Previous Year Question Paper Answers for

Assignment

April 2021 Question paper – Hemavathi Rajaram

DECEMBER -2017
SUBJECT: JURISPRUDENCE

PREPARED BY:
Ms. Sahana Florence, Asst. Prof.
Al-Ameen College of Law

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Q.No.1. Explain the necessity of administration of Justice. Distinguish between Criminal and
Civil Administration of Justice.

Meaning and Definitions:

Salmond “the Administration of justice is the maintenance of right within a political

community by means of the physical force of the state. It is the application by the State of the
sanction of force to the rule of right”.

Acc Black Stone :- Justice is a reservoir from where the concept of right, duty and equity
evolves.
Justice is expressed in terms of “Justice according to law” . Dicey called as “Rule of law”.
“No one is above law”.

Necessity of Administration of Justice.

It is true that unlimited and unrestrained liberty leads to a state of anarchy, therefore some
kind of external coercive authority is needed to keep man within his limits and restrain his
unfettered liberty. Herbeart Spencer, “every man is true to do what he desires provided he
infringers not with the equal freedom of any other man”. Hobbes believed that a common power
was necessary to keep people within controle in the community. Force is necessary to prevent the
recalcitrant minority from gaining unfair advantage over law abiding people in general. Therefore,
state force is inevitable for protection of rights of individuals in society.

Distinction Between Criminal Justice & Civil Justice

Criminal Justice Civil Justice

1. All criminal wrongs are 1. All civil wrongs are administrated
administrated by criminal justice. by civil justice.
2. Eg. Theft, murder, rape, forgery 2. Eg. Breach of contract, Irespass to
etc. land etc.,.
3. All crimes are public wrongs. 3. All civil wrongs are private
wrongs.
4. All criminal proceedings are 4. The aggrieved person institutes
instituted by the state. the civil proceedings.
5. A Crime is treated a harmful Act 5. Civil wrongs are deemed only to
to the entire Society. infringe the rights of the individual.
Eg. Murder, killing a person
primarily affects the deceased, but it

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 badly affects on his family and also
entire society.
6. The object of the criminal justice 6. The object of the civil Justice is
is to ‘punish’ the wrongdoer, ranging to provide ‘compensation’ to the
from death to fine. aggrieved and sufferer by wrong –
does.
7. Criminal Justice is administered 7. Civil justice is administered Acc
according to the set of criminal to the set of Civil Procedures.
procedures.
8. The doctrine of estoppel does not 8. The doctrine of estoppel applies
apply to criminal Justice. only Civil Justice.
9. “It is better that several guilty men 9. This Principle does not apply to
should escape rather than one civil proceedings.
innocent should punished”.
The guilt must be proved beyond
the doubt.
10. The rules of evidence cannot be 10. Te rules of evidence may be
relaxed by the consent of the parties. relaxed by the consent of the parties.
11. The cases once instituted cant be 11. The proceedings may be
compounded or withdrawn in the withdrawn by the parties with their
criminal Justice. There are very few own consent.
exceptions.
12. The burden of proof lies on the 12. The burden of proof dies on both
prosecution. the Petitioner and the Defendant.
The guilt must be proved beyond
the doubt.
13. In the criminal cases, the 13. In the Civil, it is the duty of the
obligation lies on the Court to bring parties to place their case as they
all relevant evidence on the record so think best.
that justice is done.

14. ‘Benefit of doubt’ is given to the 14. ‘Benefit of doubt’ principle does
Accused in criminal Justice. not arises in civil justice.
15. The criminal justice deals with 15. It deals with the distribution of
remedial and breaches of duties. It is wealth and honour. It is distributive
a corrective Justice. Justice.
16. Criminal Courts administer the 16. Civil Courts administer the
criminal justice. Civil Justice.

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Q.No.2. Discuss Legislation as a Source of Law.
OR

Explain the importance of Legislation as source of Law.

OR

Legislation is the prime source of law. and consists in the declaration of legal rules by a
competent authority. Legislation can have many purposes: to regulate, to authorize, to enable, to
proscribe, to provide funds, to sanction, to grant, to declare or to restrict. A parliamentary
legislature frames new laws, such as Acts of Parliament, and amends or repeals old laws. The
legislature may delegate law-making powers to lower bodies. In the UK, such delegated legislation
includes Statutory Instruments, Orders in Council, & Bye-laws. Delegated legislation may be open
to challenge for irregularity of process; and the legislature usually has the right to withdraw
delegated powers if it sees fit.

Most legislatures have their powers restricted by the nation's Constitution, and
Montesquieu's theory of the separation of powers typically restricts a legislature's powers to
legislation. Although the legislature has the power to legislate, it is the courts who have the power
to interpret statutes, treaties and regulations. Similarly, although parliaments have the power to
legislate, it is usually the executive who decides on the legislative programme. The procedure is
usually that a bill is introduced to Parliament, and after the required number of readings, committee
stages and amendments, the bill gains approval and becomes an Act.

In modern times, legislation is considered as the most important source of law. The term
'legislation' is derived from the Latin word legis which means 'law' and latum which means "to
make" or "set". Therefore, the word 'legislation' means the 'making of law'. The importance of
legislation as a source of law can be measured from the fact that it is backed by the authority of
the sovereign, and it is directly enacted and recognised by the State. The expression 'legislation'
has been used in various senses. It includes every method of law-making. In the strict sense it
means laws enacted by the sovereign or any other person or institution authorised by him.

Let us understand how various jurists have defined legislation.

