable time, take proper steps to protect the
beneficiary’s interest.
 ———
MODEL PROBLEM
A trustee is guilty of unreasonable delay in investing trust-money in accordance with
Section 20, or in paying it to the beneficiary. State whether the trustee is liable to pay
interest for the period of delay.
 
Answer
 
Yes. As per Sec. 23 of Indian Trusts Act, 1882. the trustee is liable to pay interest
thereon for the period of the delay or the intermediate dividends and interest thereon, had
he invested in the security.
 30

IOS CHAPTER NO. 1

GENERAL/BASIC KINDS/TYPES OF INTERPRETATION OF STATUTES

(Literal rule of interpretation)(Logical rule of interpretation) (Rule in Heyden’s case)
(Golden rule of interpretation) (Equitable Interpretation) (Casus omissus, Ejusdem
generis, Noscitur A sociis,  Bonam Partem, Consequences must be considered) (Rule of
last antecedent)(Rule of uti loguitur volgus)  

 
UNIVERSITY QUESTIONS
1. Define Interpretation. Explain the objects and kinds of   interpretation.
2. What are the different kinds of Interpretation? Explain with supporting case laws.
3. Write Short Notes on: (a) Literal or Grammatical Interpretation (Literalegis)  (b)
Golden rule of Interpretation (c)  Mischief rule of Interpretation (d)Logical interpretation
(Sententia legis).
 
Answer
A. MEANING
‘interpretation’ means ‘give meaning’. it is the duty of the Court to give interpretation of
the Act and give meaning to each word of the statute.
Such interpretation should be based on principles evolved by the Courts.  The most
common principle of interpretation is that every part of a statute must be understood in a
harmonious manner by reading all parts of the statute together.
The legal maxim ‘A verbis legis non est recedendum’ means that ‘you must not vary the
words of a statute’.
 
B. KINDS OF INTERPRETATION
There are generally two types of Interpretation. They are:
I. Literal interpretation (litera legis):
1. Giving the words their ordinary and natural meaning is called the literal interpretation.
2. When the words are clear and unambiguous, the Courts should give the direct
meaning of the words only and not more than that.
3. The rule of interpretation is that the language must be interpreted in its grammatical
and literal meaning. It is called litera legis or litera scripta. When the phrase of a statute
is clear and unambiguous and can be interpreted in one way, then the Courts should
interpret the statute in that way only.
4. In literal interpretation, the rule is that the words of a statute must be given their
ordinary dictionary meaning.
 31

5. If the statute is clear, there is no question of interpretation. The Court is under a duty
to give meaning of the language used by the legislature. It cannot give the language a
wider or a narrower meaning.
6. In order to find out the true intention of the legislature, the Court should look at the
context in which the words appear.
7. If the language or words are unambiguous, plain, and the statute is clear, the need for
interpretation does not arise.
 
II. Golden rule of interpretation:
1. The golden rule of interpretation is an improvement of the principle of literal
(grammatical) interpretation. It says that the Court, in its ordinary course, must find out
the intention of the legislature from the words used in the statute by giving them their
natural meaning.
However, if such interpretation leads to absurdity, repugnance, inconvenience, hardship
injustice or evasion, then the court must modify the meaning to correct them. Since this
approach of interpretation solves all problems, it is called the ‘Golden rule of
interpretation’.
2. Since the literal interpretation is modified for improvement, this interpretation is also
called the ‘Modifying method of interpretation’.
3. The golden rule of interpretation suggests that the consequences or effects of an
interpretation is more important and they are the clues to find out the true meaning of a
legislation.
 
III. Logical interpretation (Sententia legis)
When literal interpretation of a statute gives absurd or inconsistent meaning, then only
logical interpretation is resorted to.

 Thus Logical interpretation is an exception to the rule of grammatical or literal

interpretation
1. If the words of the statute are capable of giving rise to two or more interpretations,
then the object of the Act is taken into account for giving interpretation.
2. If two interpretations are possible, and if one interpretation defeats the purpose of the
Act and the other interpretation gives assistance to the achievement of the purpose and
policy behind the Act, the second type of construction is preferred.

Logical interpretation arises in the following circumstances

a. Ambiguity:
Here, certain words in a statute gives more than one meaning, and in such a case, the true
meaning of the words is ascertained from the context.  
 32

b. Inconsistency:
Here, the meaning of different parts of the statute are against each other and destroy each
other’s meaning.  In such a case, the Courts should find out the true intention of the
statute.

c. Incompleteness or lacunae:
There may be some lacunae in the statute which gives an incomplete meaning to the
statute. Such omissions may be lawfully filled by logical interpretation by Courts.
 
d. Unreasonableness:
Sometimes, the matter is so unreasonable that it is clear that the legislature could not
have meant what is said. In the above circumstances, ‘Sententia legis’ or logical
interpretation is sought.
 
 IV. Equitable Interpretation (construction):
1. Equitable construction means that the interpretation should be as per the intention of
the legislature and nothing more than that.
2. In interpretation of very old statutes, the wisdom and purpose of parliament to
summarise the lengthy laws into a comprehensive and brief legislations should be
considered.
3. Law makers cannot foresee all the consequences which may happen in future and
hence if any defect arises in the law, as per the principle of equity, they should have the
powers to correct such defects.
4)A statute which is against natural equity or reason is null and void.
 
C. PRINCIPLES OF INTERPRETATION: (SUBSIDIARY RULES)
I. Mischief rule of interpretation:
This classic rule has been laid down in the famous case namely ‘Heydon’s case’.
Rule in Heydon’s case (The Mischief Rule):
The mischief rule of interpretation originated in Heydon’s case in the year 1584.
A public educational institution owned certain immovable properties in its name. The
management of the institution transferred under lease some portion of the immovable
properties to a particular individual and then to his sons for their lives and after their
deaths, to a third person and a fourth person.

The above transfer of lands under lease came under ‘Doubling of Estates’. The English
Parliament thought that Doubling of Estates must NOT be allowed to public educational
or religious institutions. So it enacted an Act called ‘The Statute 31 Henry VIII’ to
 33

prevent such transaction. Based on the above Act, the British Government unilaterally
cancelled the leases.
Heydon was the fourth party in the above transaction and he challenged the above
enactment as unconstitutional.
 
The House of Lords held that the above enactment namely, The Statute 31 Henry VIII
was valid, as the object of Parliament was to protect the properties of educational,
ecclesiastical and religious institutions. It also held that transfer by leases creating
Doubling of Estates is the mischief and against the true meaning and object of the Act
and held such transfers as invalid.

Justice Coke while deciding the case observed –

If there are two or more interpretations possible for the material words of a statute, then
for the sure and true interpretation, there are certain considerations which are in the form
of questions:
 
1. What was the common law before making of the Act?
2. What was the mischief and defect for which the common law did not provide any
remedy?
3. What is the remedy resolved by the Parliament to cure the disease of the
Commonwealth?
4. The true reason of the remedy.  
he Judge should always try to suppress the mischief and advance the remedy.  
The mischief rule emphasized the general policy of the statute and the evil at which it
was directed. The rule says that the intent of the legislature behind the enactment should
be followed more than the mere words contained in the legislation.
 
It is the duty of the Court to adopt the construction which promotes the object of the Act
and remedy’s the mischief or suppressed the mischief.  The Court has to ascertain the
intention of the legislature and give meaning to the statute as a whole, keeping in
consideration the mischief when the statute was enacted and should remedy the same.
////
 
 II. Rule of Casus Omissus:
Generally, the Court is bound to harmonise the various provisions of an Act passed by
the Legislature during Interpretation/construction so that the repugnancy is avoided.
Sometimes, certain matters which ought to have been provided for in a statute might
have been omitted.
 
 34

In such cases, they cannot be added by construction, as it may amount to making laws
(legislation) or amending or altering it which is not the function of the Court but only
legislature.
 
Thus, the Court cannot stretch the word used by the legislature to fill in the gaps or
omissions in the provisions of an Act.  A new provision cannot be added in a statute
giving it a meaning not otherwise found therein.  
 
The Court can adopt interpretation of a doubtful phrase in a statute, but cannot insert
omitted provision. A word omitted from the language of the statute, but within the
general scope of the statute, and omitted due to inadvertence is known as Casus Omissus.
 
III. Rule of Ejusdem Generis: (General words follow particular words)
Ejusdem generis means “of the same kind”.  Generally, particular words are given their
natural meaning unless the context requires otherwise.  
 
If general words follow particular words, pertaining to a class, category or genus then it
is construed that the general words are limited to  mean the persons or things of the same
general class category or genus as those expressed by the particular words.
 
So, the meaning of the general words which follow the particular words are understood
with reference to the particular words.  The basic concept of this rule lies in the fact that
if the legislature intended general words to be used in unrestricted sense, then it need not
have used particular words at all.
 
This rule is not of universal application.  If the specific words do not belong to a separate
genus, or if a general word follows only one particular word, that single word cannot
constitute a distinct genus, and the rule of Ejesdem generis does not apply.
 
Also, if the context of a legislation rules out the applicability of this rule, then it will not
be applied.  
 
Grasim Industries Ltd. Vs. Collector of Customs, Bombay (AIR 2002 SC 1706)
 
The rule of ejusdem generis is applicable when particular words pertaining to a class,
category or genus are followed by general words.  In such a case the general words are
construed as limited to things of the same kind as those specified.
 
iv. Noscitur a sociis:
 35

 It means that in interpreting the words of a Statute, it should be with reference words
found in immediate connection with them. In simple terms, associated words take the
meaning from one another. So for the meaning of doubtful word, the meaning may be
ascertained by reference to meaning of the associated words. Noscitur A sociis is a genus
and ejusdem generis is a species.
 
V. ‘A Statute is to be read as a whole’:
 Every clause of an Act must be construed with reference to the other clauses of the Act
to make a consistent enactment of the whole statute.  
 
All the parts of a statute should be constructed together and not each part by itself. In
order not to infer casus omissus, all parts of a statute or Section should be construed
according to the context. Only then, it will be a correct interpretation.
 
 VI.  ‘Bonam Partem’ Rule: (R. vs. Hulme):
 The construction of words in Bonam Partem means that words in a statute are prima
facie to be taken in their lawful and rightful sense. For example, if an Act levies a fine, it
is presumed that the fine is lawfully levied. Similarly, if a statute refers to a thing being
done, it is to be taken that the thing is being lawfully done.
 
The leading case law in Bonam Partem is R. Vs Hulme. A statute provided that a witness
‘shall answer every question’.
 
The Court held that when a statute requires a person to answer every question, the
meaning is that he must answer the questions truly to the best of his knowledge and
belief and it does not mean that he would give false statements.
 
VI. Consequences must be considered:
(Avoidance of hardship, inconvenience and anomoly) (Modification of language):
 Sometimes, the words used in a Statute may bear more than one meaning. To find out
the correct meaning, the Courts generally adopt the logical interpretation to correct the
ambiguity, inconsistency and lacunae in the Statute.
 
In addition to the logical interpretation, to find out the true meaning, the Courts take into
consideration the consequences in the application of the terms and language of the Act.
 
 Venkataramana Devaru Vs. State of Mysore AIR 1958 S.C. 255
 36

The rule laid down in this case is that if there are two contradictory provisions, the Court
must try to give effect to, rather than defeat both the provisions so that the object of the
enactment is achieved. This is known as ‘The Rule of Harmonious Construction’.
 
VII.  Rule of last antecedent:
 Last antecedent means “a qualifying phrase ought to be referred to the next antecedent
which will make sense with the context and to which the context appears properly to
relate it”.

Illustration:
The definition of ‘premises’ in the Bombay Land Requisition Act, 1948, reads ‘any
building or part of a building let or intended to be let separately’, here the words ‘let or
intended to be let separately’ does not qualify the word ‘building’ but only the words
‘part of a building’, because ‘part of building’ is the last antecedent.

VII. Rule of uti loquitur Volgus:

The meaning of ‘uti loquitur Volgus’  is ‘Rejection’.  If the judiciary is satisfied there
another meaning which is more agreeable to the object and intention, then it will choose
the other meaning.
 
Thus the Land Tax Act which exempted ‘hospitals’ from the land tax, was construed to
include all establishments popularly known by the designation ‘hospitals” and the
exemption may be extended to even an asylum for orphans which has the name as
‘hospital’.
 
It is on the basis that when it appears to the judge that it is the object of the Act to give
the wider meaning, than to restrict it to what are alone ‘hospitals’.


 37

IOS CHAPTER NO – 2
EXTERNAL OR EXTRINSIC AIDS
TO INTERPRETATION/CONSTRUCTION
(Acts in Pari Materia, Parliamentary history, Text Books and Dictionaries, Debates,
Foreign decisions and proceedings of the Legislature)
 
MODEL QUESTIONS
1. Examine the External Aids of Interpretation of Statutes.
2. What is a statute? Explain the external aids to interpretation.
3. Short Notes on: (a) Government publications (b) Select Committee report
(c) Extemporaneous exposito (d) Text book and Dictionaries.

Answer
A. INTRODUCTION
Other than the intrinsic aids such as preamble, proviso and headings, etc., of the Act, the
Court can also consider resources outside the Act. The Court can consider resources
outside the Act such as historical settings, objects and reasons, Bills, debates, textbooks,
dictionaries, etc.
 
Recourse to extrinsic aid in interpreting a statutory provision is justified only within
well-recognised limits.
B. EXTERNAL OR EXTRINSIC AIDS
The following are External or Extrinsic aids
 
I. Historical setting:
The surrounding circumstances and situations which led to the passing of the Act can be
considered for the purpose of construing a statute.  
II. Objects and Reasons:
The statements and objects cannot be used as aids to construction. They can be used for
the limited purpose of understanding the background leading to enacting the legislation.
 
III. Text Books and Dictionaries:
The utility of dictionary definitions is limited to circumstances only when Judges and
counsel use different words. The Courts may make use of standard authors and reference
to well-known and authoritative dictionaries, but the meaning should be fixed keeping
the context in mind. The statute itself is the best safest guide for reference.
 
IV. International conventions:
 38

International conventions is generally not resorted to for the purpose of interpreting

legislation if it does not contain any ambiguities.
 
V. Government Publications:
Government Publications may be divided into:
(a) The reports of Commissioners or Committees.
(b) Other documents.
Only if the above documents are expressly referred to in the statute, they can be looked
at for the purpose of construction/interpretation.
 
VI. Bills:
The Courts cannot interpret an Act by any reference to the Bill. They cannot also
determine its construction by any reference to its original form. While interpreting a
statute, the Bill cannot be referred to. Only when words in a statute are so ambiguous,
reference to the Bill is permissible.
 
VII. Select Committee Report:
To ascertain the legislative intent of a doubtful meaning of a statute, report of Legislative
Committee of the proposed law can be consulted.
 
Even here, the report of the Select Committee is looked into from historical angleto find
out what was the previous law, before and at the time of enacting the statute.
 
 VIII. Debates and proceedings of the legislature:
 A speech made in the course of a debate on a Bill could be referred to find out the intent
of the speaker. Legislative proceedings cannot be referred to for interpretation of an Act,
but they may be relevant only for the proper understanding of the circumstances under
which it was passed and the reason which necessitated for passing the enactment etc.
 
IX. State of things at the time of passing of Bill:
 It is permissible to have regard to the state of things which was existingat the time the
statute was passed. The Court should take judicial notice of the circumstances of the state
of the law anterior to the passing the Act.
 
X. History of Legislation (Historical facts of statutes):
The history of Legislation usually denotes the course of events which give rise to the
enactment. The Court may refer the historical facts if it is necessary to understand the
subject-matter of the statute.
 39

XI. Extemporaneous Expositio:

Ininterpreting the old statutes, construction by the judges who lived at the time when
they were passed could be referred because they were the best placed to judge the
intention of the makers of the statute.
In T.C. BhojaVs G.T. Thakur AIR 1916 PC 182
 
The Supreme Court held that if the terms of a statute are clear, then even a long and
uniform judicial interpretation may be overruled, if it is contrary to the plain and
unambiguous meaning of the enactment”.
 
XII. Judicial interpretation of words:
Where a word of doubtful meaning has received a clear judicial interpretation, the word
is interpreted according to the Judicial meaning.
 
XIII. Analogy and legal fiction:
1. Analogy means ‘governed by the same general principle’. If ‘analogy only’ arise by
legal fiction, then it must be limited to the purpose indicated by the context and cannot
be given a larger effect.
 
2. Legal fiction means an enabling trick which can be employed to meet exigencies of a
critical situation. If legal fiction is created, full effect must be given to it and it should be
carried to its logical conclusion.
 
XIV. Previous English Law:
It is not legal and correct to apply decisions of English Acts to the construction of an
Indian Statute.  If the basis of the Indian legislation on a particular subject is the English
law, then it is permissible to check what the English law is on that particular point
especially when the provisions of the Indian Statute are not clear.
 
XV. Foreign Decisions:
The foreign decisions are one of the extrinsic aids. If a statute is reasonably plain and
clear, one need not seek the help of foreign decisions and similar statutes on the point of
dispute.
 
XVI. Policy:
If the words of an enactment are quite clear, then reference to the policy of the
Legislature is irrelevant. In between the general policy of the Act and the express words
of a Section dealing with a specific matter, the express words shall prevail over the
policy.
 40

a. Government Policy:
A statute cannot be challenged on the ground that it is the result of some alleged wrong
policy of the Government. A provision of a statute cannot be struck down on the ground
that the policy behind the enactment is either wrong or bad. Even if the policy is wrong,
the statute is valid.
 
b. Public Policy:
1. Only when the statute is not explicit, the policy of law or the public policy can be
taken into account.
2. The duty of judge is to simply explain the law and not to speculate what is the best for
the advantage of the country or community.

XVII. Interpretation by Executive:

The interpretation of an Act lies not with any department of the Government but only
with the Courts. The regulation of a department of Government cannot control the
interpretation of an Act when its meaning is plain.
 
XVIII. Purpose of the Act:
For determining the purpose or object of the Legislation, it is permissible to look into the
circumstances which prevailed at the time when the law was passed.
 
XIX. Conventions and Practices:
Constitutional conventions are broadly defined as rules of repeated/long standing
political practice. They aid in construction. The Conventions of the constitution are
considered in its interpretation.
 
XX. Spirit and Reason of the Law:
The purpose of a statute is the reason for its enactment, but the spirit or reason of the law
is closely connected to the legislative intention.
 
The best way of discovering the true meaning of a law, when the words are not clear is
by considering the reason and spirit of it.
 
XXI. Acts in ‘Parimateria’ (Statutes in parimateria):
It is not generally correct to interpret one statute with reference to another statute.
However, when the statute is ambiguous, the intention of the Legislature may be
gathered from statutes relating to the same subject-matter.
 
 41

XXII. Interpretation of later Act with the help of earlier Act:

Words in a later enactment cannot ordinarily be construed with reference to the meaning
given to those or similar words in an earlier statute.
 
XXIII. Words and expressions used in different Acts:
It is not a correct practice to take words from one statute to illustrate the meaning of
words in another statute. The mere fact that a particular expression has been used in a
restricted sense in an enactment does not restrict of its meaning in other Acts also.
 42

IOS, CHAPTER NO – 3
STATUTES AFFECTING THE CROWN
OF A STATE
(Crown is not bound by statutes) (Crown liability for torts and contracts)

 MODEL QUESTIONS
 1. Explain the law relating to statutes affecting the crown of the state.
2. “Statutes bind the Crown” – Comment.
3. “Crown is above all” – Do you agree with this statement?
4. “King can do no wrong” – Explain the rule and exceptions if any.
Answer
 
A. INTRODUCTION
 The general English rule and presumption is that all statutes are meant for subjects only
and the Crown/Ruler is not bound by them. This means that statutes neither control the
Crown nor the rights or property of the Crown, unless expressly or by necessity, or by
implication named so in the statute.
 
The general expression ‘any person’ in any statute is meant to include the subject only
and not meant to include the Crown himself who made the rules. If a statute affects the
Crown’s rights, interests and/or properties, then the Act must specifically mention so or
otherwise the Act is not applicable to the Crown.
 
The basis of this rule is to preserve an efficient and effective functioning of the ruler and
his Government for the welfare of the public.
 
Extent of Application:
‘The Crown is not bound by statutes’/common Law - extends to Four classes of persons:
i. The Sovereign himself personally
ii. His servants or agents
iii. Persons who are considered to be in consimilicasu
iv. Officers of the State with ministerial status, all subordinate officials and servants
holding statutory offices.
 
B. ILLUSTRATIONS THAT STATUTES ARE NOT BINDING ON CROWN
1. The ‘Rule of the Common wealth of Nations’ reads that “the executive Government of
the State is not bound by statute unless that intention is apparent”.
 43

2. As per the Land Transfer Act 1897, the legal estate in land gets vested in the personal
representatives of a deceased person but this rule does not bind the Crown.
3. The Locomotives Act 1865, which regulated the speed of locomotives on highways,
was held not applicable to Crown and hence did not bind him.
4. Property occupied by the servants of the Crown exclusively for public purposes. For
e.g.: the Post Office, Tax office, Prison, Police Station, Court are all held exempted from
tax, etc.
5. The custodian of enemy property, being a Crown servant, was held not liable to tax.
6. The statutes regarding ‘Limitation’ were formerly held not to bind the Crown, but in
the recent days, Limitation Acts subject to specific exceptions are expressly made
applicable to the Crown also.
7. It is a prerogative of the Crown not to pay tolls, rates or other burdens in respect of the
properties owned in His name.

Rudler Vs. Franks [1947] 1 K.B. 530

The Court held that the Crown is not bound by Rent Restriction Acts under Order in
Town and Country Planning Act 1947.
The Crown is not bound to get planning permission for its own interest in Crown lands.
 
Cooper Vs. Hawkins 92 Ala. 176, 9 So. 532
An army driver drove a vehicle on Crown service at a speed exceeding the limit fixed by
a regulation. It was held that he was not liable for the breach of the speed limit in the
absence of express words in the statute that the Act binds the Crown.
 
C. ILLUSTRATIONS THAT STATUTES ARE BINDING ON THE CROWN
1. The statutes for the advancement of religion or learning, the statutes for the
maintenance of the poor, statutes for the suppression of wrong and statutes to perform
the will of the testator or donor bind the crown.
2. If an Act of Parliament is made for the public good, then Crown is also bound by such
Act.
3. The Crown is not excluded from the operation of a statute, if in the statute his
prerogatives, rights, or properties are not involved.
 
D. INDIAN LAW
The question whether the State is exempted by necessary implication from the operation
of an Act depends on the fair interpretation of the Act.
The Consumer Protection Act 1986 applies to a statutory authority, a Government or
semi-government body or a local authority in the same manner as it applies to private
persons.
 44

A Company registered under the Companies Act is not a Government department, even
if its share capital be wholly owned by the Government and hence it is not deemed as
representative of the crown.
 
Union of India Vs. Jubbi 1968 AIR 360
The Supreme Court held that a statute applies to State as much as to a citizen unless it
expressly or by necessary implication exempts the State from its operation.
 
E. CROWN LIABILITY FOR TORTS AND CONTRACTS
I.  Crown liability for torts:
In Law of Torts, ‘Liability of crown for torts and contracts by him or his representatives’
the rules are follows:
 
1. If the function exercised by the Government department is Sovereign function (only
Government can exercise such function), then the State is not liable.
2. If the function exercised by the Government is a non-sovereign function (this function
can be carried on even by private individuals. It is run with profit motive. In such cases,
the Government is liable for the torts committed by its servants.
Fatima Begum Vs. State or Jammu & Kashmir 2000 ACJ 1145
 
1. The Government is liable for its Torts or torts committed by its servants if such act is
done under colour of Municipal law, as it purports to be in the exercise of powers
conferred by a statute.
2. The Government is liable to restore property or money wrongfully obtained or
detained by it, or its servants on its behalf.
3. The Government is not liable for a wrong done by its servants in the course of their
official duties unless the act was expressly authorised or ratified by it.
 
II. Liability of crown in contracts
As per Sec. 23 of the Crown Proceedings Act 1958, the liability of the crown in contract
is as follows –
 
1.   The Crown is liable in respect of any contract made on its behalf in the same manner
as a subject (citizen) is liable in respect of his contracts. However, all the contracts must
have been made in the name of the crown and the person entering into such contracts
must have been duly authorised by the crown.
2. No proceeding lies against the Crown anything done or omitted to be done by any
person while discharging or purporting to discharge any responsibility of a judicial
nature invested in him.
 45

3. No proceeding lies against the Crown in respect of any contract made by or on behalf

of any public statutory corporation;
 
F. CONCLUSION
In the present changing scenario, when most of the statutes in the world are being ruled
by the elected representatives of the people, people are the sovereigns and hence this
theory/concept of non applicability of statutes to Crown/their representations no longer
holds good except in exceptional cases, where for certain special reasons, such non
applicability of statutes are specifically expressed in statutes.
 

 46

Kab huna IOS CHAPTER NO – 4

CONSTRUCTION OF FISCAL (TAX) STATUTES
(Imposition of tax by authority of law)

 UNIVERSITY QUESTIONS
 1. State and explain the general principles of interpretation of taxing statute.
2. Discuss principles involving Interpretation of taxing statutes.
3. Write short note on interpretation of taxing statutes.
4. Strict construction is adopted for fiscal statutes – Comment.
 
Answer
 A. INTRODUCTION
Fiscal Statutes regulate the levy, collection and refund of tax to tax assesses. The
interpretation of fiscal statute is similar to any other law.
 
In deciding the liability of a subject (Citizen) to tax, it is necessary to adhere to strict
letter of law, and not merely to the spirit of the statute or the substance of the law. Tax
can be imposed only when the case falls strictly within the provisions of the fiscal law.

B. RULES OF INTERPRETATION OF FISCAL STATUTES

 1. Charging Section – clear words:
1. Before taxing any person, it must be clearly established that the person to be taxed
comes within the purview and ambit of the charging Section by clear words.
 2. No one can be taxed by implication of law. If a person has not been brought within
the ambit of the charging Section by clear words, he cannot be taxed at all.
 3. The subject cannot be taxed without clear words that the person is liable for taxation.
The Act of Parliament must be read according to the natural construction of its words.
Even if by such taxation, the person to be taxed faces great hardship, still he can be taxed
provided he comes clearly within the letter of law that he must be taxed.

a. Calcutta Jute Manufacturing Company, Vs. Commercial Tax Officer 1998(59)ECC 92

 The Supreme Court held that in an Act which imposes tax, one has to look into merely
what is clearly stated. There is no room for searching the intention. There is no room for
equity about a tax. There is no room for presumption as to tax. There is nothing to be
read in, nor to be implied. One must only look at the language used.

b. MatharamAgarwal Vs. State of M.P. 1999 (4) Suppl. SCR 195

 47

 The Supreme Court held that words cannot be added or substituted to find a meaning in
a statute so as to serve the intention of the legislature. All statutes must clearly specify
three things i.e., subject of tax, person liable to tax and rate of tax payable.

2. Strict and favourable construction:

 Taxing enactments should be strictly construed and the right to tax should be clearly
established. Conditions precedent to the imposition of any tax should be strictly
complied with. Equitable construction should not be taken  in to account while
construing a fiscal statute.
 
A.V. Fernandez Vs State of Kerala AIR 1975 S.C. 657
 The Kerala State was created in 1956 and in 1957, the Kerala Government enacted an
Act called ‘The Kerala State Sales Tax Act, 1957’. The Act imposed taxes on ‘sale or
purchase of goods other than newspapers’ within the State by entry 54 in the State List –
List II of the Seventh Schedule of the Constitution.
 
This was challenged by Shri Fernandez as violative of Article 286 of the Indian
Constitution which reads, “No law of a State shall impose, or authorise the imposition of
a tax on the sale or purchase of goods where such sale or purchase takes place,
 
a. outside the State; or
b. in the course of the import of the goods into, or export of the goods, out of the territory
of India.
 
The Supreme Court held that the State Government was empowered to impose sales tax
on sale or purchase of goods other than newspapers and such imposition of tax is not a
restriction on sale or purchase of goods as prescribed by Article 286.
 
3. Clear intention to impose/increase tax:
The intention to impose or increase a tax or duty must be by clear and in unambiguous
language. To impose a new burden by way of taxation, the intention should be in plain
and in clear terms. Intention of the legislature to impose tax can be gathered from the
natural meaning of the words of the statute itself.
 
4. Prospective operation of tax statute:
1. The cardinal principle of tax law is that the law to be applied to an assessee is the law
in force in the assessment year unless otherwise provided expressly or by necessary
implication.
 
 48

2. No retrospective effect to a fiscal statute is possible, unless the language of the statute
is very clear and plain. If the language is ambiguous or doubtful, the doubt has to be
resolved in favour of the subject and not in favour of the Government.
 
3. A tax can be levied only if under the provisions of the taxing statute, it is leviable.
S.K. HabiBullah Vs. ITO AIR 1957 Mad 719
The Supreme Court held that power to open an assessment is not a matter of procedure
and hence not retrospective.
Indian cable company Ltd Vs. Collector of Central Excise AIR 1995 SC 64
 
The Supreme Court held that the entries in fiscal statutes are of everyday use. The tax
levying authority must construe the meaning of the entries as it is understood in common
parlance or commercial or trade circles. Popular meaning will prevail over dictionary
meaning.
 
5. Imposition of tax by authority of law:
The taxes and assessments can only be imposed by an authority established under a
statute. No tax can be levied by order, circular, by law, regulation etc., of the executive.
The tax can be levied only by an Act of Parliament or legislature and no body or
organisation less than that.

6. Machinery provisions:
Machinery provisions mean the procedure for calculation and collection of taxes.
1. An exemption clause in a taxing statute must be liberally construed in favour of the
assessee.
2. The rule of strict construction in taxing statute applies primarily to the charging
provisions only and has no application to the other machinery and exemption provisions.
 
7. Tax statute to be read as a whole:
The entire provisions of a fiscal statute has to be read as a whole and not in piece meals
to find out the intent of the legislature. As in any other statute, the context, scheme of the
fiscal Act as a whole and its purpose, relevancy etc., are to be considered.
 
8. No spirit of law:
A person is not liable to tax on the spirit of law or by inference or by analogy of a fiscal
statute. In a taxing statute, merely what is stated clearly is looked into. No implied
meaning should be taken if the words are plain and clear.

 
 49

9. No Logic or reason:
If a fiscal statute has unclear and ambiguous expressions, the tax payer may escape from
tax liability because he is not brought within the letter of the law. In other words logic or
reason cannot be the basis for interpreting a taxing statute.

10. Substance of matter:

The tax authorities must consider the legal aspects of a particular transaction for levy of
tax. This is called ‘substance of the matter’. i.e., the true nature of transaction.
 
When the Courts find that there is an attempt at concealment, it will bring the evaders to
tax net.
 
11. Double taxation:
In interpreting a fiscal statute if one meaning gives rise to double taxation and other
meaning gives rise to single taxation, then the interpretation must be in favour of single
taxation. However, if there is clear provision for double taxation, then it cannot be
ignored.
 
12. Delayed payment of tax:
Interest is levied by tax authorities on delayed payment of tax. If a fiscal statute makes a
substantive provision for payment of interest only on delayed payment of tax, then it is
valid.
 
C. CONCLUSION
In short, the general rule of construction of fiscal statute is that in case of doubt, it is
decided in favour of taxpayer and against the Government. So in all fiscal statutes strict
interpretation is made so that the taxpayer is benefitted.

 50

IOS CHAPTER NO – 5
INTERNAL OR INTRINSIC AIDS TO
INTERPRETATION/PARTS OF STATUTE
(Preamble, Long Title, Short Title, Marginal Notes and Headings)

 UNIVERSITY QUESTIONS
 1. Explain the different types of internal or intrinsic aids to interpretation.
2.

Explain how context, title, preamble and headings in a statute aids in interpretation of the
statute?
3. Write short notes on: (a) Marginal notes     (b) Long titles (c) Preamble (d)
Illustrations   (e) Interpretation clause (f) Punctuation      (g) Headings (h) Schedules (i)
Direct and indirect legislation (j) Exception and Saving Clauses
Answer
 A. INTRODUCTION
 In interpreting statutes, the interpreter seeks the assistance either within the statute itself
or from external sources.
 
Types of Aids to Interpretation:
 There are two types of Aids:
 
a. Internal or Intrinsic Aids
b. External or Extrinsic Aids
 
Internal or Intrinsic Aids is alone dealt with hereunder –
 
B. INTERNAL AIDS TO INTERPRETATION
I. Context:
1. If the words in a statute are ambiguous, then the context has to be taken into account
for interpretation. The statute can be rectified and set right with the help of the context.
2. The context includes other provisions of the same statute, its preamble, the existing
state of the law and other related legal provisions.
3. The intention behind the meaning of a word is necessarily decided by the context and
circumstances in which the word is written or spoken.
 
II. Title:
 51

A title is not part of an enactment. So it cannot be legally used to restrict the plain
meaning of words in an enactment. Titles are used as additional evidence to support
interpretation. Title may not correctly disclose the intent of the legislature. Generally,
title is a very useful aid in construction.
 