1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.
2. Horace Gray- Legislation means the forma utterance of the legislative organs of the society.
3. John Austin- There can be no law without a legislative act.
Analytical Positivist School of Thought- This school believes that typical law is a statute
and legislation is the normal source of law making. The majority of exponents of this school do
not approve that the courts also can formulate law. They do not admit the claim of customs and
traditions as a source of law. Thus, they regard only legislation as the source of law.

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 Historical School of Thought- This group of gentlemen believe that Legislation is the least
creative of the sources of law. Legislative purpose of any legislation is to give better form and
effectuate the customs and traditions that are spontaneously developed by the people. Thus, they
do not regard legislation as source of law.

The kinds of legislation:

The kinds of legislation can be explained as follows:
(i) Supreme Legislation: When the laws are directly enacted by the sovereign, it is considered as
supreme legislation. One of the features of Supreme legislation is that, no other authority except
the sovereign itself can control or check it. The laws enacted by the British Parliament fall in this
category, as the British Parliament is considered as sovereign. The law enacted by the Indian
Parliament also falls in the same category. However in India, powers of the Parliament are
regulated and controlled by the Constitution, through the laws enacted by it are not under the
control of any other legislative body.
(ii) Subordinate Legislation: Subordinate legislation is a legislation which is made by any
authority which is subordinate to the supreme or sovereign authority. It is enacted under the
delegated authority of the sovereign. The origin, validity, existence and continuance of such
legislation totally depends on the will of the sovereign authority. Subordinate legislation further
can be classified into the following types:-
(a) Autonomous Law:
When a group of individuals recognized or incorporated under the law as an autonomous
body, is conferred with the power to make rules and regulation, the laws made by such body fall
under autonomous law. For instance, laws made by the bodies like Universities, incorporated
companies etc. fall in this category of legislation.
(b) Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their
administrative procedures. For instance, under the Constitution of India, the Supreme Court and
High Courts have been conferred with such kinds of power to regulate procedure and
administration.
(c) Local laws:
In some countries, local bodies are recognized and conferred with the law-making powers.
They are entitled to make bye-laws in their respective jurisdictions. In India, local bodies like
Panchayats and Municipal Corporations have been recognized by the Constitution through the
73rd and 74th Constitutional amendments. The rules and bye-laws enacted by them are examples
of local laws.
(d) Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by them are
known as colonial laws. For a long time, India was governed by the laws passed by the British

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Parliament. However, as most countries of the world have gained independence from the colonial
powers, this legislation is losing its importance and may not be recognized as a kind of legislation.
(e) Laws made by the Executive:
Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in
one authority or it may be distributed among the various organs of the State. In most of the modern
States, sovereignty is generally divided among the three organs of the State. The three organs of
the State namely legislature, executive and judiciary are vested with three different functions. The
prime responsibility of law-making vests with the legislature, while the executive is vested with
the responsibility to implement the laws enacted by the legislature. However, the legislature
delegates some of its law-making powers to executive organs which are also termed delegated
legislation. Delegated legislation is also a class of subordinate legislation. In welfare and modern
states, the amount of legislation has increased manifold and it is not possible for legislative bodies
to go through all the details of law. Therefore, it deals with only a fundamental part of the
legislation and wide discretion has been given to the executive to fill the gaps. This increasing
tendency of delegated legislation has been criticized. However, delegated legislation is resorted
to, on account of reasons like paucity of time, technicalities of law and emergency. Therefore,
delegated legislation is sometimes considered as a necessary evil.

Delegated Legislation:
This is a type of subordinate legislation. It is well-known that the main function of the
executive is to enforce the law. In case of Delegated Legislation, executive frames the provisions
of law. This is also known as executive legislation. The executive makes laws in the form of orders,
by laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the
power to make subordinate legislation is usually derived from existing enabling acts. It is
fundamental that the delegate on whom such power is conferred has to act within the limits of the
enabling act.

The main purpose of such a legislation is to supplant and not to supplement the law. Its
main justification is that sometimes legislature does not foresee the difficulties that might come
after enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen while
formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample
scope for adjustment in the light of experiences gained during the working of legislation.

Q.No.13. Explain the Essentials of Valid Custom.

Meaning and Definition of Custom:

Custom can simply be explained as those long established practices or unwritten rules which
have acquired binding or obligatory character. In ancient societies, custom was considered as one

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of the most important sources of law; In fact it was considered as the real source of law. With the
passage of time and the advent of modern civilization, the importance of custom as a source of law
diminished and other sources such as judicial precedents and legislation gained importance.

➢ Salmond- Custom is the embodiment of those principles which have commended

themselves to the national conscience as principles of justice and public utility.
➢ Carter- The simplest definition of custom is that it is the conformity of the conduct of all
persons under like circumstances.
➢ Austin- Custom is a rule of conduct which the governed observe spontaneously and not in
pursuance of law settled by a political superior.

Origin of Custom:-
A study of ancient laws shows that in primitive society, the lives of the people were
regulated by custom which developed spontaneously according to the circumstances. It was felt
that a particular way of doing thing was more convenient than others. Holland- Custom originated
in the conscious choice by the people of the more convenient of the two acts. Imitation must have
played an important part in the growth of customs.
As long as the disposition of the early man remained synamic, he was inseparably bound
to custom. With the growth of civilization, man began to reason and to reject the unreasonable
customs and accepted reasonable ones. .