Titles are of two types
a. Long title:
The ‘head’ of the statute is the long title and the general purpose of the Act is described
in it.  For e.g., in the case of Prevention of Food Adulteration Act, 1954, the long title
reads thus: ‘An Act to make provision for the prevention of adulteration of food’. Long
title of an Act forms a very important part of the statute. A long title describes the
general purpose of the Act.
 
i. In Re Kerala Education Bill 1959 1 SCR 995
The Supreme Court held that the policy and purpose may be deduced from the long title
and the preamble.

ii. ManoharlalVs State of Punjab 1961 AIR 418

The Supreme Court held that the long title of the Act is relied as a guide to decide the
scope of the Act, the policy and purposes of the legislation, but it cannot control or
override the express provisions of the Act.  

b. Short title:
The short-title of the Act is purely for the facility of reference only. Short titles are
merely for convenience. The short title is generally not taken into account in ascertaining
a statute.
 
The Short Title is like a ‘nick name’ of the Act, like the ‘The Indian Penal Code 1860’,
‘The Arbitration and Conciliation Act 1996’, etc.
 
III. Preamble:
The Act starts with a Preamble and is generally small.  The main objects and purposes of
the Act are found in the Preamble of the statute.  Preamble is the ‘Act in a nutshell’ and it
is a gist of the Act.
 
Sometimes, if there is a doubt regarding the body of the Act, the Preamble is referred.
1. Preamble explains the reasons, motives and objects sought to be achieved by the
statute. It is a means to find out the meaning of the statute.
 52

2. The preamble contains the recital showing the reason for enactment of the Act. The
preamble of a statute is ‘a key to the understanding of it’ and it is considered to find out
the correct meaning in case of ‘ambiguity’.
3. The preamble to a statute is important to its interpretation. The preamble cannot either
restrict or extend the provisions, if the language, object and scope of the Act are clear.
4. If the language of an Act is clear, the preamble must be ignored. Only if the object or
meaning of an enactment is not clear and ambiguous, the preamble is resorted to.
In Jai Singh and another Vs. Union of Indian and others 1977 AIR 898
 
The Supreme Court held that the preamble of a statute is part of the Act and is an
admissible aid to construction.

Lucknow Development Authority Vs. M.K.Gupta 1994 AIR 787

The Supreme Court held that the preamble can afford useful assistance to ascertain
legislative intention.

IV. Headings:
A group of Sections are given under a heading which act as their preamble. Sometimes
even a single Section may have a heading. The heading gives a short list of what the
individual Section or the group of Sections deal with. For e.g., the offences under Sec.
378 to 441 of the I.P.C., carry the heading as “Of offences against property”.
 
Headings in the body of an Act are of help to find the real meaning when there is an
ambiguity.
i. Durga Thathera Vs. Narain Thathera AIR 1931 All 597
The Supreme Court held that the headings are like Preambles which help as a key to the
mind of the Legislature, but do not control the substantive section of the enactment.

ii. In Kalipada Vs. Sree Bank Ltd., AIR 1960 Cal 285
The Supreme Court held that ‘headings’ in a statute cannot control clear and
unambiguous language of a Section.
 
V. Marginal notes:
Marginal notes means the notes, which are printed at the side of the Section in an Act,
and itsummarize the effect of the Section.
 
For e.g., in Sec. 390 of the I.P.C, the marginal notes reads as “When theft is robbery”
which explains robbery and when theft is considered as robbery.
 53

Marginal notes are not part of the statute and so they must not be considered. If there is
any ambiguity in the meaning of the provisions of the statute, the marginal note may be
looked into only as an aid to construction.
 
Prasad Vs. State AIR 1950 All 732
The Supreme Court held that the marginal heading cannot control the interpretation of
the words of the Section, particularly when the language of the Section is clear and
unambiguous.
 
VI. Proviso:
A proviso merely carves out something from the Section itself.
A proviso is subsidiary to the main Section and has to be construed in the light of the
Section itself. If there is a clear conflict between the enacting clauses and the proviso,
then the clauses will prevail.
 
VII. Definition Clause / Interpretation Clause:
The legislature can lay down legal definitions of its own language. If such definition is
embodied in the statute itself, it becomes binding on the Courts. When the Act itself
provides a dictionary for the words used, the Court must first look into that dictionary for
interpretation of the words used in the statute.
 
For e.g., Sec. 6 to 52 A of I.P.C. contains definitions of various important terms like
‘good faith’, ‘voluntarily’, ‘illegal’, ‘fraudulently’, ‘dishonestly’, etc.  These words
appear very often in the statute, and in such places the meaning of these terms are as
given in the definition clause.
 
VIII. Conjunctive and Disjunctive words:
The word ‘and’ is conjunctive and the word ‘or’ is disjunctive. The word ‘or’ and the
word ‘and’ are often used interchangeably. The word “or” can be read as “and” and the
word “and” can be read as “or” when it is necessary to give effect to the intention of the
legislature.
 
Conjunctive and Disjunctive Enactments:
The word ‘and’ is used in a conjunctive sense. The word ‘or’ is used in a disjunctive
sense. Courts have read ‘and’ as ‘or’ and vice versa because of the intention of the
legislature.
Normally the word ‘or’ cannot be read as ‘and’ unless some other part of the same statute
or the clear intention of the statute or context of the statute becomes very important to
find out the true intention of the legislature.
 54

The use of the expression which twice in the first part of sub-clause (a), read with the
comma put after each, shows that the intention of the legislature was to read them
disjunctive and not conjunctive.
 
IX. Gender:
Words importing the masculine gender should be deemed to include females too.

X. Punctuation:
Punctuation is disregarded in the construction of statutes. Generally there was no
punctuation in old statutes in England in the Acts framed before the year 1849.
Punctuation marks cannot control, vary or modify the plain and simple meaning of the
language of the statute. At the most, they can aid in the construction of ambiguous
statements.
 
If there is doubt about the meaning in a statute, weight should be given to the
punctuation.
 
i. In Re Bhola Singh Raman Lal
The Lahore High Court has held “A statute must be interpreted without regard to
punctuation”.

ii. In Ashwin Kumar Vs. Arabinda Bose AIR 1953 SC 75

The Supreme Court held that when a statute is carefully punctuated and there is no doubt
about its meaning, weight should undoubtedly be given to the punctuation.
 
XI. Explanation:
In certain provisions of an Act, explanations may be needed, when doubts may arise as to
the meaning of the particular Section. Explanations are given at the end of each Section
and it is part and parcel of the enactment. The ‘Explanation’ must be interpreted keeping
in mind the purpose of the enactment.
 
XII. Exceptions and Saving Clauses:
To exempt certain clauses from the purview of the main provision, an exception clause is
provided. The things which are not exempted fall within the purview of the main
enactment. For e.g., Sec. 300 of the I.P.C. has 5 exceptions which explain that the acts
mentioned therein, do not come under the definition of murder but only to culpable
homicide not amounting to murder.
 
The saving clause is also added in cases of repeal and reenactment of a statute.
 55

XIII. Schedules:
Schedules form part of a statute. They are at the end and contain minute details for
working out the provisions of the Act. The expressions in the Schedule cannot override
the provisions of the express enactment. Schedules appended to statutes are part of an
Act and may be used in interpreting provisions in the body of the Act.
 
XIV. Illustrations:
Illustrations in enactments provided by the legislature are valuable aids in understanding
the real scope of the text.

The illustrations merely exemplify the application of the rule contained in the Section
and they do not control, enlarge, restrict or modify the Section.
 
XV. Meaning of words:
The definition of a word given must be construed in its popular sense. Popular sense
means that sense which people are conversant with the subject-matter.
 
If a statute is with reference to a particular trade, business or transaction, then the word
used must be such that they are conversant with that trade, business or transaction.
 
These words are construed as having that particular meaning and differ from the ordinary
meaning.
 


 56

CHAPTER NO – 6 PRINCIPLE OF UTILITY

(Greatest happiness principle) (Felicity and happiness)

MODEL QUESTIONS
1. Pain and pleasure are the basis of the utility principle of Bentham – Discuss.
2. Bentham's aim is to produce ‘felicity and happiness’ through his utility principle –
Explain.
3. The Bentham’s theory of punishment is based on pleasure and pain – Discuss.
 
Answer
A. INTRODUCTION
Jeremy Bentham is the author of the ‘Principle of Utility’. He did extensive research to
find out the real purpose of legislation. According to him, the correct approach of a
legislation must be the exploration and theoretical foundation of a perfect system of law
and government. For this, there must be a system to measure the perfection or its value.
 
To achieve the above purpose, Bentham enunciated the principle of utility, otherwise
known as the ‘greatest happiness principle’.
 
The important points of ‘Principle of Utility’ are as follows –
1. According to Bentham, nature has placed mankind under the governance of two
sovereign masters,pain and pleasure.
2. The principle of utility  recognises this aspect, and hence his theory of utility assumes
both pain and pleasure for the foundation of legal system.
3. Bentham's aim is to produce ‘felicity and happiness’. The means to be employed are
'reason and law'. The right law will produce happiness, and the right law is one in
accordance with reason.
4. According to Bentham's draft codes of law, each particular law is attached to a
'commentary of reasons on this law'. The commentary demonstrated its value. Only a law
with reason can be stable.
5.   By 'utility' Bentham means 'that property in any object, whereby it tends to produce
benefit, advantage, pleasure, good, or happiness  or  to prevent the happening of
mischief, pain, evil, or unhappiness'. The rightness of actions depends on their utility;
and the utility is measured by the consequences which the actions tend to produce.
6. The pleasure and pain must be clear, easily understandable terms. Only then, it will
give precise sense to the others.
7.   A good and valid reason behind a law will maximize pleasure and minimize pain.
8. Bentham's aim of increasing happiness is a practical one; and he gave many practical
proposals.
 57

9. Bentham relied on the peoples’ psychology. This is people tend to act in their own
interests, that too, in terms of pleasure and pain. People are understood to be seekers after
pleasure and avoiders of pain.
10. Given this knowledge of people's psychology, the legislators can enact laws for
people seeking only their own interests, which in fact lead to promote the general interest
or the greatest happiness for all.
11. The Bentham’s theory of punishment is also based on pleasure and pain. The proper
aim of punishment is to produce pleasure and prevent pain. Now the punishment system
is in itself a pain. So as per Bentham’s theory, all punishments are harmful. Therefore,
his theory can only be justified if this particular pain is outbalanced by the reduction in
pain or increase of pleasure.
12. If people are deterred by punishment from doing things which would produce more
pain - for example, as rape, theft, or murder, then the punishment will be justified.
Otherwise not.
13. According to Bentham, democracy is the best form of governance. Dictators, kings,
oligarchies cannot be trusted. The appropriate form of government is 'the greatest
happiness of the greatest number' is only safe in the hands of the greatest number of
administrators.
14. If the people as a whole are granted political power as in democracy, they will
promote what is appropriate for their interests.

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CHAPTER NO – 1
DEFINITION, APPLICATION, NATURE/CHARACTERISTICS, DEVELOPMENT,
REASONS OF GROWTH AND SCOPE/VALUE OF ADMINISTRATIVE LAW

UNIVERSITY QUESTIONS
1. (a) Explain the nature of Administrative Law.
b) What are the important causes which led to the development of Administrative Law?
Explain.
2. “Administrative Law has been characterized as the most outstanding legal
development of the 20th century”. Comment with reference to India and state reasons for
such a development?
3. The study of Administrative law is not an end in itself but a means to an end. Explain
with reference to scope of administrative law.

Answer
A. INTRODUCTION
Administrative law is the law governing the organization, procedure, powers and duties
of the Executive of the Constitution and not the Judiciary or Legislature.

B. DEFINITIONS OF ADMINISTRATIVE LAW

Administrative Law is “the law relating to the administration. It determines the
organization, powers and duties of administrative authorities”.

This definition is broad, and includes various matters like Administrative organization,
Law of Civil Service, etc. But it does not include the enormous number of substantive
laws produced by the agencies. It also does not mention procedures but leaves them to be
implied by words like ‘organization’, ‘powers’ and ‘duties’.

It is also defined as “the law concerning the powers and procedures of administrative
agencies”.

Application:
i. The powers exercised by the Administration.
ii. Limits of the administrative powers.
iii. The ways in which administration is kept within limits.
iv. Procedures followed by administrative authorities.
v. Remedies available to a person affected by administration.
 59

Canara Bank vs V.K. Awasthy, (2005)

The Supreme Court held that in administrative law, where no fundamental freedoms are
involved, it is the courts/tribunals will only play a secondary role while the primary
judgment as to reasonableness will remain with the executive or administrative authority.

C. CHARACTERISTICS OF ADMINISTRATIVE LAW

1. Administrative law determines as to who are the administrative authorities.
2. It decides the powers of administrative authorities.
3. It prescribes the limitation for the exercise of such powers.
4. It prescribes the ways by which administration can be controlled.
5. It prescribes the procedure to be followed by the administrative authorities.
6. It prescribes the remedies available to a person affected by administration.

D. DEVELOPMENT OF ADMINISTRATIVE LAW IN INDIA

In India, administrative law was in existence even in ancient days. During the dynasties
of Mouryas and Guptas, there existed organised administration in India. Natural Justice
in the form of Dharma was observed in administration.

However, during this period, there was no established principle of administrative law in
existence.

British Period:
Well organised administration existed only during the period of the East India Company
and only during the British Rule in India, many royal Charters, Acts, Statutes and
Legislations were passed in different fields of life like transport, labour, safety, morality,
etc.,

Charter Acts:
The following are the several Charter Acts, which have relevance to administrative law
and its growth.
1. Charter Act, 1726
2. Regulating Act, 1773
3. Cornwallis Code 1793
4. Charter Act, 1800
5. Charter Act, 1807
6. Charter Act, 1813
7. Charter Act, 1833
Administrative Statutes:
 60

The following are the important Statutes enacted during second half of 19th century and
first half of 20th century.

1.Dramatic Public Performance Act, 1876

2.Opium Act, 1878
3.Explosives Act, 1884
4.Indian Petroleum Act, 1899
5.Cinematograph Act, 1918
6.Indian Boilers Act, 1923
7.Dangerous Drugs Act 1930
8.Indian Medical Council Act, 1933

After Independence:
After independence, India became a welfare State and Indian Constitution became a
major source for growth of administrative law.

Several Acts were passed after the independence in the administrative field.
Some of the important Acts are - The Industrial Disputes Act 1947, The Minimum
Wages Act 1948, The Employees’ Insurance Act 1948, The Industries (Development and
Regulation) Act 1951, The Essential Commodities Act 1955, The Companies Act 1956,
The Banking Regulation Act 1949, The Income Tax Act 1961, The Payment of Bonus
Act 1965.

E. REASONS FOR GROWTH / DEVELOPMENT OF ADMINISTRATIVE LAW

(VALUE OF ADMINISTRATIVE LAW)

1. State has now become a Welfare State. So a new branch of law to deal with these
relations has become necessary.
2. The procedures adopted by administrative Tribunals are simple. Hence, they decide
complex problems in a practical and expeditious manner.
3. Enforcement of preventive measures like suspension of employees, etc., are generally
done by the administrative authorities, whereas they are not available through Courts of
Law.
4. The administrative process can combine functions with rules and hence take quick
decisions and give quick remedies.
5. The judicial system is inadequate and causing delay and heavy expenses.
6. An administrator can give importance to policies rather than being a rigid arbitrator.
 61

7. The legislature has no time to deal with all details. It is hence necessary to delegate
some of its powers to administrative authorities.
8. Administrative authorities can suo motto take preventive measures like licensing, rate
fixing, etc.
9. The administrative authorities can adopt trial and error method, and experiment new
principles. Rules can be altered or modified within a short period.
[5:46 pm, 17/10/2020] Zainab LLB Kudachi: Administrative law

CHAPTER NO – 2
DELEGATED LEGISLATION
(Administrative legislation/Executive rule making) (Permissible and impermissible
delegations)

UNIVERSITY QUESTIONS
1. What are the limits of the delegated legislative powers of administrative authorities?
2.Explain the law making powers of the Executive / administrative authorities.
3. What are the grounds on which delegated legislation may be challenged in Courts?
4. Explain the reasons which prompted the parliament to resort to Delegated legislation.
5.Explain with the help of decided cases what delegations are permissible and what
delegations are impermissible.

Answer
A. INTRODUCTION
Due to the increase in the volume of legislative work, it has no time to provide all the
minor details, etc., So it has conferred on the executive, the power to make subordinate
legislation – otherwise called Delegated Legislation.

Delegated legislation means the exercise of law making power by the executive under
the authority delegated to it by the legislature and also the rules, regulations, byelaws,
etc., made by the executive in the exercise of the law making power delegated to it by the
legislature.