Requisites or Essentials of a Valid Custom:-

In order to be a valid custom, it must conform to certain requirements laid down by the
law. The essential of a valid customs are:

1. Immemorial Antiquity-
A custom to be valid must be immemorial. In order, that a custom may have the force
of law, it is necessary that it should be ancient. A custom, in order that it may be legal and
binding, must have been used so long that the memory of man runneth not to the contrary. So
that if anyone can show the beginning of it, it is no good custom. The idea of immemorial
custom was derived by the law of England, from the Canon law and by the Canon law from
the Civil law. An arbitrary time limit, that is, the year 1189, the first year of the reign of Richard
I, has been fixed, at which the custom must be proved into existence.
In India, while a custom need not be immemorial, the requirement of long usage is
essential since it is from this that custom derives its force as governing the parties’ right in
place of the general law.
2. Continuance:
A custom to be valid must have continued without interruption since time
immemorial. This refers to the active exercise of the custom. It must have been in existence
and recognised by the community without any intervening break. If a custom has been

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 followed continuously and without any interruption for a long time, it gains recognition. If
it has been interrupted, the presumption is that it never existed at all.
3. Reasonableness:
A custom must be reasonable. It gives a good deal of discretion to the court in the,
matter of recognition of customs. · It has been settled that the time to decide the
reasonableness of a custom is the time of its origin. The rule regarding reasonableness is
not that a custom will be admitted, if reasonable, but that it will be admitted unless it is
unreasonable. The courts are not at liberty to disregard a custom whenever they are not
satisfied as to its absolute rectitude and wisdom or whenever they think a better rule can
be formulated in the exercise of their own judgment, otherwise, a custom will lose much
of its force and sanctity.
4. Certainty:
A valid custom must be certain and definite. A custom which is vague or indefinite
cannot be recognized. It is more a rule of evidence than anything else. The court must be
satisfied by a clear proof that custom exists as a matter of fact or as a legal presumption of
fact.
5. Obligatory force:
A custom is valid if its observance is compulsory. An optional observance is
ineffective. A custom that all the inhabitants shall be rated, towards maintenance of a
bridge, will be good but a custom that every man is to contribute thereto at his own
pleasure, is idle and absurd and indeed no custom at all.
6. General or universal:
Custom is effectual only when it is universal or nearly so in the absence of
unanimity of opinion, custom becomes powerless, or rather doesn’t exist.7.
7. Conformity with statutory law:
No custom or prescription can take away the force of an Act of Parliament. A state
can abrogate custom but not vice-versa. But according to the historical school, a custom is
superior to statute and it can supersede a statute, though this view has nowhere been
recognized in practice. The English rule is that a custom will not be recognized if it is in
conflict with some fundamental principle of the common law.

Q.No.3. Discuss the Precedent as a Source of Law

Judicial precedent (case law, or judge-made law) is based on the doctrine of stare decisis,
and mostly associated with jurisdictions based on the English common laW, but the concept has
been adopted in part by Civil Law systems. Precedent is the accumulated principles of law derived
from centuries of decisions. Judgments passed by judges in important cases are recorded and
become significant source of law. When there is no legislature on a particular point which arises
in changing conditions, the judges depend on their own sense of right and wrong and decide the
disputes from first principles. Authoritative precedent decisions become a guide in subsequent

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cases of a similar nature. The dictionary of English law defines a judicial precedent as a judgment
or decision of a court of law cited as an authority for deciding a similar state of fact in the same
manner or on the same principle or by analogy. Another definition declares precedent to be," a
decision in a court of justice cited in support of a proposition for which it is desired to contend".
Compared to other sources of law, precedent has the advantage of flexibility and adaptability, and
may enable a judge to apply "justice" rather than "the law".

In simple words, judicial precedent refers to previously decided judgments of the superior
courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This
binding character of the previously decided cases is important, considering the hierarchy of the
courts established by the legal systems of a particular country. In the case of India, this hierarchy
has been established by the Constitution of India. Judicial precedent is an important source of law,
but it is neither as modern as legislation nor is it as old as custom. It is an important feature of the
English legal system as well as of other common law countries which follow the English legal
system.
In most of the developed legal systems, judiciary is considered to be an important organ of
the State. In modern societies, rights are generally conferred on the citizens by legislation and the
main function of the judiciary is to adjudicate upon these rights. The judges decide those matters
on the basis of the legislations and prevailing custom but while doing so, they also play a creative
role by interpreting the law. By this exercise, they lay down new principles and rules which are
generally binding on lower courts within a legal system. Given this background, it is important to
understand the extent to which the courts are guided by precedents. It is equally important to
understand what really constitutes the judicial decision in a case and which part of the decision is
actually binding on the lower courts.

Precedent as a source of law

Till the 19th Century, Reported Court Precedents were probably followed by the courts. However,
after 19th century, courts started to believe that precedence not only has great authority but must
be followed in certain circumstances. Precedent has a binding force and therefore it is an important
source of law. The rule of precedent should, however, be abandoned if it is inconsistent with the
notion of Justice or social welfare policy. It enables illogical and unsatisfactory decisions to be
overruled to meet the ends of justice. According to Bentham, precedent is a judge made law. While
Austin calls it as judiciary’s law.
Nature of Precedence:
A judicial precedent is purely constitutive in nature and never abrogative. This means that
it can create law but cannot abolish it. The judges are not at liberty to substitute their own views