The delegated legislation means and includes all rules, regulations, by-laws, orders, etc.
The legislature conferring the legislative power upon the executive is called the parent
Act, and the rules, regulations, etc, made by the executive under the legislative powers
are known as subordinate laws or subsidiary laws or child legislation.

B. CHARACTERISTICS OF DELEGATED LEGISLATION

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1.The legislature sets out the purposes and gives rule making powers to the Government.
2.It gives powers to add the Schedule given in the Act.
3.It delegates powers to extend or narrow the application of the Act.
4.It authorizes the legislature to give directions for the proper working of the Act by
making rules.

C. FUNCTIONS WHICH CAN BE DELEGATED (PERMISSIBLE DELEGATION)

1.Commencement of a Statute: Regarding the commencement of a Statute, the
Government executive is empowered to appoint a day for the Act to come into force. The
operation of the Act depends on the decision of the Government.
2. Power to include/extend the Act: The legislature may pass an Act and make it
applicable to some areas and empower the Government to extend the provisions to
different territories or persons, etc. For e.g., by Sec. 143 of the Indian Railways Act
1890, the Government was authorized to apply the provisions to Tramways.

This is called the power to include/extend the application of the Act.

3. Power to exclude/exempt the Act: The Government has power to exclude and exempt
certain persons, territories, etc from the operation of any Statute.

There are several Acts which authorize executive to exempt certain persons, objects, etc.,
from their operation. For e.g., the Payment of Bonus Act, 1965 empowers the
Government to exempt any establishment from its operation by considering the financial
position of the establishment.

Edward Mills Co., Vs. State of Ajmer, AIR 1955 SC 25

The Minimum Wages Act 1948 authorised the administrative authorities to fix minimum
wages payable to certain industries mentioned in the schedule attached thereto. The Act
authorized the Central Government to add any industry to the Schedule after notification
in the Official Gazette.

The Edward Mills Company was included in the schedule. It challenged the Parent Act
namely the Minimum Wages Act, 1948 on the ground that there was no policy or
direction to guide the officials as to the circumstances under which an industry could be
added under the Schedule. In other words, the Act gave unrestricted powers to the
officials to bring any industry under the schedule.

The Supreme Court rejected the argument of Edward Mills Company and held that there
was adequate legislative policy indicated in the Minimum Wages Act – i.e, to avoid
 63

exploitation of labour by setting minimum wages in industries and to remedy the unequal
bargaining power of the labour class.

4.Function of supplying details: If the legislative policy is formulated by the legislature,

then the function of supplying details may be delegated to the executive authorities.

5.Power to modify the Act: The executive have power to modify the existing Statute
before application. Though it is strictly a legislative power, it is given to executive to
deal with local conditions. For e.g.: In re Delhi Laws Act 1912.

6.Adoption of certain Statutes: Certain Statutes existing in other States may be applied
and adopted by the executive authorities without modification.

7.Power of punishment: Sometimes, the legislature may delegate the power to take penal
action against the violators to the administrative authorities, but under such
circumstances, the maximum punishment must be laid down in the Act.

Further, if the legislation delegates such power to any authority other than State or
Central Government, then the power can be exercised only on approval by the State or
Central Government.

8. Power to remove difficulties: When the legislature passes an Act, it cannot foresee all
the difficulties, which may arise while implementing the Act. So, the executive is
empowered to make necessary changes in the Act to remove the difficulties. This power
of the executive is known as Henry VIII Clause.

Henry VIII Clause is permitted only in exceptional cases on special grounds and it
should never be allowed except for the sole purpose of bringing the Act into operation
and subject to a limited period of one year only.

9.Power to suspend/relax certain provisions of the Act: Certain Statutes authorize the
government to suspend or relax certain provisions.

Under such circumstances, the executive is empowered to suspend the operations of such
provisions. For e.g., Sec. 48 (1) of Tea Act 1953.

10.Power to make rules: The Parent Act can authorize the executive authorities to make
rules etc., to carryout the purposes of the Act. For e.g., Sec. 30 of Securities Contracts
(Regulation) Act 1956.
 64

11.Conditional Legislation: For the legislation to take effect, certain conditions need be
fulfilled. The executive can be given the power to decide whether such conditions have
been fulfilled or not.

12.Power to extend the period of an Act: Sometimes, the legislation may empower the
executive authorities to extend the life period of a delegated legislation for a further
specified period.

However, only a maximum of three times of six months is permissible for such extension
of the life period of a Statute.
1. Non essential and incidental functions can be delegated to the executive.
2. When the common law is narrow, an enabling statute is made in order to enlarge it.

D. FUNCTIONS WHICH CANNOT BE DELEGATED

(IMPERMISSIBLE DELEGATION)
1.The essential legislative functions cannot be delegated by legislature, as it would create
a parallel legislature.
2.Power to impose tax cannot be delegated as it is an essential legislative function.
According to Article 265 of the Indian Constitution, no tax can be levied or collected
except by authority of law. Fixation of rate of tax cannot be delegated as it is a legislative
function but if the legislative policy and necessary guidelines are given, it can be
delegated.

Benares Das Vs. State of M.P.

The Supreme Court held that the power to exempt any commodity from the levy of tax,
or bring any particular commodity under the levy of tax may be delegated.
3.Shamrao vs. Union Territory 1967 AIR 1480
The Supreme Court held that the power to adopt future Laws cannot be delegated.
4.Harishankar Bagla Vs. State of M.P. & in Re Delhi Laws Act 1954 AIR 465
The Supreme Court held that the Legislature cannot delegate the power to repeal a law,
as it is ultravires.
5.Power by which the jurisdiction of Court may be ousted cannot be delegated as it is
purely a legislative function.

Makkan Singh Vs. State of Punjab 1964 AIR 381

The Supreme Court held that the Delegation of power to modify any Act without any
limitation is not allowed, as it is essentially a legislative function.
 65

6.Power to make a particular act as an offence and describing punishment for it cannot be
delegated.
Union of India Vs. Madan Gopal Kabra 1954 AIR 158
The Supreme Court held that the parliament can pass any law prospectively or
retrospectively subject to the provisions of the Constitution and this power cannot be
delegated as it is an essential legislative function.
9.For the sake of removal of difficulties, the legislature cannot enact a Henry VIII clause,
thus delegating essential legislative functions to the executive.
Dwaraka Prasad Vs. State of U.P., AIR 1954 SC 224
The Supreme Court held that the power of exemption cannot be delegated without laying
down the norms and policy for the guidance of the executive
 66

Administrative law
CHAPTER NO – 3
PRINCIPLES OF NATURAL JUSTICE/ FAIR HEARING (Audi Alteram Partem), NO
MAN CAN BE A JUDGE OF HIS OWN CASE (nemo debet esse judex in propria
causa) / RULES AGAINST BIAS (Procedural safeguards available to a civil servant in
case of his dismissal) (Post Decisional Hearing) (Exclusion/exception/exemption and
effect of violation of natural justice) (Speaking orders)

UNIVERSITY QUESTIONS

1. Enumerate the principles of Natural Justice with special reference to Bias.

2. What are the types of Bias?
3. Discuss the concept of Fair Hearing (Audi alteram partem) with the help of decided
cases.

Answer
A. INTRODUCTION
Rules of Natural justice are foundational and fundamental concepts. They are regarded
part of the legal and judicial procedures. It expresses the close relationship between the
Common law and moral principles. Natural Justice is also known as ‘Substantial Justice’
or ‘Universal Justice’.

It is a justice that is simple and elementary. It is the natural sense of what is right and
wrong. It is fundamental justice, fair play in action, duty to act fairly and common
fairness. The concept of fairness requires fairness in action of the administration whether
the action is judicial, quasi-judicial or administrative.

B. DOCTRINE OF BIAS
The Principles of Bias are applicable to both judicial functions and quasi judicial
functions and after the judgement in the A.K. Kraipak’s Case, Bias is applicable to pure
administrative functions also. However, the principle is not applicable to legislative
functions.
The principles of bias is based on the legal maxim “Nemo debut ease judex non propria
causa” which means “No man shall be a judge in his own case”. In other words the
deciding authority must be impartial and without any interest in the case.

Further the principle of bias is based on other two maxims namely:

 67

1.“Justice must not merely be done but appear to be done manifestly and undoubtedly”.
2. “Judges should be above suspicion”.

“Bias” means anything which tends to cause a person to decide a case otherwise than on
evidence. In other words, the decision of a person to be acceptable must satisfy the
fundamental principles of Natural Justice. It is necessary that the person sitting as
adjudicator should not have any interest either in the subject matter or with the parties to
the dispute. The Judge must be impartial and neutral, and he should decide the cases on
issues objectively and fairly.

C. TYPES OF BIAS
Bias is of three types:
i. Pecuniary bias
ii. Personal bias
iii. Bias as to subject matter

i. Pecuniary Bias:
It arises due to the person deciding the case having monetary interest in the subject
matter of dispute.
Dimes Vs. Grant Junction Canal

This is a leading case to illustrate that pecuniary bias (Natural justice) would vitiate a
decision or judgment. Dimes filed a case against Grand Junction Canal Company. Lord
Chancellor who decided the case in favour of Grand Junction. Canal Company was a
share holder in the said Company. The House of Lords held that the decision by the Lord
Chancellor was valid, though he forgot to mention his interest in the Company by
inadvertence.

ii. Personal Bias:

Here the bias arises due to blood relationship or due to love or affection or business
connections, etc. The Judge may be a friend or relative or business associate or party to a
dispute or he may be an enemy to the dispute which may be proved by events before or
during trial. Personal bias is thus a personal feeling in favor or against a party. Such bias
disqualifies a person from acting as a Judge.

iii. Bias as to Subject – Matter (or) Official Bias:

This is also known as ministerial, departmental or policy bias.
 68

This bias arises when a Judge has general interest or pre-formed opinion about a subject
matter. It also denotes the committedness towards implementation of an official policy or
Government guideline.

However, this bias is not seriously viewed by Courts, provided the official concerned has
followed proper procedures and has not pre decided the issues.

The following are the leading case laws on this point (based on different kinds of official
bias or bias as to subject matter):

Gullapalli Nageshwara Rao Vs. Andhra Pradesh State Road Ways Transport Corporation

Case No. I
The Secretary to Andhra Pradesh Road Transport Department notified a scheme for
nationalization of motor transport in certain routes in Krishna District. Objections were
heard by the same Secretary. The Chief Minister (Transport Ministry in charge) rejected
the objections and decided in favor of nationalization of route buses. The petitioner
challenged the decision on the ground of official bias that the Secretary who heard the
objections was the person who prepared the scheme. Further the Secretary, who heard
the objections did not decide the issue but the Chief Minister who would not know the
proceedings in depth. The Supreme Court accepted the contention of the Petitioner and
held that there was official bias as the person who heard the case did not decide it.

D. AUDI ALTERAM PARTEM (FAIR HEARING)

Another fundamental principle of natural justice is ‘Audi Alteram Partem’ which means
‘No man should be punished or condemned unheard’, “Hear both the sides before
passing any judgement”, ‘No person should suffer in person or purse without an
opportunity of being heard’.

The Maxim includes two broad ingredients namely -

1. Notice2. Fair Hearing
1. Notice:
Notice is the beginning step of a hearing. Before any action is taken, the aggrieved party
must be given a notice in writing against the proposed action and seek for his
explanation.

Such notice is otherwise known as “Show cause notice”. An order passed without giving
a notice is invalid and violative of the principles of natural justice.
 69

The notice must be reasonable and adequate in its contents. The notice must contain
sufficient information about the nature of charge, penalty proposed and other materials
required for the affected person to properly defend himself. The notice must be specific,
precise, clear and certain in its wordings and contents.
The notice must give reasonable time to the affected person to study and send his reply.
If a notice is given for one particular charge, then the person cannot be punished for a
different charge for which he was not given an opportunity to defend.

2. Fair Hearing:
The second ingredient of the maxim ‘Audi Alteram Partem’ is fair opportunity of being
heard to a person before any punitive action is taken against him.

Fair hearing includes the following:-

a.Right of presentation of the case:
Yasho Rajya Lakshmi Vs. State of J & K, 2001 (5) Supreme 759

The Supreme Court held that a Tahsildar passed an order in a hurry without giving a fair
opportunity of being heard to the petitioner. The order was set aside by the Supreme
Court and the Tahsildar was directed to enquire into the matter afresh.

b.Right to know the other side’s Evidence:

Ridge Vs. Baldwin, 1964 AC 40
This is a leading case on the principle of “Audi alteram partem” (No man can be
punished unheard).
A Chief Constable was dismissed by the Watch Committee members under the
Municipal Corporation Act 1882. The Constable was dismissed when he was absent
from duty. He was not given a Charge sheet or Notice. He challenged the order of the
Watch Committee on the ground that he was not given an opportunity to be heard.

c.Right of Oral hearing:

Sri Krishnadas Vs. State of M.P.
The Court held that the test for observance of Natural Justice is that the deciding
authority must be impartial and must give fair hearing to the affected party and should
not hit him below the belt.

d.Right of Representation of Counsel:

Dilip Kumar Vs. Port of Bombay
 70

The charged officer was denied representation through lawyer while the prosecuting
officers for the management were legally trained persons. The Supreme Court held that it
amounts to differential and discriminatory treatment of the charged officer and amounts
to violation of natural justice.
e.Speaking Orders or Reasoned decisions:

Speaking order means an order which contains reasons for the decision in it. In other
words, the order speaks for itself. The reasons in any order prevent arbitrary decisions.
Hochticf Gammon Vs. State of Orissa, (1975) 2 SCC 649
The Supreme Court has a duty to see that the executives act lawfully and if they fail to
give reasons, then judicial scrutiny is permitted.

Exceptions to Audi Alteram Partem Rule (Natural justice):

In the following cases “Notice” as well as “fair hearing” need not necessarily be given:
1. Sometimes for implementation of ‘Statutory provisions’, natural justice may be
violated. The statute may impliedly or expressly exclude application of principles of
natural justice. Under such circumstances, natural justice cannot prevail over the
“Statute”.

2. On grounds of “public policy”, principles of natural justice may be excluded. For e.g.
in policy decision of imposing prohibition in a state, no previous notice, etc need be
given.
3. Where discharge of functions involve administrative discretion, principles of natural
justice may be violated.
4. Art. 311 (2) of Indian Constitution specifically exclude ‘opportunity of being heard’ in
disciplinary matters of the following nature:
a. When a person is dismissed or reduced in rank on conviction in a criminal charge.
b. For reasons recorded, if the authority is satisfied that it is not practicable to hold an
enquiry.
c. In the interest of Security of State.
5. If ‘notice and fair hearing’ would obstruct taking prompt action (either preventive or
remedial) E.g. - removal of nuisance, preventive detention, etc.
6. If the action is, notice and fair hearing may be excluded. legislative, plenary or
subordinate.
7. If there is nothing unfr by non-observance of natural justice, then natural justice is
excluded.
8. Under cases of necessity, natural justice may be excluded.
——
 71

CHAPTER NO – 4 WRITS
(habeas corpus, mandamus, quo warranto,
certiorari, prohibition) (Res judicata in writs)

UNIVERSITY QUESTIONS
1. Explain writs and what are its types?
2. Explain the constitutional remedies against misuse of powers by administrative
authority.
3. Write short note on :
1. Writ of quo warranto
2. Writ of mandamus
3. Writ of certiorari
4. Writ of prohibition
5. Writ of habeas corpus

Answer
Writs are remedies available to the affected person/s against the misuse of powers by the
administrative authorities. The writs are issued by the Supreme Court (Art 32) and High
Courts (Art 226). The writs are Habeas Corpus, mandamus, Certiorari, Prohibition and
Quo Warranto.

I. WRIT OF HABEAS CORPUS

This writ is a prerogative process for securing the personal liberty of individual/s or a
subject/s. In Latin, the term ‘Habeas Corpus’ means ‘to have the body’ or ‘bring the
body’.
It provides remedy for a person wrongfully detained or restrained and it is a command of
the Court directing any person or a jailor to bring the detenue before the Court.
The detaining authority should justify the cause of detention. If there is no valid reason
for detention, the Court will order release of the detained person.
Thus, this writ acts as a check against arbitrary arrest by any executive authority. The
detention must be unlawful and it is not available against detention as a result of judicial
determination even if it is erroneous. This writ is not punitive or corrective in nature and
it is not a device to secure damages (Compensation).
The writ of Habeas Corpus is effective for an immediate release from unlawful
detention, physical confinement is not necessary to constitute unlawful detention. It is
enough if any man, woman or child is deprived of liberty.
 72

The right of Habeas Corpus being guaranteed under Article 32 cannot be suspended
except under proclamation of emergency.