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where there is a settled principle of law. They can only fill in the gaps in the legal system and
supreme imperfections in the existing law.
Types of Precedents
1. Original and Declaratory Precedent:
Precedents are either original or declaratory. Judicial decisions are of two kinds
those that create new law and those that merely apply known and established rules of law
to the particular facts of the cases arising for decision. Thus the original precedents are
those which create or establish original or new rules of law, whereas the declaratory
precedents are those which merely reiterate and apply an already existing rule of law. Both
are equally a source of law.
2. Authoritative and Persuasive Precedent-
An authoritative precedent is that which must be followed by the judges, whether
they approve it or not. It comes from a court superior to the court concerned. Authoritative
precedent are binding upon the judge who interpret the law, they can be regarded and are
regarded as a legal source of law. Judges must follow the precedent whether they approve
of it or not. They are classified as Legal Sources.
Persuasive precedent are those which the courts are not bound to follow, though
they may take them into consideration while giving their decisions. They, being only of a
guiding character are not considered as a legal source of law. Such precedents are only a
historical source of law. The persuasive precedents has no legal force by itself. It has an
effect only when followed or adopted by a court of law. Judges are under no obligation to
follow but which they will take precedence into consideration and to which they will attach
such weight as it seems proper to them. They are classified as Historical Sources.
Binding Force of Doctrine of Precedent
The weight which judicial precedent carry to the decision of a case, widely caries
depending on the legal system of the country concerned. In England and USA a reported case may
be cited with almost as much authority as an Act of Parliament. But in continental country’s it does
not carry the same weight and a court cannot be restrained to take the same view as taken in the
earlier similar case.
In India, the decision of the Supreme Court have an authoritative and binding force so long
as they are not overruled by Supreme Court itself. According to Section 212 of the Government
of India Act, 1919, the law laid down by Federal Court and any judgment of the Privy Council was
binding on all courts of British India. Hence, Privy Council was supreme judicial authority.

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Supreme Court (SC) became the supreme judicial authority and a streamlined system of courts
was established.
1) Supreme Court:
Binding on all courts in India Not bound by its own decisions, or decisions of PC or Federal
Court -
2) High Courts:
Binding on all courts within its own jurisdiction Only persuasive value for courts outside
its own jurisdiction. In case of conflict with decision of same court and bench of equal
strength, referred to a higher bench. Decisions of PC and federal court are binding as long
as they do not conflict with decisions of SC.
3) Lower Courts:
Bound to follow decisions of higher courts in its own state, in preference to High Courts
of other states.

Q.No.4. Discuss the Circumstances destroying or weakening the binding force of Precedents.

Judicial precedent is another important source of law. It has a binding force on Judicial
Tribunals for deciding similar cases in future. Acc to Salmond, the doctrine of Precedent has 2
meanings.

1. In a loose sense precedent includes merely reported case law which may be cited and
followed by the Courts.

2. In a strict sense, it means that case – law which not only has a great binding authority but
must also be followed.

* A statement of law made by a Judge in a Case can become binding on later Judges and
other subordinate courts and in this way may becomes the law for every one to follow.

Precedent become binding depends on 2 main factors

1) It must have been pronounced by a court which is sufficiently senior.

2) It is only the retiodecidendi, i.e., reasoning behind the decision which is binding.

Authority of precedent in India :

* The privy Council’s Made Authoritative influence by its decisions on Indian judicial legal
system.

* The principles of equity, justice and good conscience in India a were the result of privy
council’s various decisions. Still it’s decisions are binding force in all the courts in India.

* After independence, the supreme court occupied the place of the privy council.
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 A precedent may be defined as a statement of law found in the decision of a superior court,
which has to be followed by that court and by courts inferior to it. Meant to be followed a judicial
decision of a High Court or superior court by the same court as also by subordinate courts. Black
stone has pointed out that it is an established rule to abide by the former precedents where the same
points came again in litigation. The process of Judicial decision making may be either deductive
pr inductive.

Deductive method is associated with codified system of law. It assumes that the legal rule
applicable to any particular case is fixed and certain and the Judge us required to apply this rule as
justice acc to the law without any reference to his personal view.

Inductive Method starts with the same primary object of finding the general principles
applicable to the particular case, but it does not conceive the rule as being applicable to the
particular case, but it does not conceive the rule as being applicable directly by simple method of
deduction. It rather moves from particular toKinds of precedents

1. Declaratory and original precedents

2. Persuasive precedents

3. Absolutely Authoritative precedents,

4. Conditionally Authorities precedents.

Circumstances which destroy the binding force of Judicial Precedents:

1) Ignore of statute:
It is not binding if it be rendered in ignorance of any statute or any other rule having the
force of stature.

2) Inconsistency between earlier decision of higher Court:

It loses its binding force completely, if it is inconsistent with the decision of a higher
Court.

3) Inconsistency between earlier decision of the Court of the same Rank:

A Court is not bound by its own earlier decisions which are conflicting with each other.
The conflict may raise due to inadvertence, ignorance in earlier decisions before the
Court.

4) Precedent sub silentio:

A decision is said to be sub silentio when the point of law involved in it is not fully argued
or not perceived by the Court.

5) Decision of equally divided Court:

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 There may be cases where the Judges of the Appellate court are equally divided. In such
a case practice is to dismiss the appeal and hold that the decision appealed against is
correctly decided.

6) Erroneous decisions: The decisions which are founded on misconceived principles or in

conflict with the fundamental principles of law lose their binding force totally.
7) Abrogated decisions: A decision ceases to be binding if statute inconsistent with it is
subsequently enacted. So also, it ceases to be binding if it is reserved, overrules or
abrogated.
8) Affirmation or reversal on a different ground:
When a higher Court either affirms or reverses the judgment of the Lower Court on a
ground different from that on which the judgment rests, the original Judgment is not
deprived of all the authority, but the subsequent Court may take a view that a particular
point which the higher Court did not touch, is rightly decided.

Q.No.5. What is Legal Right? Describe Hohfeld’s concept of right in its widest sense.

Introduction:-
Right and duties are the very important element of law. The term ‘ Right’ has various
meanings such as correct, opposite of left, opposite of wrong, fair, just and such like other
expression etc. But in legal sense a right is a legally permissible and protected action and interest
of a man group or state.