Kanu Sanyal Vs. D.M. Darjeeling

The Supreme Court held that the production of the body of the detenue before the Court
is not necessary for hearing and disposing of the petition by the Court.
II. WRIT OF MANDAMUS

‘Mandamus’ means an order or command. It is defined as an order of a Court

commanding a person or public authority to do or not do a public duty.
For e.g., if an applicant for a licence has fulfilled all the requirements, then the Court
may order directing the licensing authority to grant a licence.
The writ is issued to compel an authority to do his duties or he may also be prevented
from doing any act, which he is not authorised by law to do.

But the writ cannot be issued if the function of the authority is discretionary. It is neither
a curative nor a preventive remedy, but a positive remedy.

Manjula Manjari Vs. Director of Public Instruction, AIR 1952 Ori 344
A publisher applied for the writ of Mandamus on the ground that her books which were
of good standard were not approved for selection for school education. The Court
rejected the plea of the petitioner on the ground that it was purely a discretionary power
of the Director of Public Instruction and hence the writ could not lie.

Writ of mandamus is a very effective remedy to the aggrieved citizens to enforce their
rights against the arbitrary action of public administrative authorities.

III. WRIT OF CERTIORARI

Certiorari is an order or command issued by the superior Court to an inferior Court to
transmit the records of a case or matter pending before it so that it is decided by the
Superior Court. If an order is a violation of natural justice or without jurisdiction, then it
will be quashed by an order of certiorari.

Thus the writ of Certiorari is a corrective remedy, whereby it investigates and decides the
legality of the orders passed by the inferior Courts.

The writ is issued by the Superior Court in the exercise of its supervisory functions and
not in the exercise of its appellate function.
 73

The writ of certiorari is an important writ for quashing lower Court’s judgements, orders
etc., for exceeding jurisdiction or want of jurisdiction or illegal jurisdiction or error
apparent on the face of record.

Basappa Vs. Nagappa, AIR 1954 SC 440

The Court held that the Superior Courts can quash the decision of the inferior Courts and
Quasi Judicial authorities acting in excess of their jurisdiction.

R Vs. Minister of Transport, (1934) 1 KB 277

The Minister passed an order of revocation of licence though he did not have the
authority to do so. As the order was made without jurisdiction, it was held ultra vires and
was quashed by the High Court.

IV. WRIT OF PROHIBITION

The writ of Prohibition is a command by the Superior Court (Supreme Court or High
Court) to inferior Courts and Tribunals to refrain from doing what it is about to do or
going to do.

It is a preventive remedy and issued only against judicial or quasi judicial authorities.
In other words, the authorities against whom this writ is issued must be performing
judicial or quasi judicial junctions, and should hear a matter over which they have no
jurisdiction. This writ prevents the inferior Court from continuing the proceedings.

The writ of prohibition is available only when the inferior Court or Tribunal has not
made a decision; if it has made a decision, the writ of Certiorari will lie.

Thus the writ acts as preventive remedy against usurping of jurisdiction by the inferior
Tribunals.

The writ of Certiorari and Prohibition have many similarities and both lie only against
judicial or quasi judicial body and not against an executive body.

Sometimes, both the writs are sought in cases where the inferior Court has made a
decision but the matter has not been completely disposed of. Thus both the writs overlap
each other.

V. WRIT OF QUO WARRANTO

 74

In a layman sense, Quo-Warranto means, “on what authority one is holding the Public
Office”.
‘Spelling’ defines ‘Quo Warranto’ as the remedy whereby the right of holding an office
or franchise and its validity is questioned by a person.

By this writ, a person who occupies a public office is asked to show by what authority he
claims it. The procedure of Quo-warranto gives jurisdiction on the Court to call upon the
person holding public office to show by what right he holds the said office.

When any private person wrongfully usurps an office, the writ is issued to prevent it.
This writ is not issued as a matter of right, but it is the discretion of the Court to decide
whether to grant or refuse to grant it. The writ can be filed by any private person, though
he is not interested in the matter or is personally aggrieved.
University of Mysore Vs. Govinda Rao, A.I.R. 1965 S.C.491

The Supreme Court held that the writ of ‘qua warranto’ calls upon the holder of a public
office to show to the Court under what authority he is holding the office in question. If he
is not entitled to the office, the Court may restrain him from acting in the office and may
also declare the office to be vacant.

The Supreme Court thus has held that the office must be an office of public character and
also of substantive character. It cannot be issued if the office is of private character.

If an alternative and equally effective remedy is available to the applicant, the Court may
not issue the writ of Quo warranto, but direct him to avail the alternative remedy.
Existence of alternative remedy, however, is not an absolute bar and Court have
discretion to issue ‘Quo warranto’.

Cause of action for a writ of quo warranto is a continuous one (de dei in diem). If the
appointment of an officer is illegal, every day he acts in the office, a fresh cause of action
arises and hence a petition can be presented on any day till he continues in the office and
the petition cannot be dismissed on the ground of delay.

 75

Administrative law CHAPTER NO – 5

STATE LIABILITY FOR TORTS AND CONTRACTS
(Sovereign and Non-Sovereign Functions)

UNIVERSITY QUESTIONS
1. Explain briefly the liability of the State in Tort? Discuss with the help of decided cases
the importance of classification of State’s power as Sovereign power and Non-Sovereign
power.
2. “The Crown Proceedings Act 1947 enacted by the British Parliament subjects the
Crown to the same general liability in tort, which it could bear, if they were private
person of full age and capacity” – Wade. Discuss.
3. Critically examine the liability of State in contracts. Refer to decided cases.

Answer
I. LIABILITY IN TORTS

Article 300 of the Indian Constitution provides that the State or Government may sue or
be sued as in the same position before the enactment of the Constitution (1858).

Generally as the State is a legal entity and has to act through human agency, the tortuous
liability of the State, means the liability of the State for the torts committed by its
servants. The State is vicariously liable for the torts committed by its servants, under the
maxims “Respondent Superior” meaning “let the principal be liable” and “Qui facit per
aliumfacitperse” which means “he who does an act through another does it himself”.

In order to find out whether the State is liable for the torts committed by its servants, the
functions of the State were divided into:

1. Sovereign functions 2. Non Sovereign functions.

1.Sovereign Functions:

These are the functions that can be carried only by the Government, and not by private
individuals. The Government runs these departments mainly on the basis of service
motive. There is no profit earning principle involved in the exercise of sovereign
functions. The Government is not liable for any tortuous act committed by its servants.
E.g.: military, police, prison, etc.

2.Non-Sovereign Functions:
 76

These are the functions that can be carried on even by private individuals. It is run with
profit motive and hence compensation is always given e.g., Motor Transport Company,
Co-operative Super Market, etc. The Government is liable for the tortuous acts
committed by its servants.

The following are the important Case laws to distinguish between Sovereign & Non
Sovereign functions:
P.O. Steam Navigation Co. Vs. Secretary of State for India

The servants of a dockyard were carrying iron rods and were crossing a road. When they
were at the centre of the road, a horse with coach rushed towards them at a high speed.
The servants left the iron rods and ran away. The horse fell down and subsequently died.
The coach owner sued the Secretary of state for damages under the tort of negligence.
The Supreme Court held that the Secretary of State is liable for negligence of his
servants in the same way as an ordinary employer is liable, as it was a non-sovereign
function.

Vidyavathi Vs. State of Rajasthan

A Government jeep driver driving a Government jeep, after repairs from a workshop
knocked down a pedestrian by his rash and negligent driving. The pedestrian sustained
injury and subsequently died. The widow sued for damages. The Supreme Court held
that driving a jeep from the workshop was a non-sovereign function and hence the
Government was liable to pay damages.

Kasthurilal Vs. State of U.P 1965 AIR 1039 1965 SCR (1) 375
Kasthurilal was arrested under suspicion that he was keeping stolen jewels. The jewels
were taken from him and kept in police custody but after verification it was found that he
was a bonfide person and hence released. When jewels were to be returned, they were
found stolen.

A Police Constable stole them and ran away to Pakistan. In an action by the affected
party, the Supreme Court held that it was a Sovereign function and hence the State was
not liable to pay compensation.

NagendraRao Vs. State of A.P., (1994) 6 SCC 205

Certain goods were confiscated. Confiscation was set aside. The appellant sued for return
of goods or price. The Supreme Court held that when the confiscation was held illegal,
the appellant was entitled to the price of the goods and interest.
 77

The Court observed that Sovereign immunity can not be a defence where officers of
State are guilty of wrongly and illegally interfering with life and liberty of a citizen.

PRESENT LEGAL POSITION

The liability of the State for the torts of its servants is now determined on the basis of the
case laws (Precedents) of the Supreme Court and High Courts.

LIABILITY OF STATE FOR VICTIMS OF STATE EXCESSES

Liability of Government for violation of the right to life and personal liberty.

Art. 21 of Indian Constitution provides that no person should be deprived of his life and
personal liberty except according to the procedure established by law.

Maneka Gandhi Vs. Union of India, AIR 1978 SC 597

The Supreme Court held that the procedure prescribed for the deprivation of personal
liberty must be just and reasonable and not arbitrary.

Kumari Vs. State of T.N. AIR 1992 SC 2069

For the child which fell into an uncovered ditch (waste water) and died, the Supreme
Court held that the State Government was liable to pay compensation.

NilabatiBehra Vs. State of Orissa (1993) 2 SCC 74

The deceased died in the police custody due to the beating. The Court held that the State
Government was liable to pay compensation to the mother of the deceased.

Umedmiya Rathod & 5 Others vs State Of Gujarat (2017)

The Court held that maintaining of law and order by way of police firing to control riot
amounts to sovereign functions of the State. So, liability would not arise. Thus there is
no remedy in Indian law since there is no codifiedlaw to deal vicarious liability of State
like Federal Claims Act and Crown Proceedings Act.

Jacob Mathew vs State Of Punjab & Anr (2005 6 SCC 1)

 78

The Supreme Court held that the medical service is a non sovereign function of the
State, but to prosecute a medical professional for negligence under criminal law, it must
be shown that the accused did something or failed to do something which in the given
facts and circumstances ,no medical professional in his ordinary senses and prudence
would have done or failed to do.

II. LIABILITY IN CONTRACTS

The Indian Constitution under Article 298 provides for the carrying on of any trade or
business by the executive power of the Union and States and their powers to acquire and
dispose of property and the making of contracts for any purpose. The following
conditions must be fulfilled. However, it is subject to Specific Contracts.

1.All contracts made by the Union or State must be expressed to be executed by the
President or Governor depending upon the case.
2.Such contracts must be executed on behalf of the President or Governor.
3.The contract must be executed by persons authorized by the President or Governor as
the case may be.

The contract should be in writing and any oral agreement is not valid. If the contract is
signed by any unauthorized person it is not binding on the Government and cannot be
enforced against it. The authorized person also should express “On behalf of the
Governor”or ‘President’ as the case may be and if it is not expressed, it is not
enforceable.
BhitrahJaipuria Vs. Union of India

The Divisional superintendent entered into contracts but failed to express “on behalf of
the Governor-General”. The Court held that they were not enforceable.

KaramshiJethabhai Vs. State of Bombay

The plaintiff, owner of a cane farm and the Government entered into agreement for
supply of canal water by the Government. There was no formal contract but only letters
by the Superintendent Engineer. So, the Court held that the agreement was void.

If the provisions of Article 299(1) are not complied with, the contract is not enforceable.
But the Government can be made liable to compensate under Sec.10 of the Indian
contract Act namely “Quasi Contract”. “Quasi Contract” means when goods delivered or
accepted or work done is voluntarily enjoyed, then the Government must compensate for
the enjoyment of the goods or work. This doctrine applies to Corporations and
Government also.
 79

Joshi Technologies vs Union of India & Ors (AIT-2015-66-SC)

The Supreme Court held that the impugned contractual act is arbitrary, unfair or
unreasonable. The fact that the dispute also falls within the domain of contractual
obligations would not relieve the State of its obligation to comply with the basic
requirements of Art. 14.


 80

CHAPTER NO – 6
PUBLIC CORPORATIONS/PUBLIC UNDERTAKINGS

UNIVERSITY QUESTIONS
1.a. Discuss the status and functions of Public Corporation.
b. Do the rules framed by them have statutory authority?
2.Explain ‘Public sector undertaking’. How does government exercise its control over
these sectors?
3.Explain the extent to which judiciary controls Public undertaking?
4.Explain the legal status of a Public Corporation in India.

Answer

A.INTRODUCTION
Trading or business is carried on by the Government mainly through Public Corporations
(Statutory Corporations or Government Companies). These organizations are called
Public Undertakings/Public Corporations.

The enterprises of the Central Government are run either departmentally or through
statutory corporations or government companies.

Railways, posts and telegraphs, large number of defense industries, are run through
Government departments. The main disadvantages in departmentally run Government
enterprises are rigidity of procedures, red-tapirs and delay in decision-making and
implementation.

The Government enterprises are constantly under parliamentary investigation and

criticism which is not beneficial to the efficient running of a commercial activity. Mainly
to solve the above problems, autonomous commercial undertakings called Public
Corporations (Public undertakings) were evolved by the Government.

The public undertakings may be divided into the following three categories:

1. Public Corporation (statutory Corporation).

2. Government Company.
3. Government’s departmental undertakings.

A government company or a Public Corporation has most of the features of a private

limited company and can function with the same initiative and freedom. Its employees
 81

are not civil servants. It can have its own rules of recruitment, promotion and dismissal
of its employees.

It is generally exempt from the budget, accounting and audit procedures applicable to
government department.

The State carries on welfare or economic activities through the following:

1.Government departments - These are part of Government (Executive). For e.g., posts
and telegraphs, railways, shipping.
2.Government Companies registered under the Companies Act - e.g., Bharat Heavy
Electronics Limited, Hindustan Aeronautics Limited, Bharat Electronics Limited,
General Insurance Corporation and its subsidiaries.

According to Section 617 of the Companies Act, a Government Company means any
company in which not less than 51% of the paid-up share capital is held by the Central
Government or by any State Government or partly by the Central Government and partly
by one or more State Governments and includes a company which is subsidiary of a
Government Company.

B. DEFINITION OF CORPORATION
A corporation is an artificial person created by law having legal entity, entirely separate
and distinct from the individuals who compose it, with continuous existence and
succession, possessing the capacity of taking, holding and conveying property, entering
into contracts, suing and being sued.

A public corporation has both the features of a Government department and features of a
business company.

C. CHARACTERISTICS OF PUBLIC CORPORATIONS

1.The Corporation is established by a Statute, and it is a separate legal entity. It can sue
and be sued and can enter into Contracts. It can acquire property in its own name and has
more freedom to make contracts, acquire property and to dispose it, than any other direct
Government departments.

2.It is owned by the State Government or Central Government.

Commissioner of Income Tax vs Canara Bank (2018)

The Supreme Court held that corporations which are instrumentalities of the
Government are subject to the limitation as contained in the Constitution.
 82

3.It has independent existence and separate properties and funds. It is authorized to use
and reuse its revenues.
4.The employees of a Corporation are not ‘Civil Servants’ under the Union or State
within the meaning of Art 311 of the Indian Constitution.
5.It is generally created by Special Law or Statute and performs functions entrusted
under it.
6.Though Public Corporation is a legal entity, it is not a citizen regarding enforcement of
fundamental rights.
7.They are autonomous bodies but are subject to certain controls over them like
Parliamentary control, judicial control etc.
8.A Public corporation can make rules, regulations, etc. if it is authorized by the Statute
which created it.
9. Public Corporation/Statutory Corporation is a ‘State’ within the meaning of Article 12
of the Constitution of India.

S.C. Sharma vs Union of India And Ors (2007)

The Court observed, ‘It is a Company incorporated under the General law i.e., the
Companies Act, 1956 and its affairs and functioning is regulated as per provisions of the
said Act. Mere regulatory control under a statute or a contract is not sufficient. If a body
is not an agency of the Government, it is not an 'Authority' within the meaning of Article
12 of the Constitution of India.
10.Public Corporation is subject to the writ jurisdiction of High Courts and Supreme
Court.
11. Public corporation cannot claim the privilege to withhold documents from Courts.
12.Requirement of two months notice under Section 80 of the C.P.C., is not applicable to
Public Corporation.
13.Requirements of Article 299 – (Liability of State for its Contracts) are not required
to be fulfilled in case of Contracts with a public corporation.

The Public corporation is very useful for the social controls of a planned economic life.
They replace private enterprises and show great efficiency by avoiding red tapism (undue
delay), unnecessary rules and regulations, etc.

D. CLASSIFICATION (TYPES) OF PUBLIC CORPORATIONS

Though classification of public Corporations is very difficult, the following are the main
groups of Public Corporations.

1.Commercial Corporations:
 83

They perform commercial and industrial functions. They are financially self supporting,
earn profit and at the same time concerned with interests of the public.

(E.g) State Trading Corporation, Hindustan Machine Tools, Indian Airlines Corporation
and Air India International.

2.Development Corporations:
They are established to encourage national progress. As they are not commercially
oriented, they need financial assistance initially from the Government. (E.g.) Oil and
Natural Gas Commission, Food Corporation, etc.

3.Social Service Corporations:

They are not commercial, but established for providing social services to citizens on
behalf of the Government. They depend on the Government for finance. (E.g.) Hospitals,
Housing Board, E.S.I. etc.

4.Financial Corporations
They advance loan, carry on trade or business, provide credit for institutions and give
financial assistance on reasonable terms to displaced persons for trade, business or
industry. Some Corporations collect premium or insure life or property.

(E.g.) Reserve Bank of India, State Bank of India, Industrial Finance Corporation, L.I.C.
etc.
E. MANAGEMENT OF PUBLIC CORPORATIONS AND PUBLIC
UNDERTAKINGS

The managing the affairs of a public undertaking is by a Governing Board called Board
of Directors.

F. RIGHTS, DUTIES, POWERS AND LIABILITIES OF PUBLIC CORPORATIONS

i. Rights:
As it is a legal entity, the Corporation can sue for the enforcement of its legal rights. As it
is not a natural person, it cannot be a citizen. So, it cannot claim any fundamental right
conferred by the Constitution.
But the shareholders can claim protection of their fundamental rights (as decided in R.C.
Cooper Vs. Union of India). But fundamental rights can be enforced against the
Corporation.

ii. Duties:
 84

A Corporation must act in a just and fair manner and beneficial to the public. The powers
conferred on Corporations should be exercised honestly and in good faith.

iii. Powers:
A Statutory Corporation can act only as per the provisions of the Statute creating it. It
must also act within the provisions of Constitution. Acts not in conformity with law is
ultra vires and invalid.
Salem Advocate Bar vs Union of India (2005)

The Supreme Court observed, ‘The Union of India or the Government of a State or
Union Territory, all local authorities, all Public Sector Undertakings, all statutory
corporations and all public authorities shall nominate a person or persons or group of
persons who are authorized to take a final decision as to the mode of Alternative Dispute
Resolution’ .

iv. Liabilities:
1. The protection of non liability of State for Torts and Contracts in its sovereign
functions as under Article 300 of the Constitution are not available to public
corporations, as they are not Government Departments.
2. The conditions under Article 299 for liability of State for breach of contract are not
applicable to public corporations.
3. Notice under Sec. 80 CPC is not required to be sent before filing suits against the
public corporations.
4. As the Public Corporation is not a Government Department, it cannot avail the
immunities of the Crown under Crown Privilege.
—-
 85

Administrative law CHAPTER NO – 5

STATE LIABILITY FOR TORTS AND CONTRACTS
(Sovereign and Non-Sovereign Functions)

UNIVERSITY QUESTIONS
1. Explain briefly the liability of the State in Tort? Discuss with the help of decided cases
the importance of classification of State’s power as Sovereign power and Non-Sovereign
power.
2. “The Crown Proceedings Act 1947 enacted by the British Parliament subjects the
Crown to the same general liability in tort, which it could bear, if they were private
person of full age and capacity” – Wade. Discuss.
3. Critically examine the liability of State in contracts. Refer to decided cases.

Answer
I. LIABILITY IN TORTS
Article 300 of the Indian Constitution provides that the State or Government may sue or
be sued as in the same position before the enactment of the Constitution (1858).

Generally as the State is a legal entity and has to act through human agency, the tortuous
liability of the State, means the liability of the State for the torts committed by its
servants. The State is vicariously liable for the torts committed by its servants, under the
maxims “Respondent Superior” meaning “let the principal be liable” and “Qui facit per
aliumfacitperse” which means “he who does an act through another does it himself”.

In order to find out whether the State is liable for the torts committed by its servants, the
functions of the State were divided into:

1. Sovereign functions 2. Non Sovereign functions.

1.Sovereign Functions:
These are the functions that can be carried only by the Government, and not by private
individuals. The Government runs these departments mainly on the basis of service
motive. There is no profit earning principle involved in the exercise of sovereign
functions. The Government is not liable for any tortuous act committed by its servants.
E.g.: military, police, prison, etc.

2.Non-Sovereign Functions:
These are the functions that can be carried on even by private individuals. It is run with
profit motive and hence compensation is always given e.g., Motor Transport Company,
 86

Co-operative Super Market, etc. The Government is liable for the tortuous acts
committed by its servants.

The following are the important Case laws to distinguish between Sovereign & Non
Sovereign functions:
P.O. Steam Navigation Co. Vs. Secretary of State for India

The servants of a dockyard were carrying iron rods and were crossing a road. When they
were at the centre of the road, a horse with coach rushed towards them at a high speed.
The servants left the iron rods and ran away. The horse fell down and subsequently died.
The coach owner sued the Secretary of state for damages under the tort of negligence.
The Supreme Court held that the Secretary of State is liable for negligence of his
servants in the same way as an ordinary employer is liable, as it was a non-sovereign
function.

Vidyavathi Vs. State of Rajasthan

A Government jeep driver driving a Government jeep, after repairs from a workshop
knocked down a pedestrian by his rash and negligent driving. The pedestrian sustained
injury and subsequently died. The widow sued for damages. The Supreme Court held
that driving a jeep from the workshop was a non-sovereign function and hence the
Government was liable to pay damages.

Kasthurilal Vs. State of U.P 1965 AIR 1039 1965 SCR (1) 375
Kasthurilal was arrested under suspicion that he was keeping stolen jewels. The jewels
were taken from him and kept in police custody but after verification it was found that he
was a bonfide person and hence released. When jewels were to be returned, they were
found stolen.

A Police Constable stole them and ran away to Pakistan. In an action by the affected
party, the Supreme Court held that it was a Sovereign function and hence the State was
not liable to pay compensation.

NagendraRao Vs. State of A.P., (1994) 6 SCC 205

Certain goods were confiscated. Confiscation was set aside. The appellant sued for return
of goods or price. The Supreme Court held that when the confiscation was held illegal,
the appellant was entitled to the price of the goods and interest.

The Court observed that Sovereign immunity can not be a defence where officers of
State are guilty of wrongly and illegally interfering with life and liberty of a citizen.
PRESENT LEGAL POSITION
 87

The liability of the State for the torts of its servants is now determined on the basis of the
case laws (Precedents) of the Supreme Court and High Courts.

LIABILITY OF STATE FOR VICTIMS OF STATE EXCESSES

Liability of Government for violation of the right to life and personal liberty.

Art. 21 of Indian Constitution provides that no person should be deprived of his life and
personal liberty except according to the procedure established by law.

Maneka Gandhi Vs. Union of India, AIR 1978 SC 597

The Supreme Court held that the procedure prescribed for the deprivation of personal
liberty must be just and reasonable and not arbitrary.

Kumari Vs. State of T.N. AIR 1992 SC 2069

For the child which fell into an uncovered ditch (waste water) and died, the Supreme
Court held that the State Government was liable to pay compensation.

NilabatiBehra Vs. State of Orissa (1993) 2 SCC 74

The deceased died in the police custody due to the beating. The Court held that the State
Government was liable to pay compensation to the mother of the deceased.

Umedmiya Rathod & 5 Others vs State Of Gujarat (2017)

The Court held that maintaining of law and order by way of police firing to control riot
amounts to sovereign functions of the State. So, liability would not arise. Thus there is
no remedy in Indian law since there is no codifiedlaw to deal vicarious liability of State
like Federal Claims Act and Crown Proceedings Act.

Jacob Mathew vs State Of Punjab & Anr (2005 6 SCC 1)

The Supreme Court held that the medical service is a non sovereign function of the State,
but to prosecute a medical professional for negligence under criminal law, it must be
shown that the accused did something or failed to do something which in the given facts
and circumstances ,no medical professional in his ordinary senses and prudence would
have done or failed to do.

II. LIABILITY IN CONTRACTS

The Indian Constitution under Article 298 provides for the carrying on of any trade or
business by the executive power of the Union and States and their powers to acquire and
dispose of property and the making of contracts for any purpose. The following
conditions must be fulfilled. However, it is subject to Specific Contracts.
 88

1.All contracts made by the Union or State must be expressed to be executed by the
President or Governor depending upon the case.
2.Such contracts must be executed on behalf of the President or Governor.
3.The contract must be executed by persons authorized by the President or Governor as
the case may be.

The contract should be in writing and any oral agreement is not valid. If the contract is
signed by any unauthorized person it is not binding on the Government and cannot be
enforced against it. The authorized person also should express “On behalf of the
Governor”or ‘President’ as the case may be and if it is not expressed, it is not
enforceable.
BhitrahJaipuria Vs. Union of India
The Divisional superintendent entered into contracts but failed to express “on behalf of
the Governor-General”. The Court held that they were not enforceable.

KaramshiJethabhai Vs. State of Bombay

The plaintiff, owner of a cane farm and the Government entered into agreement for
supply of canal water by the Government. There was no formal contract but only letters
by the Superintendent Engineer. So, the Court held that the agreement was void.

If the provisions of Article 299(1) are not complied with, the contract is not enforceable.
But the Government can be made liable to compensate under Sec.10 of the Indian
contract Act namely “Quasi Contract”. “Quasi Contract” means when goods delivered or
accepted or work done is voluntarily enjoyed, then the Government must compensate for
the enjoyment of the goods or work. This doctrine applies to Corporations and
Government also.

Joshi Technologies vs Union of India & Ors (AIT-2015-66-SC)

The Supreme Court held that the impugned contractual act is arbitrary, unfair or
unreasonable. The fact that the dispute also falls within the domain of contractual
obligations would not relieve the State of its obligation to comply with the basic
requirements of Art. 14.


 89

CHAPTER NO – 6 PUBLIC CORPORATIONS/PUBLIC UNDERTAKINGS

UNIVERSITY QUESTIONS

1.a. Discuss the status and functions of Public Corporation.

b. Do the rules framed by them have statutory authority?
2.Explain ‘Public sector undertaking’. How does government exercise its control over
these sectors?
3.Explain the extent to which judiciary controls Public undertaking?
4.Explain the legal status of a Public Corporation in India.

Answer
A.INTRODUCTION
Trading or business is carried on by the Government mainly through Public Corporations
(Statutory Corporations or Government Companies). These organizations are called
Public Undertakings/Public Corporations.

The enterprises of the Central Government are run either departmentally or through
statutory corporations or government companies.

Railways, posts and telegraphs, large number of defense industries, are run through
Government departments. The main disadvantages in departmentally run Government
enterprises are rigidity of procedures, red-tapirs and delay in decision-making and
implementation.

The Government enterprises are constantly under parliamentary investigation and

criticism which is not beneficial to the efficient running of a commercial activity. Mainly
to solve the above problems, autonomous commercial undertakings called Public
Corporations (Public undertakings) were evolved by the Government.

The public undertakings may be divided into the following three categories:
1. Public Corporation (statutory Corporation).
2. Government Company.
3. Government’s departmental undertakings.

A government company or a Public Corporation has most of the features of a private

limited company and can function with the same initiative and freedom. Its employees
are not civil servants. It can have its own rules of recruitment, promotion and dismissal
of its employees.
 90

It is generally exempt from the budget, accounting and audit procedures applicable to
government department.

The State carries on welfare or economic activities through the following:

1.Government departments - These are part of Government (Executive). For e.g., posts
and telegraphs, railways, shipping.
2.Government Companies registered under the Companies Act - e.g., Bharat Heavy
Electronics Limited, Hindustan Aeronautics Limited, Bharat Electronics Limited,
General Insurance Corporation and its subsidiaries.

According to Section 617 of the Companies Act, a Government Company means any
company in which not less than 51% of the paid-up share capital is held by the Central
Government or by any State Government or partly by the Central Government and partly
by one or more State Governments and includes a company which is subsidiary of a
Government Company.

B. DEFINITION OF CORPORATION
A corporation is an artificial person created by law having legal entity, entirely separate
and distinct from the individuals who compose it, with continuous existence and
succession, possessing the capacity of taking, holding and conveying property, entering
into contracts, suing and being sued.

A public corporation has both the features of a Government department and features of a
business company.

C. CHARACTERISTICS OF PUBLIC CORPORATIONS

1.The Corporation is established by a Statute, and it is a separate legal entity. It can sue
and be sued and can enter into Contracts. It can acquire property in its own name and has
more freedom to make contracts, acquire property and to dispose it, than any other direct
Government departments.

2.It is owned by the State Government or Central Government.

Commissioner of Income Tax vs Canara Bank (2018)
The Supreme Court held that corporations which are instrumentalities of the
Government are subject to the limitation as contained in the Constitution.

3.It has independent existence and separate properties and funds. It is authorized to use
and reuse its revenues.
 91

4.The employees of a Corporation are not ‘Civil Servants’ under the Union or State
within the meaning of Art 311 of the Indian Constitution.
5.It is generally created by Special Law or Statute and performs functions entrusted
under it.
6.Though Public Corporation is a legal entity, it is not a citizen regarding enforcement of
fundamental rights.
7.They are autonomous bodies but are subject to certain controls over them like
Parliamentary control, judicial control etc.
8.A Public corporation can make rules, regulations, etc. if it is authorized by the Statute
which created it.
9. Public Corporation/Statutory Corporation is a ‘State’ within the meaning of Article 12
of the Constitution of India.

S.C. Sharma vs Union of India And Ors (2007)

The Court observed, ‘It is a Company incorporated under the General law i.e., the
Companies Act, 1956 and its affairs and functioning is regulated as per provisions of the
said Act. Mere regulatory control under a statute or a contract is not sufficient. If a body
is not an agency of the Government, it is not an 'Authority' within the meaning of Article
12 of the Constitution of India.
10.Public Corporation is subject to the writ jurisdiction of High Courts and Supreme
Court.
11. Public corporation cannot claim the privilege to withhold documents from Courts.
12.Requirement of two months notice under Section 80 of the C.P.C., is not applicable to
Public Corporation.
13.Requirements of Article 299 – (Liability of State for its Contracts) are not required
to be fulfilled in case of Contracts with a public corporation.
The Public corporation is very useful for the social controls of a planned economic life.
They replace private enterprises and show great efficiency by avoiding red tapism (undue
delay), unnecessary rules and regulations, etc.

D. CLASSIFICATION (TYPES) OF PUBLIC CORPORATIONS

Though classification of public Corporations is very difficult, the following are the main
groups of Public Corporations.

1.Commercial Corporations:
They perform commercial and industrial functions. They are financially self supporting,
earn profit and at the same time concerned with interests of the public.
 92

(E.g) State Trading Corporation, Hindustan Machine Tools, Indian Airlines Corporation
and Air India International.

2.Development Corporations:
They are established to encourage national progress. As they are not commercially
oriented, they need financial assistance initially from the Government. (E.g.) Oil and
Natural Gas Commission, Food Corporation, etc.

3.Social Service Corporations:

They are not commercial, but established for providing social services to citizens on
behalf of the Government. They depend on the Government for finance. (E.g.) Hospitals,
Housing Board, E.S.I. etc.

4.Financial Corporations
They advance loan, carry on trade or business, provide credit for institutions and give
financial assistance on reasonable terms to displaced persons for trade, business or
industry. Some Corporations collect premium or insure life or property.
(E.g.) Reserve Bank of India, State Bank of India, Industrial Finance Corporation, L.I.C.
etc.
E. MANAGEMENT OF PUBLIC CORPORATIONS AND PUBLIC
UNDERTAKINGS
The managing the affairs of a public undertaking is by a Governing Board called Board
of Directors.

F. RIGHTS, DUTIES, POWERS AND LIABILITIES OF PUBLIC CORPORATIONS

i. Rights:
As it is a legal entity, the Corporation can sue for the enforcement of its legal rights. As it
is not a natural person, it cannot be a citizen. So, it cannot claim any fundamental right
conferred by the Constitution.
But the shareholders can claim protection of their fundamental rights (as decided in R.C.
Cooper Vs. Union of India). But fundamental rights can be enforced against the
Corporation.

ii. Duties:
A Corporation must act in a just and fair manner and beneficial to the public. The powers
conferred on Corporations should be exercised honestly and in good faith.

iii. Powers:
 93

A Statutory Corporation can act only as per the provisions of the Statute creating it. It
must also act within the provisions of Constitution. Acts not in conformity with law is
ultra vires and invalid.
Salem Advocate Bar vs Union of India (2005)

The Supreme Court observed, ‘The Union of India or the Government of a State or
Union Territory, all local authorities, all Public Sector Undertakings, all statutory
corporations and all public authorities shall nominate a person or persons or group of
persons who are authorized to take a final decision as to the mode of Alternative Dispute
Resolution’ .

iv. Liabilities:
1. The protection of non liability of State for Torts and Contracts in its sovereign
functions as under Article 300 of the Constitution are not available to public
corporations, as they are not Government Departments.
2. The conditions under Article 299 for liability of State for breach of contract are not
applicable to public corporations.
3. Notice under Sec. 80 CPC is not required to be sent before filing suits against the
public corporations.
4. As the Public Corporation is not a Government Department, it cannot avail the
immunities of the Crown under Crown Privilege.
—-
 94

Family law 2, CHAPTER NO. 1

SOURCES OF MOHAMMADEN LAW (Quron)

UNIVERSITY QUESTIONS
1.Explain the sources of Mohammadan law.
2.Explain the judicial application of classical sources of Mohammadan law in India.
3.Write Short Notes on: a.Quron b.Custom
c. Ijmaas d. Sunna e. Qiyas f. Imamat
g. Taqlid.