Meaning and Definition of Legal Right:

According to Austin:- “Right is a standard of permitted action within a certain sphere. He

further define right is a party has a right when others are bounds to obligesed by law to do or not
to do any act.”
Austin conceives this distinction to be the essence of a right that it should be vested in some
determinate person and be enforceable by some form of legal process instituted by him. Austin
thus starts from the assumption that a right cannot vest in an indeterminate, or a vague entity like
the society or the people. The second assumption with which Austin starts is that sovereign creates
rights and can impose or change these rights at its will. Consequently, the sovereign cannot be the
holder of such rights.
According to Salmond: “It is an interest recognized and protected by the rule of justice
law.”
According to Gray:- “Right is not an interest itself but it is the means by which the enjoyment of
an interest in secure.”
According to Prof. Allen:- “ The essence of right not a legal guarantee in itself but a
legally guaranteed power to realized an interest.”

Characteristics of Legal Right

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 According to Salmond, there are five important characteristics of a Legal Rights.

1. It is vested in a person who may be distinguished as the owner of the right, the subject
of it, the person entitled, or the person of inherence.
2. It avails against a person, upon whom lies the correlative duty. He may be distinguished
as the person bound, or as the subject of duty, or as the person of incidence.
3. It obliges the person bound to an act or omission in favour of the person entitled. This
may be termed the content of the right.
4. The act or omission relates to something (in the widest sense of that word), which may
be termed the object or subject matter of the right.
5. Every legal right has a title, that is to say, certain facts or events by reason of which the
right has become vested in its owner.

Some jurists hold that a right may not necessarily have a correlative duty. They say that
legal rights are legal concepts and these legal concepts have their correlatives which may not
necessarily be a duty.

Roscoe Pound also gave an analysis of such legal conceptions. He believed that legal rights
are essentially interests recognized and administered by law and belong to the ‘science of law’
instead of ‘law’. He proposed that such Rights are conceptions by which interests are given form
in order to secure a legal order.

Hohfeld’s System of Fundamental Legal Concepts or Jural Relations

1 2 3 4
Right Privilege Power Immunity
Jural Opposites – – – –
No Right Duty Disability Liability

Jural Correlatives Right Privilege Power Immunity

– – – –
Duty No Right Liability Disability

Jural Correlatives represent the presence of in another. Thus, right is the presence of duty in another
and liability is the presence of power in another.
Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right in oneself
and disability is the absence of power in oneself.

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Conclusion derived from Hohfeld’s System

a. As a person’s right is an expression of a wish that the other person against whom the right or
claim is expressed has a duty to obey his right or claim.

b. A person’s freedom is an expression of a right that he may do something against other person
to change his legal position.

c. A person’s power is an expression of a right that he can alter other person’s legal position.

d. A person’s disability is an expression of a wish that another person must not alter the person’s
legal position.

Q.No.6. What is Possession? What are the elements of Possession and Distinguish between
Possession in Law and Fact.

Possession is very difficult to define in English Jurisprudence. But it very important topic.
Human life and society would become impossible without retention and consumption of material
and non-material things. Food, clothes, tools, etc. are essential items to use. We get hold over the
first to claim possession. It is not just acquisition of things but it is continuing claim for use of
them. It may be legal or illegal. Possession is defined as “it is continuing exercise of a claim to the
exclusive use of it.” It does not cover incorporeal possession. Possession is different from
ownership but normally possession and ownership lie together.

Elements of Possession:
Law demands the existence of these two types of elements for constituting the possession.
1. The Animus Possidendi - The intent necessary to constitute possession is the intent to
appropriate to oneself the exclusive use of the thing possessed. It is an exclusive claim to
a material object. Salmond made following observations in this regard.

1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use the thing as
owner.
4. The animus possidendi need not be a claim on one’s own behalf.
5. The animus possidendi need not be specific, but may be merely general. It does
not necessarily involve any continuous or present knowledge of the particular thing
possessed or of the possessor’s relation to it.

2. The Corpus Possessionis – The claim of the possessor must be effectively realized in the
facts; that is to say, it must be actually and continuously exercised. The corpus possessionis

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 consists in nothing more than the continuing exclusion of alien interference, coupled with
ability to use the thing oneself at will. Actual use of it is not essential.

Distinguish between Possession in Law and Fact:

Possession in fact or de facto:
It means the possession, which physically exists in term of control over it. It can be seen landlord
and tenant where tenant holds possession of house physically or de facto, but it is not possession
in law or de jure.

Possession in law or de jure:

It is the possession which, in the eyes of law, exists. It may exclude physical control over it. It is
also called constructive possession. A servant may possess car, but in the eyes of law, it is
possession of master. Possession of bailor through bailee is de jure possession on the part of
bailor.

Salmond made a distinction between possession in fact and possession in law.

1. Possession may and usually does exist both in fact and in law. The law recognizes as possession
all that is such in fact, and nothing that is not such in fact, unless there is some special reason to
the contrary.
2. Possession may exist in fact but not in law. Thus the possession by a servant of his master’s
property is for some purposes not recognized as such by the law, and he is then said to have
detention or custody rather than possession.
3. Possession may exist in law but not in fact; that is to say, for some special reason the law
attributed the advantages and results of possession to someone who as a matter of fact does not
possess. The possession thus fictitiously attributed to him is termed constructive

Q.No.7. Define Ownership. Discuss the Various Kinds of Ownership. Distinguish between
possession and ownership.