Answer
A.CLASSICAL SOURCES OF MOHAMMEDAN LAW
There are four main classical sources of Mohammedan law. These are:-
1.Quron or the Holy Kuran:
The Quron is the religious book of the Muslims. It is the primary and classical source
which is of divine origin. It contains 6000 verses arranged in order. These verses are
revealed by the Angel Gabriel as the Messenger of God to the Prophet Mohammed at the
last 20 years of his life.

After the death of the Prophet, the verses were compiled and given to the world by
Phophet’s disciple Abu Baker who succeeded the Prophet.

The verses of the Quron deal with legal matters like inheritance, divorce, guardianship,
and issues which arose for decision and some revelations were for effecting social status
of women, inheritance, prescribing punishment for some offences, etc.

This source is very authoritative because it represents the voice of God and the standard
version was prepared after the death of the Prophet.

2.Sunna (Traditions):
It consists of the usage of the Prophet. It deals with the principles of Islamic religion and
also important sources like the Quron.
3.Ijmaas:
It is the identical thinking of various jurists of the Muslim religion. But in the words of
Prophet, identical thinking on error will not be allowed by God. If the Ijmas is not
opposed to the Quron or the Sunna, then it is valid.

4.Qiyas:
 95

It is the conclusion derived by comparing the above three sources. If there is no clear
law, the Quron, Sunna, and Ijmaa are compared and a conclusion is arrived at by such
comparisons.
5.Imamat:
The shias regard the Imam as the final interpreter of the law on earth. He is a descendant
of the Prophet Ali, and is the leader by Divine Right. The sunnies regard the successor of
the Prophet as the Khalifa or Caliph, who is ‘a temporal ruler’ rather than a religious
chief.

He is an ordinary person holding high office because of his qualifications. The Shariat
law deals with all religious matters. In the opinion of Western Ismailis, the uninitiated
(those who are not religious) cannot see the Imam.

They believe that one of the earlier Imams went into hiding and his descendants have
continued to rule over the true believers till today, and will continue to do so for ever, but
he can only be recognized by the higher Initiates, the dais.

B. THE RULE OF CUSTOM IN MOHAMMEDAN LAW

Generally, the custom is never considered as a source of Mohammedan law. But the
conversion of Hindu to Muslim religion established custom as a source of Mohammedan
law.

The limited estate by a female is due to custom. After enactment of the Shariat Act of
1937, custom is over ruled and as far as succession, marriage, dower, guardianship, gifts,
etc., are concerned Muslim personal law applied and not custom.

C. POSITION OF CLASSICAL SOURCES IN INDIA

The Court in India, through decided cases, have laid down that the classical sources are
to be followed as such.
This is called ‘Taqlid’:
1.Courts should not give their own interpretation of Quron.
2.Traditionally, settled legal principles must be accepted as such, though it is contrary to
Quron.
3.New Rules of law cannot be introduced on the basis of logical interpretation of Quron.
4.The settled laws must be followed as such even if they are not ‘modern’, just or
logical.

However, there is nothing in the Constitution or any other enactment directing the Courts
to follow ‘Taqlid’.
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D. SOURCES OF MUSLIM LAW IN INDIA

1.Legislative enactments like:
a.MusalmanWakf Validating Act, 1964.
b.Muslims Personal law (Shariat) Application Act, 1937.
c.Dissolution of Muslim Marriage Act, 1939.

2.Judicial precedents (case laws of Supreme Courts and High Courts)

3.Certain books of jurisprudence and reference books.

All these are strictly not sources of Muslims law, but they determine the
applicability of certain aspects of Muslim Law.

In Shah Banoo’s case, the Supreme Court held that the settled law could be altered, if the
same is not just or legal.

 97

CHAPTER NO. 2, ESSENTIALS OF MOHAMMADEN LAW

OF MARRIAGE (Nikkah or Shadhi)
(Civil contract)(Muta marriage)(Irregular-fasid)(Void-batil marriage)(Iddat)

UNIVERSITY QUESTIONS
1.“According to Mohammaden law, marriage is a civil contract” Comment.
2.What are the essentials of valid ‘Nikka’ in Mohammaden Law?
3.What is a meant by Batil, Fasid and Muta marriage in Mohammaden Law?
4.What are void and irregular marriages in Mohamaden law?
5. Write short note on: a) ‘Nikka’ b) Batil c) Fasid d) Muta marriage e) Option of
Puberty (Khyar-ul- bulugh
Answer

A. INTRODUCTION
According to Mohammaden law, the marriage is a civil contract and not sanctity. So, all
the requirements of a valid contract are also required for Mohammaden marriage.

However, for the capacity of parties, the Mohammaden law prescribes 15 years, as age of
puberty.
The consideration of Mohammaden marriage is a called “Dower”, which the wife
receives from the husband. It is equivalent to “quid pro quo” of the Indian Contract Act.

Abdul Khader vs. Salima (1886) ILR 8 All 149

In this case, it was pointed out by Justice that Mohammadan marriage is like that of a
contract of sale. The nature of Mohammedan law of marriage is not sacrosanct, but
purely a civil contract. It resembles the civil contract in the essential requirements as per
Section 10 of the Indian Contract Act, 1872.

B. ESSENTIALS OF A VALID MARRIAGE

1. The parties to the marriage should attain puberty. Otherwise, such contract should be
entered by the guardians of the parties. (Age of puberty is 15 years)
2. The parties should be of sound mind. Otherwise, the guardian of the incompetent
party should enter into the contract.
3. There must be an offer and acceptance at a single meeting and not at different
meetings. At least 2 male witnesses must be present under the Sunni law, but no witness
is necessary under the Shia law.
4. The parties to the marriage should not be within the prohibited relationship. Mother
and son, grand mother and grandson, brother and sister, uncle and niece are in the
prohibited blood relationship.
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5. A man cannot marry certain relationship by affinity. They are ascendants and
descendants of his wife and the wife of any ascendant or descendant.
6. There are some temporary disqualifications. As long as such disqualifications exist,
the marriage between the parties cannot take place.

For e.g., a Mohammaden can have a maximum of four wives at a time. He cannot marry
a fifth wife without divorcing any one of the four wives.

7. If the Mohammaden male has already a wife in the relations of bride’s sister, bride’s
aunt or bride’s niece, then only if the first wife is divorced, the bride can be married,
because the relationship between the wife and bride is unlawful conjunction.
8. There can be no marriage between a non-Mohammaden male and a Mohammaden
female. He must convert himself to Islam and only then, he can marry a Mohammaden
female.
9. Under Sunni Law, a male Muslim can marry a Christian woman or a Shia Muslim girl,
but cannot marry a Hindu woman. But, in Shia Law, a male Muslim can marry only a
Muslim woman.

C. ‘BATIL’ (Void) and ‘FASID’ (Irregular)

Invalid marriage under Mahomedan law are divided into Batil and Fasid. Void marriages
are called ‘Batil’. Irregular marriages are called ‘Fasid’.

Batil:
It is totally a void marriage. It is merely a concubinage. It is nullity in the eye of law.
There is actually no marriage. The children of such marriages are illegitimate.
It arises under the following circumstances:

1.When the parties to the marriage have not attained the age of 15, i.e. puberty, then the
marriage is void because of lack of contractual capacity.
2.When the parties to the marriage are in prohibited relationship like mother and son,
brother and sister or wife’s mother or wife’s daughter.

Fasid:
The marriage is not totally invalid but due to the presence of some temporary
disqualification, the marriage is only irregular. After the removal of such disqualification
the marriage becomes valid. Under the following circumstances, the marriage is only
irregular and not void.
Mohammed Salim (D) Through Lrs. vs Shamsudeen Through Lrs.
 99

The Supreme Court held the marriage of a Muslim man with a Hindu idolater or
fireworshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an
irregular (fasid) marriage. Any child born out of such wedlock (fasid marriage) is entitled
to claim a share in his father’s property. Since Hindus are idol worshippers, which
includes worship of physical images/statues through offering of flowers, adornment, etc.,
it is clear that the marriage of a Hindu female with a Muslim male is not a regular or
valid (sahih) marriage, but merely an irregular (fasid) marriage.

D. MUTA MARRIAGE
It means a temporary marriage. The marriage is for a fixed period.

Essentials:
1.The amount of dower must be fixed. If it is not fixed, then the marriage becomes void.
2.If the marriage is consummated, half the amount of the dower should be paid to the
wife.
3.The period of co-habitation must be fixed.
4.The Muta marriage comes to an end when the fixed period is over. Even after expiry of
the fixed period, if they live together then it is presumed that the term of Muta Marriage
is extended.
5.Divorce cannot take place in Muta marriage, but the husband by paying the full amount
of dower, can put an end to the marriage even before the expiry of the term.
6.The children born out of Muta marriage are legitimate. They can inherit the property of
the parents.
E. IDDAT
1. If the bride is undergoing Iddat, which lasts for four months and ten days from the date
of the death of the former husband, marriage cannot take place with such a bride.
2. If she is pregnant at the time of her husband’s death, Iddat lasts till delivery.
3. In the same way a divorced woman whose marriage is consummated, should observe
iddat for three lunar months. The reason for this is to find out whether she is pregnant.
4. Iddat need not be observed by a woman where marriage is not consummated.
 100

Family law 2 CHAPTER NO. 3 DIVORCE (TALAQ) OR TALAK (LIA)

(Talaq –ul-sunnat) (Zihar) (Khula) (Mubaraat) (Dissolution of marriage)
UNIVERSITY QUESTIONS
1. Define ‘Talaq’ what are the different forms of ‘Talak’?
2.‘Talaq is an arbitrary power of the husband to dissolve the marriage’ Comment.
3.Write Short Notes On: (a) Talak Hasan or Khula, (b) Talak Ahasan or Mubaraat,
(c) Talak-ul-biddat (Irrevocable divorce),
(d) Talak- ul- Bain, (e) Divorce by mutual consent between husband and wife [Khula],
(f) Mubaraat

Answer
A. INTRODUCTION
Talaq or divorce is the power of the husband to dissolve the marriage at any time without
going to the Court or without assigning any reason for his action. This arbitrary power of
the husband is a unique feature under Mohamaden law.

B. HUSBAND DIVORCING HIS WIFE

There are six types of divorce of wife by husband.
i.Talak Ahasan or Khula (Talak for single time)
1. This is the most common method. The husband pronounces ‘Talak’ during a tuhr.
“Tuhr” is the interval between two menstruations.
2. The presence of the wife is not necessary.
3. The declaration of divorce must be in the name of the wife.
4. It may be oral or in writing.
5. The husband is given an opportunity to reconsider this pronouncement of divorce
during the period of Iddat (three months from the date of declaration and if the woman is
pregnant till the date of delivery).
6. During the period of Iddat, if the husband enters into sexual intercourse with his wife,
then the divorce gets revoked.

Rashid Ahmad Vs. Anisa Khatoon (1932) 34 BOMLR 475

The Privy Council held that talaq pronounced in the absence of the wife was valid.
Ghayas Uddin pronounced the triple talaq in the presence of witnesses, though in the
absence of the wife.

Four days later the talaqnama was executed which stated that already irrevocable divorce
was given. It was not proved that there was re-marriage between them or intermediate
marriage and a subsequent divorce after actual consummation.
 101

Though Ghyas Uddin treated Anna Khatoon as his wife and children as legitimate, as
there was no intermediate marriage, the bar to remarriage created by the divorce was not
removed.
Since there was no remarriage the children born after the triple divorce were held to be
illegitimate. It was held that when the spouses have become divorced, their conjugal
intercourse is not lawful.

7. The divorce becomes irrevocable on the expiry of iddat.

8. Mere cohabitation without fulfilling the above mentioned conditions between the
divorced couple is void, and the children born of such cohabitation are illegitimate.

ii. Talak hasan or Mubaraat (Talak for three times):

1. ‘Talak’ is pronounced during a tuhr. In the next tuhr, the second pronouncement is
made. In the third tuhr, third pronouncement is made.
2. There should not be any sexual intercourse during the periods of three tuhrs.
3. After the third pronouncement, the Talak becomes complete and irrevocable.
4. The Iddat period is irrelevant. So during the period of Iddat, the sexual intercourse
will not revoke the divorce.
5. After the third pronouncement, if children are born, they become illegitimate.

iii. Talak-ul-biddat (Irrevocable divorce):

1. It is recognised in Sunni law. It is not recognised in Shia law. It is called irrevocable
divorce.
2. Once the Talaq is pronounced by the husband, then immediately the marriage gets
dissolved. There is no waiting period.
3. Just a single pronouncement is sufficient. After the pronouncement of divorce, if he
changes his mind and wants to marry her, then two steps are essential.
a.The divorced woman must be married to another person.
b.Such marriage must be consummated and then it must be dissolved. Then only, the first
husband can marry her.
iv. Talak-ul-Bain:
1. The husband pronounces Talak three times.
2. After this triple pronouncement, the marriage gets dissolved and is irrevocable.
3. This is recognised in Hanafi law and not in Shia law.
v.Divorce by mutual consent [Khula]:
1. It is a type of divorce by mutual consent.
2. If the wife is not satisfied with the husband, then she can offer to give the dower
amount to her husband as compensation for releasing her from the marriage contract.
 102

3.If the husband accepts the dower amount, then the marriage is dissolved and
irrevocable.
vi. Mubaraat:

1. It is a type of divorce by mutual consent. Here, the dissatisfaction is of both the

husband and wife.
2. The husband can offer to release the wife or vice versa.
3. If the wife offers to release him, then she loses her dower amount.
4. Both in Khula and Mubaraat, the divorced wife must observe Iddat and during the
period of Iddat, the husband must maintain the wife.

C. DIVORCE BY WIFE
A Mohamaden wife may sue for dissolution of marriage on the following three grounds:
i. False Acquisition of Adultery:
If the husband falsely accuses the wife of committing adultery, she can sue for divorce.
(Li ‘an) This ground is available only in regular marriage.
ii.Talak by Tafweez (Tefwid):

i.If the husband has agreed under an agreement that she can sue for divorce under certain
contingencies, she may do so if such contingencies arise.
ii. Once such a power is given by the husband, it cannot be revoked. Though such a
divorce is caused by the wife, in fact it is done by her on his behalf only. This is called
Talak by delegation.
iii. Impotence of the husband:
Impotence of the husband at the time of marriage and continuance of the disability.

D. DISSOLUTION OF MUSLIMS MARRIAGE ACT, 1939

It provides new Grounds to wife only.
1. Husband absconded and not heard of for 4 years.
2. If the husband fails to provide the wife with maintenance for 2 years.
3. Husband sentenced for 7 years imprisonment.
4. Husband failing to perform marital duties for 3 years without reasonable cause.
5. Insanity of husband for 2 years or suffering from leprosy or veneral disease.
6. For legal cruelty inflicted upon the wife, e.g. beating, ill treatment, forcing her to
immorality etc, are instances of cruelty.
 103

Family law 2 CHAPTER NO. 3 WAKF AND TYPES OF WAKF

(Mutawalli - powers and duties)
(The Wakf validating Act, 1913)

UNIVERSITY QUESTIONS
1.a) Define “Wakf” and point out the essentials of “Wakf”
b) What are the changes brought about by the Wakf Act of 1913.
2.Discuss the salient features of the Mussalman Wakf Validating Act, 1913. Discuss the
circumstance, which led to the passing of the Act.
3.What is a Wakf alal-aulad (family wakf)? Do they offend the rule against perpetuity?
4.Short Notes on: Wakf-alal-aulad, Sajjadanashin, Mosque.
5. Who is a Mutawalli? Examine the scope of his powers over Wakf property.
Answer
A. INTRODUCTION
1. ‘Wakf’ means dedication of property to the ownership of God for religious or
charitable purposes.
2. The person who dedicates the property is called the Wakif.
3. The Wakif may appoint a Manager to administrate the property. Such person is called
Mutawalli. The Wakif himself may become the Mutawalli. He is not the legal owner, but
only an administrator.
4. The difference between a Trustee and Wakif is that a trustee may be a legal owner,
but a Wakf is not a legal owner.

B. CREATION OF WAKF
a. By dedication.
b. By means of a will.
c. A Wakf created during death illness is regarded as a testamentary Wakif.
d. An intention to create a Wakf.
e. A declaration that a Wakf is being created.

C. ESSENTIALS OF VALID WAKF

1. The Wakif should be the owner/part owner of the dedicated property.
2. The dedication of property should be for religious, pious or charitable purposes. Eg.,
giving alms to poor, reading quran at public places, etc.
3. The property of Wakf must be of permanent character.
4. It should not be a contingent Wakfor conditional Wakf. If it is so, it is void.
 104

Hussain Vs. Salah

A Wakf was created and it was to take effect after the death of a particular person. The
Court held that the Wakf was valid because it was not contingent. The death is a certain
event.

Pattukutti Vs. Avthalakutti

The wakf was to take effect if the wakif dies without issue. This was held void, because
dying without issue is an uncertain event.

D. FORMALITIES OF WAKF
1. The Wakf may be created orally or in writing. If the value of the Wakf is above Rs.
100/- it must be written and registered. The written deed is known as Wakfnama.
2. In Shafi and Hanafi laws, transfer of the dedicated property to a Mutawalli is not
necessary. His intention and a declaration to create a Wakf are enough.
3. In the case of a testamentary Wakf, transfer of dedicated property by the settler to the
Mutawalli is not necessary.
4. An orally made Wakf is valid. But if a Wakf is made in writing, such writing is
admissible as evidence for the terms of the Wakf.

E. SUBJECT MATTER OF WAKF

1. Any property which is capable of being used and not consumed can be the subject
matter of Wakf.
2. Any movable or immovable property can be the subject matter of Wakf (E.g. Cash,
Government promissory note, Share of a company etc.,).
3. The property must be certain and specified. An uncertain property cannot be lawfully
dedicated.

F. RIGHTS OF WAKIF
1. The Wakif can make provisions for payment of his debts or for his own maintenance.
2. The right to change the provisions regarding the beneficiaries is given to the Wakif at
the time of making the Wakf.
3. A Wakif cannot withdraw any part of the property dedicated after creating the Wakf.
4. He cannot also alter the purpose of the Wakf. In such a case, the Wakf becomes
invalid in full or in part.

G. BENEFICIARIES OF WAKF
1. A Wakf can be created for the benefit of the following:
a.For the rich or poor alike.
 105

b.For the poor only.

c.For the rich in the beginning, but finally for the poor.

2. For a Wakf of a religious purpose, the family, the descendants and other relatives of
the Wakf can be the beneficiaries. Even servants of the Wakf can be beneficiaries of the
Wakf.

3. Any non- Muslim can also be the beneficiary, but he should not be an alien enemy.
H. OFFICE OF MUTAWALLI
1. Wakf is managed by a Mutawalli. He is the Superintendent.
2. The Mutawalli should be a major and of sound mind.
3. The Mutawalli does not own Wakf property. He is only a Manager and Supervisor.
Though his functions resemble that of a trustee, he is not a trustee.
4. The remuneration of a Mutawalli is fixed in the Wakf nama. If it is not specified, the
Court can fix his salary, not exceeding 1/10th of the income of the Wakf property.
5. During execution proceedings, the property of a Wakf is not liable for attachment.

I. DUTIES OF MUTAWALLI
1. The Mutawalli has to protect the Wakf property, and must discharge his duties with
diligence, care and honesty.
2. He cannot alienate the Wakf property except when he is allowed expressly by the
Wakf deed.
3. A Mutawalli also cannot create a permanent lease of the Wakf property except with
the express provision of the Wakf deed or permission of Court.
4. A Mutawalli cannot transfer his office to another person.
5. The Wakif cannot dismiss a Mutawalli already appointed, except if it is mentioned in
the Wakf deed.
6. Possession of a Mutawalli cannot be adverse to the Wakf.
7. The Mutawalli must obtain the Court’s permission for alienating the Wakf property.

J. POWERS OF MUTAWALLI
He can grant a lease not exceeding 3 years. If it is a non-agricultural property, he can
grant lease for not more than one year.
1. Sometimes, the power to nominate the succeeding Mutawalli is given to the first
Mutawalli, if the method of succession is not mentioned in the Wakf deed.
2. He can sue for a declaration that he is the Mutawalli, and for the possession of the
Wakf property.
 106

K.LAW UNDER THE MUSSALMAN WAKF VALIDATING ACT, 1913

Due to the protest made by the Muslims, the Mussalman Wakf Validating Act, 1913 was
passed. According to it, Wakf can be created for the following purposes also.
2. For the maintenance and support wholly or partially of his family or children, and
3. If the person creating a Wakf is a Hanafi Muslim it can also be created for his
maintenance during his lifetime or for the payment of his debts out of the rent and profits
of the property dedicated.

But such ultimate benefit should be expressly or impliedly reserved for the poor or any
other purposes recognised as a religious, pious and charitable purposes of permanent
character.

A Wakf created for the poor or other religious, pious and charitable purposes of the
permanent nature is postponed until after the extinction of the family, children or
descendants of a person creating the Wakf.
 107

Family law 2, CHAPTER NO. 4, LAW OF MAINTENANCE

(Nafkah) (Parental rights)

UNIVERSITY QUESTIONS
1.“The maintenance of wife and children is a primary obligation under Muslim law”.
Explain and state the conditions subject to the satisfaction of maintenance
which can be enforced in a Court of law.
2.State the provisions of Muslim law relating to maintenance of wife and children.
3. Write short note on: a) Maintenance of Wife b) Maintenance of Children c)
Maintenance of Poor Relatives d) Maintenance of Aged Parents

Answer
In legal sense, maintenance signifies three things:
1. Food
2. Clothing
3. Lodging (Shelter)

A. LIABILITY FOR MAINTENANCE

A person is liable under three heads:
1. Liability for wife
2.Liability for relatives
3. Maintenance of Children

1.The maintenance of wife and children is a primary duty of a person under Muslim law.
2.A Muslim is bound to provide and the dependant are entitled to receive maintenance
from their ascendants and descendants.
3. Only persons who are poor and needy are entitled to maintenance
4. The right of maintenance changes according to various conditions.

B. MAINTENANCE OF WIFE
1.Whether a wife owns any property or not, the wife has an absolute right to
maintenance. The husband is bound to maintain her.
2. The husband is bound to maintain his wife under the following conditions:
a.If she has attained puberty.
b.If she allows free access to herself to her husband at all lawful times
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3. If the husband refuses to maintain his wife without any lawful cause, she may sue him
for maintenance. She may avail Sec. 125 Cr. P.C. The Court may allow for the
maintenance not exceeding a prescribed financial limit.
C. MAINTENANCE OF WIFE DURING IDDAT
1. Iddat is an interval which the woman observes between the termination of marriage by
death or divorce and the commencement of another life.
2. She remains in seclusion and abstains from marrying another person during such
period.
3.A woman is entitled to maintenance during the period of iddat, if the husband divorces
her after consummation of marriage.
4.If the wife is divorced without consummation of marriage, she is entitled to
maintenance until she is informed of the divorce.
5.A widow cannot claim maintenance during the period of iddat after her husband’s
death.
6.If the husband is a minor and unable to consummate, but the wife is an adult, then she
is entitled to maintenance.
If the minor has no source of income, his father has to maintain her.

C. NO MAINTENANCE TO WIFE
The wife is not entitled to maintenance under the following circumstances:
1.If the wife refuses to live with the husband unreasonably.
2.When she is not obedient and unjustifiably behaves.
3.Due to her own fault, she separates herself from the husband.
4.If she becomes a widow.
5.In the case of an illegal marriage.
6.When the wife is very young and incapable of sexual intercourse.
7.If she has been forcibly taken away by another person, or she has been eloped from the
husband, or has been imprisoned for commission of any offence.
E. MAINTENANCE UNDER AGREEMENT
If there is an agreement between the parties or their guardians, which is not opposed to
public policy, then it entitles the wife to recover maintenance from her husband.

Mohammaden Ahmed Khan Vs. ShahBano Begum (Shah Bano’s case)

The respondent Mohammaden Ahmed pronounced Talak (divorce) to the petitioner Shah
Banoo. The petitioner filed the suit for payment of maintenance to her, after the period of
iddat, as her husband refused to pay maintenance to her.
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The Respondent contended that under Muslim Personal law, there is no liability for the
husband to pay maintenance, as Dower has already been settled.

The Supreme Court did not accept this contention and held that dower and maintenance
are different and payment of dower did not exclude the right of the divorced wife from
claiming maintenance.

The Supreme Court came to this conclusion based on the passages from Holy Koran. It
thus held that the divorced wife is entitled to be maintained by her husband till her
remarriage.

It also held that Section 125 of Cr.P.C overrides the personal law in the event of conflict
between the two.

Since the Judgement of Supreme Court created furore from Muslim religious sects, the
Parliament overruled the Supreme Court judgement by passing Muslim Women
(Protection of Rights)on Divorce Act, 1986.

According to this Act, the husband’s liability to pay maintenance ceases once the dower
is paid in full and in the event, the divorced wife is unable to maintain herself, her
relatives who are entitled to inherit her properties must maintain her and if she has no
properties, then the State Wakf Board must maintain her.

Section 125 Cr. P.C is applicable, only if both husband and wife agree for its
applicability.

F. MAINTENANCE OF CHILDREN (SON AND DAUGHTER)

1.A father is liable to maintain his sons till they are minors and to maintain his daughters
till they are married.
2. If the child has personal source of income, he cannot claim maintenance from his
father.
3.If the father is very poor and unable to maintain the children, the mother must maintain
them, if she has the means.
4.If both the father and mother are infirm and poor, then the grand father (maternal or
paternal) has to maintain the children.
5.If a daughter refuses the offer to live with father, she cannot claim maintenance. Only
under special circumstances, she is entitled to separate maintenance.
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Family law 2 CHAPTER NO. 5 SUCCESSION CERTIFICATE (Sec. 370 to 390)

UNIVERSITY QUESTIONS 1. What is Succession Certificate? Is it necessary if the
deceased was a Hindu? When can it be revoked? 2. Describe the procedure for obtaining
a Succession Certificate. Can a ‘Succession Certificate’ be revoked and if so, under what
circumstances? 3. Explain to whom obtaining of “Succession Certificate”, is made
compulsory under the Indian Succession Act. What are the legal effects of the grant of
Succession Certificate? Answer A. INTRODUCTION 1. A Succession Certificate is a
certificate granted by the Court with respect to any debt or security, to which a person is
entitled as a result of succession to another man’s property. 2. The use of Succession
Certificate is that it facilitates the collection of debts on succession. 3. Generally, after
the death of the testator, there may be scramble among the relatives for the collection of
the debts. The Succession Certificate gives protection to the debtors of the deceased
against the multiple claims of the debt by different relatives. 4. The Court grants the
Succession Certificate to the right person interested in the estate of the deceased person.
5. The Succession Certificate is conclusive evidence that the holder of the Succession
Certificate alone has the authority to collect the debts. B. EFFECT OF SUCCESSION
CERTIFICATE 1.The Succession Certificate acts as a shield to the debtor from too many
claims. 2.After the payment of the debt to the Succession Certificate holder, if some
other person turns out to be the right person to collect the debt, it will not affect the
debtor in any way. 3. The debtor’s liability is over as soon as the debt is paid to the
holder of the Succession Certificate. 6. The Succession Certificate raises conclusive
presumption that the holder is the Legally authorised person to collect the debts due to
the deceased. 7. The Succession Certificate is not a proof for the existence of debt or for
receipt of money. Madhvi Amma Bhawani Amma and Ors vs Kunjikutty Pillai
Meenakshi 2000AIR (SC) 3279. The Supreme Court held that any decision made in
proceeding under Section 372, for the grant of Succession Certificate under the Indian
Succession Act, would not bar any party to the said proceeding to raise the same issue in
a subsequent suit. GROUNDS FOR THE GRANT OF SUCCESSION CERTIFICATE
In all cases where Probate or Letters Administration is compulsorily required, a
Succession Certificate cannot be granted. 5. When the deceased person is an Indian
Christian dying intestate, then Succession Certificate can be granted. 6. When the
deceased is a Hindu who has lost a will, then Succession Certificate can be granted. 7. In
case of joint family property passing by survivorship, Succession Certificate can be
granted. Savitri Devi vs Smt. Manorama Bai And Ors AIR 1998 MP 114, 1998 (1)MPLJ
254 The court held that the order of succession certificate in favour of the three
illegitimate children of is proper. PROCEDURE ON APPLICATION The District Judge
follows the following procedure in disposing of the application: 1.After getting satisfied
about the grounds for entertaining the application, he fixes a day for hearing and sends
notice to the parties. 2.He decides the right of the parties to the Certificate summarily. 3.
If he decides that the applicant has the right for the Certificate, he shall order for the
grant of the same. 4.If there are more than one applicant for the Certificate, the Judge
may give regard to the extent of interest and fitness of the applicant. REVOCATION OF
SUCCESSION CERTIFICATE Under the following circumstances, a Succession
Certificate may be revoked: 1.If the proceedings to obtain the Certificate were defective
in substance. 2.If the Certificate was obtained fraudulently by making false suggestion or
concealing some material facts. 3.If the Certificate was obtained by an untrue allegation
of a fact essential to justify the granting of the Certificate, though it may be done
ignorantly. 8. If the Certificate has become useless and inoperative due to circumstances.
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Family Law 2, CHAPTER NO. 6, FAMILY COURTS ACT, 1984

UNIVERSITY QUESTIONS
1. What are the salient provisions in the Family Courts Act, 1984?
2. Explain the main provisions of the Family Courts Act, 1984.
3. Write short note on – The Family Courts Act, 1984.
Answer
A. INTRODUCTION
Family disputes are different from property disputes and hence a separate Court to decide
family disputes became necessary.

The procedure of conciliation between the marital spouses and also the protection of the
interests of the children are the twin objectives for setting up Family Courts.

B. CONSTITUTION
1. Family Courts are established in a town or city where the population exceed
10,00,000.
2. It is presided by one or more Judges of the rank of District Judge or a Judicial Member
of Tribunal member who has 7 years experience or an Advocate of 7 years bar
experience in any High Court.
3. Women are preferred in the appointment of Judges in the Family Court, as the family
disputes involve conciliation and counseling.

C. JURISDICTION
Family Courts have jurisdiction on all matrimonial matters. The following are the
proceedings before the Family Courts:
1.Divorce
2.Judicial separation.
3.Restitution of Conjugal rights.
4.Nullity of marriage.
5.Maintenance- Alimony.
6.Custody of children
7.Declaration of legitimacy of a child.
8.Declaration of validity of marriage.
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D. PROCEDURE
1. The Family Courts formulate their own procedures.
2. Strict rules of evidence, as per the Indian Evidence Act 1872 are not applicable to
Family Courts.
3. Elaborate recording of evidence is also not required.
4. The judgements may be brief and concise and in points with reasons for decision.
5. The Court has all the powers of the Civil Court.
6. An appeal from the order or decree of the Family Court lies to the High Court, both on
facts and law within 30 days from the date of the order or decree.
7. All appeals are heard by a Bench of two High Court Judges.
8. There is no Second Appeal to the Supreme Court except by Special Leave Petition
under Art. 136 of the Indian Constitution.
9. The proceedings of the Family Court are conducted in camera if the parties to the
dispute so desire.

Sadhana Patra vs Subrat Pradhan 2006 AIR 2006 Ori 105

The Court held that under Section 13 of the Family Courts Act, 1984, the Family Court is
entitled to appoint ‘amicus curiae’(an impartial adviser to a court of law in a particular
case.) to assist the said Court in addition to the legal practitioners. The Family Courts is
entitled to impose upon a party before it who is economically sound and who can appoint
a legal practitioner in the case of the context, directing him/her to bear the legal expenses
of the other spouse/party.

E. ‘IN CAMERA’ PROCEEDINGS

1. In camera proceedings mean that the proceedings are in private without any access of
the public.
2. They are conducted in closed chambers in the presence of the Judge with the parties to
the marital dispute.
3. Usually, the in camera proceedings are followed by the Family Court if sensitive
questions touching the morality of the woman, etc., are involved.

F. CONCLUSION
The Family Courts help to keep the marriage as sanctity and since the proceedings are
conciliatory, their functioning have become successful. As the proceedings are not rigid,
it is different from the proceedings of a Civil Court. Invariably in all cases, it has given
confidence to both the parties to marital dispute.

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