INTRODUCTION:
Ownership is linked with possession. Possession is the first stage of ownership. It means
for ownership possession is necessary. Possession and ownership both are two sides of the same
coin and one cannot exist without the other. Ownership gives the full right over the thing.
Ownership is ultimate and final right for disposing the property. It means to transfer that property
in any way. Ownership is a relation ship between the person and the thing. For ownership there
must be a thing and the owner of thing. The concept of ownership was absent in the ancient
society. There was also no concept of possession too. Slowly and slowly as the society developed
the concept of possession also developed. The idea of ownership came into existence. So this
way after the progress of the concept of ownership the person became the full owner of his
property.

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DEFIN ITION :-
Before to define the ownership we have to discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman Law was the first law in the world. It is
considered the ancient law. All concepts of law begin from the period of Roman society. Under
the Roman Law the concept of ownership is defined in the form of dominion that means to have
the right control of a thing. The concept of ownership developed in the form of a right over the
thing. Dominion is distinguished from possession. Possession means to have possession over a
thing but dominos means to have a right over the thing.

Hindu Law :- Hindu Law is also considered as the most ancient law in the world. In Hindu law
the concept of ownership also has been discussed. In Hindu Law ownership is said a , “According
to Hindu Law ownership means a relationship between person and a thing. Person is called owner
and a thing is called property. Means a property which is in the control of a person is his property.

VIEWS OF MODERN & WESTERN JURISTS

The western jurists like Austin, Holland and Salmond defined the concept of ownership.
Austin :- According to him ownership is the relationship which exists in between the person and
the thing.” This definition resembles with the definition under Hindu Law. Austin says that in
ownership a person has the following relations with the thing.
1.Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for
industry, residence but there is a restriction that one cannot use one’s property in such a way which
destructive in the living of others.
2.Un-restricted power of dispose:- Means to transfer that thing or property according to his
choice. He can sale or to mortgage even to give on lease or gift to anybody. But under art.19(2)
of the Constitution reasonable restrictions can be imposed by the Govt., in the interest of public
policies.
3.Un-limited duration of time :- means the right of transfer of his property will remain always in
the name of owner. After his death it will go to his heirs so there is no time limits.
4.Domination :- It means to have control over the thing. For this purpose both elements of
possession corpus and animus should be there. If the conditions are there between person and the
thing and then the person is owner of that thing.

According to Holland: He defined the ownership as a plenary control of a person over a thing.
The definition also contains the following conditions :-
1.Possession 2. Enjoyment 3. Disposal.

According to Salmond :- Salmond defines ownership as a relationship between person and the
right. Right means to have a thing under possession. Thing always represents physical objects.

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But right always represents a thing which is not in physical existence like copy right and
allowances are always thing which are called property. And which are not in physical existence.
Salmond has included all those right which are property in the concept of ownership. In view of
the above it is learnt that Austin and Holland definitions are not complete. But salmond is
completely perfect in his definition.

KINDS OF OWNERSHIP

There are various kinds of ownership which are as under :-

1. Corporal and Incorporeal ownership: Corporeal and incorporeal ownership also called material
and immaterial ownership. Corporeal ownership is the ownership of a material object and
incorporeal ownership is the ownership of a right. Ownership of a house, a table or a machine is
corporeal ownership. Ownership of copyright a patent or a trade mark is incorporeal ownership.
2. Sole and co-ownership:- The general principal of ownership is that vested in one person only.
But some times it vested in many persons in other words two or more person have the right of
ownership. If only one person have right of ownership that known as sole ownership and where
two or more persons have the right of ownership then know as co-ownership.

3. Vested and contingent ownership:- Ownership is either vested or contingent it is vested

ownership when the title of the owner is already perfect. It is contingent ownership when the title
of the ownership is yet imperfect.

4. Absolute and Limited ownership:- means owner is one in whom are vested all the rights over a
thing to the exclusion of all or when a person has an absolute right over his property known as
absolute ownership. When there are limitations on the user duration or disposal of rights of
ownership the ownership is limited ownership.

5. Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules of
common law. Equitable ownership is that which proceeds from the rules of equity. Legal right
may be enforced in rem but equitable rights are enforced in personam.

DIFFERENCE BETWEEN POSSESSION & OWNERSHIP

POSSESSION OWNERSHIP
1.Possession is a primary stage of ownership 1. Ownership is in right.
which is in fact
2.Possession does not give title in the property 2. While in ownership it gives title in the
defacto exercise of a claims property dejure recognisation.

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 3.Possession is a fact. 3. Ownership is a right and superior to
possession.
4.Possession tends to become ownership. 4.Ownership tends to realize itself in to
possession.

5.Possession dominion corpus and animus are 5.Ownership they are not necessary
necessary. because law gives full rights.

6.Ownership most of the cases involves a

6.Transfer of possession is comparatively technical process i.e. conveyance deed e
easier.

7. Possession is nine points of law. 7.Ownership always tries to realize itself in

possession i.e. complete thing.

Q.No.8.What is meant by various liabilities? How does it differ from strict liability?

Synopsis
Introduction.
Meaning of Vicarious liability and Strict liability.
Difference between Vicarious liability and Strict liability.
Conclusion.

1. Introduction.

Law lays certain rights and duties of the individual. It prescribes what one is to do and what
one is not to do and what one is entitled to get it done by someone else. A breach of these rights
and duties is called wrong. Whoever commits such wrong is said to be liable for it. Thus liability
arises due to wrongful act or omission of act.

According to Salmond, Liability is a bond of necessity that exists between the wrongdoer and the
remedy of the wrong.

2. Meaning of Vicarious liability.

Generally a person is held liable for the wrong which he is committed himself. There are
certain cases where one person is made liable for the wrongs committed by another. Such cases
are known as Vicarious Liability.

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 For example: A master is held liable for the wrongful act of his servant in course of his
employment. Similarly a principle will be liable for the wrongful acts of his agents and legal
representatives are liable for the acts of dead men.

Constituents of Vicarious Liability:

(1) There must be a relationship of a certain kind.

(2) The wrongful act must be related to the relationship in a certain way.

(3) The wrong has been done within the course of employment.

Vicarious liability is possible only in civil cases. It is not common in criminal law. The
principle of vicarious liability has no application under in criminal law as it would be against the
public policy to punish a person for the offence committed by someone else. However there are
three exceptions to this general rule:-

a) If there is breach of obligation committed by the servant, owner cannot escape criminal
liability. Ex: Proprietor of the newspaper will be liable for the defamatory marks
published though he was living at a distance and knew nothing about it until he read
the newspaper.
b) In case of public nuisance under section 268, IPC, master will be liable for the nuisance
caused by his servant.
c) Under licensing Acts the professional holding licenses would be vicariously punished
for the wrongful acts committed by their servants.

Strict Liability

A man is held responsible for his negligence which results into harm or violation of rights
of others. But there are certain exceptions to this principle. Such cases are those where a person is
held liable for his acts even though he did not do it intentionally or negligently. In other words he
will be held liable irrespective of negligence or carefulness. These cases are covered under the rule
of Strict liability.

Strict liability falls into three categories i.e., mistake of law, mistake of fact and inevitable
accidents.

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 a) Mistake of law.

An act done under mistake of law is not said to be an intentional act because the doer of
the act does not know that what he is doing is prohibited by law. Ignorance of law is no excuse in
almost all the legal systems. This is expressed in the maxim Ignorantiajurismeminemexcusat. In
such cases principle of strict liability applies.

b) Mistake of fact.

Mistake of fact is a good defence in law of crimes. But in Indian law mistake of fact is not
a defence in law of torts i.e, civil wrongs. Whoever tries to interfere with the right of another shall
not be justified on the grounds that the act was done in good faith.

Ex: If A intending to kill B, kills C mistaking him to be B, A has no defence. But If A is intending
to kill tiger shoots at it and by mistake bullet hits B then he will be exempted from criminal liability
due to mistake of fact. However the act should be reasonable and there should be mistake of fact
and not of law.

c) Inevitable Accident.

Inevitable accidents is commonly recognised as a ground of exemption from liability both

in civil and criminal law. But there are some exception when inevitable accident cannot be availed
as a ground of defence. Such cases will come under Strict liability.

Ex: A man is strict liable for the trespass of his cattle.

3. Difference between Vicarious liability and Stict liability.

Vicarious liability refers in those cases where a person is held liable for the wrongful acts
of other. But in Strict liability a man is held responsible for those wrongful acts even though he
did not do it intentionally or negligently.

Vicarious liability is possible only in civil cases. But Strict liability applies both in civil
and criminal law.

4. Conclusion.

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 Liability arises from breach of duty or violation of law. Therefore Vicarious liability arises
on the person due the wrongful acts of the other and strict liability results in those cases when a
man commits wrong even though he did not do it intentionally. Vicarious liability is a convenient
tool as compared to strict liability as it shifts the burden of liability of one person over the other.

Q.No.9. Explain the importance of the chain of causation in establishing liability?

Introduction.

Law lays certain rights and duties of the individual. It prescribes what one is to do and what
one is not to do and what one is entitled to get it done by someone else. A breach of these rights
and duties is called wrong. Whoever commits such wrong is said to be liable for it. Thus liability
arises due to wrongful act or omission of act.

Conditions for imposing liability:

There are certain conditions to impose liability upon a person. The following are:

a) Act/ Wrongful act.

b) Mens Rea.
c) Intention.
d) Motive.
e) Malice.
f) Negligence.
g) Causation.

Meaning of Causation.
The common principle of law is man can be held responsible for doing any any
mischievous act or for causing injury to a person or property. To determine liability in law cause
of the act is an important factor. Before deciding liability causation should be decided first.
Ex: If A is held responsible for burning B’s house, first thing to be shown is that A has caused that
fire.
Causation is an important factor to determine whether it is civil or criminal liability.
Two types of Causation:

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a) Abnormal factors.
b) Human acts
Ex: If B’s house has caught fire due inflammable gas or electric short circuit or may be because of
abnormal cicumstances then it is called abnormal causation, but if A has deliberately caused the
fire to the B’s house then it is called human causation.
Either of these factors is necessary to see causation and indicate liability of doing such act.
1. Chain of Causation with reference casesandillustrations.
An act involves several factors for doing it. It is called chain of causation. If the chain of
causation is broken or interfered then the man cannot be held responsible for his acts. This is
contained in the maxim called Novus actus interveniens.
Ex: If A stabs B and B is taken to hospital where the doctor injects some medicine with the
knowledge that B is allergic to it despite of that he injects some high dose of it which resulted in
B’s death. Here the chain of causation is broken as the death of is caused due to medicine and not
by stabbing.
Case: Scott v. Shepherd:
In this case the defendant shepherd mischievously threw a lighted cigarette into a market
place and fell near yates who was selling ginger-bread. Willis to prevent injury to himself and
yates picked it up and threw it over shop of Royal and he picked it and threw it which got stucked
in the plaintiff’s eye and injured him.
The Court held that the injury is caused by defendant as Willis and Royal are intermediate agents
acted for the self-protection. And even if the defendant was not intending to cause harm to the
plaintiff yet he is responsible for the harm caused to plaintiff.
Conclusion.
Causation is therefore an element which involves several factors leading to a crime. It an
important factor to determine liability whether in civil or criminal of the wrongdoer and without
the chain of causation a man cannot be held responsible for the harm committed.

Q.No. 10.Discuss Negligence and Different theories of Negligence.

Jurists have defined “negligence” in different ways. SALMOND observed that negligence
is capable carelessness. To quote him: "negligence is the state of mind of undue indifference

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towards one's conduct and its consequences". It is carelessness in the matter in which carefulness
is obligatory under the law. Carelessness excludes wrongful intention.
Negligence - Intentional act is one that was foreseen and desired by the doer. Forbearance
is an intentional negative act. An unintentional negative act is referred to as an omission. An
omission is the non-doing a given act without adverting to the act not done. -
AUSTIN said, “an omission is not the consequence of an act oj the will but of that state
of the mind which is styled negligence and implies the absence of will and intention.
According to HOLLAND, negligence includes all those shades of inadvertence which
result in injury to others but there is total absence of consciousness on the part of the doer.
WILLES J. holds that "negligence is the absence of such case as it was the duty of the
defendant to use ”!.
According to SALMOND negligence is “the state of mind of undue indifference towards
one’s conduct and its consequences”.
Negligence essentially consists in the mental attitude of undue indifference with respect
to one’s conduct and its consequences. Negligence is nothing short of extreme carelessness.
Carelessness excludes wrongful intention. A thing which is intended cannot be attributed as
carelessness. Carelessness or negligence does not necessarily consist in thoughtlessness or
inadvertence.
Negligence as a tort is the breach of a legal duty to make care which results in damage,
undesired by the defendant, to the plaintiff. Thus its ingredients are:
a) A the legal duty on the part of A towards B to exercise in such as conduct of A falls within the
scope of the duty.
b) Breach of that duty
c) Consequential damages to
Theories of Negligence
There are two theories of negligence. One theory was propounded by SALMOND. One
theory was propounded by SALMOND. According to this theory, negligence is a state of mind -
mental attitude. This theory is called the subjective theory of negligence. The other theory has been
given by Sir FREDERICK POLLOCK. According to him negligence is a type of conduct. This is
called the objective theory of negligence. These theories shall be discussed separately.
1. Subjective Theory of negligence

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 The exponents of the subjective theory maintain that negligence is a state of mind.
According to them, negligence consists in the mental attitude of undue indifference with respect
to one’s conduct and its consequence. The subjective theory is given by SALMOND. His view is
that negligence is culpable carelessness. Although negligence is not the same as thoughtlessness
or inadvertence, it is nevertheless essentially an attitude of indifference. Therefore, according to
this view, negligence essentially “consists in the mental attitude of undue indifference with respect
to one’s conduct and its consequences .
A person is made liable on the ground of negligence because he does not sufficiently desire
to avoid a particular consequence- a harm. He is careless about the consequence and does the act
notwithstanding the risk that may ensure. WINFIELD is also the supporter of this theory. He says
that “as a mental element is tortuous liability, negligence usually signifies total or partial
inadvertence of the defendant to his conduct and for its consequence ..
According to AUSTIN, “want of advertence which one’s duty would naturally suggest, is
the fundamental idea in the conception of negligence In this opinion, a negligent wrongdoer is one
who does not know that his act is wrongful but would have known it had it not been because of
his indolence and inadvertence. Thoughtless is thus the essence of negligence for AUSTIN.
AUSTIN goes a step further elaborating his subjective theory and distinguishes negligence from
heedlessness, rashness and recklessness. For him, negligence is the state of mind of the person
who inadvertently omits an act and breaks a positive duty. In heedlessness he does not think of
probable mischief and does not bother to avert the possible consequences. In rashness, he does
foresee the consequences but foolishly thinks that they “would not follow” as a result of his act.
Recklessness, on the other hand is a condition of mind where the doer foresees the
consequences but does not care whether they result from his act or not. Thus, the line of distinction
between rashness and recklessness is very thin. In the former, there is erroneous thinking that
consequences would not follow while in the latter the person does not bother about the
consequences at all. Sir JOHN SALMOND objects to the above sub-classification of negligence
made by AUSTIN and treats all these categories under the common law, namely, “negligence The
reason being that in all of them there is failure of exhibit the standard of care required of a
reasonable man. In his opinion, AUSTIN’S view is fallacious because negligence may also be
deliberate or willful. He, therefore, concludes that “the essence of negligence is not inadvertence
but carelessness which may or may not result in inaverfence ".

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 2. Objective Theory of Negligence
According to this theory negligence is not a condition of mind but a particular kind of
conduct which is to be judged objectively. This theory is supported by FREDREIC POLLOCK.
It is the breach of duty to take care which a reasonable person under those circumstances would
take. The tort of negligence is based on objective approach to the conduct and its consequences.
According to Sir FREDERICK POLLOCK, “negligence is the contrary of diligence and no
one describes it as the state of mind"1. This theory postulates that negligence is an objective
fact. It is not an attitude of mind or a form of “mens rea ’’ at all, but to particular standard of
conduct. It is a breach of duty of not taking care and to take care means to take precautions
against the harmful results of one’s action and refrain from unreasonably dangerous kinds of
act. For example to drive at night without lights is negligence because having lights is the
conduct of precaution adopted by all prudent men. He who drives without lights in the night
has failed in that conduct. So to determine whether a man is negligent or not, one need not to
go into the state of min but to the standard of his conduct Negligence thus is a type of conduct
and not a state of mind. The view appears to be correct chiefly in the law of tort where
negligence is nothing more than a failure to achieve the objective standard of a prudent man,
and where a person has failed to achieve that standard of a prudent man, any defence on the
ground of mental state that he took the utmost care shall be of no use at all to him. Similar is
the position in criminal law as well.
All these are to be judged objectively on the basis as to how a reasonable man would have
acted in those circumstances.

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